AMENDED AND RESTATED

 

                          CERTIFICATE OF INCORPORATION

                                       OF

                       LEAP WIRELESS INTERNATIONAL, INC.

 

 

            Leap Wireless International, Inc., a corporation organized and

existing under the laws of the General Corporation Law of the State of Delaware

(the "Corporation"), hereby certifies as follows:

 

            A.    The name of the corporation is Leap Wireless International,

Inc. The corporation was originally incorporated under the name Qualcomm SpinCo

Inc., and the original Certificate of Incorporation of the corporation was filed

with the Secretary of State of the State of Delaware on June 24, 1998.

 

            B.    Pursuant to Sections 242, 245 and 303 of the General

Corporation Law of the State of Delaware and the order dated October 22, 2003 of

the United States Bankruptcy Court for the Southern District of California (the

"Court"), which has jurisdiction over the Corporation in a case under Chapter 11

of Title 11 of the United States Code, this Amended and Restated Certificate of

Incorporation restates and integrates and further amends the provisions of the

Amended and Restated Certificate of Incorporation of the Corporation, as

previously amended.

 

            C.    The text of the Amended and Restated Certificate of

Incorporation as previously amended or supplemented is restated and further

amended to read in its entirety as follows:

 

            FIRST: The name of the Corporation is Leap Wireless International,

Inc.

 

            SECOND: The address of the Corporation's registered office in the

State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington,

19808, County of New Castle. The name of its registered agent at such address is

The Prentice-Hall Corporation System, Inc.

 

            THIRD: The purpose of the Corporation is to engage in any lawful act

or activity for which a corporation may be organized under the General

Corporation Law of the State of Delaware.

 

            FOURTH: The Corporation is authorized to issue two classes of stock

to be designated, respectively, "Common Stock" and "Preferred Stock." The total

number of shares of all classes of stock that the Corporation shall have

authority to issue is One Hundred Seventy Million (170,000,000) shares. One

Hundred Sixty Million (160,000,000) shares shall be Common Stock, each having a

par value of $.0001 per share. Ten Million (10,000,000) shares shall be

Preferred Stock, each having a par value of $.0001 per share. The Preferred

Stock may be issued from time to time in one or more series. The Board of

Directors is hereby authorized, by filing a certificate (a "Preferred Stock

Designation") pursuant to the General Corporation Law of the State of Delaware,

to fix or alter from time to time the designation, powers, preferences and

rights of the shares of each such series and the qualifications, limitations or

restrictions of

<PAGE>

any wholly unissued series of Preferred Stock, and to establish from time to

time the number of shares constituting any such series or any of them, and to

increase or decrease the number of shares of any series subsequent to the

issuance of shares of that series, but not below the number of shares of such

series then outstanding. In case the number of shares of any series shall be

decreased in accordance with the foregoing sentence, the shares constituting

such decrease shall resume the status they had prior to the adoption of the

resolution originally fixing the number of shares of such series. To the extent

required by Section 1123(a) of Title 11, Chapter 11 of the United States Code

and notwithstanding anything to the contrary herein, in no event shall the

Corporation be authorized to issue any class or series of nonvoting equity

securities.

 

            FIFTH: The management of the business and the conduct of the affairs

of the Corporation shall be vested in its Board of Directors. The number of

directors which shall constitute the whole Board of Directors shall be fixed

exclusively by one or more resolutions adopted by the Board of Directors.

 

            SIXTH: Subject to Section 8 of Article IV of the bylaws of the

Corporation, the bylaws of the Corporation may be altered or amended or new

bylaws adopted by the affirmative vote of at least sixty-six and two-thirds

percent (66-2/3%) of the voting power of all of the then-outstanding shares of

voting stock of the Corporation, voting together as a single class. In

furtherance and not in limitation of the powers conferred by statute, the Board

of Directors also is expressly authorized to make, alter or repeal the bylaws of

the Corporation.

 

            SEVENTH: Election of directors need not be by written ballot unless

the bylaws of the Corporation shall so provide.

 

            EIGHTH: No action shall be taken by the stockholders of the

Corporation except at an annual or special meeting of stockholders called in

accordance with the bylaws of the Corporation or this Article EIGHTH. The

stockholders of the Corporation may not take action by written consent. Special

meetings of the stockholders of the Corporation may be called, for any purpose

or purposes, by (i) the Chairman of the Board of Directors, (ii) the Chief

Executive Officer or President, or (iii) the Board of Directors pursuant to a

resolution adopted by a majority of the total number of authorized directors

(whether or not there exist any vacancies in previously authorized directorships

at the time any such resolution is presented to the Board of Directors for

adoption) and shall be held at such place, on such date, and at such time as the

Board of Directors shall fix. Advance notice of stockholder nominations for the

election of directors and of business to be brought by stockholders before any

meeting of the stockholders of the Corporation shall be given in the manner

provided in the bylaws of the Corporation.

