VOTING AGREEMENT,
dated as of July 27, 2009 (this “ Agreement
”), by and among SK TELECOM CO., LTD., a company organized
under the laws of the Republic of Korea (the “
Stockholder ”), and Sprint Nextel Corporation, a
Kansas corporation (“ Parent ”).
WHEREAS,
concurrently with the execution of this Agreement, Parent, Sprint
Mozart, Inc., a Delaware corporation and a wholly-owned subsidiary
of Parent (“ Merger Sub ”), and Virgin Mobile
USA, Inc., a Delaware corporation (the “ Company
”), are entering into an Agreement and Plan of Merger, dated
as of the date hereof (as amended, supplemented, restated or
otherwise modified from time to time, the “ Merger
Agreement ”), pursuant to which, among other things,
Merger Sub will merge with and into the Company (the “
Merger ”) and each outstanding share of Class A
Common Stock and Class C Common Stock (as defined in the
Merger Agreement) will be converted into the right to receive the
Merger Consideration specified therein;
WHEREAS, as of the
date hereof, the Stockholder Beneficially Owns (as hereinafter
defined) the number of shares of Company Common Stock set forth
opposite the Stockholder’s name on Schedule I hereto;
and
WHEREAS, as a
condition and inducement to Parent entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement and abide by
the covenants and obligations with respect to the Covered Shares
(as hereinafter defined) set forth herein.
NOW THEREFORE, in
consideration of the foregoing and the mutual representations,
warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as
follows:
Section 1.01
Capitalized Terms . For the purposes of this Agreement,
capitalized terms used and not defined herein shall have the
respective meanings ascribed to them in the Merger
Agreement.
Section 1.02
Other Definitions . The following capitalized terms, as used
in this Agreement, shall have the meanings set forth
below.
(a) “
Affiliate ” of any person means another person that
directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such
first person.
(b) “
Beneficial Ownership ” by a person of any securities
means ownership by any person who, directly or indirectly, through
any contract, arrangement, understanding, relationship or
otherwise, has or shares (i) voting power which includes the
power to vote, or to direct the voting of, such securities; and/or
(ii) investment power which includes the power to
dispose, or to
direct the disposition, of such securities; and shall otherwise be
interpreted in accordance with the term “beneficial
ownership” as defined in Rule 13d-3 adopted by the
Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended. The terms “ Beneficially Own
” and “ Beneficially Owned ” shall have a
correlative meaning.
(c) “
Certificate of Designations ” means the Certificate of
Designations of the Company Preferred Stock.
(d) “
control ” (including the terms “ controlled
by ” and “ under common control with
”), with respect to the relationship between or among two or
more persons, means the possession, directly or indirectly, of the
power to direct or cause the direction of the affairs or management
of a person, whether through the ownership of voting securities, as
trustee or executor, by contract or any other means.
(e)
“Company Common Stock” means, collectively,
Class A Common Stock, Class B Common Stock and
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 all shares or other voting securities convertible
into or exerciseable or exchangeable for Company Common Stock and
in each case 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. For the
avoidance of any doubt, Company Common Stock shall include the
Company Preferred Stock.
(f) “
Covered Shares ” means, with respect to the
Stockholder, the Stockholder’s Existing Shares, together with
any shares of Company Common Stock that the Stockholder acquires
Beneficial Ownership of on or after the date hereof.
(g) “
Encumbrance ” means any security interest, pledge,
mortgage, lien (statutory or other), charge, option to purchase,
lease or other right to acquire any interest or any claim,
restriction, covenant, title defect, hypothecation, assignment,
deposit arrangement or other encumbrance of any kind or any
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement), excluding
restrictions under securities laws and the Stockholders’
Agreement.
(h) “
Existing Shares ” means, with respect to the
Stockholder, the number of shares of Company Common Stock
Beneficially Owned (and except as may be set forth on
Schedule I hereto, owned of record) by the Stockholder
as of the date hereof (excluding the 193,368 shares of Class A
Common Stock owned of record by Helio, Inc. as of the date hereof
(the “ Helio Shares ”)), as set forth opposite
the Stockholder’s name on Schedule I
hereto.
(i) “
person ” means any individual, corporation, limited
liability company, limited or general partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision
thereof or any other entity, or any group comprised of two or more
of the foregoing.
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(j) “
Representatives ” means the officers, directors,
employees, agents, advisors and Affiliates of a person.
(k) “
Stockholders’ Agreement ” means the Amended and
Restated Stockholders’ Agreement, dated as of August 22,
2008, by and among the Company, the Stockholder, Corvina Holdings
Limited, Cortaire Limited and Sprint Ventures, Inc.
(l) “
Subsidiary ” of any person means any other person
(i) of which such person directly or indirectly owns
securities or other equity interests representing more than fifty
percent (50%) of the aggregate voting power of such other person or
(ii) of which such person possesses the right to elect more
than fifty percent (50%) of the directors or persons holding
similar positions of such other person.
(m) “
Transfer ” means, directly or indirectly, to sell,
transfer, assign, pledge, encumber, hypothecate or similarly
dispose of (by merger (including by conversion into securities or
other consideration), by tendering into any tender or exchange
offer, by testamentary disposition, by operation of law or
otherwise), or to enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer,
assignment, pledge, encumbrance, hypothecation or similar
disposition of (by merger, by tendering into any tender or exchange
offer, by testamentary disposition, by operation of law or
otherwise).
