UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
The Neiman Marcus Group, Inc.
--------------------------------------------------------------------------------
(Name of Issuer)
Class B Common Stock, par value $0.01 per share
--------------------------------------------------------------------------------
(Title of Class of Securities)
640204202
--------------------------------------------------------------------------------
(CUSIP Number)
David Spuria, Esq. Scott A. Arenare, Esq.
Texas Pacific Group Warburg Pincus LLC
301 Commerce Street, Suite 3300 466 Lexington Avenue
Fort Worth, TX 76102 New York, NY 10017
(817) 871-4000 (212) 878-0600
With copies to:
David Leinwand, Esq. Steven J. Gartner, Esq.
Cleary Gottlieb Steen & Hamilton LLP Willkie Farr and Gallagher LLP
One Liberty Plaza 787 Seventh Avenue
New York, NY 10006 New York, NY 10019
(212) 225-2000 (212) 728-8000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 1, 2005
--------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |_|
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Potential persons who are to respond to the collection of information contained
in this form are not required to respond unless the form displays a currently
valid OMB control number.
SEC 1746 (3-00)
Page 1 of 15 Pages
CUSIP No. 640204202 SCHEDULE 13D Page 2 of 15 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG Advisors III, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,038,586 (See Item 5)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,038,586 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.1% (See Item 5)
14 TYPE OF REPORTING PERSON
CO
CUSIP No. 640204202 SCHEDULE 13D Page 3 of 15 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG Advisors IV, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,038,586 (See Item 5)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,038,586 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.1% (See Item 5)
14 TYPE OF REPORTING PERSON
CO
CUSIP No. 640204202 SCHEDULE 13D Page 4 of 15 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg Pincus Private Equity VIII, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,038,586 (See Item 5)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,038,586 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.1% (See Item 5)
14 TYPE OF REPORTING PERSON
PN
CUSIP No. 640204202 SCHEDULE 13D Page 5 of 15 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg Pincus LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,038,586 (See Item 5)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,038,586 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.1% (See Item 5)
14 TYPE OF REPORTING PERSON
OO
CUSIP No. 640204202 SCHEDULE 13D Page 6 of 15 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg Pincus Partners LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,038,586 (See Item 5)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,038,586 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.1% (See Item 5)
14 TYPE OF REPORTING PERSON
OO
CUSIP No. 640204202 SCHEDULE 13D Page 7 of 15 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warburg Pincus & Co.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,038,586 (See Item 5)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,038,586 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.1% (See Item 5)
14 TYPE OF REPORTING PERSON
PN
CUSIP No. 640204202 SCHEDULE 13D Page 8 of 15 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Newton Acquisition, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,038,586 (See Item 5)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,038,586 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.1% (See Item 5)
14 TYPE OF REPORTING PERSON
CO
CUSIP No. 640204202 SCHEDULE 13D Page 9 of 15 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Newton Acquisition Merger Sub., Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
0
NUMBER OF SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,038,586 (See Item 5)
EACH REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,038,586 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.1% (See Item 5)
14 TYPE OF REPORTING PERSON
CO
Item 1. Security and Issuer.
-------------------
This statement on Schedule 13D (the "Schedule 13D") relates to the
Class B Common Stock, par value $0.01 per share (the "Class B Common Stock"), of
The Neiman Marcus Group, Inc., a Delaware corporation (the "Company"), whose
principal executive offices are located at One Marcus Square, 1618 Main Street,
Dallas, Texas 75201.
Item 2. Identity and Background.
