UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): November 7,
2007
MANDALAY
MEDIA, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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00-10039
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22-2267658
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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2121
Avenue of the Stars, Suite 2550
Los
Angeles, CA 90067
(Address
of principal executive offices and zip code)
Registrant’s
telephone number, including area code: (310) 601-2500
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (
see
General
Instruction A.2. below):
¨
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item
1.01 Entry Into a Material Definitive Agreement.
On
November 7, 2007, Mediavest, Inc., a New Jersey corporation (“Mediavest”),
merged with and into Mandalay Media, Inc., a Delaware corporation and
wholly-owned subsidiary of Mediavest (“Mandalay”), in order to effect the
reincorporation of Mediavest from the State of New Jersey to the State of
Delaware (the “Reincorporation”) pursuant to a Plan and Agreement of Merger
dated September 27, 2007 (the “Merger”). As a result of the Merger, Mediavest
and Mandalay became a single corporation named Mandalay Media, Inc. (hereinafter
referred to as the “Surviving Corporation” or the “Company”) which exists under,
and is governed by, the laws of the State of Delaware.
As
a
result of the Merger: (1) each outstanding share of Mediavest common stock,
par
value $0.0001 per share (the “Mediavest Common Stock”), converted into one share
of Mandalay common stock, par value $0.0001 per share (the “Mandalay Common
Stock”); (2) each outstanding share of Mediavest preferred stock, par value
$0.0001 per share (the “Mediavest Preferred Stock”), converted into one share of
Mandalay preferred stock, par value $0.0001 per share (the “Mandalay Preferred
Stock”), with each share of Series A Convertible Preferred Stock, par value
$0.0001 per share, of Mediavest (the “Mediavest Series A Preferred Stock”)
converting into one share of the Series A Convertible Preferred Stock, par
value
$0.0001 per share, of Mandalay (the “Mandalay Series A Preferred Stock”); (3)
each outstanding share of Mandalay Common Stock or Mandalay Preferred Stock
held
by Mediavest was retired and cancelled and resumed the status of authorized
and
unissued Mandalay Common Stock or Mandalay Preferred Stock; (4) each share
of
Mediavest Common Stock and Mediavest Preferred Stock was cancelled and retired;
(5) Mediavest ceased to exist; and (6) Mandalay (i) acceded to all of the
rights, privileges, immunities and powers of Mediavest, (ii) acquired all of
the
property of Mediavest whether real, personal, or mixed, and (iii) assumed all
of
the debts, liabilities, obligations and duties of Mediavest. The Surviving
Corporation’s authorized capital stock consists of 101,000,000 shares of
authorized capital stock, including 100,000,000 shares of common stock, par
value $0.0001 per share, and 1,000,000 shares of preferred stock, par value
$0.0001 per share, 100,000 shares of which are designated as Series A
Convertible Preferred Stock.
Upon
the
effectiveness and as a result of the Reincorporation and Merger, the Surviving
Corporation assumed the certificate of incorporation of Mandalay (the
“Certificate of Incorporation”) and the bylaws of Mandalay (the “Bylaws”). A
copy of the Certificate of Incorporation and Bylaws are attached hereto as
Exhibits 3.1 and 3.2 and incorporated herein by reference.
The
Company entered into an employment letter (the “Employment Letter”) with Bruce
Stein, effective as of November 7, 2007, pursuant to which Mr. Stein will be
the
Chief Operating Officer of the Company commencing on January 1, 2008 (or earlier
at the option of Mr. Stein) at an initial base salary of $250,000 per year.
Mr.
Stein’s employment will be for a term of two years. Mr. Stein was also appointed
as a director of the Company, effective immediately. The Company granted Mr.
Stein an option to purchase 550,000 shares pursuant to the Company’s 2007
Employee, Director and Consultant Stock Plan, as set forth in more detail Item
3.02 of this Current Report on Form 8-K, which is incorporated herein by
reference, 500,000 of which were granted on November 7, 2007, at an exercise
price of $2.65 per share, and 50,000 of which will be granted on January 2,
2008, at an exercise price equal to the fair market value of the closing trading
price of the common stock on January 2, 2008. The foregoing description of
the
Employment Letter does not purport to be complete and is qualified in its
entirety by reference to the Employment Letter, a copy of which is attached
hereto as Exhibit 10.1.
Item
3.02 Unregistered Sales of Equity Securities.
On
November 7, 2007, the Company entered into non-qualified stock option agreements
with certain of its directors and officers (the “Option Holders”) pursuant to
its 2007 Employee, Director and Consultant Stock Plan, as described in more
detail in Item 5.02 of this Current Report on Form 8-K, whereby the Company
issued options (the “Options”) to purchase an aggregate of 1,500,000 shares of
its common stock, $0.0001 par value per share. The Option Holders include James
Lefkowitz, President of the Company, Robert Zangrillo, a director of the
Company, and Bruce Stein, a director of the Company and beginning on January
1,
2008 (or earlier at the option of Mr. Stein) Chief Operating Officer of the
Company, each of whom was granted an Option to purchase 500,000 shares in
connection with services provided to the Company. The Options have a ten year
term and are exercisable at a price of $2.65 per share. The Options for Messrs.
Zangrillo and Stein become exercisable over a two year period, with one-third
of
the Options granted vesting immediately upon grant, an additional one-third
vesting on the first anniversary of the date of grant, and the remaining
one-third on the second anniversary of the date of grant. The Options for Mr.
Lefkowitz also become exercisable over a two year period, with one-third of
the
Options granted vesting immediately upon grant, an additional one-third vesting
on June 28, 2008, and the remainder vesting on June 28, 2009. The Options were
granted pursuant to the exemption from registration permitted under Rule 506
of
Regulation D of the Securities Act of 1933, as amended.
Item
3.03 Material Modification to Rights of Security Holders.
As
set
forth in Item 1.01 of this Current Report on Form 8-K, which is incorporated
herein by reference, as a result of the Reincorporation and Merger, each
outstanding share of Mediavest Common Stock was converted into one share of
Mandalay Common Stock, so that the holders of all the issued and outstanding
shares of Mediavest Common Stock immediately prior to the Merger became the
holders of Mandalay Common Stock. In addition, each outstanding share of
Mediavest Preferred Stock was converted into one share of Mandalay Preferred
Stock, with each share of Mediavest Series A Preferred Stock converting into
one
share of Mandalay Series A Preferred Stock. All shares of Mandalay Common Stock
and Mandalay Preferred Stock held by Mediavest immediately prior to the Merger
were retired and cancelled upon the consummation of the Merger.
Prior
to
the Merger, the authorized capital of Mediavest consisted of 100,000,000 shares
of common stock, of which 21,730,000 shares were outstanding and 1,000,000
shares of preferred stock, of which 100,000 shares were outstanding, all of
which were Mediavest Series A Preferred Stock. As a result of the Merger, the
Company has approximately 21,730,000 shares of common stock issued and
outstanding and 100,000 shares of preferred stock issued and outstanding, all
of
which are shares of Mandalay Series A Preferred Stock. In addition, 3,000,000
shares of common stock are reserved for issuance under the Company’s 2007
Employee, Director and Consultant Stock Plan, as described in more detail in
Item 5.02 of this Current Report on Form 8-K.
Item
5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(c)
On
November 7, 2007, the board of directors of Mediavest (the “Mediavest Board”),
the Company’s predecessor, appointed Bruce Stein to serve as Chief Operating
Officer, commencing on January 1, 2008 (or earlier at the option of Mr. Stein).
The Company entered into an Employment Letter with Mr. Stein, as described
in
more detail in Item 1.01 of this Current Report on Form 8-K, which is
incorporated herein by reference.
Mr.
Stein
is founder and since September 2003 has been Co-Chief Executive Officer of
The
Hatchery LLC (“The Hatchery”), a company specializing in intellectual property
development and entertainment production of kids and family franchises. Since
2003, he has served on the board of directors of ViewSonic, Inc. and is chairman
of the compensation committee. Prior to joining The Hatchery, Mr. Stein held
various executive titles at Mattel, Inc. including Worldwide President, Chief
Operating Officer and a member of the Board of Directors from August 1996
through March 1999. From August 1995 through August 1996, Mr. Stein was Chief
Executive Officer of Sony Interactive Entertainment Inc., a subsidiary of Sony
Computer Entertainment America Inc. At various times between January 1995 and
June 1998, Mr. Stein served as a consultant to DreamWorks SKG, Warner Bros.
Entertainment and Mandalay Entertainment. From 1987 through 1994, Mr. Stein
served as President of Kenner Products, Inc. Mr. Stein received a BA from Pitzer
College and an MBA from the University of Chicago. A press release reflecting
Mr. Stein’s appointment, dated November 14, 2007, is attached hereto as Exhibit
99.1.
(d)
On
November 7, 2007, the Mediavest Board increased the size of the Mediavest Board,
which became the board of the Company as a result of the Reincorporation and
Merger, to eight members and appointed Robert Zangrillo and Bruce Stein as
directors.
Mr.
Zangrillo is a 19 year veteran of the financial services, software and
Internet-based industries. Mr. Zangrillo is the founder, Chairman and Chief
Executive Officer of North Star Systems International (“North Star”), which
provides wealth management software to financial services institutions. Prior
to
joining North Star, Mr. Zangrillo was founder, Chairman and Chief Executive
Officer of InterWorld, Corp., a provider of eCommerce software applications.
Over the last 19 years, Mr. Zangrillo has held various positions including
Chairman, Chief Executive Officer, private equity investor, director and advisor
to numerous growth companies including ArcSight, Inc., Dick’s Sporting Goods
Inc. (NYSE: DKS), EarthLink, Inc. (NASDAQ: ELNK), HomeSpace (acquired by Lending
Tree International, Inc., NASDAQ: LTRE), InterWorld Corp. (acquired by The
Essar
Group), Imperium Renewables, Inc., Loudeye Corp. (acquired by Nokia, NYSE:
NOK),
Overture (acquired by Yahoo, NASDAQ: YHOO), Project PlayList, UGO Networks
(acquired by the Hearst Corporation), Ulta Salon, Cosmetics & Fragrance,
Inc. (NASDAQ:ULTA) and YOUcentric Inc. (acquired by JG Edwards, NASDAQ: ORCL).
Mr. Zangrillo also worked as an associate in the Investment Banking Division
of
Donaldson, Lufkin & Jenrette. He recently served as a member of the Council
on Foreign Relations, where he served on the Committee on Finance and Budget.
Mr. Zangrillo received a BA from the University of Vermont and an MBA from
Stanford University Graduate School of Business. A press release reflecting
Mr.
Zangrillo’s appointment, dated November 13, 2007, is attached hereto as Exhibit
99.2.
In
consideration for the services that Messrs. Zangrillo and Stein will provide
to
the Company, the Mediavest Board granted each of them Options, as set forth
in
Item 3.02 of this Current Report on Form 8-K, which is incorporated herein
by
reference.
Except
as
provided in Items 1.01 and 3.02 of this Current Report on Form 8-K, there are
no
arrangements or understandings between Messrs. Zangrillo or Stein and any other
person pursuant to which each was appointed as a director of the Company or
in
the case of Mr. Stein, Chief Operating Officer of the Company.
There
are
no transactions to which the Company is a party and in which Messrs. Zangrillo
or Stein have material interests that are required to be disclosed under Item
404(a) and (b) of Regulation S-B. Messrs. Zangrillo and Stein have not
previously held any positions in the Company, and do not have family relations
with any directors or executive officers of the Company.
(e)
As
of
November 7, 2007, the Company implemented its previously approved 2007 Employee,
Director and Consultant Stock Plan (the “Plan”). The material terms of the Plan
are described below.
The
Plan
authorizes (1) the issuance of stock grants and other stock-based awards to
the
Company’s employees, directors and consultants, (2) the grant of incentive stock
options to the Company’s employees and (3) the grant of non-qualified options to
the Company’s employees, directors and consultants. The purpose of these awards
is to attract and retain key personnel by providing long term, equity-based
incentives through ownership in the Company.
Stock
options granted under the Plan may either be incentive stock options or
non-qualified stock options. The exercise price per share of a stock option,
which is determined by the board of directors of the Company (the “Board of
Directors”), may not be less than 100% of the fair market value of the common
stock on the date of grant. If an incentive stock option is granted to an
optionee who owns more than 10% of the total combined voting power of the
Company, the exercise price may not be less than 110% of the fair market value
of the common stock on the date of grant.
An
optionee’s ability to exercise his or her shares is subject to the vesting of
the option. At the time of the grant, a vesting period is established, which
generally extends over a period of a few years. After the option vests, an
optionee will be able to exercise the option with respect to the vested portion
of the shares and ultimately with respect to all of the vested shares, until
the
expiration or termination of the option. For non-qualified options the term
of
the option is determined by the Board of Directors. For incentive stock options
the term of the option is not more than ten years. However, if the optionee
owns
more than 10% of the total combined voting power of the Company, the term of
the
incentive stock option will be no longer than five years. In the event of an
option participant’s termination of service with the Company, he or she may
exercise his or her option within the term designated in the participant’s
option agreement. In general, if the termination is due to death or disability,
the option will remain exercisable for 12 months. Upon termination for cause,
as
defined and described in the Plan, a participant’s options shall immediately
terminate.
The
Plan
also provides for the issuance of an outright grant of common stock or a stock
grant that is deemed restricted. Restricted stock is common stock that is
subject to a prohibition against transfer and a substantial risk of forfeiture,
until the end of a “restricted period” during which the grantee must satisfy
certain vesting conditions. If the grantee does not satisfy the vesting
conditions by the end of the restricted period, the restricted stock is
forfeited to the Company. During the restricted period, the holder of restricted
stock has the rights and privileges of a regular shareholder, except that the
restrictions set forth in the applicable award agreement apply. For example,
the
holder of restricted stock may vote and receive dividends on the restricted
shares; but he or she may not sell the shares until the restrictions are lifted.
The Plan also authorizes the grant of other types of stock-based compensation
including, but not limited to stock appreciation rights, phantom stock awards,
and stock unit awards.
In
the
event of the Company’s merger with or into another corporation, or a sale of all
or substantially all of the Company’s assets, other than a transaction to merely
change the state of incorporation, each outstanding option must either be (1)
assumed by the successor corporation or substituted with an equivalent option
or
(2) if not assumed or substituted, the Board of Directors shall provide either
(i) that all options shall become exercisable for a defined period after which
they will terminate or (ii) that all options shall terminate in exchange for
cash payment equal to the value of the option shares less the exercise price.
The Plan also provides for similar provisions with respect to outstanding stock
grants and other stock-based awards.
The
Plan
automatically terminates on September 27, 2017, unless it is terminated earlier
by a vote of the Company’s shareholders or the Board of Directors; provided,
however, that any such action does not affect the rights of any participants
of
the Plan. In addition, the Plan may be amended by the shareholders of the
Company or the Board of Directors, subject to shareholder approval if the Board
of Directors determines it is of a scope that requires shareholder approval.
Item
9.01 Financial Statements and Exhibits.
(d)
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Exhibits
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Number
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Description
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2.1
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Plan
and Agreement of Merger, dated September 27, 2007, of Mandalay Media,
Inc., a Delaware corporation, and Mediavest, Inc., a New Jersey
corporation
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2.2
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Certificate
of Merger merging Mediavest, Inc., a New Jersey corporation, with
and into
Mandalay Media, Inc., a Delaware corporation, as filed with the Secretary
of State of the State of Delaware
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2.3
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Certificate
of Merger merging Mediavest, Inc., a New Jersey corporation, with
and into
Mandalay Media, Inc., a Delaware corporation, as filed with the Secretary
of State of the State of New Jersey
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3.1
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Certificate
of Incorporation of Mandalay Media, Inc.
