VOTING AGREEMENT
Exhibit 99.9
EXECUTION COPY
THIS VOTING AGREEMENT (this “Agreement”) is dated as of December 5, 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 Restated
Stockholders’ Agreement, by and among the Company, Corvina Holdings Limited, the Stockholder, SK
Telecom and Sprint Ventures, Inc., dated August 22, 2008, (the “Stockholders’ Agreement”))
of the shares of Owned Company Common Stock which, as of the date hereof, are set forth across from
such Stockholder’s name on Schedule I hereto and has not granted any proxy inconsistent
with this Agreement that is still effective or entered into any stockholder agreements, voting
agreements, voting trusts, proxies or other agreements, instruments or understandings with respect
to, such Stockholder’s Owned Company Common Stock (other than the SK Telecom Voting Agreement 1, SK
Telecom Voting Agreement 2 and the Stockholders’ Agreement) that are inconsistent with or violative
of the obligations of the Stockholder herein. The shares of Company Common Stock set forth across
from such Stockholder’s name on Schedule I hereto constitute all of the capital stock of Company
that is Beneficially Owned by such Stockholder as of the date hereof.
(c) Other than the filing by such Stockholder of any reports with the SEC required by Sections
13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement by such
Stockholder or the performance by such Stockholder of its obligations under this Agreement (i)
requires any consent, authorization, approval or permission of, or filing with or notification to,
any Governmental Authority by such Stockholder, (ii) will result in a violation or breach of, or
constitutes (with or without notice or lapse of time or both) a default under (or gives rise to any
third party right of termination, cancellation, material modification or acceleration under), any
organizational document of such Stockholder or any contract or agreement to which such Stockholder
is a party or by which such Stockholder or such Stockholder’s Owned Company Common Stock may be
bound, or (iii) will violate any Governmental Order or Law applicable to such Stockholder or any of
such Stockholder’s Owned Company Common Stock, except in the case of clauses (ii) and (iii) for any
such violations, breaches or defaults that could not reasonably be expected to have a material
adverse effect on the ability of such Stockholder to perform its obligations under this Agreement.
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IV. ADDITIONAL COVENANTS OF THE STOCKHOLDER
Section 4.1 Non-Interference. The Stockholder, solely in its capacity as a
stockholder of the Company, agrees that prior to the termination of this Agreement, such
Stockholder shall not make any public announcement that would have the effect of preventing,
impeding, interfering with or adversely affecting the performance by such Stockholder of its
obligations under this Agreement.
V. TERMINATION
Section 5.1 Termination. Subject to Section 5.2, this Agreement (i) may be terminated
by the mutual written consent of the parties hereto or (ii) shall terminate without further action
at the Expiration Time.
Section 5.2 Effect of Termination. Upon termination of this Agreement, the rights and
obligations of all the parties will terminate and become void without further action by any party
except for the provisions of this Section 5.2 and Article VI, which will survive such termination.
For the avoidance of doubt, the termination of this Agreement shall not relieve any party of
liability for any willful breach of this Agreement prior to the time of termination.
VI. GENERAL
Section 6.1 Notices. Any notice, request, instruction or other communication under
this Agreement will be in writing and delivered by hand or reputable overnight courier service or
by facsimile, (i) if to the Stockholder, to the address of the Stockholder set forth on
Schedule I hereto, and (ii) if to the Company, to the Company’s principal executive
offices, or to such other Persons, addresses or facsimile numbers as may be designated in writing
by the Person entitled to receive such communication as provided above. Notice is deemed given (a)
when delivered, if delivered personally to the recipient, (b) when sent, if sent by facsimile with
a copy of such facsimile sent to the recipient by reputable overnight courier service (charges
prepaid) on the same day, or (c) one business day after being sent to the recipient, if sent by
reputable overnight courier service (charges prepaid).
Section 6.2 Third Party Beneficiaries. Nothing in this Agreement, express or implied,
is intended or shall be construed to create any third party beneficiaries.
Section 6.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware (regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof) as to all matters, including, but
not limited to, matters of validity, construction, effect, performance and remedies.
Section 6.4 Jurisdiction; Forum.
(a) By the execution and delivery of this Agreement, the parties hereto submit to the personal
jurisdiction of any state or federal court in the State of Delaware in any suit or proceeding
arising out of or relating to this Agreement.
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(b) The parties hereto agree that the appropriate and exclusive forum for any disputes between
any of the parties hereto arising out of this Agreement or the transactions contemplated hereby
shall be in any state or federal court in the State of Delaware. The parties hereto further agree
that the parties will not bring suit with respect to any disputes arising out of this Agreement or
the transactions contemplated hereby in any court or jurisdiction other than the above specified
courts; provided, however, that the foregoing shall not limit the rights of the parties to obtain
execution of judgment in any other jurisdiction. The parties hereto further agree, to the extent
permitted by Law, that final and unappealable judgment against a party in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified or exemplified copy of which shall
be conclusive evidence of the fact and amount of such judgment.
Section 6.5 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated herein is not affected in
any manner materially adverse to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible in a mutually acceptable manner.
Section 6.6 Successors and Assigns; Binding Effect. Except as contemplated in Section
2.3, neither this Agreement nor any of the rights, interests or obligations hereunder shall be
assigned, directly or indirectly, including, without limitation, by operation of law, by any party
hereto without the prior written consent of the other parties hereto. Subject to the preceding
sentence and notwithstanding anything to the contrary, this Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 6.7 Interpretation. The headings in this Agreement are for reference only and
do not affect the meaning or interpretation of this Agreement. Definitions apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
includes the corresponding masculine, feminine and neuter forms. When a reference is made to an
Article, Section or Schedule, such reference shall be to an Article, Section or Schedule of or to
this Agreement unless otherwise indicated. Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.
