EXHIBIT
4.1


 


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.


 


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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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PERRY ACQUISITION
  PARTNERS, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PERRY INVESTORS,
  L.L.C.,

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard C. Perry

  
	
   

  	
   

  	
  Name:

  	
  Richard C. Perry

  
	
   

  	
   

  	
  Title:

  	
  Managing Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PERRY PARTNERS, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PERRY CORP.

  
	
   

  	
  Its:

  	
  Managing General
  Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard C. Perry

  
	
   

  	
   

  	
  Name:

  	
  Richard C. Perry

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PERRY PARTNERS
  INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  PERRY CORP.

  
	
   

  	
  Its:

  	
  Investment Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard C. Perry

  
	
   

  	
   

  	
  Name:

  	
  Richard C. Perry

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  PERRY SPECIAL
  SITUATIONS HOLDINGS, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard C. Perry

  
	
   

  	
   

  	
  Name:

  	
  Richard C. Perry

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  /s/ Richard C.
  Perry

  
	
   

  	
  Richard C. Perry

  



 


S-1

















 


SCHEDULE A


 


 


	
  Name and

  Address of the Stockholder

  	
   

  	
  Company

  Shares

  	
   

  	
  Class B

  Shares

  	
   

  	
  Other

  Company

  Securities

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Perry Acquisition
  Partners, L.P.

  599 Lexington Avenue

  New York, NY  10022

  	
   

  	
  7,344,107

  	
   

  	
  —

  	
   

  	
  —

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Perry Partners, L.P.

  599 Lexington Avenue

  New York, NY  10022

  	
   

  	
  12,958

  	
   

  	
  122,479

  	
   

  	
  —

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Perry Partners
  International, Inc.

  599 Lexington Avenue

  New York, NY  10022

  	
   

  	
  30,544

  	
   

  	
  247,874

  	
   

  	
  —

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Perry Special
  Situations Holdings, LLC

  599 Lexington Avenue

  New York, NY  10022

  	
   

  	
  —

  	
   

  	
  50,000

  	
   

  	
  —

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Richard C. Perry

  599 Lexington Avenue

  New York, NY  10022

  	
   

  	
  69,966

  	
   

  	
  —

  	
   

  	
  —

  



 


Schedule A