BYLAWS
OF
MANDALAY
MEDIA, INC.
ARTICLE
I
OFFICES
1.1
Registered
Office.
The
initial registered office of Mandalay Media, Inc. (the “Corporation”) in the
State of Delaware shall be at 615 South Dupont Highway, Kent County, Dover,
DE
19901, and the registered agent in charge thereof shall be National Corporate
Research, Ltd.
1.2
Other
Offices.
The
Corporation may also have an office or offices at any other place or places
within or outside the State of Delaware.
ARTICLE
II
MEETING
OF STOCKHOLDERS
2.1
Annual
Meetings.
The
annual meeting of stockholders of the Corporation (the “Stockholders”) for the
election of directors, and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, date and hour
as
shall be fixed by the board of directors of the Corporation (the “Board”) and
designated in the notice or waiver of notice thereof, except that no annual
meeting need be held if all actions, including the election of directors,
required by the Delaware General Corporation Law (the “DGCL”) to be taken at the
annual meeting of Stockholders are taken by written consent in lieu of meeting
pursuant to Section 2.11 of this Article II.
2.2
Special
Meetings.
A
special
meeting of Stockholders for any purpose or purposes may be called by the Board,
the chairman of the board (the “Chairman”), the chief executive officer of the
Corporation (the “CEO”), the president of the Corporation (the “President”) or
the record holders of at least a majority of the issued and outstanding shares
of Common Stock of the Corporation (the “Common Stock”), to be held at such
place, date and hour as shall be designated in the notice or waiver of notice
thereof.
2.3
Notice
of Meetings.
Except
as
otherwise required by statute, the Corporation’s Certificate of Incorporation
(the “Certificate”) or these bylaws of the Corporation (the “Bylaws”), notice of
each annual or special meeting of the Stockholders shall be given to each
Stockholder of record entitled to vote at such meeting not less than 10 nor
more
than 60 days before the day on which the meeting is to be held, by delivering
written notice thereof to him personally, or by mailing a copy of such notice,
postage prepaid, directly to him at his address as it appears in the records
of
the Corporation, or by transmitting such notice thereof to him at such address
by telegraph, cable or other telephonic transmission. Every such notice shall
state the place, the date and hour of the meeting, and, in case of a special
meeting, the purpose or purposes for which
the meeting is called. Notice of any meeting of Stockholders shall not be
required to be given to any Stockholder who shall attend such meeting in person
or by proxy, or who shall, in person or by his attorney thereunto authorized,
waive such notice in writing, either before or after such meeting. Except as
otherwise provided in these Bylaws, neither the business to be transacted at,
nor the purpose of, any meeting of the Stockholders need be specified in any
such notice or waiver of notice. Notice of any adjourned meeting of Stockholders
shall not be required to be given, except when expressly required by law.
2.4
Quorum.
At
each
meeting of Stockholders, except where otherwise provided by the Certificate
or
these Bylaws, the holders of a majority of the issued and outstanding shares
of
Common Stock entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum for the transaction of business. In the
absence of a quorum, a majority in interest of the Stockholders present in
person or represented by proxy and entitled to vote, or, in the absence of
all
the Stockholders entitled to vote, any officer entitled to preside at, or act
as
secretary of, such meeting, shall have the power to adjourn the meeting from
time to time, until Stockholders holding the requisite amount of stock to
constitute a quorum shall be present or represented. At any such adjourned
meeting at which a quorum shall be present, any business may be transacted
which
might have been transacted at the meeting as originally called.
2.5
Place
of Meetings.
Annual
meetings or special meetings of Stockholders may be held at any place within
or
without the State of Delaware as may be selected from time to time by the Board,
Chairman, CEO or President.
2.6
Organization.
Unless
otherwise determined by the Board, at each meeting of the Stockholders, one
of
the following shall act as chairman of the meeting and preside thereat, in
the
following order of precedence:
(a) the
Chairman;
(b) the
CEO;
(c) the
President;
(d) any
director, officer or Stockholder of the Corporation designated by the Board
to
act as chairman of such meeting and to preside thereat if the Chairman, CEO
or
President shall be absent from such meeting; or
(e) a
Stockholder of record who shall be chosen chairman of such meeting by a majority
in voting interest of the Stockholders present in person or by proxy and
entitled to vote thereat.