-----------------------
This Schedule 13D is being filed jointly by the following persons
(collectively, the "Reporting Persons"): TPG Advisors III, Inc., a Delaware
corporation ("Advisors III"), TPG Advisors IV, Inc., a Delaware corporation
("Advisors IV"), Warburg Pincus Private Equity VIII, L.P., a Delaware limited
partnership ("WP VIII"), Warburg Pincus Partners LLC, a New York limited
liability company ("WP Partners"), Warburg Pincus & Co., a New York general
partnership ("WP"), Warburg Pincus LLC, a New York limited liability company
("WP LLC" and, together with WP VIII, WP Partners and WP, the "WP Reporting
Persons"), Newton Acquisition, Inc., a Delaware corporation ("Parent"), and
Newton Acquisition Merger Sub., Inc., a Delaware corporation ("Merger Sub"). The
agreement among the Reporting Persons relating to the joint filing of this
statement is attached as Exhibit 1 hereto. Information in this Schedule 13D with
respect to each of the Reporting Persons is given solely by that particular
Reporting Person and none of the other Reporting Persons has any responsibility
for the accuracy or completeness of information with respect to any other
Reporting Person.
Advisors III and Advisors IV
The address of the principal business of each of Advisors III and
Advisors IV is 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102.
The principal business of Advisors III is serving as the sole general
partner of related entities engaged in making investments in securities of
public and private corporations.
The principal business of Advisors IV is serving as the sole general
partner of related entities engaged in making investments in securities of
public and private companies.
The name, residence or business address, and present principal
occupation or employment of each director, executive officer and controlling
person of each of Advisors III and Advisors IV are described on Schedule I
hereto.
Except as otherwise indicated on Schedule I hereto, each of Advisors
III and Advisors IV and the individuals referred to on Schedule I hereto is a
United States citizen.
During the last five years, none of Advisors III and Advisors IV and,
to the knowledge of Advisors III and Advisors IV, none of the executive officers
or directors named on Schedule I, has been (1) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (2) a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
WP Reporting Persons
The address of the principal business and principal office of each of
the WP Reporting Persons is 466 Lexington Avenue, New York, New York 10017.
The principal business of WP VIII is that of making private equity and
related investments. The principal business of WP is acting as managing member
of WP Partners. The principal business of WP Partners is acting as the general
partner of WP VIII and certain related private equity funds, and the principal
business of WP LLC is acting as manager of WP VIII and certain related private
equity funds.
The name, residence or business address, and present principal
occupation or employment of each partner, member, director and controlling
person of WP Partners, WP and WP LLC are described on Schedule II hereto.
Except as otherwise indicated on Schedule II hereto, each of the WP
Reporting Persons and the individuals referred to on Schedule II hereto is a
United States citizen.
During the last five years, none of the WP Reporting Persons and, to
the knowledge of the WP Reporting Persons, none of the partners, members or
directors named on Schedule II, has been (1) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (2) a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Parent and Merger Sub
The address of the principal business of each of Parent and Merger Sub
is 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102.
Parent is a newly formed Delaware corporation, formed to serve as the
sole stockholder of Merger Sub. Merger Sub is a newly formed Delaware limited
liability company formed solely to merge with and into the Company in accordance
with the Merger Agreement (as defined in Item 4).
The name, residence or business address, and present principal
occupation or employment of each director, executive officer and controlling
person of Parent and Merger Sub are described on Schedule III hereto.
Except as otherwise indicated on Schedule III hereto, each of Parent,
Merger Sub and the individuals referred to on Schedule III hereto is a United
States citizen.
During the last five years, none of Parent and Merger Sub and, to the
knowledge of Parent and Merger Sub, none of the executive officers or directors
listed on Schedule III, has been (1) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (2) a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
As an inducement to Parent and Merger Sub to enter into the Merger
Agreement (as defined in Item 4), Parent and Merger Sub entered into a
Stockholder Agreement, dated as of May 1, 2005 (the "Stockholder Agreement"),
with the parties signatory thereto (collectively, the "Stockholders") who are
persons and entities related to the family of Richard A. Smith. Parent did not
pay additional consideration in connection with the execution and delivery of
the Stockholder Agreement. In addition, the Stockholders delivered an
irrevocable proxy for the purpose of voting the shares covered by the
Stockholder Agreement.
Item 4. Purpose of Transaction.
