**EXHIBIT
      4.4**





**CERTIFICATE
      OF DESIGNATION, PREFERENCES AND RIGHTS**




**OF
      THE**




**SERIES
      A SENIOR CONVERTIBLE PREFERRED STOCK**




**OF**




**NEXTWAVE
      WIRELESS INC.**




**(Pursuant
      to Section 151 of the**


**General
      Corporation Law of the State of Delaware)**




We,
      Allen
      Salmasi, President, and Frank A. Cassou, Secretary, of NextWave Wireless Inc.
      (hereinafter called the “ **Corporation** ”),
      a
      corporation organized and existing under and by virtue of the General
      Corporation Law of the State of Delaware (the “ **GCL** ”),
      in
      accordance with Section 151 of the GCL, do hereby certify as
      follows:




FIRST:
      The Amended and Restated Certificate of Incorporation of the Corporation (
      the
“ **Certificate
      of Incorporation** ”)
      authorizes the issuance of up to twenty-five million (25,000,000) shares of
      preferred stock, $0.001 par value (the “ **Preferred
      Stock** ”),
      in
      one or more series, with such voting powers, designations, preferences and
      relative, participating, optional or other special rights, and qualifications,
      limitations or restrictions thereof, as may be stated and expressed in a
      resolution or resolutions providing for the creation and issuance of any such
      series adopted by the Board of Directors of the Corporation prior to the
      issuance of any shares of such series, pursuant to authority expressly vested
      in
      the Board of Directors by the Certificate of Incorporation.




SECOND:
      A
      duly constituted Committee of the Board of Directors of the Corporation, vested
      with the full power of the Board of Directors in respect of the matters
      described herein, at a meeting held on March 27, 2007, duly adopted the
      following resolution authorizing the creation of a new series of such Preferred
      Stock, to be known as “ **Series
      A** **Senior** **Convertible
      Preferred Stock** ,”
and
      setting forth the number of shares thereof, and the voting powers, designation,
      preferences and relative, participating, optional or other special rights,
      and
      the qualifications, limitations and restrictions thereof, as
      follows:




BE
      IT
      RESOLVED, that the terms of the Series A Senior Convertible
      Preferred Stock shall be as follows:




**1.**  **Series
      A** **Senior** **Preferred Stock**




1.1  Designation .
      A
      series of Preferred Stock is hereby designated as “ ***Series
      A*** ***Senior*** ***Convertible
      Preferred Stock*** ”
(the
      “ **Series
      A Preferred Stock** ”)
      and
      shall consist
      of 355,000 shares .









1.2  Rank




The
      Series A Preferred Stock shall, with respect to dividend rights, and rights
      on
      liquidation, dissolution and winding up of the affairs of the Corporation,
      rank senior
      to
      all Junior Stock.




1.3  The
      following terms, as used herein, shall have the following meanings:




“ **Asset
      Sales** ”
means
      the sale, lease, sale and leaseback, assignment, conveyance, transfer or other
      disposition ,
      including, without limitation, as distribution in respect of any Capital Stock
      (except the Series A Preferred Stock) or a capital contribution, by the
      Corporation or any of its Subsidiaries to any Person of any right or interest
      in
      or to property of any kind whatsoever, whether real, personal or mixed and
      whether tangible or intangible, including, without limitation, the Capital
      Stock
      of any of the Corporation’s Subsidiaries, it being understood for the avoidance
      of doubt that any disposition of the Capital Stock of the Corporation shall
      not
      be deemed an “ **Asset
      Sale** .” In
      addition, the term “ **Asset
      Sale** ”
shall
      exclude:




(i)  sales
      or
      other dispositions of obsolete, damaged, surplus, worn-out, condemned,
      unsuitable or not required property and equipment;




(ii)  licensing
      of intellectual property in the ordinary course of business;




(iii)  sale
      or
      transfer of cash or Cash Equivalents in the ordinary course of
      business;




(iv)  any
      surrender or waiver of contract rights or the settlement release or surrender
      of
      contract, tort or other litigation claims in the ordinary course of business;
      and




(v)  any
      sale
      or disposition of property or assets by a Subsidiary to the Corporation or
      a Wholly-owned Subsidiary or by a
      Subsidiary that is not a Wholly-owned Subsidiary to another Subsidiary that is not a
      Wholly-o wned Subsidiary .




“ **Business
      Day** ”
means
      any day that is not a Legal Holiday.




“ **Board
      of Directors** ”
means,
      as to any Person, the board of directors of such Person or any duly authorized
      committee thereof or similar governing body.




“ **Capital
      Lease** ”
means,
      as applied to any Person, any lease of any property (whether real, personal
      or
      mixed) by that Person as lessee that, in conformity with U.S. GAAP, is required
      to be accounted for as a capital lease on the balance sheet of that
      Person.




“ **Capital
      Stock** ”
means
      any and all shares, interests, participations or other equivalents (however
      designated) of capital stock of a corporation, any and all equivalent ownership
      interests in a Person (other than a corporation), including, without limitation,
      partnership interests and membership interests, and any and all warrants,
      rights, or options to purchase or other arrangements or rights to acquire any
      of
      the foregoing.




2




“ **Common
      Stock** ”
shall
      mean the common stock, par value $0.001 per share, of the
      Corporation.




“ **Conversion
      Price** ”
means
      $11.05, subject to adjustment as provided for in Section 5.




“ **Dividend
      Period** ”
shall
      mean the period from, and including, the Original Issue Date to, but not
      including, the first Dividend Payment Date and thereafter, each quarterly period
      from, and including, the Dividend Payment Date to, but not including, the next
      Dividend Payment Date.




“ **Dividend
      Rate** ” shall
      mean 7.5% per annum, subject to adjustment as follows: (i) upon the occurrence
      and during the continuance of a Trigger One Event, such rate shall be 10% per
      annum; (ii) upon the occurrence and during the continuance of a Trigger Two
      Event (whether after any occurrence of a Trigger One Event, or not), such rate
      shall be 15% per annum; *provided,
      however* ,
      that if
      from and after the date hereof three Trigger Two Events occur involving the
      failure by the Corporation to comply with subsection 4.3 hereof in connection
      with the incurrence of Indebtedness, the creation of Capital Stock or an Asset
      Sale in each case involving an amount in excess of $10 million dollars, such
      rate shall from and after the date of such third Trigger Two Event be 15% per
      annum; and (iii) upon the occurrence of a Trigger Three Event (whether after
      any
      occurrence of a Trigger One Event or Trigger Two Event, or not), such rate
      shall
      from and after such date be 18% per annum. For clarity, following the cure
      of
      the default by the Corporation giving rise to a Trigger One Event or a Trigger
      Two Event (except as provided in clause (ii) above), the Dividend Rate shall
      be
      7.5% per annum (unless another Trigger One Event or Trigger Two Event has
      occurred and not been cured).




“ **Fair
      Market Value Price** ”
means
      an amount equal to the per share closing price of the Corporation’s Common Stock
      (or if no closing sale price is reported, the average of the closing bid and
      closing ask prices) (i) on any national securities exchange on which the
      Corporation’s Common Stock is listed (as reported by Bloomberg, or, if not
      reported thereby, any other authoritative source), or (ii) if the Corporation’s
      Common Stock is not listed on a national securities exchange, quoted in the
      Over-The-Counter Market Summary, in either case on the trading day immediately
      prior to the relevant determination date. In the absence of such a listing
      or
      quotation, the Fair Market Value Price shall be determined in good faith by
      the
      Board of Directors of the Corporation.




“ **FCC
      License** ”
means
      any paging, mobile telephone, specialized mobile radio, microwave, personal
      communications services or other license, permit, consent, certificate of
      compliance, franchise, approval, waiver or authorization granted or issued
      by
      the FCC, including authorizing or permitting the acquisition, construction
      or
      operation of any Wireless Communications System.




