Exhibit 10.1
EXECUTION COPY
VOTING
AGREEMENT
THIS VOTING AGREEMENT dated as of
December 4, 2005 (this “ Agreement ”), by
and among Liberty Media Corporation, a Delaware corporation
(“ Parent ”), and Jovian Holdings, LLC (formerly
known as JPS International, LLC), a Delaware limited liability
company (the “ Stockholder ”).
RECITALS
WHEREAS, Parent, Provide Commerce,
Inc., a Delaware corporation (the “ Company ”)
and Barefoot Acquisition, Inc., a Delaware corporation and a wholly
owned subsidiary of Parent (“ Merger Sub ”),
concurrently with the execution of this Agreement, have entered
into an Agreement and Plan of Merger dated as of the date hereof
(as such agreement may be modified or amended from time to time,
the “ Merger Agreement ”), which provides for
the merger of Merger Sub with and into the Company, with the
Company as the surviving corporation in the merger (the “
Merger ”), upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, pursuant to the Merger, all
of the issued and outstanding shares of capital stock of the
Company will be canceled and converted into the right to receive
the Merger Consideration upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, the
Stockholder Beneficially (as defined below) owns certain shares of
common stock, par value $0.001 per share, of the Company (the
“ Company Common Stock ”);
WHEREAS, in order to induce Parent
and Merger Sub to execute the Merger Agreement, Stockholder desires
to restrict the transfer or disposition of, and desires to vote,
the Subject Shares (as defined below) as provided in this
Agreement, and the execution and delivery of this Agreement and the
Proxy (defined below) is a material condition to Parent’s and
Merger Sub’s willingness to enter into the Merger Agreement;
and
WHEREAS, capitalized terms used but
not defined herein shall have the meanings ascribed to such terms
in the Merger Agreement.
NOW, THEREFORE, to induce Parent and
Merger Sub to enter into, and in consideration of their entering
into, the Merger Agreement, and in consideration of the promises
and the representations, warranties and agreements contained
herein, the parties agree as follows:
ARTICLE I
AGREEMENT TO VOTE
Section 1.1. Agreement to
Vote . Subject to the terms and conditions hereof, the
Stockholder irrevocably and unconditionally agrees that from and
after the date hereof and until
the earlier to occur of (a) the Effective
Time and (b) 5:00 p.m. (New York time) on the 180th day
following the date the Merger Agreement is terminated in accordance
with its terms (the earlier of (a) and (b) being referred
to as the “ Expiration Time ”), at any meeting
(whether annual or special, and at each adjourned or postponed
meeting) of stockholders, however called, or in connection with any
written consent of the Company’s stockholders, the
Stockholder will (x) appear at each such meeting or otherwise
cause its Subject Shares (as defined below) to be counted as
present thereat for purposes of calculating a quorum, and respond
to each request by the Company for written consent, if any and
(y) Vote (as defined below), or cause to be Voted at such
meeting, all of the Stockholder’s Subject Shares (i) in
favor of approval and adoption of the Merger Agreement, the Merger
and the other transactions contemplated by the Merger Agreement
(the Merger together with such transactions, collectively, the
“ Transactions ”), (ii) against any action
or agreement made in opposition to, or in competition with, the
Merger Agreement, the Merger or the Transactions or that is
intended, or could reasonably be expected to materially impede,
interfere with, adversely affect or discourage the Transactions or
inhibit the timely consummation of the Transactions, including,
without limitation, any Alternative Proposal, and (iii) except
for the Transactions, against any merger, consolidation, business
combination, reorganization, recapitalization, liquidation or sale
or transfer of any material assets of the Company, in each case, to
the same extent and with the same effect as the Stockholder might
or could do under applicable law, rules and regulations. For the
purposes of this Agreement: “ Vote ” and any
correlative term shall include voting in person or by proxy in
favor of or against any action, otherwise consenting or withholding
consent in respect of any action (including, without limitation,
consenting in accordance with Section 228 of the DGCL) or
taking other action in favor of or against any action; and a Person
“Beneficially” owns a security if such Person, directly
or indirectly, through any contract, arrangement, understanding or
otherwise has (A) the power to vote, or direct the vote of
such security and (B) the power to dispose, or direct the
disposition of such security.