----------------------
On May 1, 2005, Parent, Merger Sub, and the Company entered into an
Agreement and Plan of Merger (the "Merger Agreement") providing for the merger
(the "Merger") of Merger Sub with and into the Company, which will result in the
Company becoming a wholly-owned subsidiary of Parent. Subject to the terms and
conditions of the Merger Agreement, at the effective time of the Merger, each
share of Class A Common Stock, par value $0.01 per share, of the Company (the
"Class A Common Stock"), Class B Common Stock and Class C Common Stock, par
value $0.01 per share, of the Company (together with the Class A and Class B
Common Stock, the "Common Stock") issued and outstanding immediately prior to
the effective time of the Merger will be converted into the right to receive
$100.00 in cash (other than shares held in the treasury of the Company or owned
by Merger Sub, Parent or any wholly-owned subsidiary of Parent or the Company
and other than shares held by a stockholder who properly demands statutory
appraisal rights).
In connection with the Merger Agreement, the Stockholders entered into
a Stockholder Agreement with Parent and Merger Sub with respect to (i) 16,471
shares of Class A Common Stock and 6,038,586 shares of Class B Common Stock,
collectively representing all of the Common Stock beneficially owned by the
Stockholders as of the date of the Stockholder Agreement, and (ii) any Common
Stock acquired by such Stockholders after the date of the Stockholder Agreement
(collectively, the "Covered Shares"). Subject to the terms and conditions of the
Stockholder Agreement, each Stockholder has agreed to vote all of the Covered
Shares that such Stockholder is entitled to vote (a) to approve and adopt the
Merger and the Merger Agreement and (b) against (i) any Acquisition Proposal (as
defined in the Merger Agreement), (ii) any extraordinary dividend or
distribution by the Company or any subsidiary, (iii) any change in the capital
structure of the Company or any of its subsidiaries (other than pursuant to the
Merger Agreement) and (iv) any other action that would reasonably be expected
to, in any material respect, prevent, impede, interfere with, delay, postpone,
frustrate the purposes of or attempt to discourage the transactions contemplated
by the Merger Agreement. In addition, each Stockholder agreed that any
agreements among the Stockholders or any of them which could be construed to
limit their respective rights to enter into or perform under the Stockholder
Agreement would be amended to the full extent necessary to assure that entering
into and performing under the Stockholder Agreement would be permitted under
each such agreement without breach of such agreement.
Each Stockholder irrevocably and unconditionally granted a proxy
appointing Parent as such Stockholder's attorney-in-fact and proxy to vote the
Covered Shares as described above.
Each Stockholder also agreed not to, without the prior written consent
of Parent or Merger Sub, (i) grant any proxies or enter into any voting trust or
other agreement or arrangement with respect to the voting of any Covered Shares
in a manner inconsistent with the terms of the Stockholder Agreement, (ii)
voluntarily take any action that would or is reasonably likely to (A) make any
representation or warranty contained therein untrue or incorrect in any material
respect or (B) have the effect in any material respect of preventing such
Stockholder from performing its obligations under the Stockholder Agreement or
(iii) voluntarily sell (as defined in the Stockholder Agreement), assign,
transfer, encumber or otherwise dispose of, or enter into any contract, option
or other arrangement or understanding with respect to the direct or indirect
sale, assignment, transfer, encumbrance or other disposition of, any Covered
Shares during the term of the Stockholder Agreement except for transfers (A) to
any person or entity who is subject to the Stockholder Agreement or who becomes
bound thereby as a Stockholder by operation of law or by becoming party to the
Stockholder Agreement or (B) to charitable organizations, provided such shares
constitute, in the aggregate (including all shares so transferred to charitable
organizations by all Stockholders from May 1, 2005), not more than 250,000
shares of the outstanding shares of Common Stock (the "Cap"). Any shares
transferred to any charitable organization on the terms and conditions of clause
(iii)(A) above will not be counted toward the Cap.