The
secretary of the Corporation (the “Secretary”) or, if he shall be presiding over
such meeting in accordance with the provisions of this Section 2.6 or if he
shall be absent from such meeting, the person (who shall be an Assistant
Secretary of the Corporation, if an Assistant Secretary has been appointed
and
is present) whom the chairman of such meeting shall appoint, shall act as
secretary of such meeting and keep the minutes thereof.
2.7
Order
of Business.
The
order
of business at each meeting of the Stockholders shall be determined by the
chairman of such meeting, but such order of business may be changed by a
majority in voting interest of those present in person or by proxy at such
meeting and entitled to vote thereat.
2.8
Voting.
Except
as
otherwise provided by law, the Certificate or these Bylaws, at each meeting
of
Stockholders, each Stockholder shall be entitled to one vote in person or by
proxy for each share of Common Stock held by him and registered in his name
on
the books of the Corporation on the date fixed pursuant to Section 6.7 of
Article VI of the Bylaws as the record date for the determination of
Stockholders entitled to vote at such meeting. Persons holding stock in a
fiduciary capacity shall be entitled to vote the shares so held. A person whose
stock is pledged shall be entitled to vote, unless, in the transfer by the
pledgor on the books of the Corporation, he has expressly empowered the pledgee
to vote thereon, in which case only the pledgee or his proxy may represent
such
stock and vote thereon. If shares or other securities having voting power stand
in the record of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or if two or more persons have the same fiduciary relationship
respecting the same shares, unless the secretary shall be given written notice
to the contrary and furnished with a copy of the instrument or order appointing
them or creating the relationship wherein it is so provided, their acts with
respect to voting shall have the following effect:
(a) if
only
one votes, his act binds all;
(b) if
more
than one votes, the act of the majority so voting binds all; and
(c) if
more
than one votes, but the vote is evenly split on any particular matter, such
shares shall be voted in the manner provided by law.
If
the
instrument so filed shows that any such tenancy is held in unequal interests,
a
majority or even-split for the purposes of this Section 2.8 shall be a majority
or even-split in interest. The Corporation shall not vote directly or indirectly
any share of its own capital stock. Any vote of stock may be given by the
Stockholder entitled thereto in person or by his proxy appointed by an
instrument in writing, subscribed by such Stockholder or by his attorney
thereunto authorized, delivered to the secretary of the meeting; provided,
however,
that no
proxy shall be voted after three years from its date, unless said proxy provides
for a longer period. At all meetings of the Stockholders, all matters (except
where other provision is made by law, the Certificate or these Bylaws) shall
be
decided by the vote of a majority in interest of the Stockholders present in
person or by proxy at such meeting and entitled to vote thereon, a quorum being
present. Unless demanded by a Stockholder present in person or by proxy at
any
meeting and entitled to vote thereon, the vote on any question need not be
by
ballot. Upon a demand by any such Stockholder for a vote by ballot upon any
question, such vote by ballot shall be taken. On a vote by ballot, each ballot
shall be signed by the Stockholder voting, or by his proxy, if there be such
proxy, and shall state the number of shares voted.
2.9
Inspection.
The
chairman of the meeting may at any time appoint one or more inspectors to serve
at any meeting of the Stockholders. Any inspector may be removed, and a new
inspector or inspectors appointed, by the Board at any time. Such inspectors
shall decide upon the qualifications of voters, accept and count votes, declare
the results of such vote, and subscribe and deliver to the secretary of the
meeting a certificate stating the number of shares of stock issued and
outstanding and entitled to vote thereon and the number of shares voted for
and
against the question, respectively. The inspectors need not be stockholders
of
the Corporation, and any director or officer of the Corporation may be an
inspector on any question other than a vote for or against his election to
any
position with the Corporation or on any other matter in which he may be directly
interested. Before acting as herein provided, each inspector shall subscribe
an
oath faithfully to execute the duties of an inspector with strict impartiality
and according to the best of his ability.
