EXHIBIT
4.3


 


EXECUTION
COPY


 


 


VOTING AGREEMENT


 


Voting
Agreement (this “Agreement”), dated as of October 5, 2003, by and among
MERCURY MAN HOLDINGS CORPORATION, a Delaware corporation (“Parent”), and the
stockholder(s) listed on the signature pages hereto (the “Stockholder”).


 


WHEREAS,
simultaneously with the execution and delivery of this Agreement, Parent,
Nectar Merger Corporation, a Delaware corporation and a wholly owned subsidiary
of Parent (“Merger Sub”), and FTD, Inc., a Delaware corporation (the “Company”),
are entering into an Agreement and Plan of Merger, dated as of the date hereof
(the “Merger
Agreement”), providing, among other things, for the merger of Merger
Sub with and into the Company with the Company continuing as the surviving
corporation and wholly owned subsidiary of Parent (the “Merger”); and


 


WHEREAS,
as of the date hereof, the Stockholder is the Beneficial Owner (as defined
below) of, and has the sole right to vote and dispose of that number of shares
of Class A common stock, par value $0.01 per share (the “Company Shares”), and Class B
common stock, par value $0.0005 per share (the “Class B Shares”), of the
Company set forth beside the Stockholder’s name on Schedule A hereto; and


 


WHEREAS,
concurrently with the execution of the Merger Agreement, and as a condition to
Merger Sub and Parent entering into the Merger Agreement and incurring the
obligations set forth therein, Parent has required that the Stockholder enter
into this Agreement and that certain other substantial stockholders of the
Company (the “Other Stockholders”) enter into substantially similar
agreements (the “Other Voting Agreements”);


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants and agreements contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


Capitalized
terms used but not defined in this Agreement are used in this Agreement with
the meanings given to such terms in the Merger Agreement.  In addition, for purposes of this Agreement:


 


“Affiliate”
means, with respect to any specified Person, any Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Person specified.  For purposes of this Agreement, with respect
to the Stockholder, “Affiliate” shall not include the Company and the
Persons that directly, or indirectly through one or more intermediaries, are
controlled by the Company.  For the
avoidance of doubt, however, no officer or director of the Company shall be
deemed an Affiliate of another officer or director of the Company by virtue of
his or her status as a director or officer of the Company.


 

















 


“Alternative
Transaction” means (a) any transaction of the type described in
clauses (i) through (iv) of the definition of Acquisition Proposal
contained in the Merger Agreement other than the transactions contemplated by
the Merger Agreement and (b) any other action, agreement or transaction
that would result in a breach of any representation, warranty, covenant or
other obligation or agreement of the Company contained in the Merger Agreement
(or of the Stockholder contained in this Agreement) or that might hinder,
delay, impede or frustrate the consummation of the transactions contemplated by
the Merger Agreement.


 


“Beneficially
Owned” or “Beneficial Ownership” with respect to any securities
means having beneficial ownership of such securities (as determined pursuant to
Rule 13d-3 under the Exchange Act, disregarding the phrase “within 60 days” in
paragraph (d)(1)(i) thereof), including pursuant to any agreement, arrangement
or understanding, whether or not in writing.


 


“Beneficial
Owner” with respect to any securities means a Person that has Beneficial
Ownership of such securities.


 


“Equity
Interest” means with respect to any Person, any and all shares, interests,
participations, rights in, or other equivalents (however designated and whether
voting or non-voting) of, such Person’s capital stock or other equity interests
(including, without limitation, partnership or membership interests in a
partnership or limited liability company or any other interest or participation
that confers on a Person the right to receive a share of the profits and
losses, or distributions of assets, of the issuing Person) whether outstanding
on the date hereof or issued after the date hereof.


 


“Person”
means an individual, corporation, limited liability company, partnership,
association, trust or any other entity or organization, including any
Governmental Entity (as defined in the Merger Agreement).