Each Stockholder has agreed to not, directly or indirectly, (i) take
any action to solicit or initiate any Acquisition Proposal or (ii) engage in
negotiations with, or disclose any nonpublic information relating to the Company
or any of its subsidiaries or afford access to the properties, books or records
of the Company or any of its subsidiaries to, any person that may be considering
making, or has made, an Acquisition Proposal or has agreed to endorse an
Acquisition Proposal. Each Stockholder has also agreed to promptly notify Parent
and Merger Sub after receipt of an Acquisition Proposal or any request for
nonpublic information relating to the Company or any of its subsidiaries or for
access to the properties, books or records of the Company or any of its
subsidiaries by any person that may be considering making, or has made, an
Acquisition Proposal and to advise Merger Sub of the status and material details
of any such Acquisition Proposal or request. Each Stockholder has further agreed
not to exercise any rights to demand appraisal of any Covered Shares in
connection with the Merger.
The Stockholder Agreement will terminate upon the earlier to occur of
the effective time of the Merger and the termination of the Merger Agreement in
accordance with its terms.
The preceding summary of certain provisions of the Merger Agreement and
the Stockholder Agreement is not intended to be complete and is qualified in its
entirety by reference to the full text of such agreements. A copy of the Merger
Agreement was filed as Exhibit 2.1 to a report on Form 8-K filed by the Company
on May 4, 2005, and is incorporated herein by reference. A copy of the
Stockholder Agreement has been filed herewith as Exhibit 2 to this Schedule 13D
and is incorporated herein by reference.
Other than as described above, none of the Reporting Persons has any
plans or proposals that relate to or would result in any of the actions
described in Item 4 of Schedule 13D (although the Reporting Persons reserve the
right to develop such plans).
Item 5. Interest in Securities of the Issuer.
------------------------------------
As of the date hereof, neither Parent nor Merger Sub owns any shares of
Common Stock. Parent and Merger Sub may, however, be deemed to have shared
voting power with respect to 16,471 shares of Class A Common Stock and 6,038,586
shares of Class B Common Stock, which are subject to the Stockholder Agreement
described above in Item 4 and which together represent 12.4% of the outstanding
Common Stock. Advisors III, Advisors IV, WP VIII, WP Partners, WP and WP LLC
are, indirectly, the sole stockholders of Parent. As a result, each of Advisors
III, Advisors IV, WP VIII, WP Partners WP and WP LLC may be deemed to
beneficially own any shares of Common Stock that may be deemed to be
beneficially owned by Parent.
Each of the Reporting Persons disclaims beneficial ownership of any
Common Stock. Neither the filing of this Schedule 13D nor any of its contents
shall be deemed to constitute an admission that any Reporting Person or any of
its affiliates is the beneficial owner of any Common Stock for purposes of
Section 13(d) of the Exchange Act or for any other purpose.
Except as disclosed in this Schedule 13D, none of the Reporting
Persons, nor (i) to the knowledge of Advisors III and Advisors IV, any of the
persons named on Schedule I hereto, (ii) to the knowledge of the WP Reporting
Persons, any of the persons named on Schedule II hereto and (iii) to the
knowledge of Parent and Merger Sub, any of the persons named on Schedule III
hereto, as of the date hereof, has power to vote or to direct the vote or to
dispose or direct the disposition of any of the shares of Common Stock.
Except as set forth in this Schedule 13D, none of the Reporting
Persons, nor (i) to the knowledge of Advisors III and Advisors IV, any of the
persons named on Schedule I hereto, (ii) to the knowledge of the WP Reporting
Persons, any of the persons named on Schedule II hereto and (iii) to the
knowledge of Parent and Merger Sub, any of the persons named on Schedule III
hereto, has beneficial ownership of, or has engaged in any transaction during
the past 60 days in, any shares of Common Stock.
No Reporting Person has the right to receive dividends from and the
proceeds from the sale of any of the Covered Shares that are the subject to the
Stockholder Agreement and reported in this Item 5.
Percentages set forth in this Schedule 13D were calculated based on
29,525,199 shares of Class A Common Stock and 19,422,379 shares of Class B
Common Stock issued and outstanding as of April 28, 2005, as represented by the
Company in the Merger Agreement.
