VOTING AGREEMENT
Exhibit
99.10
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:
ARTICLE
I
DEFINITIONS
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.
1
(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,
2
(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).
ARTICLE
II
VOTING
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
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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.
ARTICLE
III
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
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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 of such Stockholder, threatened against
or
5
Section
3.06 Finder’s
Fees. No investment banker, broker, finder or other intermediary is
entitled to a fee or commission from Parent, Merger Sub or the Company in
respect of this Agreement based upon any arrangement or agreement made by or, to
the knowledge of such Stockholder, on behalf of such Stockholder.
ARTICLE
IV
OTHER
COVENANTS
Section
4.01 Prohibition
on Transfers, Other Actions. Each Stockholder hereby agrees not to (i)
Transfer any of its Covered Shares, Beneficial Ownership thereof or any other
interest therein; provided that no
Transfer of its Covered Shares to any Affiliate of such Stockholder that agrees
in writing to be bound by the terms and conditions of this Agreement shall be
subject to the above restriction; (ii) enter into any agreement, arrangement or
understanding with any person, or take any other action, that violates or
conflicts with or would reasonably be expected to violate or conflict with, or
result in or give rise to a violation of or conflict with, such Stockholder’s
representations, warranties, covenants and obligations under this Agreement; or
(iii) take any action that could materially restrict or otherwise affect such
Stockholder’s legal power, authority and right to comply with and perform its
covenants and obligations under this Agreement. Any Transfer in violation of
this provision shall be void. Subject to Section 4.03, each Stockholder also
agrees not to engage in any transaction with respect to any of the Covered
Shares with the primary purpose of depriving Parent of the intended benefits of
this Agreement.
Section
4.02 Stock
Dividends, etc. In the event of a stock split, stock dividend or
distribution, or any change in the Company Common Stock by reason of any
split-up, reverse stock split, recapitalization, combination, reclassification,
exchange of shares or the like, the terms “Existing Shares” and “Covered Shares”
shall be deemed to refer to and include such shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of such shares may be changed or exchanged or which are received in such
transaction.
Section
4.03 No
Solicitation. Each Stockholder agrees that (i) it and its executive
officers and directors shall not, (ii) its Subsidiaries and its Subsidiaries’
executive officers and directors shall not, (iii) it shall use reasonable best
efforts to ensure that its and its Subsidiaries’ Representatives shall not, (A)
directly or indirectly, solicit, initiate, knowingly encourage or knowingly
facilitate any inquiries or the making of any Acquisition Proposal, (B) directly
or indirectly participate in or knowingly encourage any negotiations or
discussions concerning, or provide access to its properties, books and records
or any confidential information or data to, any person relating to or take any
other action to knowingly facilitate any inquiries or the making of any proposal
that constitutes, or may reasonably be expected to lead to, an Acquisition
Proposal, (C) recommend, adopt or approve, or propose publicly to recommend,
adopt or approve, an Acquisition Proposal or (D) agree or publicly propose to do
any of the
6
Section
4.04 Notice of
Acquisitions. During the term of this Agreement, upon the written request
of Parent, each Stockholder hereby agrees to disclose to Parent in writing the
number of any additional shares of Company Common Stock or other voting
securities of the Company of which such Stockholder acquires Beneficial
Ownership on or after the date hereof, such written disclosure to be made by
such Stockholder within five Business Days of such written request from
Parent.
Section
4.05 Stockholder
Capacity. No person who owns, directly or indirectly, any capital stock
of a Stockholder or any director or officer of such 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 the Company or any such Affiliate. Each Stockholder is entering into
this Agreement solely in its capacity as the Beneficial Owner of its Existing
Shares, and nothing in this Agreement will limit or affect any actions taken by
any person who owns, directly or indirectly, any capital stock of such
Stockholder or any director or officer of such 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, Parent acknowledges that
Xxxxxx XxXxxxxx, Xxxxxx Xxxxxxxxx and Xxxx Xxxxx are members of the Board of
Directors of the Company and are also affiliated with Corvina and Cortaire and
their respective parent companies, 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 under applicable Law, take actions that
would violate this Agreement if such actions were taken by a Stockholder. Parent
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. Nothing herein shall limit or affect any actions taken by such person
solely in his or her capacity as a director or officer of the
Company.
Section
4.06 Waiver of
Consent; Waiver under Certificate of Designations; Consent.
Subject to Section 5.01, each of the Stockholders hereby waives any requirement
to obtain
its respective consent to the Merger Agreement (as in effect as of the date
hereof or as such Merger Agreement may be amended in a manner that does not give
such Stockholder the
7
Section
4.07 Further
Assurances. Without limiting the foregoing, each Stockholder
hereby authorizes Parent and the Company to publish and disclose in any
announcement
or disclosure required by the SEC and in the S-4 and Proxy Statement such
Stockholder’s identity and ownership of its Covered Shares and the nature of
such Stockholder’s obligations under this Agreement. Parent agrees to give each
Stockholder a meaningful opportunity to review and comment on the S-4 prior to
each filing of the Proxy Statement.
