Attached files
file | filename |
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EX-32 - EX-32 - LEAP WIRELESS INTERNATIONAL INC | a55291exv32.htm |
EX-23 - EX-23 - LEAP WIRELESS INTERNATIONAL INC | a55291exv23.htm |
EX-4.1 - EX-4.1 - LEAP WIRELESS INTERNATIONAL INC | a55291exv4w1.htm |
EX-3.2 - EX-3.2 - LEAP WIRELESS INTERNATIONAL INC | a55291exv3w2.htm |
EX-31.2 - EX-31.2 - LEAP WIRELESS INTERNATIONAL INC | a55291exv31w2.htm |
EX-31.1 - EX-31.1 - LEAP WIRELESS INTERNATIONAL INC | a55291exv31w1.htm |
EX-21 - EX-21 - LEAP WIRELESS INTERNATIONAL INC | a55291exv21.htm |
EX-10.13.1 - EX-10.13.1 - LEAP WIRELESS INTERNATIONAL INC | a55291exv10w13w1.htm |
10-K - FORM 10-K - LEAP WIRELESS INTERNATIONAL INC | a55291e10vk.htm |
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LEAP WIRELESS INTERNATIONAL, INC.
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 Corporations 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 directors 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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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 | |||