3




“ **FCC
      Rules** ”
means
      all rules, regulations, written policies, orders and decisions of the FCC
      adopted under the Communications Act of 1934, as amended, in each case as from
      time to time in effect.




“ **Indebtedness** ”
means,
      as applied to any Person, (i) all obligations for borrowed money, (ii) that
      portion of obligations with respect to Capital Leases that is properly
      classified as a liability on a balance sheet in conformity with United States
      Generally Accepted Accounting Principles as then in effect (“ **U.S.
      GAAP** ”),
      (iii)
      any obligation owed for all or any part of the
      deferred purchase price of property or services (excluding any such obligations
      incurred under ERISA, trade payables incurred in the ordinary course of
      business, volume based vendor arrangements accounted for as deferred income
      on
      the balance sheet of the Corporation and obligations under earn-out arrangements
      which are not yet earned), (iv) all obligations evidenced by notes, bonds (other
      than performance or surety bonds), debentures or other similar instruments,
      in
      each case measured as of any date of determination as the greater of the then
      outstanding principal amount or the amount of such Indebtedness due and payable
      as of the maturity date of such instrument, (v) all Indebtedness created or
      arising under any conditional sale or other title retention agreement with
      respect to any property or assets acquired by such Person (even though the
      rights and remedies of the seller or the lender under such agreement in the
      event of default are limited to repossession or sale of such property or
      assets), (vi) all obligations, contingent or otherwise, as an account party
      under any letter of credit or under acceptance, letter of credit or similar
      facilities to the extent not reflected as trade liabilities on the balance
      sheet
      of such Person in accordance with U.S. GAAP, (vii) the liquidation value,
      accrued and unpaid dividends, prepayment or redemption premiums and penalties
      (if any), unpaid fees or expenses and other monetary obligations in respect
      of
      any class of preferred stock issued by any
      Subsidiary of the
      Corporation ,
      (viii) all
      contingent obligations in respect of obligations of the kind referred to in
      clauses (i) through (vi) above, including,
      without limitation, any guarantee or surety in respect thereof, and
      (ix)
      all indebtedness secured by any lien on
      property or asset owned or held by that Person regardless of whether the
      indebtedness secured thereby shall have been assumed by that Person or is
      nonrecourse to the credit of that Person.




“ **Junior
      Stock** ”
shall
      mean all classes of common stock of the Corporation and each other class or
      series of capital stock established after the Original Issue Date, the terms
      of
      which expressly provide that such class or series will rank junior to the Series
      A Preferred Stock, either as to dividend rights or rights upon the liquidation,
      winding-up or dissolution of the Corporation, or both.




“ **Legal
      Holiday** ”
means
      a
      Saturday, Sunday or day on which banks and trust companies in the principal
      place of business of the Corporation or in New York are not required to be
      open.




“ **Person** ”
means
      any individual, corporation, partnership, firm, joint venture, association,
      joint-stock company, trust, unincorporated organization, governmental body
      or
      other agency.




4




“ **Qualified
      Public Offering** ”
means
      a registered
      public offering at a price per share greater than the Reference Price resulting
      in at least $300 million in aggregate n et
      proceeds to the Corporation.





“ **Record
      Date** ”
shall
      mean, with respect to any dividend, the date designated by the Board of
      Directors of the Corporation at the time such dividend is declared; provided,
      however, that such Record Date shall not be more than thirty (30) days nor
      less than ten (10) days prior to the respective Dividend Payment Date or
      such other date designated by the Board of Directors for the payment of
      dividends.





“ **Reference
      Price** ”
means
      $10.05, subject to adjustment as provided in Section 5.





**“** **Shelf
      Registration Statement** **”** has
      the
      meaning defined in the Registration Rights Agreement, dated as of March 27,
      2007, among the Corporation and the purchasers party thereto.





“ **Spectrum
      Lease** ”
means
      any lease, license, agreement or other arrangement to which the Corporation
      or
      any of its Subsidiaries is now or may hereafter become a party pursuant to
      which
      the Corporation or any of its Subsidiaries leases, licenses or otherwise
      acquires or obtains any rights, whether exclusive or non-exclusive, with respect
      to radio frequency specified in an FCC License, in each case, as amended,
      restated, supplemented or otherwise modified from time to time.





“ **Stated
      Value** ”
means,
      with respect to any share of Series A Preferred Stock, (a) $1,000 plus (b)
      any
      Capitalized Dividends on share of Series A Preferred Stock.





“ **Subsidiary** ”
means
      any Person of which any other Person directly or indirectly owns voting
      securities, other voting rights or voting partnership interests which are
      sufficient to elect at least a majority of such first Person’s board of
      directors or other governing body (or, if there are no such voting interests,
      the second Person directly or indirectly owns 50% or more of the equity interest
      of such first Person).




“ **Threshold
      Price** ”
      means 200% of
      the then existing Conversion Price; *provided,
      however,* the
      Threshold Price shall be adjusted to equal 150% of the then existing Conversion
      Price upon the earlier of: (x) the third anniversary of the Original Issue
      Date,
      and (y) the first Trading Day after the Corporation has consummated a Qualified
      Public Offering.




“ **Trigger
      One Event** ”
shall
      mean the failure by the Corporation to (i) pay the entire amount of any dividend
      in respect of the Series A Preferred Stock on each Dividend Payment Date
      occurring after the fourth anniversary of the Original Issue Date, whether
      or
      not declared by the Board of Directors or legally eligible to be paid, and
      the
      continuation of any such nonpayment for thirty (30) calendar days after such
      Dividend Payment Date or (ii)
      file the Shelf Registration Statement on or prior to July 31, 2007, or (iii)
      cause the Shelf Registration Statement to become or be declared effective on
      or
      prior to November 30, 2007.




5




“ **Trigger
      Two Event** ”
shall
      mean the failure by the Corporation to comply with any of the Class Protective
      Provisions contained in subsection 4.3.




“ **Trigger
      Three Event** ”
shall
      mean the failure by the Corporation to comply with any of the provisions
      contained in subsection 5.2 or Section 6 .




“ **Wholly-owned
      Subsidiary** ”
means
      any Subsidiary of which 100% of the Capital Stock is owned directly by the
      Corporation or one or more Wholly-owned Subsidiaries.




**2.**  **Dividend
      Rights**




**2.1**  Series
      A Preferred Stock . ****




(a)  To
      the
      fullest extent that funds are legally available therefor, the holders of Series
      A Preferred Stock shall be entitled to receive on each Dividend Payment Date,
      when, as and if declared by the Board of Directors of the Corporation, dividends
      as set forth in this subsection 2.1. Such dividends shall be payable by the
      Corporation in an amount per share (the “ **Per
      Share Dividend Amount** ”)
      equal
      to the product of (i) (A) the then applicable Dividend Rate times (B) a fraction
      the numerator of which is the number of days in such Dividend Period and the
      denominator of which is three hundred sixty (360) and (ii) the then existing
      Liquidation Preference. With respect to any Dividend Payment Date occurring
      prior to the fourth anniversary of the Original Issuance Date, the Corporation
      may elect to declare and pay the Per Share Dividend Amount in cash; *provided,
      however* ,
      that to
      the extent dividends are not declared and paid in cash, all or such portion
      of
      the Per Share Dividend amount shall be added to the Stated Value of each share
      of Series A Preferred Stock as of such Dividend Payment Date (the “ **Capitalized
      Dividends** ”).
      The
      Corporation shall deliver a written notice to each holder (the date of receipt
      of such notice by the holder, the “ **Dividend
      Notice Date** ”)
      of
      Series A Preferred Stock no later than ten (10) Business Days prior to the
      applicable Dividend Payment Date if the Corporation elects to pay such dividend
      in cash.




