Exhibit 10.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement” ) is dated as of December 4, 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 and Company Class B 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.
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
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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 ”).
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 Except as provided for
herein, the Stockholder agrees, (i) not to directly or
indirectly Transfer any Owned Company Common Stock except as
permitted under Section 2.8 of the Transaction Agreement,
dated as of June 27, 2008 by and among the Company, Virgin
Mobile USA, L.P., a Delaware limited partnership and wholly-owned
subsidiary of the Company, Helio, Inc., a Delaware corporation,
Helio LLC, a Delaware limited liability company, the Stockholder, a
Delaware corporation, EarthLink, Inc., a Delaware corporation, and
Corvina Holdings Limited, a British Virgin Islands company or
(ii) from the date hereof 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 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:
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(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 the Stockholder, Sprint Ventures, Inc. and solely for
purposes of Sections 5.1 and 6.8 thereto, the Company, dated
June 27, 2008 (the “ SK Telecom Voting Agreement
1 ”), the Voting Agreement by and between the
Stockholder, Corvina Holdings Limited and solely for purposes of
Section 5.1 and 6.8 thereto, the Company, dated June 27,
2008 (the “SK Telecom Voting Agreement 2”) or the
Amended and
