EXHIBIT
4.2


 


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

  
	
   

  	
   

  	
   

  
	
   

  	
  BAIN CAPITAL FUND IV, L.P.

  
	
   

  	
  BAIN CAPITAL FUND IV-B, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BAIN CAPITAL PARTNERS IV, L.P.

  
	
   

  	
  Their:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BAIN CAPITAL INVESTORS, L.L.C.

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Goss

  
	
   

  	
   

  	
  Name:

  	
  Michael Goss

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  INFORMATION PARTNERS CAPITAL FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  INFORMATION PARTNERS

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BAIN CAPITAL PARTNERS IV, L.P.

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BAIN CAPITAL INVESTORS, L.L.C.

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Goss

  
	
   

  	
   

  	
  Name:

  	
  Michael Goss

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  BCIP ASSOCIATES

  
	
   

  	
  BCIP TRUST ASSOCIATES, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Goss

  
	
   

  	
   

  	
  Name:

  	
  Michael Goss

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


S-1

















 


SCHEDULE
A


 


	
  Name and

  Address of the Stockholder

  	
   

  	
  Company

  Shares

  	
   

  	
  Class B

  Shares

  	
   

  	
  Other

  Company

  Securities

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Information Partners Capital Fund, L.P.

  111 Huntington Avenue

  Boston, MA  02199

  	
   

  	
  885,226

  	
   

  	
  —

  	
   

  	
  —

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bain Capital Fund IV, L.P.

  111 Huntington Avenue

  Boston, MA  02199

  	
   

  	
  718,896

  	
   

  	
  —

  	
   

  	
  —

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bain Capital Fund IV-B, L.P.

  111 Huntington Avenue

  Boston, MA  02199

  	
   

  	
  822,708

  	
   

  	
  —

  	
   

  	
  —

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BCIP Associates

  111 Huntington Avenue

  Boston, MA  02199

  	
   

  	
  160,836

  	
   

  	
  —

  	
   

  	
  —

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BCIP Trust Associates, L.P.

  111 Huntington Avenue

  Boston, MA  02199

  	
   

  	
  91,950

  	
   

  	
  —

  	
   

  	
  —

  



 


Schedule A