(b)  From
      and
      after the fourth anniversary of the Original Issuance Date, to the fullest
      extent that funds are legally available therefor, the holders
      of Series A Preferred Stock shall be entitled to receive on, the Corporation
      shall be required to pay on, and the Board of Directors shall be required to
      declare for ,
      each
      Dividend Payment Date, cash dividends  in
      an
      amount per share equal to the then applicable Per Share Dividend Amount. Such
      cash
      dividends are mandatory and must be declared and paid; *provided, however,* that if
      funds are not legally available to pay the entire dividend owed on any Dividend
      Payment Date, such dividend shall be paid to the fullest extent that funds
      are
      legally available therefor. A ny
      unpaid
      cash dividends on the Series A Preferred Stock pursuant to this subsection
      2.1(b), whether or not declared, shall be cumulative and shall accrue and
      compound on a quarterly basis at the then applicable Dividend Rate




(c)  Dividends
      shall be payable quarterly in arrears on March 31, June 30,
      September 30 and December 31 of each year (each, a “ **Dividend
      Payment Date** ”),
      commencing on June 30, 2007. If any Dividend Payment Date occurs on a day
      that is not a Business Day, any accrued dividends otherwise payable on such
      Dividend Payment Date shall be paid on the next succeeding Business Day which
      shall be deemed the Dividend Payment Date for such Dividend Period. Dividends
      shall be paid to the holders of record of the Series A Preferred Stock as their
      names shall appear on the share register of the Corporation on the Record Date
      for such dividend. Dividends in respect of any Dividend Period which is less
      than or greater than a full Dividend Period in length will be computed on the
      basis of a ninety (90) day quarterly period and actual days elapsed in such
      Dividend Period. Dividends on account of arrears for any past Dividend Periods
      may be declared and paid at any time to holders of record on the Record Date
      therefor. In
      respect of any partial cash dividends, such cash dividends shall be distributed *pro
      rata* to all
      outstanding shares of Series A Preferred Stock.




6




(d)  Without
      the prior written consent of at least seventy-five percent (75%) of the
      outstanding shares of Series A Preferred Stock, for so long as at least
      twenty-five percent (25%) of the issued shares of the Series A Preferred Stock
      remain outstanding, no cash dividend may be paid on any Junior Stock.
      Notwithstanding the foregoing, nothing in this Certificate of Designation shall
      prevent the Corporation from purchasing, redeeming or otherwise acquiring shares
      of Common Stock (or securities exercisable for or convertible into Common Stock)
      made for purposes of an employee incentive or benefit plan of the Corporation,
      including, without limitation, the acquisition upon exercise of stock options,
      warrants or rights to acquire Capital Stock if the security acquired represents
      a portion of the exercise price thereof and acquisitions from employees under
      any such employee incentive or benefit plan or to permit the acquisition of
      shares of Common Stock upon exercise of other options, warrants or rights to
      acquire Capital Stock if the security acquired represents a portion of the
      exercise price thereof.




(e)  In
      the
      event that the Corporation declares or pays or sets apart for payment on any
      Capital Stock (other than on the Series A Preferred Stock) any dividends payable
      in cash or any other property (except for dividends payable in shares of the
      class or series upon which such dividends are declared or paid, or payable
      in
      shares of Common Stock, or rights to acquire such stock, together with cash
      in
      lieu of fractional shares as contemplated by subsection 2.1(c)), the Corporation
      shall also declare and pay to the holders of the Series A Preferred Stock at
      the
      same time that it declares and pays or sets apart for payment to the holders
      of
      such Capital Stock, a dividend consisting of the cash or other property which
      would have been declared and paid or set apart for payment with respect to
      the
      shares of Common Stock issuable upon conversion of the Series A Preferred Stock
      had all of the outstanding shares of Series A Preferred Stock been converted
      immediately prior to the record date for such dividend, or if no record date
      is
      fixed, the date as to which the record holders of the Capital Stock entitled
      to
      such dividends are to be determined.




2.2  Notwithstanding
      anything to the contrary contained in this Certificate of Designation, the
      Corporation agrees that the terms contained herein providing for the rights
      of
      the holders of the Series A Preferred Stock to, without limitation, receive
      payments as dividends in respect of the Liquidation Preference, convert their
      shares or to have their shares redeemed, in each case upon the terms contained
      herein, are critical to the holders’ decision to invest and hold the Series A
      Preferred Stock, and that any increase in the Dividend Rate provided for herein
      will not fully compensate the holders in the event they are not able to fully
      obtain all of their rights hereunder. As a result, notwithstanding any increase
      in the Dividend Rate or payment in respect thereof, the holders shall continue
      to have any and all legal right to compel the Corporation to comply with the
      terms hereof by taking any and all legal actions available to them to enforce
      their rights hereunder.




7




**3.**  **Liquidation
      Rights** . In
      the
      event of any liquidation, dissolution or winding up of the Corporation, whether
      voluntary or involuntary, the funds and assets that may be legally distributed
      to the Corporation’s stockholders (the “ **Available
      Funds and Assets** ”) shall be
      distributed to stockholders in the following manner:




3.1  Series
      A Preferred Stock .
      The
      holders of shares of Series A Preferred Stock then outstanding shall be entitled
      to be paid, out of the Available Funds and Assets, an amount per share equal
      to
      the greater of (i) the
      Stated Value per share of Series A Preferred Stock plus any accrued but unpaid
      dividends on the Series A Preferred Stock ,
      plus
      any other amounts payable pursuant to Section 6 but unpaid as of such
      date (the
“ **Liquidation
      Preference** ”),
      prior
      and in preference to any payment or distribution of any Available Funds and
      Assets on any shares of any
      Junior Stock of the Corporation or any Subsidiary (or any setting apart of
      any
      payment or distribution) and (ii) the amount that would have been received
      pursuant to subsection 3.2 if such share of Series A Preferred Stock had been
      converted into Common Stock immediately prior to the date on which holders
      of
      Common Stock shall become entitled to such payment or distribution, without
      giving effect to the prior payment of any Liquidation Preference pursuant to
      this subsection 3.1. If upon any liquidation, dissolution or winding up of
      the
      Corporation, the Available Funds and Assets shall be insufficient to permit
      the
      payment to holders of the Series A Preferred Stock of the aggregate Liquidation
      Preference described in this subsection, then the entire Available Funds and
      Assets shall be distributed among the holders of the then outstanding Series
      A
      Preferred Stock pro rata, according to the number of outstanding shares of
      Series A Preferred Stock held by each holder thereof.




3.2  Remaining
      Assets .
      If
      there are any Available Funds and Assets remaining after the payment or
      distribution (or the setting aside for payment or distribution) to the holders
      of the Series A Preferred Stock of the Liquidation Preference described above
      in
      subsection 3.1, then all such remaining Available Funds and Assets shall be
      distributed to the holders of Junior Stock (other than Common Stock) pursuant
      to
      their respective terms ;
      and
      finally, *pro
      rata* among
      the
      holders of Common Stock according to the number of shares of Common Stock held
      by each holder thereof.




3.3  Deemed
      Liquidation .
      The
      following events shall be deemed a liquidation, dissolution, or winding up
      of
      the Corporation, as those terms are used in this Section 3 (each a **“** **Deemed
      Liquidation** **”** ),
      unless
      in connection with any such transaction the holders of at least seventy-five
      percent (75%)  of
      the
      then outstanding shares of Series A Preferred Stock vote as a class that this
      subsection 3.3 not apply, in which case the provisions of subsection 5.7 shall
      apply:




8




(a)  Any
      merger, reorganization, consolidation or recapitalization transaction or series
      of transactions, whether or not the Corporation is the surviving or continuing
      corporation in such transaction; provided that such transaction or series of
      related transactions shall not be a Deemed Liquidation if the stockholders
      of
      the Corporation immediately prior to such transaction or transactions will,
      immediately after such transaction or transactions (by virtue of securities
      issued as consideration for the transaction or otherwise) hold at least 50%
      of
      the voting power of the surviving, continuing or purchasing entity in
      substantially the same relative proportions as existed prior to such transaction
      or series of transactions.