2.10
List
of Stockholders.
It
shall
be the duty of the Secretary or other officer of the Corporation who shall
have
charge of its stock ledger to prepare and make, at least 10 days before every
meeting of the Stockholders, a complete list of the Stockholders entitled to
vote thereat, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, for any purpose
germane to any such meeting, during ordinary business hours, for a period of
at
least 10 days prior to such meeting, either at a place within the city where
such meeting is to be held, which place shall be specified in the notice of
the
meeting or, if not so specified, at the place where the meeting is to be held.
Such list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any Stockholder who
is
present.
2.11
Stockholders'
Consent in Lieu of Meeting.
Any
action required by the DGCL to be taken at any annual or special meeting of
the
Stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of such Stockholders, may be taken without a meeting, without
prior notice and without a vote, by a consent in writing, as permitted by the
DGCL.
2.12
Action
by Means of Conference Telephone or Similar Communications Equipment.
Any
one
or more of the Stockholders may participate in a meeting of the Stockholders
by
means of conference telephone or similar communications equipment by which
all
persons participating in the meeting can hear each other, and participation
in a
meeting by such means shall constitute presence in person at such meeting.
ARTICLE
III
BOARD
OF DIRECTORS
3.1
General
Powers.
The
business, property and affairs of the Corporation shall be managed by or under
the direction of the Board, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by
the
Certificate directed or required to be exercised or done by the Stockholders.
3.2
Number
and Term of Office.
The
number of directors shall be fixed from time to time by the Board. Directors
need not be Stockholders. Each director shall hold office until his successor
is
elected and qualified, or until his earlier death or resignation or removal
in
the manner hereinafter provided.
3.3
Election
of Directors.
At
each
meeting of Stockholders for the election of directors at which a quorum is
present, the persons receiving the greatest number of votes, up to the number
of
directors to be elected, of the Stockholders present in person or by proxy
and
entitled to vote thereon shall be the directors; provided, however, that for
purposes of such vote no Stockholder shall be allowed to cumulate his votes.
Unless an election by ballot shall be demanded as provided in Section 2.8 of
Article II, election of directors may be conducted in any manner approved at
such meeting.
3.4
Resignation,
Removal and Vacancies.
Any
director may resign at any time by giving written notice to the Board, Chairman,
CEO, President or Secretary. Such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof; and
unless otherwise specified therein, the acceptance of such resignation shall
not
be necessary to make it effective.
Any
director or the entire Board may be removed, with or without cause, at any
time,
by vote of the holders of a majority of the shares then entitled to vote at
an
election of directors or by written consent of the Stockholders pursuant to
Section 2.11 of Article II.
Vacancies
occurring on the Board for any reason may be filled by vote of the Stockholders
or by a Stockholders' written consent pursuant to Section 2.11 of Article II,
or
by vote of the Board or by a directors' written consent pursuant to Section
3.6
of this Article III. If the number of directors then in office is less than
a
quorum, such vacancies may be filled by a vote of a majority of the directors
then in office.
3.5
Meetings.
(a) Annual
Meetings.
As soon
as practicable after each annual election of directors, the Board shall meet
for
the purpose of organization and the transaction of other business, unless it
shall have transacted all such business by written consent pursuant to Section
3.6 of this Article III.
(b) Other
Meetings.
Other
meetings of the Board shall be held at such times and at such places as the
Board, Chairman, CEO, President or any director shall from time to time
determine.
(c) Notice
of Meetings.
Notice
shall be given to each director of each meeting, including the time, place
and
purpose of such meeting. Notice of each such meeting shall be mailed to each
director, addressed to him at his residence or usual place of business, at
least
two days before the date on which such meeting is to be held, or shall be sent
to him at such place by telegraph, cable, wireless or other form of recorded
communication, or be delivered personally or by telephone not later than the
day
before the day on which such meeting is to be held, but notice need not be
given
to any director who shall attend such meeting. A written waiver of notice,
signed by the person entitled thereto, whether before or after the time of
the
meeting stated therein, shall be deemed equivalent to notice.
(d) Place
of Meetings.