Item 6. Contracts, Arrangements, Understanding or Relationships
with Respect to Securities of the Issuer.
-------------------------------------------------------
Except as set forth in response to other Items of this 13D and the
agreements incorporated herein by reference and set forth as exhibits hereto, to
the best knowledge of the Reporting Persons, there are no other contracts,
arrangements, understandings or relationships (legal or otherwise) among the
persons named in Item 2 and between such persons and any person with respect to
any securities of the Company, including but not limited to, transfer or voting
of any of the securities of the Company, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies, or a pledge or contingency the
occurrence of which would give another person voting power over the securities
of the Company.
Item 7. Material to be Filed as Exhibits
--------------------------------
Exhibit 1 Joint Filing Agreement, dated May 9, among the Reporting Persons,
relating to the filing of a joint statement on Schedule 13D.
Exhibit 2 The Stockholder Agreement, dated as of May 1, 2005, by and among
Newton Acquisition, Inc., Newton Acquisition Merger Sub., Inc. and
the parties signatory thereto.
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to TPG Advisors III, Inc. is true, complete and correct.
Dated: May 9, 2005
TPG ADVISORS III, INC.
By: /s/ David A. Spuria
-------------------------------------
Name: David A. Spuria
Title: Vice President and Secretary
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to TPG Advisors IV, Inc. is true, complete and correct.
Dated: May 9, 2005
TPG ADVISORS IV, INC.
By: /s/ David A. Spuria
-------------------------------------
Name: David A. Spuria
Title: Vice President and Secretary
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to Warburg Pincus Private Equity VIII, L.P. is true, complete and correct.
Dated: May 9, 2005
WARBURG PINCUS PRIVATE EQUITY VIII, L.P.
By: WARBURG PINCUS PARTNERS LLC,
Its General Partner
By: WARBURG PINCUS & CO.,
Its Managing Member
By: /s/ Scott A. Arenare
-------------------------------------
Name: Scott A. Arenare
Title: Partner
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to Warburg Pincus LLC is true, complete and correct.
Dated: May 9, 2005
WARBURG PINCUS LLC
By: /s/ Scott A. Arenare
-------------------------------------
Name: Scott A. Arenare
Title: Managing Director
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to Warburg Pincus & Co. is true, complete and correct.
Dated: May 9, 2005
WARBURG PINCUS & CO.
By: /s/ Scott A. Arenare
-------------------------------------
Name: Scott A. Arenare
Title: Partner
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to Warburg Pincus Partners LLC is true, complete and correct.
Dated: May 9, 2005
WARBURG PINCUS PARTNERS LLC
By: Warburg Pincus & Co., its Managing Member
By: /s/ Scott A. Arenare
-------------------------------------
Name: Scott A. Arenare
Title: Partner
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to Newton Acquisition, Inc. is true, complete and correct.
Dated: May 9, 2005
NEWTON ACQUISITION, INC.
By: /s/ David A. Spuria
-------------------------------------
Name: David A. Spuria
Title: Vice President and Secretary
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to Newton Acquisition Merger Sub., Inc. is true, complete and correct.
Dated: May 9, 2005
NEWTON ACQUISITION MERGER SUB., INC.
By: /s/ David A. Spuria
-------------------------------------
Name: David A. Spuria
Title: Vice President and Secretary
SCHEDULE I
The name, position, present principal occupation and business
address of each director and executive officer of Advisors III and Advisors IV
are set forth below.
All individuals listed below are U.S. citizens.