(b)  Any
      merger, reorganization, consolidation or recapitalization transaction or series
      of transactions in which any shares of Series A Preferred Stock are converted
      into any other property or security other than shares of Common
      Stock.




(c)  Any
      Person or group (as defined in Rules 13d-3 and 13d-5 of the Securities Exchange
      Act of 1934, as amended) shall become the beneficial owner (as so defined),
      directly or indirectly, of shares representing more than fifty percent (50%)
      of
      the aggregate voting power represented by the issued and outstanding Capital
      Stock of the Corporation.




(d)  Any
      sale,
      lease or other disposition of all or substantially all of the assets (tangible
      or intangible) of the Corporation. Notwithstanding anything to the contrary
      contained in this subsection 3.3(d), the provision of this clause (d) shall
      only
      apply during the following periods: (x) prior to the date on which the Asset
      Sale Threshold Amount has been meet, or (y) on any date after the twenty day
      period contemplated by the penultimate sentence of subsection 6(a).




In
      the
      event of a Deemed Liquidation (unless in connection with any such transaction
      the requisite holders of the then outstanding shares of Series A Preferred
      Stock
      have voted as a class that this subsection 3.3 not apply), the holders of shares
      of Series A Preferred Stock then outstanding shall be entitled to be paid an
      amount per share equal to the greater of (i) 120% of the Liquidation Preference
      prior and in preference to any payment or distribution of any Available Funds
      and Assets on any shares of any Junior Stock of the Corporation or any
      Subsidiary (or any setting apart of any payment or distribution) and (ii) the
      amount that would have been received if such share of Series A Preferred Stock
      had been converted into Common Stock immediately prior to the date on which
      holders of Common Stock shall become entitled to any payment in connection
      with
      such Deemed Liquidation event.




3.4  Non-Cash
      Consideration .
      If any
      assets of the Corporation distributed to stockholders in connection with any
      liquidation, dissolution or winding up of the Corporation are in a form other
      than cash, then the value of such assets shall be their fair market value as
      determined by the Board of Directors in good faith, except that any securities
      to be distributed to stockholders in a liquidation, dissolution or winding
      up of
      the Corporation shall be valued as follows:




9




(a)  The
      method of valuation of securities not subject to investment letter or other
      similar restrictions on free marketability shall be as follows:




(i)  if
      the
      securities are then traded on a national securities exchange or listed on the
      Nasdaq Global Market
      (“ **Nasdaq** ”)
      (or any
      national stock exchange or national
      quotation system), then the value shall be deemed to be the average of the
      closing prices of the securities on such exchange or system over the twenty
      (20)
      day period ending three (3) days prior to the distribution; and




(ii)  if
      (i)
      above does not apply but the securities are actively traded over-the-counter,
      then, unless otherwise specified in a definitive agreement for the acquisition
      of the Corporation, the value shall be deemed to be the average of the closing
      bid prices over the twenty (20) calendar day period ending three (3) trading
      days prior to the distribution; and




(iii)  if
      there
      is no active public market, then the value shall be the fair market value
      thereof, as determined in good faith by the Board of Directors of the
      Corporation .




(b)  The
      method of valuation of securities subject to investment letter or other
      restrictions on free marketability shall be to make an appropriate discount
      from
      the market value determined as above in subparagraphs (a)(i), (ii) or (iii)
      of
      this subsection to reflect the approximate fair market value thereof, as
      determined in good faith by the Board of Directors .




**4.**  **Voting
      Rights** .




4.1  Series
      A Preferred Stock .
      Each
      holder of shares of Series A Preferred Stock shall be entitled to the number
      of
      votes equal to the number of whole shares of Common Stock into which such shares
      of Series A Preferred Stock could be converted pursuant to the provisions of
      Section 5 below at the date such vote is taken or any written consent of
      stockholders is solicited.




4.2  Scope .
      Each
      holder of Series A Preferred Stock shall have full voting rights and powers
      equal to the voting rights and powers of the holders of Common Stock, and shall
      be entitled to notice of any stockholders’ meeting in accordance with the bylaws
      of the Corporation (as in effect at the time in question) and applicable law,
      and shall be entitled to vote, together with the holders of Common Stock, with
      respect to any question upon which holders of Common Stock have the right to
      vote, except as may be otherwise provided herein or as required by applicable
      law. Except as otherwise expressly provided herein or as required by applicable
      law, the holders of Series A Preferred Stock and the holders of Common
      Stock shall vote together and not as separate classes.




4.3  Class
      Protective Provisions .




(a)  As
      long
      as at least 25% of the issued shares of Series A Preferred Stock remain
      outstanding, and until the date on which the Corporation provides an Asset
      Sale
      Notice pursuant to subsection 6(a), the Corporation shall not (either
      voluntarily or involuntarily, including by merger or otherwise), and shall
      not
      permit any of its Subsidiaries to, without the approval of the holders of shares
      representing at least seventy-five percent (75%) of the Series A Preferred
      Stock
      then outstanding:




10




(i)  directly
      or indirectly, create, incur, assume or guaranty, or otherwise become or remain
      directly or indirectly liable with respect to, Indebtedness outstanding
      at any one time in
      excess
      of an
      amount
      equal to the sum of (x) $500
      million plus  (y) 33%
      of
      the net proceeds from the closing of a registered
      public sale
      of
      Common Stock for the account of the Corporation since
      the
      Original Issue Date at
      a per
      share purchase price of at least the
      Reference Price ,
      which
      total aggregate amount in respect of clauses (x) and (y) shall include amounts
      of Indebtedness outstanding on the Original Issue Date, except
      that:




(1)  the
      Corporation may become and remain liable with respect to Indebtedness to
      any Wholly
      owned Subsidiary, and any Subsidiary may become and remain liable with respect to
      Indebtedness to the Corporation or any Wholly
      owned Subsidiary;




(2)  the
      Corporation and its Subsidiaries, as applicable, may become and remain liable
      with respect to Capital Leases, obligations owed for all or any part of the
      deferred purchase price of property or services and Indebtedness creating or
      arising under any conditional sale or other title retention agreement with
      respect to any property or assets acquired in an aggregate principal amount
      not
      in excess of $100 million at any time outstanding;




(3)  the
      Corporation and its Subsidiaries may incur short-term Indebtedness to the
      Federal Communications Commission and any successor thereto (“ FCC ”)
      in
      respect of the purchase price of FCC Licenses acquired by a Subsidiary pursuant
      to FCC auctions, provided that all such Indebtedness
      is terminated and the related purchase amounts
      are paid in full when payment is due in accordance with FCC Rules ; and




(4)  the
      Corporation and its Subsidiaries may become and remain liable with respect
      to
      Indebtedness arising in the ordinary course of business consistent with past
      business practices under Spectrum Leases in the 2.5 GHz band that are Capital
      Leases under U.S. GAAP; or




(ii)  create,
      issue, or authorize the issuance of any Capital Stock having any rights to
      dividends or distributions (including any redemption, repurchase or exchange),
      or any rights upon a Liquidation, or any other rights or preferences, that
      rank
      prior to or on a parity with, or could under any circumstances, be equal to
      or
      more favorable than, the rights of the Series A Preferred Stock; or




(iii)  consummate
      any Asset Sale involving the receipt of gross proceeds of, or the disposition
      of
      assets worth, in each case based on the fair market value thereof, as determined
      in good faith by the Board of Directors, $500
      million or
      more (measured in the aggregate including all Asset Sales from and after the Original
      Issue Date), such $500 million aggregate amount, herein the “ **Asset
      Sale Threshold Amount** ”.




