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EXHIBIT 4.2.4
AMENDED AND RESTATED
AGREEMENT CONCERNING SHARE OWNERSHIP
This AMENDED and RESTATED AGREEMENT CONCERNING SHARE OWNERSHIP (this
"Agreement"), dated as of August 4, 1999 is by and between QUALCOMM
Incorporated, a Delaware corporation ("QUALCOMM") and Leap Wireless
International, Inc., a Delaware corporation ("Leap Wireless") and amends and
restates the Agreement Concerning Share Ownership dated April 1, 1999. For good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, QUALCOMM and Leap Wireless hereby agree as follows:
1. Share Ownership. From and after the date of this Agreement, for
so long as the Company or Cricket Holdings, Inc. seeks to remain qualified as a
"Publicly Traded Corporation With Widely Disbursed Voting Power" (a "PTC") or as
a "very small business" designated entity eligible to hold C-Block or F-Block
PCS licenses, as those terms are defined in the rules, policies and orders of
the Federal Communications Commission (the "FCC"), QUALCOMM shall not purchase,
receive or otherwise hold (whether by purchase, gift, pursuant to options,
warrants or convertible securities, or otherwise) any shares of Leap Wireless
Common Stock in excess of 15% of the Leap Wireless Common Stock, unless, in the
written opinion (which may be a reasoned opinion) of Leap Wireless' outside
regulatory counsel, which counsel shall be reasonably satisfactory to QUALCOMM,
such purchase, receipt or holding will not disqualify Leap Wireless as a PTC or
as a "very small business" designated entity eligible to hold C-Block or F-Block
PCS licenses.
2. Officers and Directors. QUALCOMM acknowledges and agrees that in
determining whether QUALCOMM has acquired or will acquire 15% or more of the
Leap Wireless Common Stock which would disqualify Leap Wireless or Cricket
Holdings, Inc. as a PTC or as a "very small business" designated entity eligible
to hold C-Block or F-Block PCS licenses, QUALCOMM will expressly include in its
ownership calculations all shares of Leap Wireless capital stock held by or
which after the date of this Agreement are acquired by (whether by purchase,
gift, pursuant to options, warrants or convertible securities or otherwise), any
officers or directors of QUALCOMM.
3. Compliance Program. With Leap Wireless' reasonable assistance,
from and continuing after the date of this Agreement, QUALCOMM shall develop,
implement and maintain a compliance program in order to permit QUALCOMM to
monitor the number of Leap Wireless shares, options or warrants or other
securities convertible into Leap Wireless Common Stock held or otherwise
acquired by its officers and directors to ensure QUALCOMM's ongoing compliance
with the provisions of Sections 1 and 2 of this Agreement and Section 5.14 of
that certain Warrant dated September 23, 1998, as amended, issued by Leap
Wireless to QUALCOMM. Under this compliance program, (i) QUALCOMM will
periodically instruct its officers and directors to report immediately to
QUALCOMM any acquisitions or other receipt of additional Leap Wireless shares,
options or warrants or other securities convertible into Leap Wireless Common
Stock held by such individuals, and (ii) QUALCOMM will poll in writing
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each of its officers and directors on a monthly basis to confirm such person's
direct and indirect holdings of Leap Wireless Common Stock and to inquire
whether any such individual has acquired or otherwise received, directly or
indirectly, any Leap Wireless shares, options or warrants or other securities
convertible into Leap Wireless Common Stock during the month.
4. Voting Agreement. QUALCOMM shall execute and deliver concurrently
with this Agreement that certain Voting Agreement of even date herewith by and
among Leap Wireless, QUALCOMM and the other parties signatory thereto (the
"Voting Agreement"). In addition, QUALCOMM shall use its reasonable best efforts
to cause its officers and directors to become a party to and promptly execute
and deliver to Leap Wireless the Voting Agreement.
5. Injunctive Relief. In the event of a breach or threatened breach
of this Agreement by QUALCOMM, the parties agree that money damages, alone, may
be an inadequate remedy, and that Leap Wireless may apply for injunctive and
other equitable relief, including an order for specific performance, to prevent
or remedy such breach.
6. Miscellaneous.
(a) Term. The provisions of this Agreement shall continue in
full force and effect until September 23, 2008.
(b) Successors, Assigns and Transferees. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, heirs, legatees, successors and assigns.
(c) Disputes. Any controversy or dispute between Leap Wireless
and QUALCOMM arising under this Agreement, including the enforceability of this
arbitration clause, shall be settled by binding arbitration before a single
arbitrator in San Diego, California in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, Expedited Procedures.
The governing law of such arbitration shall be as set forth in Section 6(c)
hereof. Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.
(d) Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to choice of
law or conflicts of law principles.
(e) Contravention. If any provision of this Agreement
contravenes any applicable law or regulation, the remainder of the Agreement
shall be given effect as though such provision was not present, and in a manner
so as to achieve the objective of such provision as nearly as possible without
contravening the law.
(f) Counterparts. This Agreement may be executed in two or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when
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executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
(g) Amendment. This Agreement may be amended, modified or
supplemented only by written agreement of the party or parties hereto against
whom enforcement of such amendment, modification or supplement is sought.
IN WITNESS WHEREOF, the parties have executed this Agreement Concerning
Share Ownership as of the date first written above.
LEAP WIRELESS INTERNATIONAL, INC.
By: /s/ James E. Hoffmann
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Name: James E. Hoffmann
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Title: Sr. Vice President, General Counsel
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QUALCOMM INCORPORATED
By: /s/ Steven R. Altman
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Name: Steve Altman
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Title: Executive Vice President
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