The
Board may hold its meetings at such place or places within or outside the State
of Delaware as the Board may from time to time determine, or as shall be
designated in the respective notices or waivers of notice thereof.
(e) Quorum
and Manner of Acting.
A
majority of the total number of directors then in office shall be present in
person at any meeting of the Board in order to constitute a quorum for the
transaction of business at such meeting, and the vote of a majority of those
directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board, except as
otherwise expressly required by law or these Bylaws. In the absence of a quorum
for any such meeting, a majority of the directors present thereat may adjourn
such meeting from time to time until a quorum shall be present.
(f) Organization.
At each
meeting of the Board, one of the following shall act as chairman of the meeting
and preside thereat, in the following order of precedence:
(i) the
Chairman;
(ii) the
CEO
(if a director);
(iii) the
President (if a director); or
(iv) any
director designated by a majority of the directors present.
The
Secretary or, in the case of his absence, an Assistant Secretary, if an
Assistant Secretary has been appointed and is present, or any person whom the
chairman of the meeting shall appoint shall act as secretary of such meeting
and
keep the minutes thereof.
3.6
Directors'
Consent in Lieu of Meeting.
Any
action required or permitted to be taken at any meeting of the Board may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by all of the
directors then in office and such consent is filed with the minutes of the
proceedings of the Board.
3.7
Action
by Means of Conference Telephone or Similar Communications Equipment.
Any
one
or more members of the Board may participate in a meeting of the Board by means
of conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other, and participation in a meeting
by such means shall constitute presence in person at such meeting.
3.8
Committees.
The
Board
may, by resolution or resolutions passed by a majority of the whole Board,
designate one or more committees, such committee or committees to have such
name
or names as may be determined from time to time by resolution adopted by the
Board, and each such committee to consist of one or more directors of the
Corporation, which to the extent provided in said resolution or resolutions
shall have and may exercise the powers of the Board in the management of the
business and affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all papers which may require it. A majority of
all
the members of any such committee may determine its action and fix the time
and
place of its meetings, unless the Board shall otherwise provide. The Board
shall
have power to change the members of any such committee at any time, to fill
vacancies and to discharge any such committee, either with or without cause,
at
any time.
ARTICLE
IV
OFFICERS
4.1
Executive
Officers.
The
principal officers of the Corporation shall be, if appointed, a Chairman, CEO,
President, Secretary and Treasurer, and such other officers as the Board may
appoint pursuant to Section 4.3 of this Article IV. Any two or more offices
may
be held by the same person.
4.2 Authority
and Duties.
All
officers, as between themselves and the Corporation, shall have such authority
and perform such duties in the management of the Corporation as may be provided
in these Bylaws or, to the extent so provided, by the Board.
4.3
Other
Officers.
The
Corporation may have such other officers, agents and employees as the Board
may
deem necessary, including one or more Vice Presidents, Assistant Secretaries
or
Assistant Treasurers, each of whom shall hold office for such period, have
such
authority and perform such duties as the Board, Chairman, CEO, President and
Secretary may from time to time determine. The Board may delegate to any
principal officer the power to appoint and define the authority and duties
of,
or remove, any such officers, agents or employees.
4.4
Term
of Office, Resignation and Removal.
All
officers shall be elected or appointed by the Board and shall hold office for
such term as may be prescribed by the Board. Each officer shall hold office
until his successor has been elected or appointed and qualified or until his
earlier death or resignation or removal in the manner hereinafter provided.
The
Board may require any officer to give security for the faithful performance
of
his duties.
Any
officer may resign at any time by giving written notice to the Board, Chairman,
CEO, President or Secretary. Such resignation shall take effect at the time
specified therein or, if the time be not specified, at the time it is accepted
by action of the Board. Except as aforesaid, the acceptance of such resignation
shall not be necessary to make it effective.
All
officers and agents elected or appointed by the Board shall be subject to
removal at any time by the Board or by the Stockholders with or without cause.
4.5 Vacancies.
If
the
office of Chairman, CEO, President or Secretary becomes vacant for any reason,
the Board shall fill such vacancy, and if any other office becomes vacant,
the
Board may fill such vacancy. Any officer so appointed or elected by the Board
shall serve only until such time as the unexpired term of his predecessor shall
have expired, unless reelected or reappointed by the Board.