11




(b)  As
      long
      as at least 25% of the issued shares of Series A Preferred Stock remain
      outstanding, the Corporation shall not (either voluntarily or involuntarily,
      including by merger or otherwise), and shall not permit any of its Subsidiaries
      to




(i)  (A)
      distribute any rights or warrants to all holders of the Corporation’s Common
      Stock entitling them to purchase (for a period expiring within 60 days), shares
      of Common Stock at a price per share less (or having a conversion price per
      share less) than the Fair Market Value Price on the ex-dividend date for such
      distribution (except for distributions that the holders of the Series A
      Preferred Stock may participate in on a basis and with the notice that the
      Corporation’s Board of Directors determines to be fair and appropriate), or (B)
      consummate any sale of Common Stock for an amount less than the Fair Market
      Value Price on the related pricing date for such sale, except for (1)
      the
      issuance of shares of Common Stock for cash in any underwritten public offering
      pursuant to a registration statement declared effective under the Securities
      Act; (2) the issuance of shares of Common Stock pursuant to any adjustment
      provided for in Section 5; (3) Common Stock or options to purchase Common Stock
      issued to employees, officers, directors or consultants of the Corporation
      or
      any Subsidiary pursuant to the terms of any of the NextWave Wireless Inc. 2005
      Stock Incentive Plan, the NextWave Wireless Inc. 2007 New Employee Stock
      Incentive Plan, CYGNUS Communications, Inc.’s 2004 Stock Option Plan and the
      2005 PacketVideo Equity Incentive Plan (as in effect on the date hereof);
      provided, however, that all of such Common Stock and options are issued for
      not
      less than (or have an exercise price equal to not less than) the Fair Market
      Value Price of such Common Stock as of the grant date; (4) Capital Stock issued
      pursuant to transactions involving technology licensing, research or development
      activities, the use or acquisition of strategic assets, properties or rights,
      or
      the distribution, manufacture or marketing of the Corporation’s products, which
      transactions are for non-financing purposes; provided, that Capital Stock issued
      pursuant to this clause (4) may not exceed 0.5% of the Common Stock (on a fully
      diluted basis); (5) Capital Stock issued in private placements for per share
      consideration equal to at least 80% of the then-applicable Fair Market Value
      Price; *provided* ,
      that
      the aggregate net proceeds to the Corporation from such private placements
      shall
      not exceed $200 million; *provided,
      further* that
      the
      applicable per share consideration shall not be less than the Reference Price;
      and (6) Capital Stock issued upon the exercise of conversion or exchange rights,
      options or subscription calls, warrants, commitments or claims.




**5.**  **Conversion
      Rights** .
      The
      outstanding shares of Series A Preferred Stock shall be convertible into Common
      Stock as follows:




5.1  Conversion
      at the Holder’s Option




(a)  At
      the
      option of the holder thereof, each share of Series A Preferred Stock may be
      converted without the payment of additional consideration, at any time or from
      time to time prior to the close of business on the Business Day before any
      date
      fixed for redemption of such share, into fully paid and nonassessable shares
      of
      Common Stock as provided herein.




12




(b)  Each
      holder of shares of Series A Preferred Stock who elects to convert the same
      into
      shares of Common Stock shall surrender the certificate or certificates
      representing such shares of Series A Preferred Stock, duly endorsed, at the
      office of the Corporation or any transfer agent for the Series A Preferred
      Stock
      or Common Stock, or the holder shall notify the Corporation or its transfer
      agent that such certificates have been lost, stolen or destroyed and deliver
      an
      agreement reasonably satisfactory to the Corporation to indemnify the
      Corporation from any loss incurred by it in connection with such certificates,
      and in each case shall give written notice to the Corporation at such office
      that such holder elects to convert the same and shall state therein the number
      of shares of Series A Preferred Stock being converted. Thereupon,
      the Corporation shall promptly, but in any event within five (5) Trading Days,
      (i) (A) provided that the Corporation's transfer agent (the “ **Transfer
      Agent** ”)
      is
      participating in the Depository Trust Company's (the “ **Depository** ”)
      Fast
      Automated Securities Transfer Program, credit such aggregate number of shares
      of
      Common Stock to which the holder shall be entitled to the holder's or its
      designee's balance account with the Depository through its Deposit Withdrawal
      Agent Commission system or (y) if the Transfer Agent is not participating in
      the
      Depository’s Fast Automated Securities Transfer Program, issue and deliver to
      the address as specified in the holder's notice of conversion, a certificate
      or
      certificates, representing the number of shares of Common Stock to which such
      holder is entitled upon such conversion and, (ii) if applicable, a certificate
      or certificates representing the balance of such number of shares of Series
      A
      Preferred Stock not being converted. Such conversion shall be deemed to have
      been made immediately prior to the close of business on the date of such
      surrender of the certificate or certificates representing the shares of Series
      A
      Preferred Stock to be converted, and the person entitled to receive the shares
      of Common Stock issuable upon such conversion shall be treated for all purposes
      as the record holder of such shares of Common Stock on such date.




5.2  Mandatory
      Conversion .




(a)  From
      and
      after the date that is eighteen (18) months following the Original Issue Date,
      on any day on which the closing price of the Corporation’s shares
      of
      Common Stock that are
      then listed
      on
      the Nasdaq Global Market
      (or a similar national
      securities exchange ) (a
“ **Trading
      Market** ”)
      is in
      excess of the
      Threshold Price for
      any
      twenty (20) Trading Days (as hereinafter defined) in the immediately preceding
      thirty (30) consecutive Trading Day period (any such date, a “ **Share
      Threshold Condition Date** ”);
      the
      Corporation will
      have
      the option on
      such
      date to begin the conversion notification process described below with respect
      to no less than twenty-five percent (25%) of the then outstanding shares of
      Series A Preferred Stock within five (5) Business Days of any such Share
      Threshold Condition Date; *provided* ,
      that if
      the Corporation shall consummate a Qualified Public Offering, the Share
      Threshold Condition Date shall not occur until the closing price is in excess
      of
      the Threshold Price for any twenty (20) Trading Days in a thirty (30) day
      consecutive Trading Day period following such Qualified Public Offering; *provided,
      further* ,
      that
      the Corporation shall not be entitled to deliver a Conversion Notice (as defined
      below) unless a Shelf Registration Statement has been effective from the
      commencement of the twenty (20) Trading Day Period referred to above through
      the
      date of the Conversion Notice, except to the extent that the shares of Common
      Stock issuable upon conversion of the Series A Preferred Stock are eligible
      for
      resale pursuant to Rule 144(k) promulgated under the Securities Act of 1933,
      as
      amended. The Corporation shall provide
      forty-five ( 45 )
      days
      advance written notice of its election to begin the conversion process (the
      “ **Conversion
      Notice** ”)
      to the
      holders of the Series A Preferred Stock at their addresses last shown on the
      records of the Corporation’s transfer agent (or the records of the Corporation,
      if it serves as its own transfer agent). Any
      such
      Conversion Notice shall also serve as the redemption notice pursuant to
      subsection 6(b). In
      the
      event any such Conversion Notice provides for the conversion of less than all
      of
      the outstanding Series
      A
      Preferred Stock ,
      such Conversion shall be made on a pro rata basis .
      The
      Corporation may not issue a Conversion Notice more than once in any 90 day
      period. For the purpose of this Certificate of Designation, a “ **Trading
      Day** ”
is
      a
      day on which the Nasdaq, or if the Corporation’s shares
      of
      Common Stock cease to
      be quoted on the Nasdaq (or a similar national
      securities exchange or national
      quotation system), the principal national securities exchange on which the
      Corporation’s securities are listed, is open for trading. A Trading Day only
      includes those days that have a scheduled closing time of 4:00 p.m. (New York
      City time) or the then standard closing time for regular trading on the relevant
      exchange or trading system.