ARTICLE
V
MISCELLANEOUS
Section
5.01 Termination. This
Agreement shall remain in effect until the earlier to occur of (i) the Effective
Time and (ii) the date of termination of the Merger Agreement in accordance with
its terms, and after the occurrence of such applicable event this Agreement
shall terminate and be of no further force; provided, however, that (A)
each Stockholder shall have the right to terminate this Agreement by written
notice to Parent if the terms of the Merger Agreement are amended or waived
without the prior written consent of such Stockholder, but only if such
amendment or waiver creates any additional condition to the consummation of the
Merger, reduces the amount of Merger Consideration, changes the form
of
8
Section
5.02 No
Ownership Interest. Nothing contained in this Agreement shall be deemed
to vest in Parent any direct or indirect ownership or incidence of ownership of
or with respect to any Covered Shares. All rights, ownership and economic
benefits of and relating to the Covered Shares shall remain vested in and belong
to the applicable Stockholder, and Parent shall have no authority to direct any
Stockholder in the voting or disposition of any of the Covered Shares, except as
otherwise provided herein.
Section
5.03 Notices. All notices
and other communications hereunder shall be in writing and shall be deemed given
if delivered personally, telecopied (upon telephonic confirmation of receipt),
on the first Business Day following the date of dispatch if delivered by a
recognized next day courier service or on the third Business Day following the
date of mailing if delivered by registered or certified mail, return receipt
requested, post prepaid. All notices hereunder shall be delivered as set forth
below, or pursuant to such other instructions as may be designated in writing by
the party to receive such notice:
(a)
if to
Parent, to:
Sprint
Nextel Corporation
0000
Xxxxxx Xxxxxxx
Xxxxxxxx
Xxxx, Xxxxxx 00000
Attention:
General Counsel
Fax:
000-000-0000
and
Sprint
Nextel Corporation
0000
Xxxxxx Xxxxxxx
Xxxxxxxx
Xxxx, Xxxxxx 00000
Attention:
President - Strategic Planning and Corporate Initiatives
Fax:
000-000-0000
with an
additional copy (which shall not constitute notice) to:
King
& Spalding LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Fax:
(000) 000-0000
Attention:
E. Xxxxxxx Xxxxx, II
Xxxx X.
Xxxxxxx
(b) if to Corvina, to:
9
c/o La
Motte Xxxxxxxx
La Xxxxx
Xxxxxx
Xx.
Xxxxxx, Xxxxxx XX0 0XX
Channel
Islands
Fax: +44
(01534) 602035
Attention: RBC
Securities (CI) Limited
with an
additional copy (which shall not constitute notice) to:
Xxxxx
Xxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
(c)
if to
Cortaire, to:
Cortaire
Limited
c/o La
Motte Xxxxxxxx
La Xxxxx
Xxxxxx
Xx.
Xxxxxx, Xxxxxx XX0 0XX
Channel
Islands
Fax: +44
(01534) 602035
Attention: RBC
Securities (CI) Limited
with an
additional copy (which shall not constitute notice) to:
Xxxxx
Xxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
Section
5.04 Interpretation. When
reference is made in this Agreement to an Article, a Section, Exhibit or
Schedule, such reference shall be to an Article of, a Section of, or an Exhibit
or Schedule 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.” The words “hereof,”
“herein,” “hereby” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The word “or” shall not be exclusive. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any Contract, instrument or Law
defined or referred to herein or in any Contract or instrument that is referred
to herein means such Contract, instrument or Law as from time to time amended,
modified or supplemented, including (in the case of Contracts or instruments) by
waiver or consent and (in the case of Laws) by succession of
comparable
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Section
5.05 Counterparts. This
Agreement may be executed and delivered (including by facsimile or other
electronic transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
Section
5.06 Entire
Agreement. This Agreement and, to the extent referenced herein, the
Merger Agreement, together with the several agreements and other documents and
instruments referred to herein or therein or annexed hereto or thereto, embody
the complete agreement and understanding among the parties hereto with respect
to the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written and oral, that
may have related to the subject matter hereof in any way.
Section
5.07 Governing
Law. This Agreement shall be governed by, and construed in accordance
with, the Laws of the State of Delaware (without giving effect to choice of Law
principles that would cause the Laws of another jurisdiction to
apply).
Section
5.08 Headings. The
descriptive headings contained in this Agreement are included for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section
5.09 Specific
Performance. The parties agree that irreparable damage would occur and
that the parties and the third party beneficiaries of this Agreement would not
have any adequate remedy at Law 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, prior to the termination of
this Agreement pursuant to Section 5.01, Parent shall be entitled to an
injunction or injunctions or other equitable relief to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which such party is
entitled at Law or in equity. The parties agree that they shall not object to
the granting of injunctive or other equitable relief on the basis that there
exists an adequate remedy at Law. The parties further agree that (x) by seeking
the remedies provided for in this Section 5.09, a party shall not in any respect
waive its right to seek any other form of relief that may be available to a
party under this Agreement, including monetary damages in the event that this
Agreement is terminated or in the event that the remedies provided for in this
Section 5.09 are not available or are otherwise not granted, and (y) nothing in
this Section 5.09 shall restrict or limit any party’s right to terminate this
Agreement in accordance with the terms of Section 5.01.
