EXHIBIT 3.1
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
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
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.
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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
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Name: Robert J. Irving
Title: Secretary