In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
Section 6.8 Amendments. This Agreement may not be amended except by written agreement
signed by all of the parties to this Agreement.
Section 6.9 Extension; Waiver. At any time prior to the termination of this
Agreement, the Company, on the one hand, and the Stockholder, on the other hand, may (i)
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extend the time for the performance of any of the obligations of the other party, (ii) waive
any inaccuracies in the representations and warranties of the other party contained in this
Agreement or in any document delivered under this Agreement or (iii) unless prohibited by
applicable Laws, waive compliance with any of the covenants or conditions contained in this
Agreement. Any agreement on the part of a party to any extension or waiver will be valid only if
set forth in an instrument in writing signed by such party. The failure of any party to assert any
of its rights under this Agreement or otherwise will not constitute a waiver of such rights.
Section 6.10 Fees and Expenses. Except for the filing by Stockholder of any reports
with the SEC required by Sections 13(d) or 16(a) of the Exchange Act arising out of this Agreement,
for which the Company shall reimburse Stockholder its reasonable costs in an amount not to exceed
$5,000, and as expressly provided in this Agreement, each party is responsible for its own fees and
expenses (including the fees and expenses of financial consultants, investment bankers, accountants
and counsel) in connection with the entry into this Agreement and the consummation of the
transactions contemplated hereby.
Section 6.11 Entire Agreement. This Agreement, including any schedules hereto,
constitutes the entire agreement among the parties hereto with respect to the subject matter hereof
and supersedes all other prior agreements or understandings, both written and oral, between the
parties or any of them with respect to the subject matter hereof. The only representations and
warranties made by the parties hereto with respect to the subject matter hereof are the
representations and warranties contained in or made pursuant to this Agreement.
Section 6.12 Rules of Construction. The parties to this Agreement have been
represented by counsel during the negotiation and execution of this Agreement and waive the
application of any Laws or rule of construction providing that ambiguities in any agreement or
other document will be construed against the party drafting such agreement or other document.
Section 6.13 Remedies Cumulative. Except as otherwise provided in this Agreement, any
and all remedies expressly conferred upon a party to this Agreement will be cumulative with, and
not exclusive of, any other remedy contained in this Agreement, at law or in equity. The exercise
by a party to this Agreement of any one remedy will not preclude the exercise by it of any other
remedy.
Section 6.14 Counterparts; Effectiveness; Execution. This Agreement may be signed in
any number of counterparts, each of which shall be deemed an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. For purposes of this Agreement, a
document (or signature page thereto) signed and transmitted by facsimile machine, telecopier or
electronic mail (including in PDF format) is to be treated as an original document. The signature
of any party thereon, for purposes hereof, shall be considered as an original signature, and the
document transmitted shall be considered to have the same binding effect as an original signature
on an original document. At the request of any party, any facsimile, telecopy or scanned document
shall be re-executed in original form by the parties who executed the facsimile, telecopy or
scanned document. No party may raise the use of a facsimile machine, telecopier or electronic mail
or the fact that any signature was transmitted through the use of a facsimile, telecopier or
electronic mail as a defense to the enforcement of this Agreement or any amendment or other
document executed in compliance with this Agreement.
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Section 6.15 Stockholder Capacity. No Person who owns, directly or indirectly, any
capital stock of the Stockholder or any director or officer of the Stockholder, in each case, who
is or becomes during the term of this Agreement a director or officer of the Company or any of its
affiliates will be deemed to make any agreement or understanding in this Agreement in that Person’s
capacity as a director or officer of Company or any such affiliate. The Stockholder is entering
into this Agreement solely in its capacity as the Beneficial Owner of its Owned Company Common
Stock, and nothing in this Agreement will limit or affect any actions taken by any Person who owns,
directly or indirectly, any capital stock of the Stockholder or any director or officer of the
Stockholder in his or her capacity as a director or officer of the Company or any of its
affiliates. Without limiting the generality of the foregoing, the Company acknowledges that Sung
Won Suh and Xxxxxxx Xxxx are members of the Board of Directors of the Company and are also
affiliated with the Stockholder and/or its parent, and that the foregoing persons in their
respective capacity as members of the Board of Directors of the Company may, in the exercise of
their fiduciary duties, take actions that would violate this Agreement if such actions were taken
by the Stockholder. The Company agrees that no such action taken in such individual’s capacity as
a member of the Board of Directors of the Company will be deemed a violation of this Agreement.
Section 6.16 Specific Performance. The parties to this Agreement agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties to this Agreement will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
[Remainder of page intentionally left blank. Signature Page Follows.]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of the date
first above written.
| VIRGIN MOBILE USA, INC. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | General Counsel | |||
| SK TELECOM USA HOLDINGS, INC. |
||||
| By: | /s/ Xxx Xxx So | |||
| Name: | Xxx Xxx So | |||
| Title: | President | |||
Schedule I
| Stockholder Name and Address | Number of shares of Company Common Stock Beneficially Owned | |
SK Telecom USA Holdings, Inc. c/o SK Telecom Co., Ltd. Attention: Han Xxxx Xxx 11 Euljiro 2-ga Jung-gu Xxxxx 000-000, Xxxxx |
SK Telecom USA, Inc. owns 10,999,373 shares of Class A common stock and 25,000 shares of Series A Preferred Stock in Virgin Mobile USA Inc. |