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3.2
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Bylaws
of Mandalay Media, Inc.
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10.1
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Employment
Letter, by and between the Company and Bruce Stein, dated as of November
7, 2007
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10.2
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2007
Employee, Director and Consultant Stock Plan
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10.3
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Form
of Non-Qualified Stock Option Agreement
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99.1
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Press
Release, dated November 14, 2007
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99.2
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Press
Release, dated November 13,
2007
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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MANDALAY
MEDIA, INC.
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Dated
: November 14, 2007
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By:
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/s/ Robert
S. Ellin
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Robert
S. Ellin
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Chief
Executive Officer
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EXHIBIT
INDEX
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Exhibit
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No.
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Description
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2.1
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Plan
and Agreement of Merger, dated September 27, 2007, of Mandalay Media,
Inc., a Delaware corporation, and Mediavest, Inc., a New Jersey
corporation
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2.2
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Certificate
of Merger merging Mediavest, Inc., a New Jersey corporation, with
and into
Mandalay Media, Inc., a Delaware corporation, as filed with the Secretary
of State of the State of Delaware
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2.3
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Certificate
of Merger merging Mediavest, Inc., a New Jersey corporation, with
and into
Mandalay Media, Inc., a Delaware corporation, as filed with the Secretary
of State of the State of New Jersey
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3.1
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Certificate
of Incorporation of Mandalay Media, Inc.
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3.2
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Bylaws
of Mandalay Media, Inc.
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10.1
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Employment
Letter, by and between the Company and Bruce Stein, dated as of November
7, 2007
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10.2
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2007
Employee, Director and Consultant Stock Plan
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10.3
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Form
of Non-Qualified Stock Option Agreement
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99.1
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Press
Release, dated November 14, 2007
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99.2
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Press
Release, dated November 13, 2007
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PLAN
AND AGREEMENT OF MERGER
THIS
PLAN
AND AGREEMENT OF MERGER (this “Agreement”), dated as of September 27, 2007, is
made and entered into by and between
MANDALAY
MEDIA, INC
.,
a
Delaware corporation (“Mandalay”), and
MEDIAVEST,
INC
.,
a New
Jersey corporation (“Mediavest”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
Mandalay is a corporation duly organized and existing under the laws of the
State of Delaware, having been incorporated on September 14, 2007;
WHEREAS,
Mediavest is a corporation duly organized and existing under the laws of the
State of New Jersey, having been incorporated on November 6, 1998;
and
WHEREAS,
the Boards of Directors and the stockholders representing at least a majority
of
the outstanding shares of voting capital stock entitled to vote of Mandalay
and
Mediavest, have approved this Agreement under which Mediavest shall be merged
with and into Mandalay with Mandalay being the surviving corporation (such
merger being hereinafter referred to as the “Merger”).
NOW,
THEREFORE, in consideration of the premises, the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that Mediavest shall
be merged with and into Mandalay on the terms and conditions hereinafter set
forth.
ARTICLE
I
MERGER
Effective
the later to occur of (i) 12:01 a.m. Eastern Standard time, on or about November
5, 2007, or (ii) the time the Certificate of Merger is accepted for filing
in
New Jersey and the Certificate of Merger is accepted for filing in Delaware
(the
“Effective Time”), Mediavest shall be merged with and into Mandalay in
accordance with the Delaware General Corporation Law and the Business
Corporation Act of the State of New Jersey, and the separate existence of
Mediavest shall cease and Mandalay (hereinafter sometimes referred to as the
“Surviving Corporation”) shall continue to exist under the name of Mandalay by
virtue of, and shall be governed by, the laws of the State of Delaware. The
address of the registered office of the Surviving Corporation in the State
of
Delaware will be 615 South Dupont Highway, City of Dover, County of Kent. The
name of the Surviving Corporation’s registered agent at such address is National
Corporate Research, Ltd.
ARTICLE
II
CERTIFICATE
OF INCORPORATION
OF
THE SURVIVING CORPORATION
The
Certificate of Incorporation of the Surviving Corporation shall be the
Certificate of Incorporation of Mandalay without change, as in effect
immediately prior to the Effective Time, unless and until thereafter amended
as
provided by applicable law.
ARTICLE
III
BYLAWS
OF THE SURVIVING CORPORATION
The
Bylaws of Mandalay shall be the Bylaws of the Surviving Corporation as in effect
immediately prior to the Effective Time without change, unless and until amended
or repealed in accordance with applicable law.
ARTICLE
IV
EFFECT
OF MERGER ON STOCK
OF
CONSTITUENT CORPORATIONS
4.01
At
the Effective Time, each authorized share of common stock of Mediavest,
consisting
of 100,000,000 shares of Common Stock, par value $0.0001 per share
(the
“Mediavest Common Stock”)
,
of
which 21,730,000 shares are, as of the date hereof, issued and
outstanding
,
shall
be converted into one (1) share of common stock, par value $0.0001 per share,
of
the Surviving Corporation (the “Mandalay Common Stock”).
4.02
At
and after the Effective Time, each share of Mediavest Common Stock shall be
cancelled and retired and, by virtue of the Merger and without further action,
shall cease to exist.
4.03
At
the Effective Time, each authorized share of preferred stock of Mediavest,
consisting
of 1,000,000 shares of Preferred Stock, par value $0.0001 per share
(the
“Mediavest Preferred Stock”)
,
of
which
100,000
shares
of Series A Convertible Preferred Stock, par value $0.0001 per share (the
“Mediavest Series A Preferred Stock”), are, as of the date hereof, issued and
outstanding
,
shall
be converted into one (1) share of preferred stock, par value $0.0001 per share,
of the Surviving Corporation (the “Mandalay Preferred Stock”), with each share
of Mediavest Series A Preferred Stock converting into one (1) share of the
Series A Convertible Preferred Stock, par value $0.0001 per share, of Mandalay.
4.04
At
and after the Effective Time, each share of Mediavest Preferred Stock shall
be
cancelled and retired and, by virtue of the Merger and without further action,
shall cease to exist.
4.05
At
and after the Effective Time, all documentation which prior to that time
evidenced and represented Mediavest Common Stock or Mediavest Preferred Stock,
as applicable, shall be deemed for all purposes to evidence ownership of and
to
represent those shares of Mandalay Common Stock or Mandalay Preferred Stock,
as
applicable, into which the Mediavest Common Stock or Mediavest Preferred Stock,
as applicable, represented by such documentation has been converted as herein
provided and shall be so registered on the books and records of Mandalay. The
registered owner of any outstanding stock certificate evidencing Mediavest
Common Stock or Mediavest Preferred Stock, as applicable, shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to Mandalay or its transfer agent, have and be entitled to
exercise any voting and other rights with respect to and to receive any dividend
and other distributions upon the shares of Mandalay Common Stock or Mandalay
Preferred Stock, as applicable, evidenced by such outstanding certificate as
above provided.
ARTICLE
V
CORPORATE
EXISTENCE, POWERS AND
LIABILITIES
OF SURVIVING CORPORATION
5.01
On
the Effective Time, the separate existence of Mediavest shall cease and
Mediavest shall be merged with and into the Surviving Corporation in accordance
with the provisions of this Agreement. Thereafter, the Surviving Corporation
shall possess all of the rights, privileges, powers and franchises as well
of a
public as of a private nature, and shall be subject to all the restrictions,
disabilities and duties of Mediavest; and all rights, privileges, powers and
franchises of Mediavest, and all property, real, personal and mixed, and all
debts due to each of them on whatever account, as well as stock subscriptions
and all other things in action or belonging to Mediavest shall be vested in
the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter effectually
the
property of the Surviving Corporation as they were of Mediavest, and the title
to any real estate, whether by deed or otherwise, vested in Mediavest shall
not
revert or be in any way impaired by reason of the Merger; but all rights of
creditors and all liens upon any property of Mediavest shall be preserved
unimpaired, and all debts, liabilities and duties shall thenceforth attach
to
the Surviving Corporation and may be enforced against it to the same extent
as
if said debts, liabilities and duties had been incurred or contracted by it.
5.02
Mediavest agrees that it will execute and deliver (or cause to be executed
and
delivered) all such deeds, assignments and other instruments, and will take
or
cause to be taken such further or other action as the Surviving Corporation
may
deem necessary or desirable in order to vest in and confirm to the Surviving
Corporation title to and possession of all the property, rights, privileges,
immunities, powers, purposes and franchises, and all and every other interest,
of Mediavest and otherwise to carry out the intent and purposes of this
Agreement.
ARTICLE
VI
OFFICERS
AND DIRECTORS
OF
SURVIVING CORPORATION
At
the
Effective Time, the officers and directors of Mediavest shall become the
officers and directors of the Surviving Corporation, and such persons shall
hold
office in accordance with the Bylaws of the Surviving Corporation or until
their
respective successors shall have been appointed or elected and qualified.
ARTICLE
VII
APPROVAL
BY STOCKHOLDERS;
AMENDMENT;
EFFECTIVE TIME
7.01
This
Agreement and the Merger contemplated hereby are subject to approval by the
requisite vote of the stockholders of Mediavest in accordance with New Jersey
law. As promptly as practicable after approval of this Agreement by such
stockholders in accordance with applicable law, duly authorized officers of
Mandalay and Mediavest shall make and execute a Certificate of Merger or other
applicable certificates or documentation effecting this Agreement and shall
cause such document or documents to be filed with the Secretaries of State
of
the States of Delaware and New Jersey, respectively, in accordance with the
applicable Delaware and New Jersey law.
7.02
The
respective Boards of Directors of Mandalay and Mediavest may amend this
Agreement at any time prior to the Effective Time, provided that an amendment
made subsequent to the approval of the Merger by the stockholders of Mediavest
shall not (1) alter or change the amount or kind of shares, securities, cash,
property or rights to be received in exchange for or on conversion of all or
any
Mediavest Common Stock or Mediavest Preferred Stock; (2) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation; or (3)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any Mediavest Common
Stock or Mediavest Preferred Stock.
ARTICLE
VIII
PAYMENT
OF FEES AND FRANCHISE TAXES
The
Surviving Corporation shall be responsible for the payment of all fees and
franchise taxes of Mediavest relating to or required to be paid in connection
with the Merger.
ARTICLE
IX
TERMINATION
OF MERGER
This
Agreement may be terminated and the Merger abandoned at any time prior to the
Effective Time, whether before or after stockholder approval of this Agreement,
by the consent of the Board of Directors of Mandalay and the Board of Directors
of Mediavest.
[Signature
page to follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers, all as of the day and year first above written.
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MANDALAY MEDIA, INC.
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a Delaware corporation
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By: /s/ James
Lefkowitz
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Name:
James Lefkowitz
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Title:
President
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MEDIAVEST, INC.
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a New Jersey corporation
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By: /s/ James Lefkowitz
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Name: James Lefkowitz
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Title:
President
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[Signature
page to Merger Agreement]
CERTIFICATE
OF MERGER
OF
MEDIAVEST,
INC.,
a
New Jersey corporation
INTO
MANDALAY
MEDIA, INC.,
a
Delaware corporation
****************
Pursuant
to Title 8, Section 252 of the General Corporation Law of the State of Delaware,
the undersigned corporation executed the following Certificate of Merger:
FIRST:
The
name
of the surviving corporation is Mandalay Media, Inc., a Delaware corporation
(“Mandalay”), and the name of the corporation being merged into this surviving
corporation is Mediavest, Inc., a New Jersey corporation (“Mediavest”).
SECOND:
The
Plan
and Agreement of Merger (“Agreement of Merger”) between the parties has been
approved, adopted, certified, executed and acknowledged by each of the
constituent corporations pursuant to Title 8, Section 252 of the General
Corporation Law of the State of Delaware, by Mediavest, in accordance with
the
provisions of Section 14A:10-3 of the New Jersey Business Corporation Act,
and
by Mandalay, pursuant to Section 251 of the General Corporation Law of the
State
of Delaware.
THIRD:
The
name
of the surviving corporation of the merger is Mandalay Media, Inc., a Delaware
corporation.
FOURTH:
The
Certificate of Incorporation of Mandalay shall be the Certificate of
Incorporation of the surviving corporation until amended and
changed.
FIFTH:
This
Certificate of Merger shall be effective upon the filing thereof with the
Secretary of State of the State of Delaware.
SIXTH:
The
executed Agreement of Merger is on file at the principal place of business
of
the surviving corporation. The address of said principal place of business
is
2121 Avenue of the Stars, Suite 2550, Los Angeles, California
90067.
SEVENTH:
A
copy of
the Agreement of Merger will be furnished on request, without cost, to any
stockholder of any constituent corporation.
EIGHTH:
The
authorized capital stock of Mediavest consists of 101,000,000 shares, of which
100,000,000 shares are common stock, par value $0.0001 per share, and 1,000,000
shares are preferred stock, par value $0.0001 per share.
IN
WITNESS WHEREOF,
Mandalay
Media, Inc., a Delaware corporation, has caused this certificate to be signed
by
an authorized officer on this 6
th
day of
November, 2007.
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MANDALAY MEDIA, INC.,
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a Delaware corporation
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By: /s/ Jay
Wolf
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Name:
Jay Wolf
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Title:
Chief Operating Officer
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MEDIAVEST, INC.,
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a New Jersey corporation
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By:
/s/
Jay Wolf
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Name:
Jay Wolf
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Title: Chief Operating
Officer
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CERTIFICATE
OF MERGER
OF
MEDIAVEST,
INC.
a
New Jersey corporation
AND
MANDALAY
MEDIA, INC.
a
Delaware corporation
To
the
Secretary of State
of
the
State of New Jersey
Pursuant
to the provisions of Section 14A:10-7 of the New Jersey Business Corporation
Act, it is hereby certified that:
1.
The
names of the merging corporations are Mediavest, Inc. ("Mediavest"), which
is a
business corporation organized under the laws of the State of New Jersey, and
Mandalay Media, Inc. ("Mandalay"), which is a business corporation organized
under the laws of the State of Delaware.
2.
Annexed hereto and made a part hereof is the Plan and Agreement of Merger
("Agreement of Merger") for merging Mediavest with and into Mandalay as approved
by the Board of Directors of each of said corporations.
3.
The
number of shares of Mediavest which were entitled to vote at the time of the
approval of the Agreement of Merger by its shareholders is
21,730,000
shares
of
common stock and 100,000 shares of Series A Convertible Preferred Stock (“Series
A Preferred Stock”).
The
shareholders entitled to vote of the aforesaid corporation approved the
Agreement of Merger pursuant to a Written Consent of Shareholders to Action
in
Lieu of Meeting and the number of shares that represented such action is
14,300,000 shares of common stock and 100,000 shares of Series A Preferred
Stock. The date of said action and approval was September 27, 2007.
4.
The
number of shares of Mandalay which were entitled to vote at the time of the
approval of the Agreement of Merger by its sole shareholder is 100 shares of
common stock, all of which are of one class.
The
sole
shareholder of Mandalay approved the Agreement of Merger pursuant to a Written
Consent of Sole Shareholder to Action in Lieu of Meeting; and the number of
shares represented by such action is 100. The date of said action and approval
was September 27, 2007.
5.
The
applicable provisions of the laws of the jurisdiction of organization of
Mandalay relating to the merger of Mediavest with and into Mandalay will have
been complied with upon compliance with any of the filing and recording
requirements thereof.