 


“Subject
Shares” means, with respect the Stockholder, without duplication,
(i) Company Shares and Class B Shares Beneficially Owned by the
Stockholder on the date hereof as described on Schedule A hereto,
(ii) any additional Company Shares or Class B Shares acquired by the
Stockholder or over which it acquires Beneficial Ownership after the date
hereof and prior to the Effective Time, (iii) any Equity Interests of any
Person that the Stockholder is or becomes entitled to receive by reason of
being a holder of any of the Subject Shares, and (iv) any Equity Interests
or other property into which any of such Subject Shares shall have been or
shall be converted or changed, whether by amendment to the certificate of
incorporation of the Company, merger, consolidation, reorganization,
reclassification, capital change or otherwise.


 


“Transfer”
means, with respect to a security, the sale, transfer, pledge, hypothecation,
encumbrance, assignment or disposition of such security or the Beneficial
Ownership thereof and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb, “Transfer”
shall have a correlative meaning.


 


2

















 


ARTICLE II


 


COVENANTS
OF THE STOCKHOLDER


 


Section 2.1             Agreement to Vote.


 


(a)           The Stockholder agrees
that at any meeting of the stockholders of the Company held prior to the
Expiration Date (as defined in Section 5.13), however called, and at every
adjournment or postponement thereof prior to the Expiration Date, or in
connection with any written consent of, or any other action by, the
stockholders of the Company given or solicited prior to the Expiration Date,
the Stockholder shall vote, or provide a consent with respect to, all of the
Subject Shares entitled to vote or to consent thereon (a) in favor of
approval of adoption of the Merger Agreement and the transactions contemplated
thereby, and any actions required in furtherance thereof and (b) against
any Alternative Transaction.


 


(b)           Except as set forth on
Schedule A hereto, the Stockholder shall not enter into any agreement or
understanding with any Person prior to the Expiration Date directly or
indirectly to vote, grant any proxy or give instructions with respect to the
voting of, the Subject Shares.


 


Section 2.2             Revocation of
Proxies; Cooperation.  The
Stockholder agrees as follows:


 


(a)           The Stockholder hereby
represents and warrants that any proxies heretofore given by the Stockholder in
respect of the Subject Shares are not irrevocable and the Stockholder, except
as set forth on Schedule A hereto, hereby revokes any and all such prior
proxies with respect to such Subject Shares. 
Prior to the Expiration Date, except as set forth on Schedule A
hereto, the Stockholder shall not directly or indirectly grant any proxies or
powers of attorney with respect to the matters set forth in Section 2.1,
deposit any of the Subject Shares or enter into a voting agreement (other than
this Agreement) with respect to any of the Subject Shares.


 


(b)           At the Company’s
expense, the Stockholder will provide information reasonably requested by the
Company , Parent or Merger Sub for any regulatory application or filing made or
approval sought for, or in connection with, the Merger and the other
transactions contemplated by the Merger Agreement.


 


(c)           The Stockholder will
take all action necessary to (i) in connection with any duly held and
called meeting of stockholders of the Company, or any written consent of, or
other action by, the stockholders of the Company, prior to the Expiration Date,
vote the Subject Shares in accordance with the terms of this Agreement,
(ii) assuming the consummation of the Merger in accordance with the terms
of the Merger Agreement, permit the Subject Shares to be acquired in the Merger
and (iii) prevent creditors in respect of any pledge of such shares from
exercising their rights under such pledge in a manner inconsistent with the
terms of this Agreement.


 


3

















 


Section 2.3             No Solicitation.  The Stockholder agrees that:


 


(a)           The Stockholder shall
not, and shall cause its Affiliates and its and their directors, employees,
attorneys, accountants, advisors, representatives and agents (“Representatives”)
not to, directly or indirectly, (i) solicit or initiate or knowingly
encourage or take any other action to facilitate the submission of any
Acquisition Proposal or any other proposal related to an Alternative
Transaction or initiate an Alternative Transaction, (ii) participate or
engage in substantive discussions or negotiations with, or disclose or provide
any non-public information relating to the Company or its Subsidiaries to, or
knowingly facilitate any inquiries by, any Person, that to the actual knowledge
of the Stockholder at the relevant time is making any proposal that
constitutes, or that would reasonably be expected to lead to, any Acquisition
Proposal or any Alternative Transaction, (iii) knowingly facilitate the making
of any proposal that constitutes, or that would reasonably be expected to lead
to, any Acquisition Proposal or Alternative Transaction,  (iv) approve, endorse, recommend or
vote for any Acquisition Proposal or Alternative Transaction, or (v) enter
into any agreement or agreement in principle, letter of intent or similar
document contemplating or otherwise relating to any Acquisition Proposal or
Alternative Transaction.