Name Position Business Address
---- -------- ----------------
David Bonderman Chairman of the Board of 301 Commerce Street,
Directors and President of Suite 3300,
Advisors III and Advisors IV and Fort Worth, Texas 76102
Director
James G. Coulter Director and Vice President of 345 California Street,
Advisors III and Advisors IV Suite 3300,
San Francisco, California 94104
William S. Director and Vice President of 345 California Street,
Price, III Advisors III and Advisors IV Suite 3300,
San Francisco, California 94104
James J. O'Brien Vice President and Assistant 301 Commerce Street,
Treasurer of Advisors III and Suite 3300,
Avisors IV Fort Worth, Texas 76102
David A. Spuria Vice President and Secretary of 301 Commerce Street,
Advisors III and Advisors IV Suite 3300,
Fort Worth, Texas 76102
John E. Viola Vice President and Treasurer of 301 Commerce Street,
Advisors III and Advisors IV Suite 3300,
Fort Worth, Texas 76102
Richard A. Ekleberry Vice President and Assistant 301 Commerce Street,
Secretary of Advisors III and Suite 3300,
Advisors IV Fort Worth, Texas 76102
Thoman E. Reinhart Vice President of Advisors III 301 Commerce Street,
and Advisors IV Suite 3300,
Fort Worth, Texas 76102
Jonathan Coslet Vice President of Advisors III 345 California Street,
and Advisors IV Suite 3300,
San Francisco, California 94104
Linda Rogenski Assistant Secretary of Advisors 301 Commerce Street,
III, and Advisors IV Suite 3300,
Fort Worth, Texas 76102
S. Michelle Reese Assistant Secretary of Advisors 301 Commerce Street,
III and Advisors IV Suite 3300,
Fort Worth, Texas 76102
SCHEDULE II
Set forth below is the name, position and present principal occupation
of each of the general partners of WP and members of WP LLC. The sole general
partner of WP VIII is WP Partners, a subsidiary of WP. Except as otherwise
indicated, the business address of each of such persons is 466 Lexington Avenue,
New York, New York 10017, and each of such persons is a citizen of the United
States.
GENERAL PARTNERS OF WP
----------------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH WP, AND POSITIONS
NAME WITH THE WP REPORTING PERSONS
---- -----------------------------
Joel Ackerman Partner of WP; Member and Managing Director of WP LLC
Scott A. Arenare Partner of WP; Member and Managing Director of WP LLC
Gregory Back Partner of WP; Member and Managing Director of WP LLC
David Barr Partner of WP; Member and Managing Director of WP LLC
Larry Bettino Partner of WP; Member and Managing Director of WP LLC
Harold Brown Partner of WP; Member and Managing Director of WP LLC
Sean D. Carney Partner of WP; Member and Managing Director of WP LLC
Mark Colodny Partner of WP; Member and Managing Director of WP LLC
Timothy J. Curt Partner of WP; Member and Managing Director of WP LLC
W. Bowman Cutter Partner of WP; Member and Managing Director of WP LLC
Cary J. Davis Partner of WP; Member and Managing Director of WP LLC
Oliver M. Goldstein Partner of WP; Member and Managing Director of WP LLC
Michael Graff Partner of WP; Member and Managing Director of WP LLC
Patrick T. Hackett Partner of WP; Member and Managing Director of WP LLC
Jeffrey A. Harris Partner of WP; Member and Managing Director of WP LLC
Stewart J. Hen Partner of WP; Member and Managing Director of WP LLC
William H. Janeway Partner of WP; Member and Vice Chairman of WP LLC
Julie A. Johnson Partner of WP; Member and Managing Director of WP LLC
Peter R. Kagan Partner of WP; Member and Managing Director of WP LLC
Charles R. Kaye Managing General Partner of WP; Managing Member and
Co-President of WP LLC
Henry Kressel Partner of WP; Member and Managing Director of WP LLC
Joseph P. Landy Managing General Partner of WP; Managing Member and
Co-President of WP LLC
Sidney Lapidus Partner of WP; Member and Managing Director of WP LLC