6.
Mandalay will continue its existence as the surviving corporation under its
present name pursuant to the provisions of the Delaware General Corporation
Law.
7.
The
effective date of the merger herein provided for in the State of New Jersey
shall be the filing date of this certificate of merger.
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Executed
on November 6, 2007
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MEDIAVEST,
INC.
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a New Jersey corporation
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By:
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/s/ James
Lefkowitz
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Name:
James Lefkowitz
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Title:
President
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Executed
on November 6, 2007
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MANDALAY
MEDIA, INC.
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a Delaware corporation
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By:
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/s/ James
Lefkowitz
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Name:
James Lefkowitz
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Title:
President
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CERTIFICATE
OF INCORPORATION
OF
MANDALAY
MEDIA, INC.
The
undersigned,
for
the
purpose of organizing a corporation under the provisions and subject to the
requirements of the Delaware General Corporation Law (the “DGCL”), hereby
certifies that:
FIRST:
The name
of the corporation is Mandalay Media, Inc. (the “Corporation”).
SECOND:
The
address of the Corporation’s registered office in the State of Delaware is 615
South DuPont Highway, Dover, Delaware 19901, Kent County. The name of its
registered agent at such address is National Corporate Research, Ltd.
THIRD:
The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the DGCL.
FOURTH:
A.
The
total
number of shares of all classes of stock which the Corporation shall have
authority to issue is One Hundred and One Million (101,000,000), consisting
of:
(i)
100,000,000 shares of common stock, par value $0.0001 per share (the “Common
Stock”) and
(ii)
1,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred
Stock”).
The
number of authorized shares of any such class or classes or series may be
increased or decreased (but not below the number of shares then outstanding)
by
the affirmative vote of the holders of the capital stock of the Corporation
entitled to vote thereon, without a vote of the holders of the Common Stock
or
the Preferred Stock (or of any series thereof), voting as a separate class,
unless a vote of any such holders is specifically required herein pursuant
to
the terms of any Preferred Stock.
B.
Common
Stock
.
1.
General
.
The
voting, dividend and liquidation and other rights of the holders of the Common
Stock are expressly made subject to and qualified by the rights of the holders
of any series of Preferred Stock.
2.
Voting
Rights
.
The
holders of record of the Common Stock are entitled to one vote per share on
all
matters to be voted on by the Corporation's stockholders.
3.
Dividends
.
Dividends may be declared and paid on the Common Stock from funds lawfully
available therefor if, as and when determined by the Board of Directors in
their
sole discretion, subject to provisions of law, any provision of this Certificate
of Incorporation, as amended from time to time, and subject to the relative
rights and preferences of any shares of Preferred Stock authorized, issued
and
outstanding hereunder.
4.
Liquidation
.
Upon
the dissolution, liquidation or winding up of the Corporation, whether voluntary
or involuntary, holders of record of the Common Stock will be entitled to
receive
pro
rata
all
assets of the Corporation available for distribution to its stockholders,
subject, however, to the liquidation rights of the holders of Preferred Stock
authorized, issued and outstanding hereunder.
C.
Preferred
Stock
.
Authority
is hereby expressly granted to the Board of Directors from time to time to
designate and issue Preferred Stock in one or more series, and in connection
with the creation of any such series, by resolution or resolutions providing
for
the issue of the shares thereof, to determine and fix such voting powers, full
or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the DGCL. Without limiting the generality of the
foregoing, the resolutions providing for the designation and issuance of any
series of Preferred Stock may provide that such series shall be superior or
rank
equally or be junior to Preferred Stock of any other series to the extent
permitted by law. No vote of the holders of Preferred Stock or the Common Stock
shall be a prerequisite to the issuance of any shares of any series of Preferred
Stock authorized by and complying with the conditions of the Certificate of
Incorporation, the right to have such vote being expressly waived by all present
and future holders of the capital stock of the Corporation.
There
is
hereby created, out of the 1,000,000 shares of Preferred Stock of the
Corporation remaining authorized, unissued and undesignated, a series of the
Preferred Stock consisting of 100,000 shares, which series shall have the
following powers, designations, preferences and relative, participating,
optional or other rights, and the following qualifications, limitations and
restrictions (in addition to any powers, designations, preferences and relative,
participating, optional or other rights, and any qualifications, limitations
and
restrictions, set forth in this Certificate of Incorporation which are
applicable to the Preferred Stock):
1.
Designation
of Amount
.
(a)
One
hundred thousand (100,000) shares of Preferred Stock shall be, and hereby are,
designated the "Series A Convertible Preferred Stock" (the "Series A Preferred
Stock"), par value $0.0001 per share.
(b)
Subject to the requirements of the DGCL and this Certificate of Incorporation,
the number of shares of Preferred Stock that are designated as Series A
Preferred Stock may be increased or decreased by vote of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of such shares then outstanding
plus the number of such shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any other
outstanding securities issued by the Corporation that are convertible into
or
exercisable for Series A Preferred Stock. Any shares of Series A Preferred
Stock
converted, redeemed, purchased or otherwise acquired by the Corporation in
any
manner whatsoever shall, automatically and without further action, be retired
and canceled promptly after the acquisition thereof.
2.
Certain Definitions
.
Unless
the context otherwise requires, the terms defined in this Section 2 shall have,
for all purposes of this resolution, the meanings specified (with terms defined
in the singular having comparable meanings when used in the
plural).
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"Affiliate"
shall mean, with respect to any person, any other person
directly
or indirectly controlling or controlled by or under direct or
indirect
common control with such specified person and, in the case of a
person
who is an individual, shall include (i) members of such specified
person's
immediate family (as defined in Instruction 2 of Item 404(a) of
Regulation
S-K under the Securities Act) and (ii) trusts, the trustee and
all
beneficiaries of which are such specified person or members of such
person's
immediate family as determined in accordance with the foregoing
clause
(i). For the purposes of this definition, "control," when used with
respect
to any person means the power to direct the management and
policies
of such person, directly or indirectly, whether through the
ownership
of voting securities, by contract or otherwise; and the terms
"affiliated,"
"controlling" and "controlled" have meanings correlative to
the
foregoing.
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"Conversion Date" shall have the meaning
ascribed to such term in Section
6(d).
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"Conversion Price" shall mean the Original
Purchase Price of each share of
Common
Stock, subject to adjustment from time to time in accordance with
Section
6(c).
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"Exchange
Act" shall mean the Securities Exchange Act of 1934, as amended,
and
the rules and regulations promulgated thereunder.
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"Initial Issue Date" shall mean the
date that
shares of Series A Preferred
Stock
are first issued by the Corporation.
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"Original
Purchase Price" shall mean the per share purchase price for a
share
of Series A Preferred Stock of $1.00, or such other price set forth
in
the Purchase Agreement or other subscription agreements pursuant
to
which
Series A Preferred Stock is sold.
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"person"
shall mean any individual, partnership, company, limited
liability
company, joint venture, association, joint-stock company, trust,
unincorporated
organization, government or agency or political subdivision
thereof,
or other entity.
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"Purchase Agreement" shall mean the
Series A
Convertible Preferred Stock
Purchase
Agreement, dated as of October 12, 2006, by and between the
Corporation
and the purchaser identified therein.
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"Securities Act" shall mean the Securities
Act of 1933, as amended, and
the
rules and regulations promulgated thereunder.
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"Series A Preferred Stock" shall have
the
meaning set forth in Section 1.
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"Series
A Recapitalization Event" shall mean any stock dividend, stock
split,
combination, reorganization, recapitalization, reclassification,
or
other
similar event involving a change in the capital structure of the
Series
A Preferred Stock.
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"Subsidiary"
means, with respect to any person, (a) a company a majority
of
whose capital stock with voting power, under ordinary circumstances,
to
elect
directors is at the time, directly or indirectly, owned by such
person,
by a subsidiary of such person, or by such person and one or more
subsidiaries
of such person, (b) a partnership in which such person or a
subsidiary
of such person is, at the date of determination, a general
partner
of such partnership, or (c) any other person (other than a
company)
in which such person, a subsidiary of such person or such person
and
one or more subsidiaries of such person, directly or indirectly,
at
the
date of determination thereof, has (i) at least a majority ownership
interest,
(ii) the power to elect or direct the election of the directors
or
other governing body of such person, or (iii) the power to direct
or
cause
the direction of the affairs or management of such person. For
purposes
of this definition, a person is deemed to own any capital stock
or
other ownership interest if such person has the right to acquire
such
capital
stock or other ownership interest, whether through the exercise of
any
purchase option, conversion privilege or similar right
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3.
Voting
Rights
.
(a)
General. Except as otherwise provided by the DGCL and in addition to any voting
rights provided by the DGCL or other applicable law, the holders of Series
A
Preferred Stock shall be entitled to vote (or render written consents) together
with the holders of the Common Stock and any other class or series of capital
stock of the Corporation entitled to vote together with the holders of the
Common Stock as a single class on all matters submitted for a vote of (or
written consents in lieu of a vote as permitted by the DGCL, the Certificate
of
Incorporation and the Bylaws) holders of Common Stock; and shall have such
other
voting rights as are specified in this Certificate of Incorporation. When voting
together with the holders of Common Stock, each share of Series A Preferred
Stock shall entitle the holder thereof to cast one vote for each vote that
such
holder would be entitled to cast had such holder converted its Series A
Preferred Stock into shares of Common Stock as of the record date for
determining the stockholders of the Corporation eligible to vote on any such
matter or, if no such record date is established, at the date such vote is
taken
or any written consent of stockholders is solicited. The holders of Series
A
Preferred Stock shall be entitled to receive notice of any stockholders' meeting
in accordance with the Certificate of Incorporation and Bylaws of the
Corporation.
(b)
Waivers. Except to the extent otherwise provided in this Certificate of
Incorporation or required by the DGCL, the holders of the Series A Preferred
Stock may, via affirmative vote or written consent in lieu thereof, waive any
rights of the holders of the Series A Preferred Stock set forth in this
Certificate of Incorporation.
4.
Dividends
.
(a)
Dividend Amount. If the Board of Directors shall declare a dividend payable
upon
the then outstanding shares of Common Stock, the holders of the outstanding
shares of Series A Preferred Stock shall be entitled to the amount of dividends
on the Series A Preferred Stock as would be declared payable on the largest
number of whole shares of Common Stock into which the shares of Series A
Preferred Stock held by each holder thereof could be converted pursuant to
the
provisions of Section 6 hereof, such number to be determined as of the record
date for determination of holders of Common Stock entitled to receive such
dividend or, if no such record date is established, as of the date of such
dividend. Such determination of "whole shares" shall be based upon the aggregate
number of shares of Series A Preferred Stock held by each holder, and not upon
each share of Series A Preferred Stock so held by the holder.
(b)
Distributions Other than Cash. Whenever the distributions provided for in this
Section 4 shall be payable in property other than cash, the value of such
distribution shall be the fair market value thereof as determined in good faith
by the Board of Directors. All distributions (including distributions other
than
cash) made hereunder shall be made pro rata to the holders of Series A Preferred
Stock.
(c)
Equitable Adjustments. All numbers relating to the calculation of dividends
shall be subject to an equitable adjustment in the event of any Series A
Recapitalization Event.
5.
Liquidation
Preference
.
(a)
Liquidation Preference of Series A Preferred Stock. In the event of any
liquidation, dissolution, or winding up of the Corporation, whether voluntary
or
involuntary, or in the event of its insolvency, the holders of Series A
Preferred Stock shall be entitled to have set apart for them, or to be paid,
out
of the assets of the Corporation available for distribution to stockholders
(whether such assets are capital, surplus or earnings) after provision for
payment of all debts and liabilities of the Corporation in accordance with
the
DGCL, before any distribution or payment is made with respect to any shares
of
Common Stock or any other class or series of capital stock of the Corporation
designated to be junior to the Series A Preferred Stock and subject to the
liquidation rights and preferences of any class or series of Preferred Stock
designated to be senior to, or on a parity with, the Series A Preferred Stock
with respect to liquidation preferences, an amount equal to the greater of
(i)
$10.00 per share of Series A Preferred Stock (which amount shall be subject
to
an equitable adjustment in the event of any Series A Recapitalization Event)
and
(ii) such amount as would have been payable on the largest number of whole
shares of Common Stock into which the shares of Series A Preferred Stock held
by
each holder thereof could have been converted immediately prior to such event
of
liquidation, dissolution or winding up pursuant to the provisions of Section
6
hereof.
(b)
Insufficient Assets. If, upon any liquidation, dissolution, or winding up of
the
Corporation, whether voluntary or involuntary, the assets legally available
for
distribution among the holders of the Series A Preferred Stock shall be
insufficient to permit payment to such holders of the full preferential amount
as provided for in Section 5(a) above, then such holders shall share ratably
in
any distribution of available assets according to the respective amounts which
would otherwise be payable with respect to the shares of Series A Preferred
Stock held by them upon such liquidating distribution if all amounts payable
on
or with respect to such shares were paid in full, based upon the aggregate
liquidation value payable upon all shares of Series A Preferred Stock then
outstanding.
(c)
Cash-Out Election.
(i)
Each
holder of Series A Preferred Stock may elect, by written notice to the
Corporation given within 10 days after any such transaction is consummated,
to
treat any of the following transactions as a dissolution or winding up of the
Corporation for the purposes of this Section 5: (1) a consolidation or merger
of
the Corporation with or into any other corporation or corporations, (2) a sale
of all or substantially all of the assets of the Corporation, (3) the issuance
and/or sale by the Corporation in a single or integrated transaction of shares
of Common Stock (or securities convertible into shares of Common Stock)
constituting a majority of the shares of Common Stock outstanding immediately
following such issuance (treating all securities convertible into shares of
Common Stock as having been fully converted and all options and other rights
to
acquire shares of Common Stock or securities convertible into shares of Common
Stock as having been fully exercised) and (4) any other form of acquisition
or
business combination where the Corporation is the target of such acquisition
and
where a change in control occurs such that the person or entity seeking to
acquire the Corporation has the power to elect a majority of the Board of
Directors as a result of the transaction (each such event an "Acquisition");
provided, however, that each holder of Series A Preferred Stock shall have
the
right to elect the benefits of the provisions of Section 6(c)(iv) hereof in
lieu
of receiving payment in liquidation, dissolution or winding up of the
Corporation pursuant to this Section 5.
(ii)
the
provisions of this Section 5(c) shall not apply to any reorganization, merger
or
consolidation involving (1) only a change in the state of incorporation of
the
Corporation, or (2) a merger of the Corporation with or into a wholly-owned
subsidiary of the Corporation that is incorporated in the United State of
America.
(d)
Distributions Other than Cash. Whenever the distribution provided for in this
Section 5 shall be payable in property other than cash, the value of such
distribution shall be the fair market value thereof as determined in good faith
by the Board of Directors of the Corporation. All distributions (including
distributions other than cash) made hereunder shall be made pro rata to the
holders of Series A Preferred Stock.
(e)
Equitable Adjustments. The amounts to be paid or set aside for payment as
provided above in this Section 5 shall be proportionately increased or decreased
in inverse relation to the change in the number of outstanding shares resulting
from any Series A Recapitalization Event.
6.
Conversion
Rights
.