 


(b)           Notwithstanding
anything to the contrary contained in this Agreement: (i) the provisions
of this Agreement apply solely to the Stockholder when acting in his or its
capacity as a stockholder of the Company and not when acting or purporting to
act as a representative or an officer or director of the Company (it being
understood that the Company has separate and independent obligations to Parent
and Merger Sub under Section 7.10 of the Merger Agreement); (ii) none
of the provisions of this Agreement shall be construed to prohibit, limit or
restrict the Stockholder, any of its Affiliates or any of their respective
representatives (A) who is a member of the Board of Directors of the
Company from exercising his fiduciary duties to the Company by voting or taking
any other action whatsoever in his capacity as a director or (B) who is an
officer or employee of the Company from taking any action whatsoever in such
capacity; and (iii) no action taken by the Company in compliance with the
covenants of the Merger Agreement in respect of any Acquisition Proposal shall
serve as the basis of a claim that the Stockholder is in breach of its
obligations hereunder notwithstanding the fact that the Stockholder or its
representatives have provided advice or assistance to the Company in connection
therewith.


 


Section 2.4             No Transfer of
Subject Shares; Publicity.  The
Stockholder agrees that:


 


(a)           During the term of this
Agreement, the Stockholder shall not (i) except as set forth on
Schedule A hereto, subject any of the Subject Shares to, or suffer to
exist on any of the Subject Shares, any Encumbrances or (ii)  not Transfer
or agree to Transfer any of the Subject Shares (other than by operation of the
Merger) or grant any proxy or power-of-attorney with respect to any of the
Subject shares.  The foregoing
restrictions will not apply to Transfers to Affiliates of the Stockholder who
have executed an instrument, in form and substance reasonably


 


4

















 


satisfactory to Parent,
agreeing to be bound by this Agreement to the same extent as the Stockholder
with respect to the Subject Shares to which such Transfer relates; provided,
that the Stockholder shall remain liable for any failure by such Affiliate to
so perform under this agreement.


 


(b)           Unless required by
applicable law or in connection with any mandatory regulatory or other filings,
neither the Stockholder nor any of its Affiliates or Representatives shall make
any press release or public announcement with respect to the business or
affairs of the Company, Parent or Merger Sub, including this Agreement and the
Merger Agreement and the transactions contemplated hereby and thereby, without
the prior written consent of Parent.


 


Section 2.5             No Appraisal.  The Stockholder agrees not to make a written
demand for appraisal in respect of the Subject Shares in accordance with Section 262
of the Delaware General Corporation Law in connection with the Merger.


 


ARTICLE III


 


REPRESENTATIONS,
WARRANTIES AND ADDITIONAL COVENANTS

OF THE STOCKHOLDER


 


The
Stockholder represents, warrants and covenants to Merger Sub that:


 


Section 3.1             Ownership.  The Stockholder is the Beneficial Owner of
the Subject Shares identified on Schedule A hereto and such shares
constitute all of the capital stock of the Company Beneficially Owned by the
Stockholder.  The Stockholder good,
valid and marketable title to all of such shares, free and clear of all
Encumbrances, liens, claims, options, proxies, voting agreements and security
interests and has the sole right to vote and dispose of such Subject Shares and
there are no restrictions on rights of disposition or other Encumbrances
pertaining to such Subject Shares, in each case except as described on
Schedule A.  None of the Subject
Shares is subject to any voting trust or other contract with respect to the
voting thereof, and no proxy, power of attorney or other authorization has been
granted with respect to any of such Subject Shares.


 


Section 3.2             Authority and
Non-Contravention.


 


(a)           If the Stockholder is
not an individual human being, the Stockholder is duly organized, validly
existing and, to the extent applicable under applicable law, in good standing
under the Laws of its jurisdiction of organization.


