Exhibit 10.2
EXECUTION COPY
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 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.
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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 Government 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 as of the record date with respect to such Stockholder
Meeting (or the date that any written consent is executed by such
Stockholder) (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 the majority of the independent directors on
the Board of Directors of the Company continue to recommend to the
Company’s stockholders that they approve the 2007 Plan
Proposal; and provided further, that the Stockholder shall
be obligated under this Agreement to vote its Owned Company Common
Stock against or otherwise refrain from consenting to or approving
of the 2007 Plan Proposal only if the majority of the independent
directors on the Board of Directors of the Company fail to 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 in
Section 3.1 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, from the date hereof until this Agreement is terminated
pursuant to Section 5.1, not to (i) directly or
indirectly Transfer any Owned Company Common Stock or
(ii) grant any proxy with respect to such Stockholder's Owned
Company Common Stock that is inconsistent with this Agreement,
deposit such Stockholder's Owned Company Common Stock
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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.
Notwithstanding the foregoing, the Stockholder shall not be subject
to the restrictions set forth in the preceding sentence with
respect to any Transfer of any Owned Company Common Stock
(i) pursuant to a registration statement under the Securities
Act or pursuant to Rule 144, provided that any such Transfers of
Owned Company Common Stock by the Stockholder pursuant to this
clause (i) prior to March 1, 2009 do not exceed in the
aggregate 3.5% of the total voting power of the Company’s
capital stock entitled to vote on the 2007 Plan Proposal as of
March 1, 2009, or (ii) pursuant to any other method of
Transfer, provided in the case of this clause (ii) that the
transferee agrees in writing to be bound by the terms and
conditions of this Agreement. Any action attempted to be taken in
violation of this Section 2.3 will be null and
void.
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