4.6
The
Chairman.
The
Chairman shall give counsel and advice to the Board and the officers of the
Corporation on all subjects concerning the welfare of the Corporation and the
conduct of its business and shall perform such other duties as the Board may
from time to time determine. Unless otherwise determined by the Board, he shall
preside at meetings of the Board and of the Stockholders at which he is present.
4.7
The
Chief Executive Officer.
The
CEO
shall have general and active management and control of the business and affairs
of the Corporation subject to the control of the Board and shall see that all
orders and resolutions of the Board are carried into effect. The CEO shall
from
time to time make such reports of the affairs of the Corporation as the Board
of
Directors may require and shall perform such other duties as the Board may
from
time to time determine.
4.8
The
President.
Subject
to the control of the Board and the CEO, the President shall in general
supervise and control the business and affairs of the Corporation.
4.9
The
Secretary.
The
Secretary shall, to the extent practicable, attend all meetings of the Board
and
all meetings of the Stockholders and shall record all votes and the minutes
of
all proceedings in a book to be kept for that purpose. He may give, or cause
to
be given, notice of all meetings of the Stockholders and of the Board, and
shall
perform such other duties as may be prescribed by the Board, Chairman, CEO
or
President, under whose supervision he shall act. He shall keep in safe custody
the seal of the Corporation and affix the same to any duly authorized instrument
requiring it and, when so affixed, it shall be attested by his signature or
by
the signature of the Treasurer or, if appointed, an Assistant Secretary or
an
Assistant Treasurer. He shall keep in safe custody the certificate books and
Stockholder records and such other books and records as the Board may direct,
and shall perform all other duties incident to the office of Secretary and
such
other duties as from time to time may be assigned to him by the Board, Chairman,
CEO or the President.
4.10 The
Treasurer.
The
Treasurer shall have the care and custody of the corporate funds and other
valuable effects, including securities, shall keep full and accurate accounts
of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit
of
the Corporation in such depositories as may be designated by the Board. The
Treasurer shall disburse the funds of the Corporation as may be ordered by
the
Board, taking proper vouchers for such disbursements, shall render to the
Chairman, CEO, President and directors, at the regular meetings of the Board
or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation and shall perform all other
duties incident to the office of Treasurer and such other duties as from time
to
time may be assigned to him by the Board, Chairman, CEO or the President.
ARTICLE
V
CONTRACTS,
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1
Execution
of Documents.
The
Board
shall designate, by either specific or general resolution, the officers,
employees and agents of the Corporation who shall have the power to execute
and
deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and
other
orders for the payment of money and other documents for and in the name of
the
Corporation, and may authorize such officers, employees and agents to delegate
such power (including authority to redelegate) by written instrument to other
officers, employees or agents of the Corporation. Unless so designated or
expressly authorized by these Bylaws, no officer, employee or agent shall have
any power or authority to bind the Corporation by any contract or engagement,
to
pledge its credit or to render it liable pecuniarily for any purpose or amount.
5.2
Deposits.
All
funds
of the Corporation not otherwise employed shall be deposited from time to time
to the credit of the Corporation or otherwise as the Board or Treasurer, or
any
other officer of the Corporation to whom power in this respect shall have been
given by the Board, shall select.
5.3 Proxies
with Respect to Stock or Other Securities of Other Corporations.
The
Board
shall designate the officers of the Corporation who shall have authority from
time to time to appoint an agent or agents of the Corporation to exercise in
the
name and on behalf of the Corporation the powers and rights which the
Corporation may have as the holder of stock or other securities in any other
corporation, and to vote or consent with respect to such stock or securities.
Such designated officers may instruct the person or persons so appointed as
to
the manner of exercising such powers and rights, and such designated officers
may execute or cause to be executed in the name and on behalf of the Corporation
and under its corporate seal or otherwise, such written proxies, powers of
attorney or other instruments as they may deem necessary or proper in order
that
the Corporation may exercise its powers and rights.