Section 2.01
Agreement to Vote . The Stockholder hereby irrevocably and
unconditionally agrees that during the term of this Agreement, at
the Stockholders Meeting and at any other meeting of the
stockholders of the Company, however called, including any
adjournment or postponement thereof, and in connection with any
written consent of the stockholders of the Company, the Stockholder
shall, in each case to the fullest extent that the Covered Shares
are entitled to vote thereon or consent thereto:
(a) appear at
each such meeting or otherwise cause the Covered Shares as to which
the Stockholder controls the right to vote to be counted as present
thereat for purposes of calculating a quorum; and
(b) vote (or
cause to be voted), in person or by proxy, or deliver (or cause to
be delivered) a written consent covering, not less than 7,735,790
Covered Shares that are entitled to vote in each case: (i) in
favor of the adoption of the Merger Agreement, approval of the
Merger or any other action of the stockholders of the Company
reasonably requested by Parent in furtherance thereof;
(ii) against any action or agreement that is in opposition to,
or competitive or inconsistent with, the Merger or that would
result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Stockholder contained in
this Agreement; (iii) against any Acquisition Proposal; and
(iv) against any other action, agreement or transaction that
would otherwise materially interfere with, delay, postpone,
discourage, frustrate the purposes of or adversely affect the
Merger or the other transactions contemplated by the Merger
Agreement or
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this Agreement
or the performance by the Stockholder of its obligations under this
Agreement, including: (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries (other than
the Merger); (B) a sale, lease or transfer of a material
amount of assets of the Company or any of its Subsidiaries or any
reorganization, recapitalization or liquidation of the Company or
any of its Subsidiaries; (C) an election of members to the
board of directors of the Company, other than nominees to the board
of directors of the Company that are directors of the Company on
the date of this Agreement or elected or appointed by such
directors or committees thereof or in accordance with the
Stockholders’ Agreement; (D) any change in the present
capitalization or dividend policy of the Company or any amendment
or other change to the Company’s certificate of incorporation
or bylaws, except if approved by Parent; or (E) any other
change in the Company’s corporate structure or
business.
Section 2.02
No Inconsistent Agreements . The Stockholder hereby
covenants and agrees that, except for this Agreement and the
Stockholders’ Agreement, the Stockholder (i) has not
entered into, and shall not enter into at any time while this
Agreement remains in effect, any voting agreement or voting trust
with respect to the Covered Shares, (ii) has not granted, and
shall not grant at any time while this Agreement remains in effect,
a proxy, consent or power of attorney with respect to the Covered
Shares except with respect to matters that do not breach in any
material respect the voting obligations set forth in
Section 2.01(b) and (iii) has not taken and shall not
knowingly take any action that would make any representation or
warranty of the Stockholder contained herein untrue or incorrect in
any material respect or have the effect of preventing or disabling
the Stockholder from performing any of its material obligations
under this Agreement.
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDER
The Stockholder
hereby represents and warrants to Parent as follows:
Section 3.01
Organization; Authorization; Validity of Agreement; Necessary
Action . The Stockholder is duly organized and is validly
existing and in good standing under the laws of the jurisdiction of
its formation. The Stockholder has full power and authority to
execute and deliver this Agreement, to perform the
Stockholder’s obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by the
Stockholder of this Agreement, the performance by it of its
obligations hereunder and the consummation by it of the
transactions contemplated hereby have been duly and validly
authorized by the Stockholder and no other actions or proceedings
on the part of the Stockholder or any stockholder thereof are
necessary to authorize the execution and delivery by it of this
Agreement, the performance by it of its obligations hereunder or
the consummation by it of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the
Stockholder and, assuming this Agreement constitutes a valid and
binding obligation of the other parties hereto, constitutes a
legal, valid and binding obligation of the Stockholder, enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization or
similar laws affecting the rights of creditors generally and the
availability of equitable remedies (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
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Section 3.02
Ownership . Schedule I sets forth opposite the
Stockholder’s name the number of shares of Company Common
Stock over which the Stockholder has Beneficial Ownership as of the
date hereof (excluding the Helio Shares). Subject to
Section 4.01, the Stockholder’s Existing Shares are, and
from the date hereof through and including the Closing Date will
be, Beneficially Owned by the Stockholder. Subject to
Section 4.01, any Covered Shares of the Stockholder acquired
after the date hereof will be from and after such date through and
including the Closing Date Beneficially Owned by the Stockholder.
Except as set forth in the Stockholders’ Agreement, the
Stockholder has and will have the sole power to vote and dispose of
the Stockholder’s Existing Shares. The Stockholder has good
and marketable title to the Stockholder’s Existing Shares,
free and clear of any Encumbrances. As of the date hereof, except
for the Helio Shares, neither the Stockholder nor any Affiliate of
the Stockholder Beneficially Owns or holds any right to acquire any
additional shares of Company Common Stock or any other voting
securities of the Company or its Subsidiaries.
Section 3.03
No Violation . The execution and delivery of this Agreement
by the Stockholder does not, and the performance by the Stockholder
of its obligations under this Agreement will not, (i) conflict
with or violate the certificate of incorporation, bylaws or other
comparable governing documents, as applicable, of the Stockholder,
(ii) conflict with or violate any law, ordinance or regulation
of any Governmental Entity applicable to the Stockholder or by
which any of its assets or properties is bound, or
(iii) conflict with, result in any breach of or constitute a
default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or require
payment under, or require redemption or repurchase of or otherwise
require the purchase and sale of, or result in the creation of any
Encumbrance on the properties or assets of the Stockholder pursuant
to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation
to which the Stockholder is a party or by which the Stockholder or
any of its assets or properties is bound, except for any of the
foregoing as could not reasonably be expected, either individually
or in the aggregate, to impair in any material respect the ability
of the Stockholder to perform its obligations hereunder or to
consummate the transactions contemplated hereby.
Section 3.04
Consents and Approvals . Except for filings required by or
advisable under applica
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