Exhibit 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement” ) is dated as of December 9, 2008, by
and between Virgin Mobile USA, Inc., a Delaware corporation (the
“ Company ”), and the Person executing this
Agreement as “Stockholder” on the signature page hereto
(the “ Stockholder ”).
RECITALS
WHEREAS, the Board of Directors has
previously determined that it is in the best interests of the
Company to amend the Company’s 2007 Omnibus Incentive
Compensation Plan (the “ 2007 Plan ”) to
increase the number of shares of Class A common stock
available for issuance thereunder by 5,000,000 shares (the “
2007 Plan Proposal ”);
WHEREAS, the Board of Directors has
approved the inclusion of the 2007 Plan Proposal in a proxy
statement to be delivered to the Company’s
stockholders;
WHEREAS, in order to comply with the
rules of the New York Stock Exchange, the Company must obtain the
requisite stockholder approval for the 2007 Plan
Proposal;
WHEREAS, the Stockholder is the
Beneficial Owner (as defined below) of, and has the right to vote,
that number of shares of Company Common Stock (as defined below)
set forth across from such Stockholder’s name on Schedule
I hereto; and
WHEREAS, the Company has requested
that the Stockholder agree, and the Stockholder has agreed, to
enter into this Agreement.
NOW, THEREFORE, the parties hereto,
intending to be legally bound, agree as follows:
I. CERTAIN
DEFINITIONS
Section 1.1 Definitions . For
the purposes of this Agreement:
(a) “ Beneficial
Owner” , “ Beneficial Ownership ” or
“ Beneficially Owned ” with respect to any
securities means having “beneficial ownership” of such
securities as determined pursuant to Rule 13d-3 under the Exchange
Act.
(b) “ Company Common
Stock ” shall mean, collectively, Company Class A
common stock, Company Class B common stock, and Company Class C
common stock and will also include for purposes of this Agreement
all shares or other voting securities into which Company Common
Stock may be reclassified, sub-divided, consolidated or converted
and any rights and benefits arising therefrom, including any
dividends or distributions of securities which may be declared in
respect of the Company Common Stock and entitled to vote in respect
of the matters contemplated by Article II.
(c) “ Encumbrances
” shall mean any lien, encumbrance, charge, mortgage, option,
pledge, security interest or similar interests, title defects,
tenancies (and other possessory
interests), easements, rights of way, covenants,
encroachments, rights of first refusal, preemptive rights,
judgments, conditional sale or other title retention agreements and
other impositions or imperfections of title or restrictions on
transfer of any nature whatsoever.
(d) “ Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended,
together with the rules and regulations thereunder.
(e) “ Expiration Time
” means the earliest to occur of (i) the certification
of the vote on the 2007 Plan Proposal at the Stockholder Meeting or
(ii) any other form of approval by the Company’s
stockholders (including by written consent of stockholders of the
Company holding the requisite number of shares) of the 2007 Plan
Proposal or (iii) the date of the next annual meeting of
stockholders of the Company or (iv) June 15,
2009.
(f) “ Governmental
Authority ” shall mean any local, state, federal or
foreign court, legislative, executive, administrative, governmental
or regulatory authority or agency or arbitral or similar
forum.
(g) “ Governmental
Order ” shall mean any order, writ, judgment, injunction,
decree, stipulation, determination or award issued or entered into
by or with any Governmental Authority.
(h) “ Law ” shall
mean any constitution, treaty, statute, law, ordinance, regulation,
rule, standard, code, rule of common law or other requirement or
rule enacted or promulgated by any Governmental
Authority.
(i) “ Owned Company Common
Stock ” means the shares of Company Common Stock set
forth across from such Stockholder’s name on Schedule
I hereto which are Beneficially Owned by such Stockholder as of
the specified time.
(j) “ SEC ” shall
mean the U.S. Securities and Exchange Commission.
(k) “ Stockholder
Meeting ” means a special meeting of the Company’s
stockholders called for purposes of voting upon the 2007 Plan
Proposal and any other matters submitted for the vote of the
Company’s stockholders.
(l) “ Transfer ”
means, with respect to a security, the sale, grant, assignment,
transfer, pledge, encumbrance or other disposition of such security
or the Beneficial Ownership thereof (including by operation of
Law), or the entry into any contract, agreement, commitment,
understanding or other obligation, whether written or oral, to
effect any of the foregoing, including, for purposes of this
Agreement, the transfer or sharing of any voting power of such
security or other rights in or of such security, in each case other
than in connection with a bona fide pledge to a commercial bank to
secure borrowings in the ordinary course of the Stockholder’s
business whereby the Stockholder retains all voting rights prior to
default.