ARTICLE
VI
SHARES
AND THEIR TRANSFER; FIXING RECORD DATE
6.1
Certificates
for Shares.
Every
owner of stock of the Corporation shall be entitled to have a certificate
certifying the number and class of shares owned by him in the Corporation,
which
shall be in such form as shall be prescribed by the Board. Certificates shall
be
numbered and issued in consecutive order and shall be signed by, or in the
name
of, the Corporation by the Chairman, CEO, President or any Vice President,
and
by the Treasurer (or an Assistant Treasurer, if appointed) or the Secretary
(or
an Assistant Secretary, if appointed). In case any officer or officers who
shall
have signed any such certificate or certificates shall cease to be such officer
or officers of the Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered
by
the Corporation, such certificate or certificates may nevertheless be adopted
by
the Corporation and be issued and delivered as though the person or persons
who
signed such certificate had not ceased to be such officer or officers of the
Corporation.
6.2
Record.
A
record
in one or more counterparts shall be kept of the name of the person, firm or
corporation owning the shares represented by each certificate for stock of
the
Corporation issued, the number of shares represented by each such certificate,
the date thereof and, in the case of cancellation, the date of cancellation.
Except as otherwise expressly required by law, the person in whose name shares
of stock stand on the stock record of the Corporation shall be deemed the owner
thereof for all purposes regarding the Corporation.
6.3 Transfer
and Registration of Stock.
The
transfer of stock and certificates which represent the stock of the Corporation
shall be governed by Article 8 of Subtitle 1 of Title 6 of the Delaware Code
(the Uniform Commercial Code), as amended from time to time.
Registration
of transfers of shares of the Corporation shall be made only on the books of
the
Corporation upon request of the registered holder thereof, or of his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation, and upon the surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a stock power
duly executed.
6.4 Addresses
of Stockholders.
Each
Stockholder shall designate to the Secretary an address at which notices of
meetings and all other corporate notices may be served or mailed to him, and,
if
any Stockholder shall fail to designate such address, corporate notices may
be
served upon him by mail directed to him at his post-office address, if any,
as
the same appears on the share record books of the Corporation or at his last
known post-office address.
6.5
Lost,
Destroyed and Mutilated Certificates.
The
holder of any shares of the Corporation shall immediately notify the Corporation
of any loss, destruction or mutilation of the certificate therefor, and the
Board may, in its discretion, cause to be issued to him a new certificate or
certificates for such shares, upon the surrender of the mutilated certificates
or, in the case of loss or destruction of the certificate, upon satisfactory
proof of such loss or destruction, and the Board may, in its discretion, require
the owner of the lost or destroyed certificate or his legal representative
to
give the Corporation a bond in such sum and with such surety or sureties as
it
may direct to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such
certificate.
6.6
Regulations.
The
Board
may make such rules and regulations as it may deem expedient, not inconsistent
with these Bylaws, concerning the issue, transfer and registration of
certificates for stock of the Corporation.
6.7
Fixing
Date for Determination of Stockholders of Record.
(a) In
order
that the Corporation may determine the Stockholders entitled to notice of or
to
vote at any meeting of Stockholders or any adjournment thereof, the Board may
fix a record date, which record date shall not precede the date upon which
the
resolution fixing the record date is adopted by the Board, and which record
date
shall be not more than 60 nor less than 10 days before
the date of such meeting. If no record date is fixed by the Board, the record
date for determining Stockholders entitled to notice of or to vote at a meeting
of Stockholders shall be at the close of business on the day next preceding
the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. A determination
of Stockholders of record entitled to notice of or to vote at a meeting of
Stockholders shall apply to any adjournment of the meeting; provided,
however,
that the Board may fix a new record date for the adjourned
meeting.
(b) In
order
that the Corporation may determine the Stockholders entitled to consent to
corporate action in writing without a meeting, the Board may fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and which date shall be not more than
10 days after the date upon which the resolution fixing the record date is
adopted by the Board. If no record date has been fixed by the Board, the record
date for determining Stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board is required by
the
DGCL, shall be the first date on which a signed written consent setting forth
the action taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business or an officer or agent of the Corporation having custody of the
book
in which proceedings of meetings of Stockholders are recorded. Delivery made
to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed
by
the Board and prior action by the Board is required by the DGCL, the record
date
for determining Stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action.