Section
5.10 Jurisdiction. Each of
the parties hereto (i) consents to submit itself to the personal jurisdiction of
the courts of the Court of Chancery of the State of Delaware or, if under
applicable Law exclusive jurisdiction over such matter is vested in the federal
courts, any court of the United States located in the State of Delaware, in the
event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that
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it shall not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (iii) agrees that it
shall not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than the Court of Chancery of
the State of Delaware or, if under applicable Law exclusive jurisdiction over
such matter is vested in the federal courts, any court of the United States
located in the State of Delaware, and (iv) consents to service being made
through the notice procedures set forth in Section 5.03. Each of the
Stockholders and Parent hereby agrees, to the fullest extent permitted by Law,
that service of any process, summons, notice or document by U.S. registered mail
to the respective addresses set forth in Section 5.03 shall be effective service
of process for any suit or proceeding in connection with this Agreement or the
transactions contemplated hereby. EACH PARTY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR
OTHERWISE.
Section
5.11 Amendment;
Waiver. This Agreement may not be amended except by an instrument in
writing signed by Parent and each of the Stockholders. Each party may waive any
right of such party hereunder by an instrument in writing signed by such party
and delivered to Parent and each of the Stockholders.
Section
5.12 Severability. If any
term or other provision of this Agreement is held to be invalid, illegal or
incapable of being enforced by any rule of Law or public policy, the validity,
legality and enforceability of all other conditions and provisions of this
Agreement shall not be affected or impaired thereby so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. 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 an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible and if the parties cannot come to an agreement, such term or
provision shall be deemed reformed to the extent necessary to conform to
applicable Law and to give maximum effect to the intent of the parties
hereto.
Section
5.13 Successors
and Assigns; Third Party Beneficiaries. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned, in whole or in
part, by operation of Law or otherwise, by any of the parties without the prior
written consent of each of the other parties. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted assigns. Nothing in
this Agreement, express or implied, is intended to confer on any person other
than the parties hereto or their respective successors and permitted assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
Section
5.14 Expenses. All costs
and expenses (including legal fees) (i) incurred in connection with the
preparation and negotiation of this Agreement shall be paid by the party
incurring such expenses and (ii) incurred due to or in connection with any
action to enforce the terms of this Agreement shall be paid by the
non-prevailing party in such action.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
(where applicable, by their respective officers or other authorized person
thereunto duly authorized) as of the date first written above.
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SPRINT
NEXTEL CORPORATION
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By:
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/s/ Xxxxx X. Xxxxx | ||
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Name:
Xxxxx X. Xxxxx
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Title:
President - Strategic Planning and Corporate Initiatives
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CORVINA
HOLDINGS LIMITED
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By:
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/s/ Xxxx Xxxxxx | ||
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Name:
Xxxx Xxxxxx
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Title:
Director
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CORTAIRE
LIMITED
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By:
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/s/ Xxxx Xxxxxx | ||
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Name:
Xxxx Xxxxxx
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Title:
Director
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13
Ownership
of Common Stock
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Name
and Address of
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Beneficial
Ownership
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Stockholders
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Corvina
Holdings Limited
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Corvina
owns 22,901,161 shares of
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|||
|
c/o
La Motte Xxxxxxxx
|
Class
A Common Stock, 115,061 shares
|
|||
|
La
Motte Street
|
of
Class C Common Stock and 00,000
|
|||
|
Xx.
Xxxxxx, Xxxxxx XX0 0XX
|
shares
of Company Preferred Stock.
|
|||
|
Channel
Islands
|
||||
|
Attention: RBC
Securities (CI)
|
||||
|
Limited
|
||||
|
Cortaire
Limited
|
Cortaire
owns 228 shares of Class A
|
|||
|
c/o
La Motte Xxxxxxxx
|
Common
Stock and 1 share of Class C
|
|||
|
La
Motte Street
|
Common
Stock.
|
|||
|
St.
Helier, Jersey JE1 1BJ
|
||||
|
Channel
Islands
|
||||
|
Attention: RBC
Securities (CI)
|
||||
|
Limited
|
Rights
to Acquire Additional Company Common Stock or Voting Securities
1. Company
Common Stock issuable upon conversion (whether optional or mandatory) of the
Company Preferred Stock or otherwise (including a stock dividend) pursuant to
the terms of the Company Preferred Stock.
2. Any
restricted stock units or other stock-based awards in respect of Company Common
Stock granted under the Company’s 2007 Omnibus Incentive Compensation Plan to
directors of the Company Affiliated with Corvina or Cortaire, including any such
awards previously made that vest after the date hereof.