Kewsong Lee Partner of WP; Member and Managing Director of WP LLC
Jonathan S. Leff Partner of WP; Member and Managing Director of WP LLC
Reuben S. Leibowitz Partner of WP; Member and Managing Director of WP LLC
Rodman W. Moorhead III Partner of WP; Member and Managing Director of WP LLC
James Neary Partner of WP; Member and Managing Director of WP LLC
Dalip Pathak Partner of WP; Member and Managing Director of WP LLC
Lionel I. Pincus Partner of WP; Member and Chairman of WP LLC
Michael F. Profenius Partner of WP; Member and Managing Director of WP LLC
Stan Raatz Partner of WP; Member and Managing Director of WP LLC
Henry B. Schacht Partner of WP; Member and Managing Director of WP LLC
Steven G. Schneider Partner of WP; Member and Managing Director of WP LLC
Mimi Strouse Partner of WP; Member and Managing Director of WP LLC
Barry Taylor Partner of WP; Member and Managing Director of WP LLC
Christopher H. Turner Partner of WP; Member and Managing Director of WP LLC
John L. Vogelstein Partner of WP; Member and Vice Chairman of WP LLC
John R. Vrolyk Partner of WP; Member and Managing Director of WP LLC
Elizabeth H. Weatherman Partner of WP; Member and Managing Director of WP LLC
David J. Wenstrup Partner of WP; Member and Managing Director of WP LLC
Rosanne Zimmerman Partner of WP; Member and Managing Director of WP LLC
Pincus & Company LLC*
NL & Co.**
---------------------
* New York limited liability company; primary activity is ownership interest
in WP and WP LLC
** New York limited partnership; primary activity is ownership interest in WP.
MEMBERS OF WP LLC
-----------------
PRESENT PRINCIPAL OCCUPATION IN ADDITION
TO POSITION WITH WP LLC, AND POSITIONS
NAME WITH THE WP REPORTING PERSONS
---- -----------------------------
Joel Ackerman Member and Managing Director of WP LLC; Partner of WP
Scott A. Arenare Member and Managing Director of WP LLC; Partner of WP
Gregory Back Member and Managing Director of WP LLC; Partner of WP
David Barr Member and Managing Director of WP LLC; Partner of WP
Larry Bettino Member and Managing Director of WP LLC, Partner of WP
Harold Brown Member and Managing Director of WP LLC; Partner of WP
Sean D. Carney Member and Managing Director of WP LLC; Partner of WP
Stephen John Coates (1) Member and Managing Director of WP LLC
Mark Colodny Member and Managing Director of WP LLC; Partner of WP
Timothy J. Curt Member and Managing Director of WP LLC; Partner of WP
W. Bowman Cutter Member and Managing Director of WP LLC; Partner of WP
Cary J. Davis Member and Managing Director of WP LLC; Partner of WP
Oliver M. Goldstein Member and Managing Director of WP LLC; Partner of WP
Michael Graff Member and Managing Director of WP LLC; Partner of WP
Patrick T. Hackett Member and Managing Director of WP LLC; Partner of WP
Jeffrey A. Harris Member and Managing Director of WP LLC; Partner of WP
Stewart J. Hen Member and Managing Director of WP LLC; Partner of WP
Sung-Jin Hwang (2) Member and Managing Director of WP LLC
William H. Janeway Member and Vice Chairman of WP LLC; Partner of WP
Julie A. Johnson Member and Managing Director of WP LLC; Partner of WP
Peter R. Kagan Member and Managing Director of WP LLC; Partner of WP
Charles R. Kaye Managing Member and Co-President of WP LLC; Managing
General Partner of WP
Rajesh Khanna (3) Member and Managing Director of WP LLC
Henry Kressel Member and Managing Director of WP LLC; Partner of WP
Joseph P. Landy Managing Member and Co-President of WP LLC; Managing
General Partner of WP
Sidney Lapidus Member and Managing Director of WP LLC; Partner of WP
Kewsong Lee Member and Managing Director of WP LLC; Partner of WP
Jonathan S. Leff Member and Managing Director of WP LLC; Partner of WP
Reuben S. Leibowitz Member and Managing Director of WP LLC; Partner of WP