 


(b)           Assuming due
authorization, execution and delivery of this Agreement by Parent, this
Agreement has been duly and validly executed and delivered by the Stockholder
and constitutes the legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms except
(i) to the extent limited by applicable bankruptcy, insolvency or similar
laws affecting creditors’ rights and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be


 


5

















 


brought.  The Stockholder has all necessary power,
authority and legal capacity to execute and deliver this Agreement and to
perform its obligations under this Agreement and no other corporate or similar
proceedings or actions on the part of the Stockholder are necessary to
authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.  If the Stockholder is a corporation, limited liability company or
partnership, such actions have been duly authorized and approved by all
necessary corporate, limited liability company or partnership action, as the
case may be, of the Stockholder.


 


(c)           The Stockholder is not
nor will it be required to make any filing with or give any notice to, or to
obtain any consent from, any Person in connection with the execution, delivery
or performance of this Agreement or obtain any Permit from any Governmental
Entity for any of the transactions contemplated hereby, except as may be
required by Section 13 or Section 16 of the Securities Exchange Act
of 1934, as amended, and the rules promulgated thereunder.


 


(d)           Neither the execution
and delivery of this Agreement by the Stockholder nor the consummation of the
transactions contemplated hereby does or will (whether with notice or lapse of
time or both) (i) in the event the Stockholder is a corporation, limited
liability company or partnership, conflict with, result in any violation of or
require any consent under any provision of the governing documents of the
Stockholder, (ii) conflict with, result in any violation of, require any
consent under or constitute a default by the Stockholder under any mortgage,
bond, indenture, agreement, instrument or obligation to which the Stockholder
is a party or by which it or any of the Stockholder’s assets (including the
Subject Shares) are bound, or violate any Permit of any Governmental Entity, or
any Law or order to which such Stockholder, or any of its assets (including the
Subject Shares), may be subject, or (iii) result in the imposition or
creation of any Encumbrance upon or with respect to any of the assets owned by
the Stockholder (including the Subject Shares).


 


Section 3.3             Total Shares.  Except as set forth on Schedule A
hereto, the Stockholder, except with respect to stock options disclosed
pursuant to the Merger Agreement, is not the Beneficial Owner of, and does not
have (whether currently, upon lapse of time, following the satisfaction of any
conditions, upon the occurrence of any event or any combination of the
foregoing) any right to acquire, and has no other interest in or voting rights
with respect to, any Company Shares or Class B Shares or any securities
convertible into or exchangeable or exercisable for Company Shares or Class B
Shares.


 


Section 3.4             Reliance.  The Stockholder understands and acknowledges
that Parent is entering into the Merger Agreement in reliance upon the
Stockholder’s execution, delivery and performance of this Agreement.


 


6

















 


ARTICLE IV


 


REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PARENT


 


Section 4.1             Authority.  Parent represents, warrants and covenants to
the Stockholder that, assuming due authorization, execution and delivery of
this Agreement by the Stockholder, this Agreement constitutes the legal, valid
and binding obligation of Parent, enforceable against Parent in accordance with
its terms except (i) to the extent limited by applicable bankruptcy,
insolvency or similar laws affecting creditors’ rights and (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought. 
Parent has the corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder.  The execution and delivery by Parent of this Agreement and the
consummation by Parent of the transactions contemplated hereby have been duly
and validly authorized by the Board of Directors of Parent and no other
corporate proceedings on the part of Parent are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.  This Agreement has been duly and validly
executed and delivered by Parent.


 


Section 4.2             No Violation.  Neither the execution and delivery by Parent
or Merger Sub of this Agreement or the Merger Agreement nor the consummation by
Parent or Merger Sub of the transactions contemplated hereby or thereby does or
will (a) violate, conflict with or result in any breach of any provision
of the respective certificates of incorporation or bylaws of Parent or Merger
Sub; (b) violate, conflict with, result in a breach of any provision of,
constitute a default (or an event that, with notice or lapse of time or both,
would constitute a default) under, result in the termination, cancellation or
amendment or in a right of termination, cancellation or amendment of,
accelerate the performance required by or benefit obtainable under, result in
the triggering of any payment or other obligations pursuant to, result in the
creation or imposition of any Encumbrance upon any of the properties of Parent
or Merger Sub; (c) result in there being declared void, voidable or
without further binding effect, any Contract to which Parent or Merger Sub is a
party, or by which Parent or Merger Sub or any of their respective properties
is bound, except for any such breach, default or right with respect to which
requisite waivers or consents have been, or prior to the Effective Time will be,
obtained or any of the foregoing matters that would not have a Purchaser
Material Adverse Effect; (d) other than the Regulatory Filings, require
any Consent of any Governmental Entity, the lack of which would reasonably be
expected to have a material adverse effect on the ability of Parent or Merger
Sub to consummate the transactions contemplated hereby; or (e) violate any
laws applicable to Parent or Merger Sub or any of their respective assets or
properties, except for violations that would not have a Purchaser Material
Adverse Effect.