(a)
General. Subject to and upon compliance with the provisions of this Section
6,
each holder of shares of Series A Preferred Stock shall be entitled, at its
option, at any time, to convert all or any such shares of Series A Preferred
Stock into the number of fully paid and nonassessable shares of Common Stock
equal to the number obtained by dividing (i) the Original Purchase Price of
such
Series A Preferred Stock, plus the amount of any accumulated but unpaid
dividends as of the Conversion Date by (ii) the Conversion Price in effect
at
the close of business on the Conversion Date (determined as provided in this
Section 6).
(b)
Fractions of Shares. No fractional shares of Common Stock shall be issued upon
conversion of shares of Series A Preferred Stock. If more than one share of
Series A Preferred Stock shall be surrendered for conversion at one time by
the
same holder, the number of full shares of Common Stock to be issued shall be
computed on the basis of the aggregate number of shares of Series A Preferred
Stock so surrendered. Instead of any fractional shares of Common Stock which
would otherwise be issuable upon conversion of any shares of Series A Preferred
Stock, the Corporation shall pay a cash adjustment in respect of such fractional
share in an amount equal to the product of such fraction multiplied by the
fair
market value of one share of Common Stock on the Conversion Date as determined
in good faith by the Board of Directors.
(c)
Adjustments to Conversion Price. The Conversion Price shall also be subject
to
adjustment from time to time as follows:
(i)
Upon
Stock Dividends, Subdivisions or Splits. If, at any time after the date hereof,
the number of shares of Common Stock outstanding is increased by a stock
dividend payable in shares of Common Stock or by a subdivision or split-up
of
shares of Common Stock, then, following the record date for the determination
of
holders of Common Stock entitled to receive such stock dividend, or to be
affected by such subdivision or split-up, the Conversion Price shall be
appropriately decreased so that the number of shares of Common Stock issuable
on
conversion of Series A Preferred Stock shall be increased in proportion to
such
increase in outstanding shares.
(ii)
Upon
Combinations. If, at any time after the date hereof, the number of shares of
Common Stock outstanding is decreased by a combination of the outstanding shares
of Common Stock into a smaller number of shares of Common Stock, then, following
the record date to determine shares affected by such combination, the Conversion
Price shall be appropriately increased so that the number of shares of Common
Stock issuable on conversion of each share of Series A Preferred Stock shall
be
decreased in proportion to such decrease in outstanding shares.
(iii)
Capital Reorganization or Reclassification. If the Common Stock issuable upon
the conversion of the Series A Preferred Stock shall be changed into the same
or
different number of shares of any class or classes of stock, whether by capital
reorganization, reclassification or otherwise (other than a subdivision or
combination or shares of stock dividend provided for elsewhere in this Section
6(c), or the sale of all or substantially all of the Corporation's properties
and assets to any other person), then and in each such event the holder of
each
share of Series A Preferred Stock shall have the right thereafter to convert
such share into the kind and amount of shares of stock and other securities
and
property receivable upon such reorganization, reclassification or other change
by holders of the number of shares of Common Stock into which such shares of
Series A Preferred Stock might have been converted, as the case may be,
immediately prior to such reorganization, reclassification or change, all
subject to further adjustment as provided herein.
(iv)
Capital Reorganization, Merger or Sale of Assets. If at any time or from time
to
time there shall be a capital reorganization of the Common Stock (other than
a
subdivision, combination, reclassification, or exchange of shares provided
for
elsewhere in this Section 6) or a merger or consolidation of the Corporation
with or into another corporation, or the sale of all or substantially all of
the
Corporation's properties and assets to any other person, then, as a part of
such
reorganization, merger, or consolidation or sale, provision shall be made so
that holders of Series A Preferred Stock, as the case may be, shall thereafter
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 the successor corporation resulting from such merger, consolidation or sale,
to which such holder would have been entitled if such holder had converted
its
shares of Series A Preferred Stock immediately prior to such capital
reorganization, merger, consolidation or sale. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Section
6(c) with respect to the rights of the holders of the Series A Preferred Stock
after the reorganization, merger, consolidation or sale to the end that the
provisions of this Section 6(c), including adjustment of the Conversion Price
then in effect for the Series A Preferred Stock and the number of shares
issuable upon conversion of the Series A Preferred Stock) shall be applicable
after that event in as nearly equivalent a manner as may be
practicable.
(v)
Deferral in Certain Circumstances. In any case in which the provisions of this
Section 6(c) shall require that an adjustment shall become effective immediately
after a record date of an event, the Corporation may defer until the occurrence
of such event (1) issuing to the holder of any Series A Preferred Stock
converted after such record date and before the occurrence of such event the
shares of capital stock issuable upon such conversion by reason of the
adjustment required by such event and issuing to such holder only the shares
of
capital stock issuable upon such conversion before giving effect to such
adjustments, and (2) paying to such holder any amount in cash in lieu of a
fractional share of capital stock pursuant to Section 6(b) above; provided,
however, that the Corporation shall deliver to such holder an appropriate
instrument or due bills evidencing such holder's right to receive such
additional shares and such cash.
(d)
Exercise of Conversion Privilege. In order to exercise the conversion privilege,
the holder of any share of Series A Preferred Stock shall surrender the
certificate evidencing such share of Series A Preferred Stock, duly endorsed
or
assigned to the Corporation in blank, at any office or agency of the Corporation
maintained for such purpose, accompanied by written notice to the Corporation
at
such office or agency that the holder elects to convert such Series A Preferred
Stock or, if less than the entire amount thereof is to be converted, the portion
thereof to be converted. Series A Preferred Stock shall be deemed to have been
converted immediately prior to the close of business on the date (the
"Conversion Date") of surrender of such shares of Series A Preferred Stock
for
conversion in accordance with the foregoing provisions, and at such time the
rights of the holder of such shares of Series A Preferred Stock as a holder
shall cease, and the person or persons entitled to receive the Common Stock
issuable upon conversion shall be treated for all purposes as the record holder
or holders of such Common Stock as and after such time. As promptly as
practicable on or after the Conversion Date, the Corporation shall issue and
shall deliver at any office or agency of the Corporation maintained for the
surrender of Series A Preferred Stock a certificate or certificates for the
number of full shares of Common Stock issuable upon conversion, together with
payment in lieu of any fraction of a share, as provided in Section 6(b). In
the
case of any certificate evidencing shares of Series A Preferred Stock that is
converted in part only, upon such conversion the Corporation shall also execute
and deliver a new certificate evidencing the number of shares of Series A
Preferred Stock that are not converted.
(e)
Notice of Adjustment of Conversion Price. Whenever the provisions of Section
6(c) require that the Conversion Price be adjusted as herein provided, the
Corporation shall compute the adjusted Conversion Price in accordance with
Section 6(c) and shall prepare a certificate signed by the Corporation's chief
executive officer or chief financial officer setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be filed at each
office or agency maintained for such purpose for conversion of shares of Series
A Preferred Stock and mailed by the Corporation at its expense to all holders
of
Series A Preferred Stock at their last addresses as they shall appear in the
stock register.
(f)
Corporation to Reserve Common Stock. The Corporation shall at all times reserve
and keep available, free from preemptive rights, out of the authorized but
unissued Common Stock or out of the Common Stock held in treasury, for the
purpose of effecting the conversion of Series A Preferred Stock, the full number
of shares of Common Stock then issuable upon the conversion of all outstanding
shares of Series A Preferred Stock. Before taking any action that would cause
an
adjustment reducing the conversion price below the then par value (if any)
of
the shares of Common Stock deliverable upon conversion of the Series A Preferred
Stock, the Corporation will take any corporate action that, in the opinion
of
its counsel, is necessary in order that the Corporation may validly and legally
issue fully paid and non-assessable shares of Common Stock at such adjusted
conversion price.
(g)
Taxes
on Conversions. The Corporation will pay any and all original issuance,
transfer, stamp and other similar taxes that may be payable in respect of the
issue or delivery of shares of Common Stock on conversion of Series A Preferred
Stock pursuant hereto. The Corporation shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the holder
of the share(s) of Series A Preferred Stock to be converted, and no such issue
or delivery shall be made unless and until the person requesting such issue
has
paid to the Corporation the amount of any such tax, or has established to the
satisfaction of the Corporation that such tax has been paid.
FIFTH:
The name
and mailing address of the sole incorporator of the Corporation is Nyisha
Shakur, c/o Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 666 Third
Avenue, New York, New York 10017.
SIXTH:
The
Corporation is to have perpetual existence.
SEVENTH:
For the
management of the business and for the conduct of the affairs of the
Corporation, and in further definition and not in limitation of the powers
of
the Corporation and of its directors and of its stockholders or any class
thereof, as the case may be, conferred by the State of Delaware, it is further
provided that:
A.
The
management of the business and the conduct of the affairs of the Corporation
shall be vested in its Board of Directors. The number of directors which shall
constitute the whole Board of Directors shall be fixed by, or in the manner
provided in, the Bylaws. The phrase “whole Board” and the phrase “total number
of directors” shall be deemed to have the same meaning, to wit, the total number
of directors which the Corporation would have if there were no vacancies. No
election of directors need be by written ballot.
B.
After
the
original or other Bylaws of the Corporation have been adopted, amended or
repealed, as the case may be, in accordance with the provisions of
Section 109 of the DGCL, and, after the Corporation has received any
payment for any of its stock, the power to adopt, amend, or repeal the Bylaws
of
the Corporation may be exercised by the Board of Directors of the Corporation.
C.
The
books
of the Corporation may be kept at such place within or without the State of
Delaware as the Bylaws of the Corporation may provide or as may be designated
from time to time by the Board of Directors of the Corporation.
EIGHTH:
The
Corporation shall, to the fullest extent permitted by Section 145 of the DGCL,
as the same may be amended and supplemented from time to time, indemnify and
advance expenses to, (i) its directors and officers, and (ii) any person who
at
the request of the Corporation is or was serving as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise, from and against any and all of the expenses, liabilities,
or
other matters referred to in or covered by said section as amended or
supplemented (or any successor), provided, however, that except with respect
to
proceedings to enforce rights to indemnification, the Bylaws of the Corporation
may provide that the Corporation shall indemnify any director, officer or such
person in connection with a proceeding (or part thereof) initiated by such
director, officer or such person only if such proceeding (or part thereof)
was
authorized by the Board of Directors of the Corporation. The Corporation, by
action of its Board of Directors, may provide indemnification or advance
expenses to employees and agents of the Corporation or other persons only on
such terms and conditions and to the extent determined by the Board of Directors
in its sole and absolute discretion. The indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified
may
be entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in their official capacity and as
to
action in another capacity while holding such office, and shall continue as
to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
NINTH:
No
director of the Corporation shall be liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that this provision does not eliminate or limit the liability of the
director (i) for any breach of the director’s duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any trans-action from which the director
derived an improper personal benefit. For purposes of the prior sentence, the
term “damages” shall, to the extent permitted by law, include without
limitation, any judgment, fine, amount paid in settlement, penalty, punitive
damages, excise or other tax assessed with respect to an employee benefit plan,
or expense of any nature (including, without limitation, reasonable counsel
fees
and disbursements). Each person who serves as a director of the Corporation
while this Article
NINTH
is
in
effect shall be deemed to be doing so in reliance on the provisions of this
Article
NINTH
,
and
neither the amendment or repeal of this Article
NINTH
,
nor the
adoption of any provision of this Certificate of Incorporation inconsistent
with
this Article
NINTH
,
shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for, arising out of, based upon, or in connection
with any acts or omissions of such director occurring prior to such amendment,
repeal, or adoption of an inconsistent provision. The provisions of this Article
NINTH
are
cumulative and shall be in addition to and independent of any and all other
limitations on or eliminations of the liabilities of directors of the
Corporation, as such, whether such limitations or eliminations arise under
or
are created by any law, rule, regulation, bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise.
TENTH:
From
time
to time any of the provisions of this Certificate of Incorporation may be
amended, altered or repealed, and other provisions authorized by the laws of
the
State of Delaware at the time in force may be added or inserted in the manner
and at the time prescribed by said laws, and all rights at any time conferred
upon the stockholders of the Corporation by this Certificate of Incorporation
are granted subject to the provisions of this Article
TENTH
.
IN
WITNESS WHEREOF
,
I have
made, signed, and sealed this Certificate of Incorporation as of September
14,
2007.
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|
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/s/ Nyisha
Shakur
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Nyisha
Shakur, Sole
Incorporator
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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
[MANDALAY
MEDIA, INC. LETTERHEAD]
As
of
November 7, 2007
Bruce
Stein
1894
Westridge Road
Los
Angeles, Ca 90049
Dear
Bruce:
On
behalf
of Mandalay Media, Inc. (the “Company”), I am pleased to offer you the position
of Chief Operating Officer of the Company, commencing on January 1, 2008 or
earlier, at your option, and invite you to be a member of the Company’s Board of
Directors as of the date hereof (the “Commencement Date”) on the following
terms.
You
will
be expected to perform various duties consistent with your position, including,
but not limited to, identifying and managing potential acquisitions for the
Company’s casual gaming division and consulting with the officers and directors
of the Company on other potential acquisitions and business opportunities of
the
Company. You will report to the Board of Directors of the Company. You will
work
at either our offices located at 2121 Avenue of the Stars, Suite 2550, in Los
Angeles, California (at least two days a week) or Mandalay’s offices at 4751
Wilshire Boulevard, Los Angeles, California.
You
agree
during your employment to devote substantially all of your business time,
energy, experience and talents to the performance of your duties and
responsibilities as an employee, officer and Director of the Company. You agree
also to devote your best efforts to advance the interests of the Company and
agree not to engage in any other business activities, as an employee, director,
consultant or in any other capacity, whether or not you receive any compensation
therefor, without the prior written consent of the Board of Directors of the
Company, which consent will not be unreasonably withheld. For purposes hereof,
the Company acknowledges that you are currently a member of the board of
directors of Viewsonic Corporation, which position as of the date hereof shall
not be breach of this letter agreement. When you are not rendering services
on
behalf of the Company, you may, on a limited basis, spend your time
completing non-exclusive duties and responsibilities with The Hatchery,
provided, that such duties and responsibilities may not interfere with the
performance of your duties and responsibilities as an employee, officer and
Director of the Company.
Your
compensation will be $250,000 per year (beginning on the date on which you
commence your duties as Chief Operating Officer of the Company), less payroll
deductions and all required withholdings (the “Base Salary”). You will be paid
semi-monthly and you will be eligible to participate in any Company benefits
that the Company may make available to its executive employees from time to
time. Any bonus or additional consideration shall be at the discretion of the
Board of Directors of the Company. If you are hired to be a full time Chairman
or Chief Executive Officer of any company or entity affiliated with the Company,
then the Company shall negotiate your entire compensation package in good
faith.
Subject
to approval by the Board of Directors of the Company (or an appropriate
Committee appointed by the Board of Directors) you will be granted options
to
purchase 550,000 shares of common stock of the Company (the "Options") at
exercise prices equal to the fair market value of the common stock at the time
of the grant. An option to purchase 500,000 shares will be granted on the
Commencement Date and, provided you are employed by the Company or still serving
as a Director, an option to purchase 50,000 shares will be granted on January
2,
2008. The Options will vest as follows: a third of each option will vest on
the
date of grant, a third of each option will vest on the first anniversary of
the
Commencement Date and the last third of each option will vest on the second
anniversary of the Commencement Date, in each case provided you are employed
by
or still providing services to the Company at such date. The Options will be
issued subject to the terms of a formal stock option agreement and the stock
plan in effect on the date of grant.