13




(b)  On
      the
      forty-sixth (46 th )
      day
      after the date of a Conversion Notice and provided that the shares of Common
      Stock issued upon conversion are registered on a Shelf Registration Statement
      which is then effective or are eligible for resale pursuant to Rule 144(k),
      the
      designated amount of outstanding shares of Series A Preferred Stock shall be
      converted into Common Stock automatically and on a pro rata basis without the
      need for any further action by the holders of such shares and whether or not
      the
      certificates representing such shares are surrendered to the Corporation or
      its
      transfer agent; *provided* , *however* that any
      shares held by a holder of Series A Preferred Stock who has made a Participating
      Election (as defined in subsection 6(b)) with respect to such shares shall
      not
      be converted; *provided* , *further* ,
      that
      the Corporation shall not be obligated to issue certificates evidencing the
      shares of Common Stock issuable upon such conversion unless the certificates
      evidencing such shares of Series A Preferred Stock are either delivered to
      the
      Corporation or its transfer agent as provided below, or the holder notifies
      the
      Corporation or its transfer agent that such certificates have been lost, stolen
      or destroyed and executes an agreement reasonably satisfactory to the
      Corporation to indemnify the Corporation from any loss incurred by it in
      connection with such certificates. Upon the occurrence of such automatic
      conversion of any such shares of Series A Preferred Stock, the holders of such
      shares of Series A Preferred Stock shall surrender the certificates representing
      such shares at the office of the Corporation or any transfer agent for the
      Series A Preferred Stock or Common Stock. Thereupon, the Corporation shall
      promptly, but in any event within five (5) Trading Days, (i) (A) provided that
      the Transfer Agent is participating in the Depository's Fast Automated
      Securities Transfer Program, credit such aggregate number of shares of Common
      Stock to which the holder shall be entitled to the holder's or its designee's
      balance account with the Depository through its Deposit Withdrawal Agent
      Commission system or (y) if the Transfer Agent is not participating in the
      Depository’s Fast Automated Securities Transfer Program, issue and deliver to
      the address as specified in the holder's notice of conversion, a certificate
      or
      certificates, representing the number of shares of Common Stock into which
      the
      shares of Series A Preferred Stock surrendered were converted on the date on
      which such automatic conversion occurred and, (ii) if applicable, a certificate
      or certificates representing the balance of such number of shares of Series
      A
      Preferred Stock not subject to automatic conversion.




14




**5.3**  Conversion
      Price .
      Each
      share of Series A Preferred Stock shall be convertible in accordance with
      subsection 5.1 or subsection 5.2 above into the number of shares of Common
      Stock
      which results from dividing the then existing Liquidation Preference by the
      Conversion Price that is in effect at the time of conversion (the “ **Conversion
      Ratio** ”). **** The
      Corporation may make such decreases in the Conversion Price, in addition to
      those required by this Section 5, as the Board of Directors considers advisable
      in order to avoid or diminish any income tax to any holders of Common Stock
      resulting from any dividend or distribution of stock or issuance of rights
      or
      warrants to purchase or subscribe for stock or from any event treated as such
      for income tax purposes.




5.4  Adjustment
      Upon Common Stock Event .
      The
      Conversion Price and
      Reference Price shall
      each be subject to adjustment from time to time as provided below. Following
      each adjustment thereof, such adjusted Conversion Price and Reference Price
      shall remain in effect until a further adjustment of such Conversion Price
      and
      Reference Price hereunder. Upon the happening of a Common Stock Event (as
      hereinafter defined), the Conversion Price and Reference Price shall
      simultaneously with the happening of such Common Stock Event, be adjusted by
      multiplying such price in effect immediately prior to such Common Stock Event
      by
      a fraction:




(a)  the
      numerator of which shall be the number of shares of Common Stock issued and
      outstanding immediately prior to such Common Stock Event, and




(b)  the
      denominator of which shall be the number of shares of Common Stock issued and
      outstanding immediately after such Common Stock Event.




The
      Conversion Price and
      Reference Price for
      the
      Series A Preferred Stock shall be readjusted in the same manner upon the
      happening of each subsequent Common Stock Event. As used herein, the term the
      “ **Common
      Stock Event** ”
shall
      mean at any time or from time to time after the date on which the first share
      of
      Series A Preferred Stock is issued by the Corporation (the “ **Original
      Issue Date** ”),
      (i)
      the issue by the Corporation of additional shares of Common Stock as a dividend
      or other distribution on outstanding Common Stock, (ii) a subdivision of the
      outstanding shares of Common Stock into a greater number of shares of Common
      Stock, or (iii) a combination of the outstanding shares of Common Stock into
      a
      smaller number of shares of Common Stock.




5.5  Adjustments
      for Other Dividends and Distributions .
      If at
      any time or from time to time after the Original Issue Date the Corporation
      pays
      a dividend or makes another distribution to the holders of the Common Stock
      payable in securities of the Corporation, other than an event constituting
      a
      Common Stock Event then, in each such event, provision shall be made so that
      the
      holders of the Series A Preferred Stock shall receive upon conversion thereof,
      in addition to the number of shares of Common Stock receivable upon conversion
      thereof, the amount of securities of the Corporation which they would have
      received had their Series A Preferred Stock been converted into Common Stock
      on
      the date of such event (or such record date, as applicable) and had they
      thereafter, during the period from the date of such event (or such record date,
      as applicable) to and including the conversion date, retained such securities
      receivable by them as aforesaid during such period, subject to all other
      adjustments called for during such period under this Section 5 with respect
      to
      the rights of the holders of the Series A Preferred Stock or with respect to
      such other securities by their terms.




15




5.6  Adjustment
      for Reclassification, Exchange and Substitution .
      If at
      any time or from time to time after the Original Issue Date the Common Stock
      issuable upon the conversion of the Series A Preferred Stock is changed into
      the
      same or a different number of shares of any class or series of stock or other
      securities or property, whether by recapitalization, reclassification or
      otherwise (other than by a Common Stock Event provided for in subsection 5.4
      or
      a stock dividend provided for in subsection 5.5 or a reorganization, merger
      or
      consolidation provided for in subsection 5.7), then in any such event each
      holder of Series A Preferred Stock shall have the right thereafter to convert
      such stock into the kind and amount of stock and other securities and property
      receivable upon such recapitalization, reclassification or other change by
      holders of the number of shares of Common Stock into which such shares of Series
      A Preferred Stock could have been converted immediately prior to such
      recapitalization, reclassification or change, all subject to further adjustment
      as provided herein or with respect to such other securities or property by
      the
      terms thereof; *provided* , *however* ,
      that if
      the kind and amount of stock and other securities and property receivable upon
      such recapitalization, reclassification or other change does not consist of
      publicly traded securities of the Corporation or its successor traded on a
      Trading Market, such recapitalization, reclassification or change may, at the
      election of a holder, constitute a Deemed Liquidation event under Section 3.3
      and such holder shall be entitled to receive any amounts payable upon the
      occurrence of such Deemed Liquidation event in accordance with such
      section.




