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EXHIBIT 4.6.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of February 8, 2000 ("First
Amendment"), to Rights Agreement dated as of September 14, 1998 (the "Rights
Agreement"), between Leap Wireless International, Inc., a Delaware corporation
(the "Company"), and Harris Trust Company of California (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 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 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
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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. 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 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."
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IN WITNESS WHEREOF, the parties have executed this First
Amendment as of the date first written above.
LEAP WIRELESS INTERNATIONAL, INC.
By: /s/ James E. Hoffmann
--------------------------------
Name: James E. Hoffmann
Title: Senior Vice President,
General Counsel
HARRIS TRUST COMPANY OF CALIFORNIA
By: /s/ John A. Castellanos
--------------------------------
Name: John A. Castellanos
Title: Vice President
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