In
your
work for the Company, you will be expected not to use or disclose any
confidential information, including trade secrets of any former employer or
other person to whom you have an obligation of confidentiality. Rather, you
will
be expected to use that information which is generally known and used by persons
with training and experience comparable to your own, which is common knowledge
in the industry or otherwise legally in the public domain, or which is otherwise
provided or developed by the Company. During our discussions about your proposed
job duties, you assured us that you would be able to perform those duties within
the guidelines just described.
You
agree
that you will not bring onto Company premises any unpublished documents or
property belonging to any former employer or other person to whom you have
an
obligation of confidentiality.
Your
employment with the Company is for a period of two years from the date beginning
on the date on which you commence your duties as Chief Operating Officer of
the
Company, however, your employment may be terminated by the Company for “cause”
(as defined below) or by you for “good reason” (as defined below). Provided that
you are still employed by the Company, we shall begin good faith discussions
with you regarding an extension of your employment approximately six months
prior to the scheduled expiration of this letter. If the Company terminates
your
employment for cause or if you voluntarily leave the employ of the Company
without good reason, the Company’s obligations shall terminate on the date of
such cessation of employment. For purposes of this letter, the term “cause” for
termination shall be deemed to exist upon the occurrence of any of the
following: (a) a good faith finding by the Company that you have engaged in
dishonesty, gross negligence or gross misconduct that injures the Company;
(b)
your conviction or entry of nolo contendere to any felony or a crime involving
moral turpitude, fraud or embezzlement of Company property; or (c) your material
breach of your duties under this letter (including a good faith determination
by
the Company that your activities with The Hatchery are detrimental to the
Company), which, if curable, has not been cured within fourteen (14) days after
you shall have received written notice from the Company stating the nature
of
such breach. For purposes of this Agreement, a “good reason” means any of the
following: (i) A change in the principal location at which you provide services
to the Company, without your prior written consent; (ii) A material adverse
change by the Company in your title, duties, authority or responsibilities
as
Chief Operating Officer of the Company; or (iii) A change in the lines of
reporting.
If
your
employment is terminated without cause or by you for good reason during the
term
of this letter, then, subject to the execution of a mutual release agreement,
the Company shall pay you six (6) months of your then Base Salary, provided
that
in no event will the Company be obligated to pay you any amounts beyond the
term
of this letter. These payments will be made in accordance with the Company's
ordinary payroll practices and will begin on the first scheduled payday that
is
eight days or more after your execution and compliance with the release
agreement provided to you by the Company, provided that you execute that release
agreement within four (4) weeks of your receipt of the release agreement from
the Company. Except as set forth herein, you shall not be entitled to any
additional compensation or benefits in the event of a termination without cause
or by good reason.
You
agree
that during the term of your employment with the Company, that you will not,
in
any capacity, whether for on your own account or on behalf of any other person
or organization, directly or indirectly, with or without compensation, (a)
own,
operate, manage, or control, (b) serve as an officer, director, partner, member,
employee, agent, consultant, advisor or developer or in any similar capacity
to,
(c) divert, or in any way attempt to divert, any customer or prospect of the
Company to any potential, current, past or prospective competitor of the
Company, or (d) have any financial interest in (other than as a holder of less
than 5% of the capital stock of any publicly traded corporation) or aid or
assist anyone else in the conduct of, any person or enterprise engaged in a
business competitive with the business of the Company.
For
a
period of one (1) year immediately following the termination of your employment
with the Company, you shall not directly or indirectly solicit, recruit, or
encourage any other employee or contractor of the Company to leave or cease
business relations with the Company.
All
notices, requests, consents, demands and other communications hereunder
(collectively, “Notices”) shall be in writing, addressed to the receiving
party's address as set forth below or to such other address as a party may
designate by notice hereunder, and either (i) delivered by hand,
(ii) sent by telex, telecopier or facsimile transmission, (iii) sent
by a nationally recognized overnight courier, or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid: if to the Company,
2121 Avenue of the Stars, Suite 2550, Los Angeles, CA 90067 and if to you,
at
the address set forth above. All Notices shall be deemed to have been given
either (i) if by hand, at the time of actual delivery thereof to the
receiving party at such party’s address, as provided above, (ii) if made by
telex, telecopier or facsimile transmission, at the time that receipt thereof
has been acknowledged by electronic confirmation or otherwise, (iii) if
sent by overnight courier, on the next business day following the day such
Notice is delivered to the courier service, or (iv) if sent by registered or
certified mail, on the fifth (5
th
)
business day following the day such mailing is made.
This
letter forms the complete and exclusive statement of the terms of your
employment with the Company. The employment terms in this letter supersede
any
other agreements or promises made to you by anyone, whether oral or written.
The
terms of this letter agreement cannot be modified, except in a writing signed
by
a Company officer.
As
required by law, this offer is subject to satisfactory proof of your right
to
work in the United States. This Agreement will be binding upon your heirs,
executors, administrators, and other legal representatives, and will be for
the
benefit of the Company, its successors, and its assigns.
If
at any
time the provisions of this letter shall be determined to be invalid or
unenforceable, by reason of being vague or unreasonable as to area, duration
or
scope of activity, then this letter shall be considered divisible and shall
become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court
or
other body having jurisdiction over the matter; and all of the parties hereto
agree that this letter as so amended shall be valid and binding as though any
invalid or unenforceable provision had not been included herein.
We
look
forward to a productive and enjoyable work relationship.
Sincerely,
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Mandalay
Media, Inc.
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/s/
Jim Lefkowitz
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/s/
Bruce
Stein
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Jim
Lefkowitz, President
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Bruce
Stein
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Date:
As of November 7, 2007
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MEDIAVEST,
INC.
2007
EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN
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Unless
otherwise specified or unless the context otherwise requires, the
following terms, as used in this Mediavest, Inc. 2007 Employee, Director
and Consultant Stock Plan, have the following
meanings:
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Administrator
means the Board of Directors, unless it has delegated power to act
on its
behalf to the Committee, in which case the Administrator means the
Committee.
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Affiliate
means a corporation which, for purposes of Section 424 of the Code,
is a
parent or subsidiary of the Company, direct or
indirect.
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Agreement
means an agreement between the Company and a Participant delivered
pursuant to the Plan, in such form as the Administrator shall
approve.
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Board
of Directors
means the Board of Directors of the
Company.
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Cause
means dishonesty with respect to the Company or any Affiliate,
insubordination, substantial malfeasance or non-feasance of duty,
unauthorized disclosure of confidential information, breach by the
Participant of any provision of any employment, consulting, advisory,
nondisclosure, non-competition or similar agreement between the
Participant and the Company, and conduct substantially prejudicial
to the
business of the Company or any Affiliate; provided, however, that
any
provision in an agreement between the Participant and the Company
or an
Affiliate, which contains a conflicting definition of Cause for
termination and which is in effect at the time of such termination,
shall
supersede this definition with respect to that Participant. The
determination of the Administrator as to the existence of Cause will
be
conclusive on the Participant and the
Company.
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Code
means the United States Internal Revenue Code of 1986, as
amended.
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Committee
means the committee of the Board of Directors to which the Board
of
Directors has delegated power to act under or pursuant to the provisions
of the Plan.
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Common
Stock
means shares of the Company’s common stock, $.0001 par value per
share.
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Company
means Mediavest, Inc., a New Jersey
corporation.
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Disability
or
Disabled
means permanent and total disability as defined in Section 22(e)(3)
of the
Code.
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Employee
means any employee of the Company or of an Affiliate (including,
without
limitation, an employee who is also serving as an officer or director
of
the Company or of an Affiliate), designated by the Administrator
to be
eligible to be granted one or more Stock Rights under the
Plan.
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Fair
Market Value
of
a Share of Common Stock means:
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(1)
If
the
Common Stock is listed on a national securities exchange or traded in the
over-the-counter market and sales prices are regularly reported for the Common
Stock, the closing or, if not applicable, the last price of the Common Stock
on
the composite tape or other comparable reporting system for the trading day
on
the applicable date and if such applicable date is not a trading day, the last
market trading day prior to such date;
(2)
If
the
Common Stock is not traded on a national securities exchange but is traded
on
the over-the-counter market, if sales prices are not regularly reported for
the
Common Stock for the trading day referred to in clause (1), and if bid and
asked prices for the Common Stock are regularly reported, the mean between
the
bid and the asked price for the Common Stock at the close of trading in the
over-the-counter market for the trading day on which Common Stock was traded
on
the applicable date and if such applicable date is not a trading day, the last
market trading day prior to such date; and
(3)
If
the
Common Stock is neither listed on a national securities exchange nor traded
in
the over-the-counter market, such value as the Administrator, in good faith,
shall determine.
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ISO
means an option meant to qualify as an incentive stock option under
Section 422 of the Code.
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Non-Qualified
Option
means an option which is not intended to qualify as an
ISO.
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Option
means an ISO or Non-Qualified Option granted under the
Plan.
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Participant
means an Employee, director or consultant of the Company or an Affiliate
to whom one or more Stock Rights are granted under the Plan.
As
used herein, “Participant” shall include “Participant’s Survivors” where
the context requires.
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Plan
means this Mediavest, Inc. 2007 Employee, Director and Consultant
Stock
Plan.
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Shares
means shares of the Common Stock as to which Stock Rights have been
or may
be granted under the Plan or any shares of capital stock into which
the
Shares are changed or for which they are exchanged within the provisions
of Paragraph 3 of the Plan. The Shares issued under the Plan may be
authorized and unissued shares or shares held by the Company in its
treasury, or both.
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Stock-Based
Award
means a grant by the Company under the Plan of an equity award or
an
equity based award which is not an Option or a Stock Grant.
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Stock
Grant
means a grant by the Company of Shares under the
Plan.
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Stock
Right
means a right to Shares or the value of Shares of the Company granted
pursuant to the Plan -- an ISO, a Non-Qualified Option, a Stock Grant
or a
Stock-Based Award.
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Survivor
means a deceased Participant’s legal representatives and/or any person or
persons who acquired the Participant’s rights to a Stock Right by will or
by the laws of descent and distribution.
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2.
PURPOSES
OF THE PLAN
.
The
Plan
is intended to encourage ownership of Shares by Employees and directors of
and
certain consultants to the Company and its Affiliates in order to attract and
retain such people, to induce them to work for the benefit of the Company or
of
an Affiliate and to provide additional incentive for them to promote the success
of the Company or of an Affiliate. The Plan provides for the granting of ISOs,
Non-Qualified Options, Stock Grants and Stock-Based Awards.
3.
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SHARES
SUBJECT TO THE PLAN
.
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(a)
The
number of Shares which may be issued from time to time pursuant to this Plan
shall be three million (3,000,000) shares, or the equivalent of such number
of
Shares after the Administrator, in its sole discretion, has interpreted the
effect of any future stock split, stock dividend, combination, recapitalization
or similar transaction in accordance with Paragraph 24 of the Plan.
(b)
If an
Option ceases to be “outstanding”, in whole or in part (other than by exercise),
or if the Company shall reacquire (at not more than its original issuance price)
any Shares issued pursuant to a Stock Grant or Stock-Based Award, or if any
Stock Right expires or is forfeited, cancelled, or otherwise terminated or
results in any Shares not being issued, the unissued Shares which were subject
to such Stock Right shall again be available for issuance from time to time
pursuant to this Plan. Notwithstanding the foregoing, if a Stock Right is
exercised, in whole or in part, by tender of Shares or if the Company’s tax
withholding obligation is satisfied by withholding Shares, the number of Shares
deemed to have been issued under the Plan for purposes of the limitation set
forth in Paragraph 3(a) above shall be the number of Shares that were subject
to
the Stock Right or portion thereof, and not the net number of Shares actually
issued.
4.
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ADMINISTRATION
OF THE PLAN
.
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The
Administrator of the Plan will be the Board of Directors, except to the extent
the Board of Directors delegates its authority to the Committee, in which case
the Committee shall be the Administrator. Subject to the provisions of the
Plan,
the Administrator is authorized to:
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a.
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Interpret
the provisions of the Plan and all Stock Rights and to make all rules
and
determinations which it deems necessary or advisable for the
administration of the Plan;
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b.
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Determine
which Employees, directors and consultants shall be granted Stock
Rights;
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c.
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Determine
the number of Shares for which a Stock Right or Stock Rights shall
be
granted, provided, however, that in no event shall Stock Rights with
respect to more than 500,000
Shares
be granted to any Participant in any fiscal
year;
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d.
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Specify
the terms and conditions upon which a Stock Right or Stock Rights
may be
granted;
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e
.
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Make
changes to any outstanding Stock Right, including, without limitation,
to
reduce or increase the exercise price or purchase price, accelerate
the
vesting schedule or extend the expiration date, provided that no
such
change shall impair the rights of a Participant under any grant previously
made without such Participant’s consent;
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f.
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Buy
out for a payment in cash or Shares, a Stock Right previously granted
and/or cancel any such Stock Right and grant in substitution therefor
other Stock Rights, covering the same or a different number of Shares
and
having an exercise price or purchase price per share which may be
lower or
higher than the exercise price or purchase price of the cancelled
Stock
Right, based on such terms and conditions as the Administrator shall
establish and the Participant shall accept;
and
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g.
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Adopt
any sub-plans applicable to residents of any specified jurisdiction
as it
deems necessary or appropriate in order to comply with or take advantage
of any tax or other laws applicable to the Company or to Plan Participants
or to otherwise facilitate the administration of the Plan, which
sub-plans
may include additional restrictions or conditions applicable to Stock
Rights or Shares issuable pursuant to a Stock
Right;
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provided,
however, that all such interpretations, rules, determinations, terms and
conditions shall be made and prescribed in the context of not causing any
adverse tax consequences under Section 409A of the Code and preserving the
tax
status under Section 422 of the Code of those Options which are designated
as
ISOs. Subject to the foregoing, the interpretation and construction by the
Administrator of any provisions of the Plan or of any Stock Right granted under
it shall be final, unless otherwise determined by the Board of Directors, if
the
Administrator is the Committee. In addition, if the Administrator is the
Committee, the Board of Directors may take any action under the Plan that would
otherwise be the responsibility of the Committee.
To
the
extent permitted under applicable law, the Board of Directors or the Committee
may allocate all or any portion of its responsibilities and powers to any one
or
more of its members and may delegate all or any portion of its responsibilities
and powers to any other person selected by it. The Board of Directors or the
Committee may revoke any such allocation or delegation at any time.
5.
ELIGIBILITY
FOR PARTICIPATION
.
The
Administrator will, in its sole discretion, name the Participants in the Plan,
provided, however, that each Participant must be an Employee, director or
consultant of the Company or of an Affiliate at the time a Stock Right is
granted. Notwithstanding the foregoing, the Administrator may authorize the
grant of a Stock Right to a person not then an Employee, director or consultant
of the Company or of an Affiliate; provided, however, that the actual grant
of
such Stock Right shall be conditioned upon such person becoming eligible to
become a Participant at or prior to the time of the execution of the Agreement
evidencing such Stock Right. ISOs may be granted only to Employees.
Non-Qualified Options, Stock Grants and Stock-Based Awards may be granted to
any
Employee, director or consultant of the Company or an Affiliate. The granting
of
any Stock Right to any individual shall neither entitle that individual to,
nor
disqualify him or her from, participation in any other grant of Stock
Rights.
6.
TERMS
AND CONDITIONS OF OPTIONS
.
Each
Option shall be set forth in writing in an Option Agreement, duly executed
by
the Company and, to the extent required by law or requested by the Company,
by
the Participant. The Administrator may provide that Options be granted subject
to such terms and conditions, consistent with the terms and conditions
specifically required under this Plan, as the Administrator may deem appropriate
including, without limitation, subsequent approval by the shareholders of the
Company of this Plan or any amendments thereto. The Option Agreements shall
be
subject to at least the following terms and conditions:
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a.