 


ARTICLE V


 


GENERAL
PROVISIONS


 


Section 5.1             No Ownership
Interest.  Nothing contained in this
Agreement shall be deemed to vest in Parent any direct or indirect ownership or
incidents of ownership of or with respect to the Subject Shares.  All rights, ownership and economic benefits
of and relating to the


 


7

















 


Subject Shares shall
remain and belong to the Stockholder, and Parent shall have no authority to
manage, direct, superintend, restrict, regulate, govern or administer any of
the policies or operations of the Company or exercise any power or authority to
direct the Stockholder in the voting of any of the Subject Shares, except as
otherwise expressly provided herein or in the Merger Agreement.


 


Section 5.2             Notices.  All notices, consents, waivers and other
communications under this Agreement shall be in writing (including facsimile or
similar writing) and shall be given:


 


(a)           If
to Parent, to:


 


Leonard Green &
Partners, L.P.


11111 Santa Monica
Boulevard


Suite 2000


Los Angeles, CA 90025


Attention:              John M. Baumer


Tim Flynn


Facsimile No.:
310-954-0404


 


 


With a copy (which will
not constitute notice) to:


 


Latham & Watkins LLP


885 Third Avenue


New York, NY 10022


Attention:  Howard A. Sobel, Esq.


Facsimile No.:
212-751-4864


 


(b)           If
to a Stockholder, to such Stockholder’s address set forth on Schedule A
hereto.


 


or such other address or facsimile number as a party
may hereafter specify for the purpose by notice to the other parties hereto.  Each notice, consent, waiver or other
communication under this Agreement shall be effective only (a) if given by
facsimile, when the facsimile is transmitted to the facsimile number specified
in this Section and the appropriate facsimile confirmation is received or
(b) if given by overnight courier or personal delivery when delivered at
the address specified in this Section.


 


Section 5.3             Further Actions.  Upon the request of any party to this
Agreement, the other party will (a) furnish to the requesting party any
additional information, (b) execute and deliver, at their own expense, any
other documents and (c) take any other actions, in each instance, as the
requesting party may reasonably require to more effectively carry out the
intent of the specific provisions of this Agreement.


 


Section 5.4             Entire Agreement
and Modification.  This Agreement
constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the parties with respect to its subject matter
and constitutes (along with the documents delivered pursuant to this


 


8

















 


Agreement) a complete and exclusive statement of the terms of the
agreement between the parties with respect to its subject matter.  This Agreement may not be amended,
supplemented or otherwise modified except in a written document executed by the
party against whose interest the modification will operate.


 


Section 5.5             Drafting and
Representation.  The parties agree
that the terms and language of this Agreement were the result of negotiations
between the parties and, as a result, there shall be no presumption that any
ambiguities in this Agreement shall be resolved against any party.  Any controversy over construction of this
Agreement shall be decided without regard to events of authorship or
negotiation.


 


Section 5.6             Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
affecting the validity or enforceability of the remaining provisions hereof.
Any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.


 


Section 5.7             No Third-Party Rights.  The Stockholder may not assign any of its
rights or delegate any of its obligations under this Agreement without the
prior written consent of Parent.  Parent
may not assign any of its rights or delegate any of its obligations under this
Agreement with respect to the Stockholder without the prior written consent of
the Stockholder.  This Agreement will
apply to, be binding in all respects upon, and inure to the benefit of each of
their respective successors, personal or legal representatives, heirs, distributes,
devisees, legatees, executors, administrators and permitted assigns of the
Stockholder and the successors and permitted assigns of Parent.  Nothing expressed or referred to in this
Agreement will be construed to give any Person, other than the parties to this
Agreement, any legal or equitable right, remedy or claim under or with respect
to this Agreement or any provision of this Agreement except such rights as may
inure to a successor or permitted assignee under this Section.