5.7  Reorganizations,
      Mergers and Consolidations .
      If at
      any time or from time to time after the Original Issue Date there is a
      reorganization of the Corporation involving a transaction with another entity
      ( *i.e* .
      not
      including a Common Stock Event provided for in subsection 5.4 or a stock
      dividend provided for in subsection 5.5 or a recapitalization or
      reclassification or other event provided for in subsection 5.6) or a merger
      or
      consolidation of the Corporation with or into another entity, then, as a part
      of
      such reorganization, merger or consolidation, provision shall be made so that,
      if the Corporation is not the surviving entity in such transaction, the
      surviving entity shall assume the obligations of the Corporation under this
      Certificate of Designation, Preferences and Rights and the holders of the Series
      A Preferred Stock thereafter shall be entitled to receive, upon conversion
      of
      the Series A Preferred Stock, the number of shares of stock or other securities
      or property of the Corporation, or of such successor corporation resulting
      from
      such reorganization, merger or consolidation, to which a holder of Common Stock
      deliverable upon conversion would have been entitled on such reorganization,
      merger or consolidation; *provided* , *however* ,
      that if
      the stock and other securities of the Corporation, or of such successor
      corporation, receivable upon such reorganization, merger or consolidation does
      not consist of publicly traded securities of the Corporation or its successor
      traded on a Trading Market, such reorganization, merger or consolidation may,
      at
      the election of a holder, constitute a Deemed Liquidation event under subsection
      3.3 (to the extent such event is not already governed under subsection 3.3
      and
      the holders of Series A Preferred Stock have elected to make subsection 3.3
      inapplicable) and such holder shall be entitled to receive any amounts payable
      upon the occurrence of such Deemed Liquidation event in accordance with such
      section. In any such case, appropriate adjustment shall be made in the
      application of the provisions of this Section 5 with respect to the rights
      of
      the holders of the Series A Preferred Stock after the reorganization, merger
      or
      consolidation to the end that the provisions of this Section 5 (including
      adjustment of the Conversion Price and
      Reference Price then in
      effect and number of shares issuable upon conversion of the Series A Preferred
      Stock) shall be applicable after that event and be as nearly equivalent to
      the
      provisions hereof as may be practicable. This subsection 5.7 shall similarly
      apply to successive reorganizations, mergers and consolidations.




16




5.8  Certificate
      of Adjustment .
      In each
      case of an adjustment or readjustment of the Conversion Price, the Corporation,
      at its expense, shall cause its chief financial officer to compute such
      adjustment or readjustment in accordance with the provisions hereof and prepare
      a certificate showing such adjustment or readjustment, and shall mail such
      certificate, by first class mail, postage prepaid, to each registered holder
      of
      the Series A Preferred Stock at the holder’s address as shown in the
      Corporation’s books.




5.9  Fractional
      Shares .
      No
      fractional shares of Common Stock shall be issued upon any conversion of Series
      A Preferred Stock. All shares of Common Stock (including fractions thereof)
      issuable upon conversion of more than one share of Series A Preferred Stock
      by a
      holder thereof shall be aggregated for purposes of determining whether
      conversion would result in the issuance of any fractional share. If, after
      the
      aforementioned aggregation, the conversion would result in the issuance to
      any
      holder of a fractional share, then, in lieu of any fractional share to which
      the
      holder would otherwise be entitled, the Corporation shall pay the holder cash
      equal to the product of such fraction multiplied by the Common Stock’s fair
      market value as determined in good faith by the Board as of the date of
      conversion.




5.10  Reservation
      of Stock Issuable Upon Conversion .
      The
      Corporation shall at all times reserve and keep available out of its authorized
      but unissued shares of Common Stock, solely for the purpose of effecting the
      conversion of the shares of the Series A Preferred Stock, such number of its
      shares of Common Stock as shall from time to time be sufficient to effect the
      conversion of all outstanding shares of Series A Preferred Stock; and if at
      any
      time the number of authorized but unissued shares of Common Stock shall not
      be
      sufficient to effect the conversion of all then outstanding shares of the Series
      A Preferred Stock, the Corporation will take such corporate action as may,
      in
      the opinion of its counsel, be necessary to increase its authorized but unissued
      shares of Common Stock to such number of shares as shall be sufficient for
      such
      purpose.




17




5.11  Notices .
      Any
      notice required by the provisions of the Certificate of Incorporation to be
      given to the holders of shares of the Series A Preferred Stock shall be deemed
      given upon the earlier of actual receipt or deposit in the United States mail,
      by certified or registered mail, return receipt requested, postage prepaid,
      or
      delivery by a recognized express courier, fees prepaid, addressed to each holder
      of record at the address of such holder appearing on the books of the
      Corporation.




5.12  Payment
      of Taxes .
      The
      Corporation will pay all taxes (other than taxes based upon income) and other
      governmental charges that may be imposed with respect to the issue or delivery
      of shares of Common Stock upon conversion of shares of the Series A Preferred
      Stock, excluding any tax or other charge imposed in connection with any transfer
      involved in the issue and delivery of shares of Common Stock in a name other
      than that in which the shares of the Series A Preferred Stock so converted
      were
      registered.




**6.**  **Redemption
      of Series A Convertible Preferred Stock**




(a)  In
      the
      event  an
      Asset
      Sale would result in aggregate proceeds to the Corporation from Asset Sales
      since the Original Issue Date equal to or in excess of the Asset Sale Threshold
      Amount and such Asset Sale does not receive the requisite approval of the
      holders of the Series A Preferred Stock (an “ **Asset
      Threshold Event** ”), the
      Corporation must either (i) not consummate such Asset Sale or (ii) elect within
      five (5) Business Days of such Asset Threshold Event to redeem all shares of
      Series A Preferred Stock in accordance with the procedures set forth in this
      subsection 6(a) (an “ **Asset
      Sale Redemption Election** ”)
      at a
      redemption price equal to 120% of the then
      existing Liquidation
      Preference (the “ **Asset
      Sale Redemption Price** ”), such
      amount to be
      paid in cash. Upon
      the
      occurrence of any such Asset Sale Redemption Election ,
      the
      Corporation must provide written notice within twenty (20) days after the
      occurrence thereof to the
      holders of Series A Preferred Stock at their addresses last shown on the records
      of the Corporation’s transfer agent (or the records of the Corporation, if it
      serves as its own transfer agent), of the redemption and the Asset Sale
      Redemption Price (the “ **Asset
      Sale Notice** ”).
      If
      the Corporation has issued an Asset Sale Notice, the Corporation will redeem for
      cash all
      shares of the Series A Preferred Stock held by each holder who delivers written
      notice of its election to participate in the redemption to the Corporation
      within 2 0
      days
      after receipt of the Asset Sale Notice (a “ **Asset
      Sale Participating Election** ”).
      If,
      at the termination of such 20 day-period, any holder has not delivered an Asset
      Sale Participating Election to the Corporation, such holder shall be deemed
      to
      have  waived
      all of their rights under this subsection 6(a). The holders of Series A
      Preferred Stock who have received an Asset Sale Notice shall be deemed to have
      given their consent to the Asset Sale effective on the date of the Asset Sale
      Notice whether or not such holders deliver an Asset Sale Participating
      Election.




(b)  If
      the
      Corporation has issued a Conversion Notice following the occurrence of any Share
      Threshold Condition Date ,
      the
      Corporation will redeem for
      cash all
      shares of the Series A Preferred Stock indicated in such notice from each holder
      of shares of Series A Preferred Stock who elects to have such shares redeemed
      (in lieu of having such shares converted pursuant to subsection 5.2) at a
      redemption price per share of Series A Preferred Stock equal to 130% of the then
      existing Liquidation
      Preference (the “ **Redemption
      Price** ”).
      Each
      holder of Series A Preferred Stock may exercise its redemption rights under
      this
      subsection 6(b) by delivering written notice of its election to participate
      in
      the redemption to the Corporation within 2 0 days
      after receipt of the Conversion Notice (a “ **Participating
      Election** ”).
      If,
      at the termination of such 20 day-period, any holder has not delivered a
      Participating Election to the Corporation, such holder shall be deemed to
      have elected
      to convert their shares of Series
      A
      Preferred Stock in
      accordance with the terms of subsection 5.2 .
      Notwithstanding anything to the contrary contained in this Section
      6(b ) ,
      in
      connection with any particular Conversion Notice, the
      Corporation shall not be required to redeem more than fifty percent (50%) of
      the shares
      of
      the Series A Preferred Stock subject to any particular Conversion
      Notice.