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Non-Qualified
Options
:
Each Option intended to be a Non-Qualified Option shall be subject
to the
terms and conditions which the Administrator determines to be appropriate
and in the best interest of the Company, subject to the following
minimum
standards for any such Non-Qualified
Option:
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i.
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Option Price
:
Each Option Agreement shall state the option price (per
share)
of the Shares covered by each Option, which option price shall
be
determined
by the Administrator but shall not be less than the Fair Market
Value
per share of Common Stock unless the terms of such Option
complies
with the requirements of Section 409A of the Code or is granted
to
a consultant to whom Section 409A does not
apply.
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ii.
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Number
of Shares
:
Each Option Agreement shall state the number of Shares to which it
pertains.
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iii.
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Option
Periods
:
Each Option Agreement shall state the date or dates on which it first
is
exercisable and the date after which it may no longer be exercised,
and
may provide that the Option rights accrue or become exercisable in
installments over a period of months or years, or upon the occurrence
of
certain conditions or the attainment of stated goals or
events.
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iv.
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Option
Conditions
:
Exercise of any Option may be conditioned upon the Participant’s execution
of a Share purchase agreement in form satisfactory to the Administrator
providing for certain protections for the Company and its other
shareholders, including requirements
that:
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A.
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The
Participant’s or the Participant’s Survivors’ right to sell or transfer
the Shares may be restricted; and
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B.
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The
Participant or the Participant’s Survivors may be required to execute
letters of investment intent and must also acknowledge that the Shares
will bear legends noting any applicable
restrictions.
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b.
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ISOs
:
Each Option intended to be an ISO shall be issued only to an Employee
and
be subject to the following terms and conditions, with such additional
restrictions or changes as the Administrator determines are appropriate
but not in conflict with Section 422 of the Code and relevant regulations
and rulings of the Internal Revenue
Service:
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i.
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Minimum
standards
:
The ISO shall meet the minimum standards required of Non-Qualified
Options, as described in Paragraph 6(a) above, except clause (i)
thereunder.
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ii.
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Option
Price
:
Immediately before the ISO is granted, if the Participant owns, directly
or by reason of the applicable attribution rules in Section 424(d) of
the Code:
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A.
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10%
or
less
of
the total combined voting power of all classes of stock of the Company
or
an Affiliate, the Option price per share of the Shares covered by
each ISO
shall not be less than 100% of the Fair Market Value per share of
the
Shares on the date of the grant of the Option;
or
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B.
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More
than 10% of the total combined voting power of all classes of stock
of the
Company or an Affiliate, the Option price per share of the Shares
covered
by each ISO shall not be less than 110% of the Fair Market Value
on the
date of grant.
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iii.
|
Term
of Option
:
For Participants who own:
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A.
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10%
or
less
of
the total combined voting power of all classes of stock of the Company
or
an Affiliate, each ISO shall terminate not more than ten years from
the
date of the grant or at such earlier time as the Option Agreement
may
provide; or
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B.
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More
than 10% of the total combined voting power of all classes of stock
of the
Company or an Affiliate, each ISO shall terminate not more than five
years
from the date of the grant or at such earlier time as the Option
Agreement
may provide.
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iv.
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Limitation
on Yearly Exercise
:
The Option Agreements shall restrict the amount of ISOs which may
become
exercisable in any calendar year (under this or any other ISO plan
of the
Company or an Affiliate) so that the aggregate Fair Market Value
(determined at the time each ISO is granted) of the stock with respect
to
which ISOs are exercisable for the first time by the Participant
in any
calendar year does not exceed
$100,000.
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7.
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TERMS
AND CONDITIONS OF STOCK GRANTS
.
|
Each
offer of a Stock Grant to a Participant shall state the date prior to which
the
Stock Grant must be accepted by the Participant, and the principal terms of
each
Stock Grant shall be set forth in an Agreement, duly executed by the Company
and, to the extent required by law or requested by the Company, by the
Participant. The Agreement shall be in a form approved by the Administrator
and
shall contain terms and conditions which the Administrator determines to be
appropriate and in the best interest of the Company, subject to the following
minimum standards:
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(a)
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Each
Agreement shall state the purchase price (per share), if any, of
the
Shares covered by each Stock Grant, which purchase price shall be
determined by the Administrator but shall not be less than the minimum
consideration required by the New Jersey Business Corporation Act
on the
date of the grant of the Stock
Grant;
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(b)
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Each
Agreement shall state the number of Shares to which the Stock Grant
pertains; and
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(c)
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Each
Agreement shall include the terms of any right of the Company to
restrict
or reacquire the Shares subject to the Stock Grant, including the
time and
events upon which such rights shall accrue and the purchase price
therefor, if any.
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8.
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TERMS
AND CONDITIONS OF OTHER STOCK-BASED AWARDS
.
|
The
Administrator shall have the right to grant other Stock-Based Awards based
upon
the Common Stock having such terms and conditions as the Administrator may
determine, including, without limitation, the grant of Shares based upon certain
conditions, the grant of securities convertible into Shares and the grant of
stock appreciation rights, phantom stock awards or stock units. The principal
terms of each Stock-Based Award shall be set forth in an Agreement, duly
executed by the Company and, to the extent required by law or requested by
the
Company, by the Participant. The Agreement shall be in a form approved by the
Administrator and shall contain terms and conditions which the Administrator
determines to be appropriate and in the best interest of the Company.
The
Company intends that the Plan and any Stock-Based Awards granted hereunder
be
exempt from the application of Section 409A of the Code or meet the requirements
of paragraphs (2), (3) and (4) of subsection (a) of Section 409A of the Code
(and any successor provisions of the Code) and the regulations and other
guidance issued thereunder (the “Requirements”), to the extent applicable, and
be operated in accordance with such Requirements so that any compensation
deferred under any Stock-Based Award (and applicable investment earnings) shall
not be included in income under Section 409A of the Code. Any ambiguities in
the
Plan shall be construed to effect the intent as described in this Paragraph
8.
9.
EXERCISE
OF OPTIONS AND ISSUE OF SHARES
.
An
Option
(or any part or installment thereof) shall be exercised by giving written notice
to the Company or its designee, together with provision for payment of the
full
purchase price in accordance with this Paragraph for the Shares as to which
the
Option is being exercised, and upon compliance with any other condition(s)
set
forth in the Option Agreement. Such notice shall be signed by the person
exercising the Option, shall state the number of Shares with respect to which
the Option is being exercised and shall contain any representation required
by
the Plan or the Option Agreement. Payment of the purchase price for the Shares
as to which such Option is being exercised shall be made (a) in United
States dollars in cash or by check, or (b) at the discretion of the
Administrator, through delivery of shares of Common Stock having a Fair Market
Value equal as of the date of the exercise to the cash exercise price of the
Option and held for at least six months, or (c) at the discretion of the
Administrator, by having the Company retain from the shares otherwise issuable
upon exercise of the Option, a number of shares having a Fair Market Value
equal
as of the date of exercise to the exercise price of the Option, or (d) at the
discretion of the Administrator, by delivery of the grantee’s personal recourse
note bearing interest payable not less than annually at no less than 100% of
the
applicable Federal rate, as defined in Section 1274(d) of the Code, or
(e) at the discretion of the Administrator, in accordance with a cashless
exercise program established with a securities brokerage firm, and approved
by
the Administrator, or (f) at the discretion of the Administrator, by any
combination of (a), (b), (c), (d) and (e) above or (g) at the discretion of
the
Administrator, payment of such other lawful consideration as the Administrator
may determine. Notwithstanding the foregoing, the Administrator shall accept
only such payment on exercise of an ISO as is permitted by Section 422 of the
Code.
The
Company shall then reasonably promptly deliver the Shares as to which such
Option was exercised to the Participant (or to the Participant’s Survivors, as
the case may be). In determining what constitutes “reasonably promptly,” it is
expressly understood that the issuance and delivery of the Shares may be delayed
by the Company in order to comply with any law or regulation (including, without
limitation, state securities or “blue sky” laws) which requires the Company to
take any action with respect to the Shares prior to their issuance. The Shares
shall, upon delivery, be fully paid, non-assessable Shares.
The
Administrator shall have the right to accelerate the date of exercise of any
installment of any Option; provided that the Administrator shall not accelerate
the exercise date of any installment of any Option granted to an Employee as
an
ISO (and not previously converted into a Non-Qualified Option pursuant to
Paragraph 27) without the prior approval of the Employee if such acceleration
would violate the annual vesting limitation contained in Section 422(d) of
the
Code, as described in Paragraph 6(b)(iv).
The
Administrator may, in its discretion, amend any term or condition of an
outstanding Option provided (i) such term or condition as amended is permitted
by the Plan, (ii) any such amendment shall be made only with the consent of
the
Participant to whom the Option was granted, or in the event of the death of
the
Participant, the Participant’s Survivors, if the amendment is adverse to the
Participant, and (iii) any such amendment of any Option shall be made only
after
the Administrator determines whether such amendment would constitute a
“modification” of any Option which is an ISO (as that term is defined in Section
424(h) of the Code) or would cause any adverse tax consequences for the holder
of any Option including, but not limited to, pursuant to Section 409A of the
Code.
10.
|
ACCEPTANCE
OF STOCK GRANTS AND STOCK-BASED AWARDS AND ISSUE OF SHARES
.
|
A
Stock
Grant or Stock-Based Award (or any part or installment thereof) shall be
accepted by executing the applicable Agreement and delivering it to the Company
or its designee, together with provision for payment of the full purchase price,
if any, in accordance with this Paragraph for the Shares as to which such Stock
Grant or Stock-Based Award is being accepted, and upon compliance with any
other
conditions set forth in the applicable Agreement. Payment of the purchase price
for the Shares as to which such Stock Grant or Stock-Based Award is being
accepted shall be made (a) in United States dollars in cash or by check, or
(b)
at the discretion of the Administrator, through delivery of shares of Common
Stock held for at least six months and having a Fair Market Value equal as
of
the date of acceptance of the Stock Grant or Stock Based-Award to the purchase
price of the Stock Grant or Stock-Based Award, or (c) at the discretion of
the
Administrator, by delivery of the grantee’s personal recourse note bearing
interest payable not less than annually at no less than 100% of the applicable
Federal rate, as defined in Section 1274(d) of the Code, or (d) at the
discretion of the Administrator, by any combination of (a), (b) and (c) above;
or (e) at the discretion of the Administrator, payment of such other lawful
consideration as the Administrator may determine.
The
Company shall then, if required by the applicable Agreement, reasonably promptly
deliver the Shares as to which such Stock Grant or Stock-Based Award was
accepted to the Participant (or to the Participant’s Survivors, as the case may
be), subject to any escrow provision set forth in the applicable Agreement.
In
determining what constitutes “reasonably promptly,” it is expressly understood
that the issuance and delivery of the Shares may be delayed by the Company
in
order to comply with any law or regulation (including, without limitation,
state
securities or “blue sky” laws) which requires the Company to take any action
with respect to the Shares prior to their issuance.
The
Administrator may, in its discretion, amend any term or condition of an
outstanding Stock Grant, Stock-Based Award or applicable Agreement provided
(i)
such term or condition as amended is permitted by the Plan, (ii) any such
amendment shall be made only with the consent of the Participant to whom the
Stock Grant or Stock-Based Award was made, if the amendment is adverse to the
Participant, and (iii) any such amendment shall be made only after the
Administrator determines whether such amendment would cause any adverse tax
consequences to the Participant, including, but not limited to, pursuant to
Section 409A of the Code.
11.
|
RIGHTS
AS A SHAREHOLDER
.
|
No
Participant to whom a Stock Right has been granted shall have rights as a
shareholder with respect to any Shares covered by such Stock Right, except
after
due exercise of the Option or acceptance of the Stock Grant or as set forth
in
any Agreement, and tender of the full purchase price, if any, for the Shares
being purchased pursuant to such exercise or acceptance and registration of
the
Shares in the Company’s share register in the name of the
Participant.
12.
|
ASSIGNABILITY
AND TRANSFERABILITY OF STOCK RIGHTS
.
|
By
its
terms, a Stock Right granted to a Participant shall not be transferable by
the
Participant other than (i) by will or by the laws of descent and distribution,
or (ii) as approved by the Administrator in its discretion and set forth in
the
applicable Agreement. Notwithstanding the foregoing, an ISO transferred except
in compliance with clause (i) above shall no longer qualify as an ISO. The
designation of a beneficiary of a Stock Right by a Participant, with the prior
approval of the Administrator and in such form as the Administrator shall
prescribe, shall not be deemed a transfer prohibited by this Paragraph. Except
as provided above, a Stock Right shall only be exercisable or may only be
accepted, during the Participant’s lifetime, by such Participant (or by his or
her legal representative) and shall not be assigned, pledged or hypothecated
in
any way (whether by operation of law or otherwise) and shall not be subject
to
execution, attachment or similar process. Any attempted transfer, assignment,
pledge, hypothecation or other disposition of any Stock Right or of any rights
granted thereunder contrary to the provisions of this Plan, or the levy of
any
attachment or similar process upon a Stock Right, shall be null and
void.