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II. AGREEMENT TO
VOTE
Section 2.1 Agreement to Vote
. Subject to the terms and conditions hereof, the Stockholder
agrees that from and after the date hereof and until the Expiration
Time or the earlier termination of this Agreement pursuant to
Section 5.1, at the Stockholder Meeting or at any adjournment,
postponement or continuation of the Stockholder Meeting, or in
connection with any written consent of the Company’s
stockholders pursuant to which approval of the 2007 Plan Proposal
by the Company’s stockholders is sought, subject to the
absence of any Governmental Order or Law preventing such action,
the Stockholder will (A) appear at such meeting or otherwise
cause its Owned Company Common Stock to be counted as present
thereat for purposes of calculating a quorum, and (B) vote, or
instruct to be voted (including by written consent, if applicable),
in favor of the approval of the 2007 Plan Proposal all of its Owned
Company Common Stock owned (x) as of the record date with
respect to such Stockholder Meeting or (y) the date that any
written consent is executed by such Stockholder where no such
Stockholder Meeting is held to approve the 2007 Plan Proposal
(either (x) or (y), as the case may be, the “ Record
Date ”); provided that the Stockholder shall be obligated
under this Agreement to vote its Owned Company Common Stock owned
as of the Record Date in favor of or otherwise consent to or
approve the 2007 Plan Proposal only if a majority of the directors
on the Board of Directors of the Company continue to recommend to
the Company’s stockholders that they approve the 2007 Plan
Proposal. Except as expressly set forth in this Agreement or the SK
Telecom Voting Agreement (as defined below) or the
Stockholders’ Agreement (as defined below), the Stockholder
may vote its Owned Company Common Stock in its discretion on all
other matters submitted for the vote of stockholders of the Company
or in connection with any written consent of the Company’s
stockholders.
Section 2.2 Additional Company
Common Stock . The Stockholder hereby agrees, from the date
hereof until this Agreement is terminated pursuant to
Section 5.1, to promptly notify the Company of the number of
shares of any new Company Common Stock with respect to which
Beneficial Ownership is acquired by such Stockholder, if any, after
the date hereof. The filing of any reports with the SEC required by
Sections 13(d) or 16(a) of the Exchange Act by the Stockholder in
connection with such acquisition shall be deemed to satisfy such
notice requirement. Any such Company Common Stock shall
automatically become subject to the terms of this Agreement, shall
be treated for purposes of this Agreement as though such Company
Common Stock were owned by such Stockholder as of the date hereof
and shall be considered Owned Company Common Stock from the date of
its acquisition by the Stockholder.
Section 2.3 Restrictions on
Transfer, Etc. Except as provided for herein, the Stockholder
agrees (i) from the date hereof until the earlier of
March 1, 2009 or the date of which this Agreement is
terminated pursuant to Section 5.1, not to directly or
indirectly Transfer any Owned Company Common Stock and
(ii) until the date of which this Agreement is terminated
pursuant to Section 5.1, not to grant any proxy with respect
to such Stockholder’s Owned Company Common Stock, deposit
such Stockholder’s Owned Company Common Stock into a voting
trust, enter into a voting agreement with respect to any of such
Stockholder’s Owned Company Common Stock or otherwise
restrict the ability of such Stockholder freely to exercise all
voting rights with respect thereto, in each case in this clause
(ii) for an action that is inconsistent with the
Stockholder’s obligations under this Agreement. Any action
attempted to
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be taken in violation of the preceding sentence
will be null and void, unless, in each case, the transferee agrees
in writing to be bound by the terms and conditions of this
Agreement.
III. REPRESENTATIONS AND
WARRANTIES
Section 3.1 Representations and
Warranties of Stockholders . The Stockholder represents and
warrants to the Company as of the date of this Agreement as
follows:
(a) Such Stockholder has the
requisite power and authority to execute and deliver this Agreement
and to fulfill and perform such Stockholder’s obligations
hereunder. This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a legal, valid and
binding agreement of such Stockholder enforceable against such
Stockholder in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity
or at law) and (iii) an implied covenant of good faith and
fair dealing.
(b) Such Stockholder is the
Beneficial Owner, free and clear of any Encumbrance (other than
those arising under this Agreement, the Voting Agreement by and
between SK Telecom USA, Inc. (“ SK Telecom ”),
the Stockholder and solely for purposes of Sections 5.1 and 6.8
thereto, the Company, dated June 27, 2008 (the “ SK
Telecom Voting Agreement ”), or the Amended and Restated
Stockholders’ Agreement, by and among the Company, Corvina
Holdings Limited, the Stock