David Li (4) Member and Managing Director of WP LLC
Nicholas J. Lowcock (1) Member and Managing Director of WP LLC
John W. MacIntosh (5) Member and Managing Director of WP LLC
Rodman W. Moorhead III Member and Managing Director of WP LLC; Partner of WP
James Neary Member and Managing Director of WP LLC; Partner of WP
Bilge Ogut (6) Member and Managing Director of WP LLC
Dalip Pathak Member and Managing Director of WP LLC; Partner of WP
Lionel I. Pincus Member and Chairman of WP LLC; Partner of WP
Pulak Chandan Prasad (3) Member and Managing Director of WP LLC
Michael F. Profenius Member and Managing Director of WP LLC; Partner of WP
Stan Raatz Member and Managing Director of WP LLC; Partner of WP
Henry B. Schacht Member and Managing Director of WP LLC; Partner of WP
Steven G. Schneider Member and Managing Director of WP LLC; Partner of WP
Joseph C. Schull (5) Member and Managing Director of WP LLC
Mimi Strouse Member and Managing Director of WP LLC; Partner of WP
Chang Q. Sun (4) Member and Managing Director of WP LLC
Barry Taylor Member and Managing Director of WP LLC; Partner of WP
Christopher H. Turner Member and Managing Director of WP LLC; Partner of WP
John L. Vogelstein Member and Vice Chairman of WP LLC; Partner of WP
John R. Vrolyk Member and Managing Director of WP LLC; Partner of WP
Elizabeth H. Weatherman Member and Managing Director of WP LLC; Partner of WP
David J. Wenstrup Member and Managing Director of WP LLC; Partner of WP
Peter Wilson (1) Member and Managing Director of WP LLC
Jeremy S. Young (1) Member and Managing Director of WP LLC
Rosanne Zimmerman Member and Managing Director of WP LLC; Partner of WP
Pincus & Company LLC*
(1) Citizen of United Kingdom
(2) Citizen of Korea
(3) Citizen of India
(4) Citizen of Hong Kong
(5) Citizen of Canada
(6) Citizen of Turkey
* New York limited liability company; primary activity is ownership interest
in WP and WP LLC
SCHEDULE III
The name, position, present principal occupation and business
address of each director and executive officer of Parent and Merger Sub are set
forth below.
All individuals listed below are U.S. citizens.
Name Position Business Address
---- -------- ----------------
David Bonderman Director and President of Parent 301 Commerce Street,
and Merger Sub Suite 3300,
Fort Worth, Texas 76102
James G. Coulter Director and Senior Vice 345 California Street, Suite
President of Parent and Merger 3300, San Francisco,
Sub California 94104
William S. Price Director and Senior Vice 345 California Street,
President of Parent and Merger Suite 3300,
Sub San Francisco, California 94104
Kewsong Lee Senior Vice President of Parent 466 Lexington Avenue,
and Merger Sub New York, New York 10017
John E. Viola Vice President and Treasurer of 301 Commerce Street,
Parent and Merger Sub Suite 3300,
Fort Worth, Texas 76102
Jonathan Coslet Senior Vice President of Parent 345 California Street,
and Merger Sub Suite 3300,
San Francisco, California 94104
Oliver Goldstein Director, Vice President and 466 Lexington Avenue,
Assistant Treasurer of Parent New York, New York 10017
and Merger Sub
Carrie Wheeler Vice President of Parent and 345 California Street,
Merger Sub Suite 3300,
San Francisco, California 94104
David Barr Director and Senior Vice 466 Lexington Avenue,
President of Parent and Merger New York, New York 10017
Sub
David A. Spuria Vice President and Secretary of 301 Commerce Street,
Parent and Merger Sub Suite 3300,
Fort Worth, Texas 76102
Tim Curt Vice President of Parent and 466 Lexington Avenue,
Merger Sub New York, New York 10017
Linda Rogenski Assistant Secretary of Parent 301 Commerce Street,
and Merger Sub Suite 3300,
Fort Worth, Texas 76102
S. Michelle Reese Assistant Secretary of Parent 301 Commerce Street,
and Merger Sub Suite 3300,
Texas 76102 Fort Worth, Texas 76102