13.
|
EFFECT
ON OPTIONS OF TERMINATION OF SERVICE OTHER THAN FOR CAUSE OR DEATH
OR
DISABILITY
.
|
Except
as
otherwise provided in a Participant’s Option Agreement, in the event of a
termination of service (whether as an employee, director or consultant) with
the
Company or an Affiliate before the Participant has exercised an Option, the
following rules apply:
|
a.
|
A
Participant who ceases to be an employee, director or consultant
of the
Company or of an Affiliate (for any reason other than termination
for
Cause, Disability, or death for which events there are special rules
in
Paragraphs 14, 15, and 16, respectively), may exercise any Option
granted
to him or her to the extent that the Option is exercisable on the
date of
such termination of service, but only within such term as the
Administrator has designated in a Participant’s Option
Agreement.
|
|
b.
|
Except
as provided in Subparagraph (c) below, or Paragraph 15 or 16, in
no event
may an Option intended to be an ISO, be exercised later than three
months
after the Participant’s termination of
employment.
|
|
c.
|
The
provisions of this Paragraph, and not the provisions of Paragraph
15 or
16, shall apply to a Participant who subsequently becomes Disabled
or dies
after the termination of employment, director status or consultancy;
provided, however, in the case of a Participant’s Disability or death
within three months after the termination of employment, director
status
or consultancy, the Participant or the Participant’s Survivors may
exercise the Option within one year after the date of the Participant’s
termination of service, but in no event after the date of expiration
of
the term of the Option.
|
|
d.
|
Notwithstanding
anything herein to the contrary, if subsequent to a Participant’s
termination of employment, termination of director status or termination
of consultancy, but prior to the exercise of an Option, the Board
of
Directors determines that, either prior or subsequent to the Participant’s
termination, the Participant engaged in conduct which would constitute
Cause, then such Participant shall forthwith cease to have any right
to
exercise any Option.
|
|
e.
|
A
Participant to whom an Option has been granted under the Plan who
is
absent from the Company or an Affiliate because of temporary disability
(any disability other than a Disability as defined in Paragraph 1
hereof),
or who is on leave of absence for any purpose, shall not, during
the
period of any such absence, be deemed, by virtue of such absence
alone, to
have terminated such Participant’s employment, director status or
consultancy with the Company or with an Affiliate, except as the
Administrator may otherwise expressly provide; provided however that
for
ISOs any leave of absence granted by the Administrator of greater
than
ninety days unless pursuant to a contract or statute that guarantees
the
right to reemployment shall cause such ISO to become a Non-Qualified
Option.
|
|
f.
|
Except
as required by law or as set forth in a Participant’s Option Agreement,
Options granted under the Plan shall not be affected by any change
of a
Participant’s status within or among the Company and any Affiliates, so
long as the Participant continues to be an employee, director or
consultant of the Company or any
Affiliate.
|
14.
|
EFFECT
ON OPTIONS OF TERMINATION OF SERVICE FOR CAUSE
.
|
Except
as
otherwise provided in a Participant’s Option Agreement, the following rules
apply if the Participant’s service (whether as an employee, director or
consultant) with the Company or an Affiliate is terminated for Cause prior
to
the time that all his or her outstanding Options have been
exercised:
|
a.
|
All
outstanding and unexercised Options as of the time the Participant
is
notified his or her service is terminated for Cause will immediately
be
forfeited.
|
|
b.
|
Cause
is not limited to events which have occurred prior to a Participant’s
termination of service, nor is it necessary that the Administrator’s
finding of Cause occur prior to termination. If the Administrator
determines, subsequent to a Participant’s termination of service but prior
to the exercise of an Option, that either prior or subsequent to
the
Participant’s termination the Participant engaged in conduct which would
constitute Cause, then the right to exercise any Option is
forfeited.
|
15.
|
EFFECT
ON OPTIONS OF TERMINATION OF SERVICE FOR DISABILITY
.
|
Except
as
otherwise provided in a Participant’s Option Agreement:
|
a.
|
A
Participant who ceases to be an employee, director or consultant
of the
Company or of an Affiliate by reason of Disability may exercise any
Option
granted to such Participant:
|
(i)
To
the
extent that the Option has become exercisable but has not been exercised on
the
date of Disability; and
(ii)
In
the
event rights to exercise the Option accrue periodically, to the extent of a
pro
rata portion through the date of Disability of any additional vesting rights
that would have accrued on the next vesting date had the Participant not become
Disabled. The proration shall be based upon the number of days accrued in the
current vesting period prior to the date of Disability.
|
b.
|
A
Disabled Participant may exercise such rights only within the period
ending one year after the date of the Participant’s Disability,
notwithstanding that the Participant might have been able to exercise
the
Option as to some or all of the Shares on a later date if the Participant
had not become Disabled and had continued to be an employee, director
or
consultant or, if earlier, within the originally prescribed term
of the
Option.
|
|
c.
|
The
Administrator shall make the determination both of whether Disability
has
occurred and the date of its occurrence (unless a procedure for such
determination is set forth in another agreement between the Company
and
such Participant, in which case such procedure shall be used for
such
determination). If requested, the Participant shall be examined by
a
physician selected or approved by the Administrator, the cost of
which
examination shall be paid for by the
Company.
|
16.
|
EFFECT
ON OPTIONS OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR
CONSULTANT
.
|
Except
as
otherwise provided in a Participant’s Option Agreement:
|
a.
|
In
the event of the death of a Participant while the Participant is
an
employee, director or consultant of the Company or of an Affiliate,
such
Option may be exercised by the Participant’s
Survivors:
|
(i)
To
the
extent that the Option has become exercisable but has not been exercised on
the
date of death; and
(ii)
In
the
event rights to exercise the Option accrue periodically, to the extent of a
pro
rata portion through the date of death of any additional vesting rights that
would have accrued on the next vesting date had the Participant not died. The
proration shall be based upon the number of days accrued in the current vesting
period prior to the Participant’s date of death.
|
b.
|
If
the Participant’s Survivors wish to exercise the Option, they must take
all necessary steps to exercise the Option within one year after
the date
of death of such Participant, notwithstanding that the decedent might
have
been able to exercise the Option as to some or all of the Shares
on a
later date if he or she had not died and had continued to be an employee,
director or consultant or, if earlier, within the originally prescribed
term of the Option.
|
17.
|
EFFECT
OF TERMINATION OF SERVICE ON UNACCEPTED STOCK GRANTS
.
|
In
the
event of a termination of service (whether as an employee, director or
consultant) with the Company or an Affiliate for any reason before the
Participant has accepted a Stock Grant, such offer shall terminate.
For
purposes of this Paragraph 17 and Paragraph 18 below, a Participant to whom
a
Stock Grant has been offered and accepted under the Plan who is absent from
work
with the Company or with an Affiliate because of temporary disability (any
disability other than a Disability as defined in Paragraph 1 hereof), or who
is
on leave of absence for any purpose, shall not, during the period of any such
absence, be deemed, by virtue of such absence alone, to have terminated such
Participant’s employment, director status or consultancy with the Company or
with an Affiliate, except as the Administrator may otherwise expressly
provide.
In
addition, for purposes of this Paragraph 17 and Paragraph 18 below, any change
of employment or other service within or among the Company and any Affiliates
shall not be treated as a termination of employment, director status or
consultancy so long as the Participant continues to be an employee, director
or
consultant of the Company or any Affiliate.
18.
|
EFFECT
ON STOCK GRANTS OF TERMINATION OF SERVICE OTHER THAN FOR CAUSE OR
DEATH OR
DISABILITY
.
|
Except
as
otherwise provided in a Participant’s Stock Grant Agreement, in the event of a
termination of service (whether as an employee, director or consultant), other
than termination for Cause, Disability, or death for which events there are
special rules in Paragraphs 19, 20, and 21, respectively, before all forfeiture
provisions or Company rights of repurchase shall have lapsed, then the Company
shall have the right to cancel or repurchase that number of Shares subject
to a
Stock Grant as to which the Company’s forfeiture or repurchase rights have not
lapsed.
19.
|
EFFECT
ON STOCK GRANTS OF TERMINATION OF SERVICE FOR CAUSE
.
|
Except
as
otherwise provided in a Participant’s Stock Grant Agreement, the following rules
apply if the Participant’s service (whether as an employee, director or
consultant) with the Company or an Affiliate is terminated for
Cause:
|
a.
|
All
Shares subject to any Stock Grant that remain subject to forfeiture
provisions or as to which the Company shall have a repurchase right
shall
be immediately forfeited to the Company as of the time the Participant
is
notified his or her service is terminated for
Cause.
|
|
b.
|
Cause
is not limited to events which have occurred prior to a Participant’s
termination of service, nor is it necessary that the Administrator’s
finding of Cause occur prior to termination. If the Administrator
determines, subsequent to a Participant’s termination of service, that
either prior or subsequent to the Participant’s termination the
Participant engaged in conduct which would constitute Cause, then
the
Company’s right to repurchase all of such Participant’s Shares shall
apply.
|
20.
|
EFFECT
ON STOCK GRANTS OF TERMINATION OF SERVICE FOR DISABILITY
.
|
Except
as
otherwise provided in a Participant’s Stock Grant Agreement, the following rules
apply if a Participant ceases to be an employee, director or consultant of
the
Company or of an Affiliate by reason of Disability: to the extent the forfeiture
provisions or the Company’s rights of repurchase have not lapsed on the date of
Disability, they shall be exercisable; provided, however, that in the event
such
forfeiture provisions or rights of repurchase lapse periodically, such
provisions or rights shall lapse to the extent of a pro rata portion of the
Shares subject to such Stock Grant through the date of Disability as would
have
lapsed had the Participant not become Disabled. The proration shall be based
upon the number of days accrued prior to the date of Disability.
The
Administrator shall make the determination both of whether Disability has
occurred and the date of its occurrence (unless a procedure for such
determination is set forth in another agreement between the Company and such
Participant, in which case such procedure shall be used for such determination).
If requested, the Participant shall be examined by a physician selected or
approved by the Administrator, the cost of which examination shall be paid
for
by the Company.
21.
|
EFFECT
ON STOCK GRANTS OF DEATH WHILE AN EMPLOYEE, DIRECTOR OR
CONSULTANT
.
|
Except
as
otherwise provided in a Participant’s Stock Grant Agreement, the following rules
apply in the event of the death of a Participant while the Participant is an
employee, director or consultant of the Company or of an Affiliate: to the
extent the forfeiture provisions or the Company’s rights of repurchase have not
lapsed on the date of death, they shall be exercisable; provided, however,
that
in the event such forfeiture provisions or rights of repurchase lapse
periodically, such provisions or rights shall lapse to the extent of a pro
rata
portion of the Shares subject to such Stock Grant through the date of death
as
would have lapsed had the Participant not died. The proration shall be based
upon the number of days accrued prior to the Participant’s
death.
22.
PURCHASE
FOR INVESTMENT
.
Unless
the offering and sale of the Shares to be issued upon the particular exercise
or
acceptance of a Stock Right shall have been effectively registered under the
Securities Act of 1933, as now in force or hereafter amended (the “1933 Act”),
the Company shall be under no obligation to issue the Shares covered by such
exercise unless and until the following conditions have been
fulfilled:
|
a.
|
The
person(s) who exercise(s) or accept(s) such Stock Right shall warrant
to
the Company, prior to the receipt of such Shares, that such person(s)
are
acquiring such Shares for their own respective accounts, for investment,
and not with a view to, or for sale in connection with, the distribution
of any such Shares, in which event the person(s) acquiring such Shares
shall be bound by the provisions of the following legend which shall
be
endorsed upon the certificate(s) evidencing their Shares issued pursuant
to such exercise or such grant:
|
|
|
|
“The
shares represented by this certificate have been taken for investment
and
they may not be sold or otherwise transferred by any person, including
a
pledgee, unless (1) either (a) a Registration Statement with respect
to
such shares shall be effective under the Securities Act of 1933,
as
amended, or (b) the Company shall have received an opinion of counsel
satisfactory to it that an exemption from registration under such
Act is
then available, and (2) there shall have been compliance with all
applicable state securities laws.”
|
|
b.
|
At
the discretion of the Administrator, the Company shall have received
an
opinion of its counsel that the Shares may be issued upon such particular
exercise or acceptance in compliance with the 1933 Act without
registration thereunder.
|
23.
|
DISSOLUTION
OR LIQUIDATION OF THE COMPANY
.
|
Upon
the
dissolution or liquidation of the Company, all Options granted under this Plan
which as of such date shall not have been exercised and all Stock Grants and
Stock-Based Awards which have not been accepted will terminate and become null
and void; provided, however, that if the rights of a Participant or a
Participant’s Survivors have not otherwise terminated and expired, the
Participant or the Participant’s Survivors will have the right immediately prior
to such dissolution or liquidation to exercise or accept any Stock Right to
the
extent that the Stock Right is exercisable or subject to acceptance as of the
date immediately prior to such dissolution or liquidation. Upon the dissolution
or liquidation of the Company, any outstanding Stock-Based Awards shall
immediately terminate unless otherwise determined by the Administrator or
specifically provided in the applicable Agreement.
Upon
the
occurrence of any of the following events, a Participant’s rights with respect
to any Stock Right granted to him or her hereunder shall be adjusted as
hereinafter provided, unless otherwise specifically provided in a Participant’s
Agreement:
a.
Stock
Dividends and Stock Splits
.
If
(i) the shares of Common Stock shall be subdivided or combined into a
greater or smaller number of shares or if the Company shall issue any shares
of
Common Stock as a stock dividend on its outstanding Common Stock, or
(ii) additional shares or new or different shares or other securities of
the Company or other non-cash assets are distributed with respect to such shares
of Common Stock, the number of shares of Common Stock deliverable upon the
exercise of an Option or acceptance of a Stock Grant shall be appropriately
increased or decreased proportionately, and appropriate adjustments shall be
made including, in the purchase price per share, to reflect such events. The
number of Shares subject to the limitations in Paragraph 3(a)
and
4(c)
shall
also be proportionately adjusted upon the occurrence of such
events.
b.
Corporate
Transactions
.
If the
Company is to be consolidated with or acquired by another entity in a merger,
consolidation, or sale of all or substantially all of the Company’s assets other
than a transaction to merely change the state of incorporation (a “Corporate
Transaction”), the Administrator or the board of directors of any entity
assuming the obligations of the Company hereunder (the “Successor Board”),
shall, as to outstanding Options, either (i) make appropriate provision for
the
continuation of such Options by substituting on an equitable basis for the
Shares then subject to such Options either the consideration payable with
respect to the outstanding shares of Common Stock in connection with the
Corporate Transaction or securities of any successor or acquiring entity; or
(ii) upon written notice to the Participants, provide that such Options must
be
exercised (either (A) to the extent then exercisable or, (B) at the discretion
of the Administrator, any such Options being made fully exercisable for purposes
of this Subparagraph), within a specified number of days of the date of such
notice, at the end of which period such Options shall terminate; or (iii)
terminate such Options in exchange for a cash payment equal to the excess of
the
Fair Market Value of the Shares subject to such Options (either (A) to the
extent then exercisable or, (B) at the discretion of the Administrator, any
such
Options being made fully exercisable for purposes of this Subparagraph) over
the
exercise price thereof.
With
respect to outstanding Stock Grants, the Administrator or the Successor Board,
shall either (i) make appropriate provisions for the continuation of such Stock
Grants on the same terms and conditions by substituting on an equitable basis
for the Shares then subject to such Stock Grants either the consideration
payable with respect to the outstanding Shares of Common Stock in connection
with the Corporate Transaction or securities of any successor or acquiring
entity; or (ii) terminate such Stock Grants in exchange for a cash payment
equal
to the excess of the Fair Market Value of the Shares subject to such Stock
Grants over the purchase price thereof, if any. In addition, in the event of
a
Corporate Transaction, the Administrator may waive any or all Company forfeiture
or repurchase rights with respect to outstanding Stock Grants.
c.
Recapitalization
or Reorganization
.
In the
event of a recapitalization or reorganization of the Company other than a
Corporate Transaction pursuant to which securities of the Company or of another
corporation are issued with respect to the outstanding shares of Common Stock,
a
Participant upon exercising an Option or accepting a Stock Grant after the
recapitalization or reorganization shall be entitled to receive for the purchase
price paid upon such exercise or acceptance of the number of replacement
securities which would have been received if such Option had been exercised
or
Stock Grant accepted prior to such recapitalization or
reorganization.
d.
Adjustments
to Stock-Based Awards
.
Upon
the happening of any of the events described in Subparagraphs a, b or c above,
any outstanding Stock-Based Award shall be appropriately adjusted to reflect
the
events described in such Subparagraphs. The Administrator or the Successor
Board
shall determine the specific adjustments to be made under this Paragraph 24,
including, but not limited to the effect if any, of a Change of Control and,
subject to Paragraph 4, its determination shall be conclusive.
e.
Modification
of Options
.
Notwithstanding the foregoing, any adjustments made pursuant to Subparagraph
a,
b or c above with respect to Options shall be made only after the Administrator
determines whether such adjustments would constitute a “modification” of any ISO
(as that term is defined in Section 424(h) of the Code) or would cause any
adverse tax consequences for the holders of such Options, including, but not
limited to, pursuant to Section 409A of the Code. If the Administrator
determines that such adjustments made with respect to Options would constitute
a
modification or other adverse tax consequence, it may refrain from making such
adjustments, unless the holder of an Option specifically agrees in writing
that
such adjustment be made and such writing indicates that the holder has full
knowledge of the consequences of such “modification” on his or her income tax
treatment with respect to the Option. This paragraph shall not apply to the
acceleration of the vesting of any ISO that would cause any portion of the
ISO
to violate the annual vesting limitation contained in Section 422(d) of the
Code, as described in Paragraph 6b(iv).