 


Section 5.8             Enforcement of
Agreement.  The Stockholder
acknowledges and agrees that Parent could be damaged irreparably if any of the
provisions of this Agreement are not performed in accordance with their
specific terms and that any breach of this Agreement by the Stockholder could
not be adequately compensated by monetary damages.  Accordingly, the Stockholder agrees that, (a) it will waive,
in any action for specific performance, the defense of adequacy of a remedy at
Law, and (b) in addition to any other right or remedy to which Parent may
be entitled, at Law or in equity, Parent will be entitled to enforce any
provision of this Agreement by a decree of specific performance and to
temporary, preliminary and permanent injunctive relief to prevent breaches or
threatened breaches of any of the provisions of this Agreement, without posting
any bond or other undertaking.


 


Section 5.9             Waiver.  The rights and remedies of the parties to
this agreement are cumulative and not alternative.  Neither any failure nor any delay by a party in exercising any
right, power or privilege under this Agreement or any of the documents referred
to in this Agreement will operate as a waiver of such right, power or
privilege, and no single or partial


 


9

















 


exercise of any such right, power or privilege will preclude any other
or further exercise of such right, power or privilege or the exercise of any
other right, power or privilege.  To the
maximum extent permitted by applicable Law, (a) no claim or right arising
out of this Agreement or any of the documents referred to in this Agreement can
be discharged by one party, in whole or in part, by a waiver or renunciation of
the claim or right unless in a written document signed by the other party,
(b) no waiver that may be given by a party will be applicable except in
the specific instance for which it is given, and (c) no notice to or
demand on one party will be deemed to be a waiver of any obligation of that
party or of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement or the documents
referred to in this Agreement.


 


Section 5.10           Governing Law.  This Agreement will be governed by and
construed under the Laws of the State of Delaware applicable to contracts made
and to be performed entirely in such State.


 


Section 5.11           Consent to
Jurisdiction.  Except as otherwise
expressly provided in this Agreement, the parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought exclusively in the Court of Chancery of
the State of Delaware, County of New Castle or, if such court does not have
jurisdiction over the subject matter of such proceeding or if such jurisdiction
is not available, in the United States District Court for the District of
Delaware, and each of the parties hereby consents to the exclusive jurisdiction
of those courts (and of the appropriate appellate courts therefrom) in any
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by Law, any objection which it may now or hereafter have to the
laying of the venue of any suit, action or proceeding in any of those courts or
that any suit, action or proceeding which is brought in any of those courts has
been brought in an inconvenient forum. 
Process in any suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any of the
named courts.  Without limiting the
foregoing, each party agrees that service of process on it by notice as
provided in Section 5.2 shall be deemed effective service of process.  EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,  ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


Section 5.12           Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same instrument.


 


Section 5.13           Termination.  This Agreement shall terminate upon the
earliest of (a) the Effective Time (as defined in the Merger Agreement),
(b) the termination of the Merger Agreement in accordance with
Section 9.1 thereof, (c) any amendment or other modification of the
Merger Agreement that, in each case, materially and adversely affects the
stockholders of the Company and to which the Stockholder all of the Other
Stockholders have not agreed to in writing or (d) written notice by Parent
to the Stockholder of the termination of this Agreement (the earliest of the
events described in clauses (a), (b), (c) and (d), the “Expiration Date”).


 


10

















 


Section 5.14           Expenses.  Except as otherwise provided in this
Agreement, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such expenses.  Nothing in this
Agreement shall be deemed to limit the obligations of the Company pursuant to
Section 10.2 of the Merger Agreement.


 


Section 5.15           Headings;
Construction.  The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.  In this Agreement (a) words denoting
the singular include the plural and vice versa, (b) ”it” or “its” or words
denoting any gender include all genders, (c) the word “including” shall
mean “including without limitation,” whether or not expressed, (d) any
reference herein to a Section, Article, Paragraph, Clause or
Schedule refers to a Section, Article, Paragraph or Clause of or a
Schedule to this Agreement, unless otherwise stated, and (e) when
calculating the period of time within or following which any act is to be done
or steps taken, the date which is the reference day in calculating such period
shall be excluded and if the last day of such period is not a Business Day (as
defined in the Merger Agreement), then the period shall end on the next day
which is a Business Day.