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(c)  If
      the
      number of shares covered by Participating Elections with respect to any
      particular Conversion Notice represents less than fifty
      percent (50%) of the
      number of shares
      of Series A Preferred Stock subject to that Conversion Notice, the holders
      of
      Series A Preferred Stock who have submitted Participating Elections shall have
      the right on
      a
      pro-rata basis (a
      “ **Top-up
      Right** ”)
      to
      cause the Corporation to redeem, to the extent of lawfully available funds,
      additional shares of Series A Preferred Stock held by such holders at the
      Redemption Price, until the total number of shares to be redeemed by the
      Corporation equals fifty
      percent (50%) of the
      number of shares
      of Series A Preferred Stock subject to that Conversion Notice. In order to
      exercise a Top-up Right, a holder must include in its Participating Election
      an
      irrevocable commitment to surrender a number of additional shares of Series
      A
      Preferred Stock held by it for redemption pursuant to the Conversion Notice.
      If
      a holder fails to include such commitment, such holder shall be deemed to have
      waived the Top-up Right. The Corporation shall redeem shares pursuant to the
      Top-up Right, if applicable, on a pro rata basis until the total number of
      shares to be redeemed by the Corporation equals the
      number of shares
      of Series A Preferred Stock subject to that Conversion Notice.




(d)  The
      Corporation will on March 28, 2017 (“ **Mandatory
      Redemption Date** ”),
      redeem for
      cash from
      each
      holder of Shares of Series A Preferred Stock, at a price per share equal to
      the then
      existing Liquidation
      Preference per share, plus any dividends unpaid
      thereon, subject to appropriate adjustment in the event of any stock dividend,
      stock split, combination or other similar recapitalization affecting such shares
      (the “ **Mandatory
      Redemption Price** ”),
      all
      outstanding Shares of Series A Preferred Stock.




(e)  If
      the
      funds of the Corporation legally available for redemption of Series A Preferred
      Stock on any redemption date are insufficient to redeem the number of shares
      of
      Series A Preferred Stock required under this Section 6 to be redeemed on such
      date, those funds which are legally available will be used to redeem the maximum
      possible number of such shares of Series A Preferred Stock which would be
      redeemed on such date if the funds of the Corporation legally available therefor
      had been sufficient to redeem all shares of Series A Preferred Stock required
      to
      be redeemed on such date. At any time thereafter when additional funds of the
      Corporation become legally available for the redemption of Series A Preferred
      Stock, such funds will be used, at the end of the next succeeding fiscal
      quarter, to redeem the balance of the shares which the Corporation was
      theretofore obligated to redeem, ratably on the basis set forth in the preceding
      sentence.




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(f)  Promptly
      following the 3 0-day period
      during which holders may deliver a Participating Election and thirty (30) days
      prior to the Mandatory Redemption Date, the Corporation shall provide notice
      of
      the redemption of Series A Preferred Stock specifying the time and place of
      redemption and the Redemption Price or the Asset Sale Redemption Price or the
      Mandatory Redemption Price, as applicable, the Asset Sale Redemption Price,
      or
      the Mandatory Redemption Price, as applicable, by first class or registered
      mail, postage prepaid, to each holder of Series A Preferred Stock who has
      delivered a Participating Election, or, in the case of a redemption on the
      Mandatory Redemption Date, all holders of Series A Preferred Stock, at the
      address for such holder last shown on the records of the transfer agent therefor
      (or the records of the Corporation, if it serves as its own transfer agent),
      not
      more than sixty (60) nor less than thirty (30) days prior to the date on which
      such redemption is to be made. If less than all Series A Preferred Stock owned
      by such holder is then to be redeemed, the notice will also specify the number
      of shares which are to be redeemed. The Corporation, upon mailing such notice
      or
      irrevocably authorizing the bank or trust company hereinafter mentioned to
      mail
      the same, may deposit an amount equal to the Redemption Price (or the Asset
      Sale
      Redemption Price, or the Mandatory Redemption Price, as applicable) with a
      bank
      or trust company having aggregate capital and surplus in excess of $100,000,000
      to be held in trust for payment to the holders of Series A Preferred Stock
      at
      any time after such deposit. Upon such deposit, or if no deposit is made, then
      from and after the date fixed for redemption (unless the Corporation shall
      default in paying the Redemption Price, the Asset Sale Redemption Price or
      the
      Mandatory Redemption Price, as applicable), the Series A Preferred Stock shall
      cease to be outstanding and the holders thereof shall cease to be stockholders
      with respect thereto. The balance of moneys deposited by the Corporation
      pursuant to this subsection 6(f) remaining unclaimed at the expiration of one
      (1) year following the redemption date shall thereafter be returned to the
      Corporation upon its request.




(g)  On
      or
      after any redemption date, each holder of Series A Preferred Stock to be
      redeemed shall surrender to the Corporation the certificate or certificates
      representing such shares, in the manner and at the place designated in the
      redemption notice, and thereupon the Redemption Price (or the Asset Sale
      Redemption Price or the Mandatory Redemption Price, as applicable) of such
      shares shall be payable to the order of the person whose name appears on such
      certificate or certificates as the owner thereof and each surrendered
      certificate shall be cancelled. In the event of any lost, stolen or destroyed
      certificates, the record holder thereof shall deliver to the Corporation a
      notice indicating that such certificates have been lost, stolen or destroyed
      and
      an agreement reasonably satisfactory to the Corporation to indemnify the
      Corporation from any loss incurred by it in connection with such certificates.
      In the event that less than all of the shares represented by any stock
      certificate are redeemed, a new certificate shall be issued representing the
      shares held by the holder thereof immediately following such redemption.




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**7.**  **Miscellaneous**




7.1  Consent
      of Required Holders .
      In
      addition to any other rights provided by law, except where the vote or written
      consent of the holders of a greater number of shares is required by law or
      by
      another provision of the Certificate of Incorporation, the affirmative vote
      at a
      meeting duly called for such purpose or the written consent without a meeting
      of
      the holders of a majority of the outstanding shares of Series A Preferred Stock,
      voting together as a single class, shall be required before the Corporation
      may:
      (a) amend or repeal any provision of, or add any provision to, the Certificate
      of Incorporation or bylaws, or file any articles of amendment, certificate
      of
      designations, preferences, limitations and relative rights of any series of
      preferred stock, if such action would materially and adversely alter or change
      the preferences, rights, privileges or powers of, or restrictions provided
      for
      the benefit of the Series A Preferred Stock; or (b) increase or decrease (other
      than by conversion) the authorized number of shares of Series A Preferred
      Stock.




7.2  No
      Reissuance of Preferred Stock .
      No
      share or shares of Preferred Stock acquired by the Corporation by reason of
      redemption, purchase, conversion or otherwise shall be reissued, and all such
      shares shall be cancelled, retired and eliminated from the shares which the
      Corporation shall be authorized to issue.




7.3  Preemptive
      Rights .
      No
      stockholder of the Corporation shall have a right to purchase shares of capital
      stock of the Corporation sold or issued by the Corporation except to the extent
      that such a right may from time to time be set forth in a written agreement
      between the Corporation and a stockholder.




[The
      remainder of this page is intentionally left blank.]




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IN
      WITNESS WHEREOF, said corporation has caused this Certificate of Designation,
      Preferences and Rights to be signed by Allen Salmasi, President, and attested
      by
      Frank A. Cassou, Secretary, as of this March 28, 2007.




/s/
                Allen Salamasi
              Name:
                Allen Salmasi
              Title:President




ATTESTED:




By: /s/
      Frank A. Cassou


Name:
      Frank A. Cassou


Title:  Secretary




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