(c) In
order
that the Corporation may determine the Stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the
Stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than 60 days prior to such action. If no record date
is
fixed, the record date for determining Stockholders for any such purpose shall
be at the close of business on the day on which the Board adopts the resolution
relating thereto.
ARTICLE
VII
INDEMNIFICATION
AND INSURANCE
7.1
Indemnification.
(a) As
provided in the Certificate, to the fullest extent permitted by the DGCL as
the
same exists or may hereafter be amended, a director of the Corporation shall
not
be liable to the Corporation or its Stockholders for breach of fiduciary duty
as
a director.
(b) Without
limitation of any right conferred by paragraph (a) of this Section 7.1, each
person who was or is made a party or is threatened to be made a party to or
is
otherwise involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she is or was
a
director, officer or employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity while serving as a director, officer or employee or in any
other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be amended (but,
in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes or amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer or employee and shall inure to the benefit of the indemnitee's
heirs, testators, intestates, executors and administrators; provided,
however,
that
such person acted in good faith and in a manner he reasonably believed to be
in,
or not opposed to, the best interests of the Corporation, and with respect
to a
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful; provided further,
however,
that no
indemnification shall be made in the case of an action, suit or proceeding
by or
in the right of the Corporation in relation to matters as to which it shall
be
adjudged in such action, suit or proceeding that such director, officer,
employee or agent is liable to the Corporation, unless a court having
jurisdiction shall determine that, despite such adjudication, such person is
fairly and reasonably entitled to indemnification; provided further,
however,
that,
except as provided in Section 7.1(c) of this Article VII with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) initiated
by such indemnitee was authorized by the Board. The right to indemnification
conferred in this Article VII shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any
such
proceeding in advance of its final disposition (hereinafter an "advancement
of
expenses"); provided,
however,
that,
if the DGCL requires, an advancement of expenses incurred by an indemnitee
in
his or her capacity as a director or officer (and not in any other capacity
in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"),
by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise.
(c) If
a
claim under Section 7.1(b) of this Article VII is not paid in full by the
Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses,
in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to
the
terms of any undertaking, the indemnitee shall be entitled to be paid also
the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee
to
enforce a right to indemnification hereunder (but not in a suit brought by
the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the Corporation shall
be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met the applicable standard of conduct set forth in the DGCL. Neither
the failure of the Corporation (including the Board, independent legal counsel,
or the Stockholders) to have made a determination prior to the commencement
of
such suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth
in
the DGCL, nor an actual determination by the Corporation (including the Board,
independent legal counsel or the Stockholders) that the indemnitee has not
met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden
of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Section
or otherwise shall be on the Corporation.
(d) The
rights to indemnification and to the advancement of expenses conferred in this
Article VII shall not be exclusive of any other right which any person may
have
or hereafter acquire under any statute, the Certificate, agreement, vote of
Stockholders or disinterested directors or otherwise.
7.2
Insurance.
The
Corporation may purchase and maintain insurance, at its expense, to protect
itself and any person who is or was a director, officer, employee or agent
of
the Corporation or any person who is or was serving at the request of the
Corporation as a director, officer, employer or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the DGCL.
ARTICLE
VIII
The
Board
may provide a corporate seal, which shall be in the form of a circle and shall
bear the full name of the Corporation, the year of incorporation of the
Corporation and the words and figures "Corporate Seal - Delaware.”
The
fiscal year of the Corporation shall be the calendar year unless otherwise
determined by the Board.
Any
bylaw
(including these Bylaws) may be adopted, amended or repealed by the vote of
the
holders of a majority of the shares then entitled to vote or by the
Stockholders' written consent pursuant to Section 2.11 of Article II, or by
the
vote of the Board or by the directors' written consent pursuant to Section
3.6
of Article III.
*
* * * *
MANDALAY
MEDIA, INC.
Incorporated
under the laws
of
the State of Delaware
___________________________
BYLAWS
___________________________
Adopted
as of September 14, 2007