 


Section 5.16           Other Voting
Agreements.  Parent acknowledges and
agrees that, if it enters into, amends, waives, terminates or otherwise
modifies any Other Voting Agreement with any Other Stockholder on terms and
conditions meaningfully more favorable to such Other Stockholder than the terms
and conditions contained in this Agreement, Parent shall, as applicable,
promptly advise Stockholder of such fact (and the relevant terms and
conditions) and shall offer the Stockholder the opportunity to amend, terminate
or otherwise modify this Agreement so that it contains substantially identical
terms and conditions and, if requested by the Stockholder, Parent shall, as
applicable, enter into such an amendment, termination or other modification to
this Agreement.


 


[Signature Page Follows]


 


11

















 


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


 


	
   

  	
  MERCURY MAN HOLDINGS
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Baumer

  
	
   

  	
   

  	
  Name:

  	
  John Baumer

  	 

	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SILVERADO V CORP.

  	
   

  
	
   

  	
  For
  itself and as General Partner of Fleet Equity

  Partners VII, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Habib Y. Gorgi

  
	
   

  	
   

  	
  Name: 

  	
  Habib Y. Gorgi

  	 

	
   

  	
   

  	
  Title:

  	
  President &
  Secretary

  	 

	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SILVERADO II CORP.

  	
   

  
	
   

  	
  For
  itself and as General Partner of Silverado II, L.P.,

  as General Partner of Chisholm Partners II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Habib Y. Gorgi

  
	
   

  	
   

  	
  Name: 

  	
  Habib Y. Gorgi

  	 

	
   

  	
   

  	
  Title:

  	
  President

  	 

	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FLEETBOSTON FINANCIAL
  FOUNDATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  FLEET NATIONAL BANK,
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Habib Y. Gorgi

  
	
   

  	
   

  	
  Name: 

  	
  Habib Y. Gorgi

  	 

	
   

  	
   

  	
  Title:

  	
  Power of Attorney dated
  9/27/03

  	 

						



 


S-1

















 


SCHEDULE A


 


 


	
  Stockholder

  	
   

  	
  Company

  Shares

  	
   

  	
  Class B

  Shares

  	
   

  	
  Total

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FleetBoston
  Financial Foundation*

  	
   

  	
  272,878

  	
   

  	
  338,470

  	
   

  	
  611,348

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fleet
  Equity Partners VII, L.P.*

  	
   

  	
  116,948

  	
   

  	
  145,058

  	
   

  	
  262,006

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Chisholm
  Partners II, L.P.*

  	
   

  	
  173,506

  	
   

  	
  215,222

  	
   

  	
  388,728

  	
   

  
	
   

  	
   

  	
  563,332

  	
   

  	
  698,750

  	
   

  	
  1,262,082

  	
   

  



 


 












*    Under that certain agreement
dated June 30, 2000, by and among certain entities controlled by Nautic
Partners, LLC (formerly Navis Partners), FleetBoston Financial Corporation
(“FBC”) and certain subsidiaries of FBC which had made prior to the date of such
agreement certain investments on behalf of FBC, record and economic ownership
of shares of the Company is held by the entities named above, while (i)
investment and voting authority of shares of the Company held by Chisholm
Partners II, L.P. (“C2LP”) resides with Silverado II Corp. (“S2C”), the general
partner of Silverado II, L.P., the general partner of C2LP; (ii) investment and
voting authority of shares of the Company held by FleetBoston Financial
Foundation resides with S2C; and (iii) investment and voting authority of
shares of the Company held by Fleet Equity Partners VII, L.P., resides with
Silverado V Corp.  The Stockholders’
rights and obligations under that agreement (and related proxies and powers of
attorney given in relation to that agreement) are not affected hereby and the
Stockholders will take no action with respect to that agreement to terminate or
modify its arrangements with respect to the voting and control arrangements
therein.


 


Schedule A