VOTING AGREEMENT,
dated as of July 27, 2009 (this “ Agreement
”), by and among CORVINA HOLDINGS LIMITED, a British Virgin
Islands company (“ Corvina ”), CORTAIRE LIMITED,
a British Virgin Islands company (“ Cortaire ”;
each of Corvina and Cortaire a “ Stockholder ”
and collectively the " Stockholders ”), 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, each Stockholder Beneficially Owns (as hereinafter
defined) the number of shares of Company Common Stock set forth
opposite such 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 each Stockholder agree, and
such 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 each
Stockholder, such Stockholder’s Existing Shares, together
with any shares of Company Common Stock that such 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 each
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 such Stockholder
as of the date hereof, as set forth opposite such
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.
(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, each of the Stockholders, SK
Telecom USA Holdings, Inc. 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 . Each 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, such
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
such 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 14,362,153
Covered Shares in the case of Corvina and 126 Covered Shares in the
case of Cortaire, 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 such 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 this Agreement or the performance by such 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 . Each Stockholder hereby
covenants and agrees that, except for this Agreement and the
Stockholders’ Agreement, such 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 such Stockholder contained herein untrue or incorrect
in any material respect or have the effect of preventing or
disabling such Stockholder from performing any of its material
obligations under this Agreement.
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder
hereby represents and warrants, jointly and severally with the
other Stockholder, to Parent as follows:
Section 3.01
Organization; Authorization; Validity of Agreement; Necessary
Action . Such Stockholder is duly organized and is validly
existing and in good standing under the laws of the jurisdiction of
its formation. Such Stockholder has full power and authority to
execute and deliver this Agreement, to perform such
Stockholder’s obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by
such 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 such Stockholder and no other actions or proceedings
on the part of such 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
such Stockholder and, assuming this Agreement constitutes a valid
and binding obligation of the other parties hereto, constitutes a
legal, valid and binding obligation of such 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).
Section 3.02
Ownership . Schedule I sets forth opposite each
Stockholder’s name the number of shares of Company Common
Stock over which such Stockholder has Beneficial Ownership as of
the date hereof. Subject to Section 4.01, each
Stockholder’s Existing Shares are, and from the date hereof
through and including the Closing Date will be, Beneficially Owned
by such Stockholder. Subject to Section 4.01, any Covered Shares of
such Stockholder acquired after the date hereof will be from and
after such date through and including the Closing Date Beneficially
Owned by such Stockholder. Except as set forth in the
Stockholders’ Agreement, such Stockholder has and will have
the sole power to vote and dispose of such Stockholder’s
Existing Shares. Such Stockholder has good and marketable title to
such Stockholder’s Existing Shares, free and clear of any
Encumbrances. As of the date hereof, except as set forth in
Schedule II , neither such Stockholder nor any
Affiliate of such 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 such Stockholder does not, and the performance by such
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
such Stockholder, (ii) conflict with or violate any law,
ordinance or regulation of any Governmental Entity applicable to
such 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 such
Stockholder pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by
which such 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 such 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 applicable securities laws, the execution and
delivery of this Agreement by such Stockholder does not, and the
performance by such Stockholder of its obligations under this
Agreement and the consummation by it of the transactions
contemplated hereby will not, require such Stockholder to obtain
any consent, approval, authorization or permit of, or to make any
filing with or notification to, any Governmental Entity.
Section 3.05
Absence of Litigation . As of the date hereof, there is no
action, suit or proceeding pending or, to the knowledge
o
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