Section 1.2. Additional
Shares . The Stockholder hereby agrees, while this Agreement is
in effect, to promptly notify Parent of the number of any new
shares of Company Common Stock with respect to which Beneficial
ownership is acquired by the Stockholder, if any, after the date
hereof (such shares of Company Common Stock, “ New
Shares ”). The Stockholder also agrees that any New
Shares acquired or purchased by it shall be subject to the terms of
this Agreement to the same extent as if they constituted Subject
Shares.
Section 1.3. Restrictions on
Transfer . On and after the date hereof and until the
Expiration Time, the Stockholder agrees not to, directly or
indirectly, transfer, sell, offer, exchange, pledge or otherwise
dispose of or encumber any of its Subject Shares, Options (as
defined below) or New Shares; provided , however ,
that the Stockholder may transfer any of the Subject Shares to a
charitable foundation controlled by or under common control with
the Stockholder if such charitable foundation, as an express
condition precedent of such transfer, becomes a party to this
Agreement by executing a counterpart signature page hereto and
agreeing to be bound by its original terms.
Section 1.4. Proxies . The
Stockholder hereby revokes any and all previous proxies granted
with respect to its Subject Shares. By entering into this
Agreement, the Stockholder hereby grants a proxy (“
Proxy ”) appointing Parent, Merger Sub and each of
their designees, and each of them individually, as the
Stockholder’s attorney-in-fact and proxy, with full power
of
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substitution, for and in the Stockholder’s
name, to be counted as present, Vote, dissent or withhold consent,
or otherwise to act on behalf of the Stockholder with respect to
its Subject Shares in favor of the Merger Agreement and the
Transactions and otherwise in the manner contemplated by, and to
give effect to, Section 1.1 hereof. The Proxy granted by the
Stockholder pursuant to this Section 1.4 is, subject to the
last sentence of this Section 1.4, irrevocable and is coupled
with an interest, in accordance with Section 212(e) of the
DGCL, and is granted in order to secure the Stockholder’s
performance under this Agreement and also in consideration of
Parent and Merger Sub entering into this Agreement and the Merger
Agreement. If the Stockholder fails for any reason to be counted as
present, consent or Vote the Stockholder’s Subject Shares in
accordance with the requirements of Section 1.1 above (or
anticipatorily breaches such section), then Parent and Merger Sub
shall have the right to cause to be present, consent or vote the
Stockholder’s Subject Shares in accordance with the
provisions of Section 1.1. The Proxy granted by the
Stockholder hereunder shall supersede any prior proxy and shall not
be superseded by any later proxy granted, made or purported to be
granted or made by the Stockholder. The Proxy granted by the
Stockholder shall terminate upon termination of this Agreement in
accordance with its terms.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and
Warranties of Stockholders . The Stockholder represents and
warrants to Parent that:
(a) The Stockholder Beneficially
owns the number of shares of Company Common Stock set forth
opposite the Stockholder’s name on Exhibit A attached hereto
(such shares of Company Common Stock, the “ Subject
Shares ”), free and clear of all Liens or Restrictions.
Except for this Agreement and the Merger Agreement, there are no
options, warrants or other rights, agreements, arrangements or
commitments of any character to which it is a party relating to the
pledge, disposition or Voting of such Subject Shares and there are
no Voting trusts or Voting agreements with respect to such Subject
Shares.
(b) The Stockholder does not
beneficially own any shares of Company Common Stock other than the
Stockholder’s Subject Shares and does not have any options,
warrants or other rights to acquire any additional shares of
capital stock of the Company or any security exercisable for or
convertible into shares of capital stock of the Company (“
Options ”).
(c) The Stockholder has not
appointed or granted any proxy, which appointment or grant is still
effective with respect to the Subject Shares or any New
Shares.
(d) The Stockholder is duly
organized and validly existing under the laws of its jurisdiction
of organization and is duly authorized to do business and is in
good standing under the laws of its jurisdiction of
organization.
(e) The Stockholder has full power
and authority to enter into, execute and deliver this Agreement and
to perform fully its obligations hereunder and this Agreement has
been duly executed and delivered and constitutes the legal, valid
and binding obligation of the
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Stockholder enforceable against it
in accordance with its terms (except insofar as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally, or by principles governing the availability of equitable
remedies).
(f) Other than filings under the
Exchange Act, no notices, reports or other filings are required to
be made by the Stockholder with, nor are any consents,
registrations, approvals, permits or authorizations required to be
obtained by th
