Exhibit 4.2
AMENDMENT NO. 1 TO
REGISTRATION RIGHTS
AGREEMENT
This AMENDMENT NO. 1 (this “
Amendment ”), dated as of August 22, 2008, amends
the Registration Rights Agreement, dated as of October 16,
2007 (the “ Registration Rights Agreement ”), by
and among Virgin Mobile USA, Inc., a Delaware corporation (the
“ Company ”), Corvina Holdings Limited, a
company incorporated in the British Virgin Islands, (“
Corvina ”), Cortaire Limited, a company incorporated
in the British Virgin Islands (“ Cortaire ” and
together with Corvina, “ Virgin ”), Sprint
Ventures, Inc., a Kansas corporation (“ Sprint
”), Best Buy Co., Inc., a Minnesota corporation, and Freedom
Wireless, Inc., a Nevada corporation.
WHEREAS, the Company, Virgin Mobile
USA, L.P., a Delaware limited partnership (“ VMU LP
”), Helio, Inc., a Delaware corporation (“ Helio,
Inc. ”), Helio LLC, a Delaware limited liability company
(“ Helio LLC ”), SK Telecom USA Holdings, Inc.,
a Delaware corporation (“ SK Telecom ”),
EarthLink, Inc., a Delaware corporation (“ EarthLink
”) and Corvina have entered into a Transaction Agreement,
dated as of June 27, 2008 (the “ Transaction
Agreement ”), which provides for, among other things, the
transfer and sale of the membership units of Helio LLC by SK
Telecom, EarthLink and Helio, Inc. in exchange for the issuance by
VMU LP of a number of common partnership units of VMU
LP;
WHEREAS, following the consummation
of the transactions contemplated by the Transaction Agreement, SK
Telecom and EarthLink will become stockholders of the Company and
will beneficially own Equity Securities (as defined in the
Stockholders’ Agreement, dated as of October 16, 2007,
by and among the Company, Virgin and Sprint and the other parties
thereto, as amended); and
WHEREAS, the parties hereto wish to
add SK Telecom and EarthLink as parties and amend the Registration
Rights Agreement in certain other respects.
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto agree as
follows:
1. Definitions . Except as otherwise
expressly defined herein, capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the Registration
Rights Agreement.
2. Shareholders . Each of SK Telecom
and EarthLink shall be deemed to be a Shareholder under the
Registration Rights Agreement upon the effectiveness
hereof.
3 . Amendment to Section 1 .
Section 1 of the Registration Rights Agreement is hereby
amended by:
(a) in the definition of
“Requisite Shareholders”, deleting the words
“each of Virgin or Sprint, and their respective successors
and permitted assigns as long as such successors and permitted
assigns hold, directly or together with their respective
Affiliates, a Percentage Interest of 10% or more” and
replacing such words with “each of Virgin, Sprint or SK
Telecom, and their respective successors and permitted assigns as
long as such successors and permitted assigns hold, directly or
together with their respective Affiliates, a Percentage Interest of
10% or more”; and
(b) inserting the following
additional definition:
“ SK Telecom Demand
Shareholders ” shall have the meaning set forth in
Section 2(b) hereof.
4. Amendment to Section 2 .
Section 2 of the Registration Rights Agreement is hereby
amended by:
(a) replacing the number
“50,000,000” in Section 2(a) with the number
“25,000,000”;
(b) deleting Section 2(b)(i) in
its entirety and replacing it with the following:
“first, the securities for
which inclusion in such Demand Registration was requested by the
Demand Shareholders, allocated, if necessary for the offering not
to exceed the Maximum Offering Size, such that each Demand
Shareholder sells the number o