 

            NINTH: No director of this Corporation shall be personally liable to

the Corporation or its stockholders for monetary damages for breach of fiduciary

duty as a director, except for liability (i) for any breach of the director's

duty of loyalty to the Corporation or its stockholders, (ii) for acts or

omissions not in good faith or which involve intentional misconduct or a knowing

violation of law, (iii) under Section 174 of the General Corporation Law of the

State of Delaware, or (iv) for any transaction from which the director derived

an improper personal benefit. If the General Corporation Law of the State of

Delaware is amended after the date hereof to authorize corporate action further

eliminating or limiting the personal liability of directors, then the liability

of a director shall be eliminated or limited to the fullest extent

<PAGE>

permitted by the General Corporation Law of the State of Delaware, as so

amended. Any repeal or modification of this Article NINTH shall be prospective

and shall not affect the rights under this Article NINTH in effect at the time

of the alleged occurrence of any act or omission to act giving rise to liability

or indemnification. Notwithstanding any of the provisions of this Amended and

Restated Certificate of Incorporation, this Amended and Restated Certificate of

Incorporation shall not in any way countermand or otherwise affect provisions

concerning indemnification set forth in the "Fifth Amended Joint Plan of

Reorganization Dated as of July 30, 2003" of the Corporation (the "Plan") or the

Order of the Court confirming the Plan, entered on October 22, 2003.

 

            TENTH: The Corporation reserves the right to amend, alter, change or

repeal any provision contained in this Amended and Restated Certificate of

Incorporation in the manner now or hereafter prescribed by statute, except as

provided in Article ELEVENTH, and all rights conferred upon the stockholders

herein are granted subject to this reservation.

 

            ELEVENTH: Notwithstanding any other provisions of this Amended and

Restated Certificate of Incorporation or any provision of law which might

otherwise permit a lesser vote or no vote, but in addition to any affirmative

vote of the holders of any particular class or series of voting stock of the

Corporation required by law, this Amended and Restated Certificate of

Incorporation or any Preferred Stock Designation, the affirmative vote of the

holders of at least sixty-six and two-thirds percent (66-2/3%) of the voting

power of all of the then-outstanding shares of voting stock of the Corporation,

voting together as a single class, shall be required to alter, amend or repeal

any of Articles FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH AND ELEVENTH of this

Amended and Restated Certificate of Incorporation.

 

                  [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

<PAGE>

            IN WITNESS WHEREOF, this Amended and Restated Certificate of

Incorporation has been signed by Robert J. Irving, its authorized officer this

16th day of August 2004.

 

                                        Leap Wireless International, Inc.

 

                                        By: /s/ Robert J. Irving

                                            ------------------------------------

                                        Name:   Robert J. Irving

                                        Title:  Secretary

 

 

 

 

 

THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

 

OF

 

LEAP WIRELESS INTERNATIONAL, INC.

 

 

    FIRST.   The name of the corporation is Leap Wireless International, Inc.

 

    SECOND.   The address of the corporation’s registered office in the State of Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle, 19801.  The name of the registered agent of the corporation at such address is The Corporation Trust Company.

 

    THIRD.   The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law.

 

    FOURTH.   The total number of shares which the corporation shall have authority to issue is 1,000 shares of Common Stock, and the par value of each of such shares is $0.01.

 

    FIFTH.   The board of directors of the corporation is expressly authorized to adopt, amend or repeal by-laws of the corporation.

 

    SIXTH.   Elections of directors need not be by written ballot except and to the extent provided in the by-laws of the corporation.

 

    SEVENTH.   No director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware or (iv) for any transaction from which the director derived an improper personal benefit.  If the General Corporation Law of the State of Delaware is amended after the date hereof to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended.  Any repeal or modification of this Article SEVENTH shall be prospective and shall not affect the rights under this Article SEVENTH in effect at the time of the alleged occurrence of any act or omission to act giving rise to liability or indemnification. Notwithstanding any of the provisions of this Third Amended and Restated Certificate of Incorporation, this Third Amended and Restated Certificate of Incorporation shall not in any way countermand or otherwise affect provisions concerning indemnification set forth in the “Fifth Amended Joint Plan of Reorganization Dated as of July 30, 2003” of the corporation (the “Plan”) or the Order of the Court confirming the Plan, entered on October 22, 2003.

 

[As Filed: 03-14-2014]