EXHIBIT 4.3.3
THIRD AMENDMENT TO RIGHTS AGREEMENT
THIRD AMENDMENT, dated as of August 28, 2002 ("Third Amendment"),
to Rights Agreement dated as of September 14, 1998, as amended (the "Rights
Agreement"), between Leap Wireless International, Inc., a Delaware corporation
(the "Company"), and Harris Trust Company of California, now known as
Computershare Investor Services LLC (the "Rights Agent"). Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed to them in the
Rights Agreement.
WHEREAS, the Company and the Rights Agent previously entered into
the Rights Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend any
provision of the Rights Agreement in accordance with the terms of such Section
26.
NOW, THEREFORE, in consideration of the foregoing promises and
mutual agreements set forth in this Third Amendment, the parties hereby amend
the Rights Agreement as follows:
1. Section 1.1 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
""Acquiring Person" shall mean any Person (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as
such terms are hereinafter defined) of such Person, shall be the
Beneficial Owner (as such term is hereinafter defined) of 15% or more of
the Common Shares of the Company then outstanding but shall not include
(i) an Exempt Person or (ii) any Existing Holder, unless and until such
time as such Existing Holder shall become the Beneficial Owner of one or
more additional Common Shares of the Company (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding
Common Shares in Common Shares or pursuant to a split or subdivision of
the outstanding Common Shares), unless, upon becoming the Beneficial
Owner of such additional Common Shares, such Existing Holder is not then
the Beneficial Owner of 15% or more of the Common Shares then
outstanding. "Existing Holder" shall mean: (i) QUALCOMM Incorporated,
together with all of its Affiliates and Associates (but excluding the
beneficial ownership of individual officers, directors and employees of
QUALCOMM Incorporated, solely by reason of such persons' status or
authority as such), and, for purposes of this Rights Agreement, (x)
prior to the consummation of the proposed "spin-off" distribution of
Common Shares to the common stockholders of QUALCOMM Incorporated (the
"Spin-Off"), QUALCOMM Incorporated may acquire one or more additional
Common Shares without becoming an Acquiring Person hereunder, and (y)
from and after the consummation of the Spin-Off, (1) QUALCOMM
Incorporated may become the Beneficial Owner of up to 4,500,000 Common
Shares (subject to adjustment), provided such beneficial
ownership of Common Shares is acquired solely upon the issuance by the
Company to QUALCOMM Incorporated of that certain Warrant to purchase
4,500,000 Common Shares (subject to adjustment) following the
consummation of the Spin-Off or upon the exercise of such Warrant in
accordance with its terms, and (2) QUALCOMM Incorporated may become the
Beneficial Owner of up to 775,000 Common Shares (subject to adjustment),
provided such beneficial ownership of Common Shares is acquired solely
upon the issuance by the Company to QUALCOMM Incorporated of Warrants
acquired through the purchase of those certain Units, each such Unit
consisting of one note and one Warrant to purchase Common Shares, such
Warrants in the aggregate entitling QUALCOMM Incorporated to purchase up
to 775,000 Common Shares (subject to adjustment) or upon the exercise of
such Warrants in accordance with their terms, without becoming an
Acquiring Person hereunder; and (ii) MCG PCS, Inc., together with all of
its Affiliates and Associates existing on August 29, 2002, but only to
the extent of (x) the number of Common Shares (excluding the Common
Shares referred to in clause (y) below) that MCG PCS, Inc., together
with all of its Affiliates and Associates existing on August 29, 2002,
beneficially own on August 29, 2002, plus (y) up to 21,548,415 Common
Shares (subject to adjustment) of which MCG PCS, Inc., together with all
of its Affiliates and Associates existing on August 29, 2002, acquires
beneficial ownership solely through the issuance by the Company to MCG
PCS, Inc. of Common Shares pursuant to that certain Interim, Partial
Award, dated as of August 5, 2002, as issued by the American Arbitration
Association Commercial Arbitration Tribunal and any subsequent awards,
rulings or orders related to the dispute underlying such Interim,
Partial Award. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common Shares by
the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such
Person to 15% or more of the Common Shares of the Company then
outstanding; PROVIDED, HOWEVER, that if a Person shall become the
Beneficial Owner of 15% or more of the Common Shares of the Company then
outstanding solely by reason of share purchases by the Company and
shall, after notice from or public disclosure by the Company of such
share purchases by the Company, become the Beneficial Owner of one or
more additional Common Shares of the Company, then such Person shall be
deemed to be an "Acquiring Person." Notwithstanding the foregoing, if
the Board of Directors of the Company determines in good faith that a
Person who would otherwise be an "Acquiring Person," as defined pursuant
to the foregoing provisions of this Section 1.1, has become such
inadvertently (including, without limitation, because (A) such Person
was unaware that it beneficially owned a percentage of Common Stock that
would otherwise cause such Person to be an "Acquiring Person" or (B)
such Person was aware of the extent of its Beneficial Ownership of
Common Stock but had no actual knowledge of the consequences of such
Beneficial Ownership under this Agreement), and without any intention of
changing or influencing control of the Company, and such Person divests
as promptly as practicable a sufficient number
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of Common Shares so that such Person would no longer be an Acquiring
Person, as defined pursuant to the foregoing provisions of this Section
1.1, then such Person shall not be deemed to be or have become an
"Acquiring Person" at any time for any purposes of this Agreement. For
all purposes of this Agreement, any calculation of the number of Common
Shares outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding Common Shares
of which any Person is the Beneficial Owner, shall be made in accordance
with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date of this Agreement."
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Third
Amendment as of the date first written above.
LEAP WIRELESS INTERNATIONAL, INC.
By: /s/ JAMES E. HOFFMANN
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Name: James E. Hoffmann
Title: Senior Vice President, General
Counsel and Secretary
COMPUTERSHARE INVESTOR SERVICES LLC
By: /s/ JOHN A. CASTELLANOS
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Name: John A. Castellanos
Title: Relationship Manager
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