25.
|
ISSUANCES
OF SECURITIES
.
|
Except
as
expressly provided herein, no issuance by the Company of shares of stock of
any
class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to,
the
number or price of shares subject to Stock Rights. Except as expressly provided
herein, no adjustments shall be made for dividends paid in cash or in property
(including without limitation, securities) of the Company prior to any issuance
of Shares pursuant to a Stock Right.
No
fractional shares shall be issued under the Plan and the person exercising
a
Stock Right shall receive from the Company cash in lieu of such fractional
shares equal to the Fair Market Value thereof.
27.
|
CONVERSION
OF ISOs INTO NON-QUALIFIED OPTIONS; TERMINATION OF ISOs
.
|
The
Administrator, at the written request of any Participant, may in its discretion
take such actions as may be necessary to convert such Participant’s ISOs (or any
portions thereof) that have not been exercised on the date of conversion into
Non-Qualified Options at any time prior to the expiration of such ISOs,
regardless of whether the Participant is an employee of the Company or an
Affiliate at the time of such conversion. At the time of such conversion, the
Administrator (with the consent of the Participant) may impose such conditions
on the exercise of the resulting Non-Qualified Options as the Administrator
in
its discretion may determine, provided that such conditions shall not be
inconsistent with this Plan. Nothing in the Plan shall be deemed to give any
Participant the right to have such Participant’s ISOs converted into
Non-Qualified Options, and no such conversion shall occur until and unless
the
Administrator takes appropriate action. The Administrator, with the consent
of
the Participant, may also terminate any portion of any ISO that has not been
exercised at the time of such conversion.
In
the
event that any federal, state, or local income taxes, employment taxes, Federal
Insurance Contributions Act (“F.I.C.A.”) withholdings or other amounts are
required by applicable law or governmental regulation to be withheld from the
Participant’s salary, wages or other remuneration in connection with the
exercise or acceptance of a Stock Right or in connection with a Disqualifying
Disposition (as defined in Paragraph 29) or upon the lapsing of any forfeiture
provision or right of repurchase or for any other reason required by law, the
Company may withhold from the Participant’s compensation, if any, or may require
that the Participant advance in cash to the Company, or to any Affiliate of
the
Company which employs or employed the Participant, the statutory minimum amount
of such withholdings unless a different withholding arrangement, including
the
use of shares of the Company’s Common Stock or a promissory note, is authorized
by the Administrator (and permitted by law). For purposes hereof, the fair
market value of the shares withheld for purposes of payroll withholding shall
be
determined in the manner set forth under the definition of Fair Market Value
provided in Paragraph 1 above, as of the most recent practicable date prior
to
the date of exercise. If the fair market value of the shares withheld is less
than the amount of payroll withholdings required, the Participant may be
required to advance the difference in cash to the Company or the Affiliate
employer. The Administrator in its discretion may condition the exercise of
an
Option for less than the then Fair Market Value on the Participant’s payment of
such additional withholding.
29.
|
NOTICE
TO COMPANY OF DISQUALIFYING DISPOSITION
.
|
Each
Employee who receives an ISO must agree to notify the Company in writing
immediately after the Employee makes a Disqualifying Disposition of any shares
acquired pursuant to the exercise of an ISO. A Disqualifying Disposition is
defined in Section 424(c) of the Code and includes any disposition (including
any sale or gift) of such shares before the later of (a) two years after the
date the Employee was granted the ISO, or (b) one year after the date the
Employee acquired Shares by exercising the ISO, except as otherwise provided
in
Section 424(c) of the Code. If the Employee has died before such stock is sold,
these holding period requirements do not apply and no Disqualifying Disposition
can occur thereafter.
30.
|
TERMINATION
OF THE PLAN
.
|
The
Plan
will terminate on September 27, 2017, the date which is ten years from the
earlier
of the
date of its adoption by the Board of Directors and the date of its approval
by
the shareholders of the Company. The Plan may be terminated at an earlier date
by vote of the shareholders or the Board of Directors of the Company; provided,
however, that any such earlier termination shall not affect any Agreements
executed prior to the effective date of such termination.
31.
|
AMENDMENT
OF THE PLAN AND AGREEMENTS
.
|
The
Plan
may be amended by the shareholders of the Company. The Plan may also be amended
by the Administrator, including, without limitation, to the extent necessary
to
qualify any or all outstanding Stock Rights granted under the Plan or Stock
Rights to be granted under the Plan for favorable federal income tax treatment
as may be afforded incentive stock options under Section 422 of the Code
(including deferral of taxation upon exercise), and to the extent necessary
to
qualify the shares issuable upon exercise or acceptance of any outstanding
Stock
Rights granted, or Stock Rights to be granted, under the Plan for listing on
any
national securities exchange or quotation in any national automated quotation
system of securities dealers. Any amendment approved by the Administrator which
the Administrator determines is of a scope that requires shareholder approval
shall be subject to obtaining such shareholder approval. Any modification or
amendment of the Plan shall not, without the consent of a Participant, adversely
affect his or her rights under a Stock Right previously granted to him or her.
With the consent of the Participant affected, the Administrator may amend
outstanding Agreements in a manner which may be adverse to the Participant
but
which is not inconsistent with the Plan. In the discretion of the Administrator,
outstanding Agreements may be amended by the Administrator in a manner which
is
not adverse to the Participant.
32.
|
EMPLOYMENT
OR OTHER RELATIONSHIP
.
|
Nothing
in this Plan or any Agreement shall be deemed to prevent the Company or an
Affiliate from terminating the employment, consultancy or director status of
a
Participant, nor to prevent a Participant from terminating his or her own
employment, consultancy or director status or to give any Participant a right
to
be retained in employment or other service by the Company or any Affiliate
for
any period of time.
This
Plan
shall be construed and enforced in accordance with the law of New
Jersey.
NON-QUALIFIED
STOCK OPTION AGREEMENT
MEDIAVEST,
INC.
AGREEMENT
made as of the [__] day of [______], 2007, between Mediavest, Inc. (the
“Company”), a New Jersey corporation, and [______] (the
“Participant”).
WHEREAS,
the Company desires to grant to the Participant an Option to purchase shares
of
its common stock, $0.0001
par
value
per share (the “Shares”), under and for the purposes set forth in the Company’s
2007 Employee, Director and Consultant Stock Plan (the “Plan”);
WHEREAS,
the Company and the Participant understand and agree that any terms used and
not
defined herein have the same meanings as in the Plan; and
WHEREAS,
the Company and the Participant each intend that the Option granted herein
shall
be a Non-Qualified Option.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto agree as
follows:
The
Company hereby grants to the Participant the right and option to purchase all
or
any part of an aggregate of [______] Shares, on the terms and conditions and
subject to all the limitations set forth herein, under United States securities
and tax laws, and in the Plan, which is incorporated herein by reference. The
Participant acknowledges receipt of a copy of the Plan.
The
purchase price of the Shares covered by the Option shall be [______] per Share,
subject to adjustment, as provided in the Plan, in the event of a stock split,
reverse stock split or other events affecting the holders of Shares after the
date hereof (the “Purchase Price”). Payment shall be made in accordance with
Paragraph 9 of the Plan.
|
3.
|
EXERCISABILITY
OF OPTION
.
|
Subject
to the terms and conditions set forth in this Agreement and the Plan, the Option
granted hereby shall become exercisable as follows:
On
the date of grant
|
|
[______]
Shares
|
On
[______]
|
|
an
additional [______]
Shares
|
On
[______]
|
|
an
additional [______] Shares
|
The
foregoing rights are cumulative and are subject to the other terms and
conditions of the Agreement and the Plan.
Notwithstanding
the foregoing, in the event of (i) a termination by the Company without Cause
(as defined in the Plan) or (ii) a Change of Control (as defined below), this
Option shall become fully vested and immediately exercisable unless this Option
has otherwise expired or been terminated pursuant to its terms or the terms
of
the Plan.
Change
of Control
means
the occurrence of any of the following events:
|
(i)
|
Ownership.
Any “Person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becomes the “Beneficial
Owner” (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of the Company representing 50% or more of the total
voting
power represented by the Company’s then outstanding voting securities
(excluding for this purpose the Company or its Affiliates or any
employee
benefit plan of the Company) pursuant to a transaction or a series
of
related transactions which the Board of Directors does not approve;
or
|
|
(ii)
|
Merger/Sale
of Assets. A merger or consolidation of the Company whether or not
approved by the Board of Directors, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity or the parent of such corporation) at least 50% of the total
voting
power represented by the voting securities of the Company or such
surviving entity or parent of such corporation outstanding
immediately after such merger or consolidation, or the stockholders
of the
Company approve an agreement for the sale or disposition by the Company
of
all or substantially all of the Company’s assets;
or
|
|
(iii)
|
Change
in Board Composition. A change in the composition of the Board of
Directors, as a result of which fewer than a majority of the directors
are
Incumbent Directors. “Incumbent Directors” shall mean directors who either
(A) are directors of the Company as of the date of this Agreement, or
(B) are elected, or nominated for election, to the Board of Directors
with the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not
include an individual whose election or nomination is in connection
with
an actual or threatened proxy contest relating to the election of
directors to the Company).
|
This
Option shall terminate ten years from the date of this Agreement, but shall
be
subject to earlier termination as provided herein or in the Plan.
If
the
Participant ceases to be an employee, director or consultant of the Company
or
of an Affiliate (for any reason other than the death or Disability of the
Participant or termination of the Participant for Cause, the Option may be
exercised, if it has not previously terminated, within three months after the
date the Participant ceases to be an employee, director or consultant of the
Company or an Affiliate, or within the originally prescribed term of the Option,
whichever is earlier, but may not be exercised thereafter. In such event, the
Option shall be exercisable only to the extent that the Option has become
exercisable and is in effect at the date of such cessation of
service.
Notwithstanding
the foregoing, in the event of the Participant’s Disability or death within
three months after the termination of service, the Participant or the
Participant’s Survivors may exercise the Option within one year after the date
of the Participant’s termination of service, but in no event after the date of
expiration of the term of the Option.
In
the
event the Participant’s service is terminated by the Company or an Affiliate for
Cause, the Participant’s right to exercise any unexercised portion of this
Option shall cease immediately as of the time the Participant is notified his
or
her service is terminated for Cause, and this Option shall thereupon terminate.
Notwithstanding anything herein to the contrary, if subsequent to the
Participant’s termination, but prior to the exercise of the Option, the Board of
Directors of the Company determines that, either prior or subsequent to the
Participant’s termination, the Participant engaged in conduct which would
constitute Cause, then the Participant shall immediately cease to have any
right
to exercise the Option and this Option shall thereupon terminate.
In
the
event of the Disability of the Participant, as determined in accordance with
the
Plan, the Option shall be exercisable within one year after the Participant’s
termination of service or, if earlier, within the term originally prescribed
by
the Option. In such event, the Option shall be exercisable:
|
(a)
|
to
the extent that the Option has become exercisable but has not been
exercised as of the date of Disability;
and
|
|
(b)
|
in
the event rights to exercise the Option accrue periodically, to the
extent
of a pro rata portion through the date of Disability of any additional
vesting rights that would have accrued on the next vesting date had
the
Participant not become Disabled. The proration shall be based upon
the
number of days accrued in the current vesting period prior to the
date of
Disability.
|
In
the
event of the death of the Participant while an employee, director or consultant
of the Company or of an Affiliate, the Option shall be exercisable by the
Participant’s Survivors within one year after the date of death of the
Participant or, if earlier, within the originally prescribed term of the Option.
In such event, the Option shall be exercisable:
|
(x)
|
to
the extent that the Option has become exercisable but has not been
exercised as of the date of death;
and
|
|
(y)
|
in
the event rights to exercise the Option accrue periodically, to the
extent
of a pro rata portion through the date of death of any additional
vesting
rights that would have accrued on the next vesting date had the
Participant not died. The proration shall be based upon the number of days
accrued in the current vesting period prior to the Participant’s date of
death.
|
|
5.
|
METHOD
OF EXERCISING OPTION
.
|
Subject
to the terms and conditions of this Agreement, the Option may be exercised
by
written notice to the Company or its designee, in substantially the form of
Exhibit A
attached
hereto. Such notice shall state the number of Shares with respect to which
the
Option is being exercised and shall be signed by the person exercising the
Option. Payment of the purchase price for such Shares shall be made in
accordance with Paragraph 9 of the Plan. The Company shall deliver such Shares
as soon as practicable after the notice shall be received, provided, however,
that the Company may delay issuance of such Shares until completion of any
action or obtaining of any consent, which the Company deems necessary under
any
applicable law (including, without limitation, state securities or “blue sky”
laws). The Shares as to which the Option shall have been so exercised shall
be
registered in the Company’s share register in the name of the person so
exercising the Option (or, if the Option shall be exercised by the Participant
and if the Participant shall so request in the notice exercising the Option,
shall be registered in the Company’s share register in the name of the
Participant and another person jointly, with right of survivorship) and shall
be
delivered as provided above to or upon the written order of the person
exercising the Option. In the event the Option shall be exercised, pursuant
to
Section 4 hereof, by any person other than the Participant, such notice shall
be
accompanied by appropriate proof of the right of such person to exercise the
Option. All Shares that shall be purchased upon the exercise of the Option
as
provided herein shall be fully paid and nonassessable.
Exercise
of this Option to the extent above stated may be made in part at any time and
from time to time within the above limits, except that no fractional share
shall
be issued pursuant to this Option.
The
Option shall not be transferable by the Participant otherwise than by will
or by
the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code or Title I of the Employee Retirement
Income Security Act or the rules thereunder. Except as provided above in this
paragraph, the Option shall be exercisable, during the Participant’s lifetime,
only by the Participant (or, in the event of legal incapacity or incompetency,
by the Participant’s guardian or representative) and shall not be assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and shall not be subject to execution, attachment or similar process. Any
attempted transfer, assignment, pledge, hypothecation or other disposition
of
the Option or of any rights granted hereunder contrary to the provisions of
this
Section 7, or the levy of any attachment or similar process upon the Option
shall be null and void.
|
8.
|
NO
RIGHTS AS STOCKHOLDER UNTIL EXERCISE
.
|
The
Participant shall have no rights as a stockholder with respect to Shares subject
to this Agreement until registration of the Shares in the Company’s share
register in the name of the Participant. Except as is expressly provided in
the
Plan with respect to certain changes in the capitalization of the Company,
no
adjustment shall be made for dividends or similar rights for which the record
date is prior to the date of such registration.
The
Plan
contains provisions covering the treatment of Options in a number of
contingencies such as stock splits and mergers. Provisions in the Plan for
adjustment with respect to stock subject to Options and the related provisions
with respect to successors to the business of the Company are hereby made
applicable hereunder and are incorporated herein by reference.
The
Participant acknowledges that upon exercise of the Option the Participant will
be deemed to have taxable income measured by the difference between the then
fair market value of the Shares received upon exercise and the price paid for
such Shares pursuant to this Agreement. The Participant acknowledges that any
income or other taxes due from him or her with respect to this Option or the
Shares issuable pursuant to this Option shall be the Participant’s
responsibility.
The
Participant agrees that the Company may withhold from the Participant’s
remuneration, if any, the minimum statutory amount of federal, state and local
withholding taxes attributable to such amount that is considered compensation
includable in such person’s gross income. At the Company’s discretion, the
amount required to be withheld may be withheld in cash from such remuneration,
or in kind from the Shares otherwise deliverable to the Participant on exercise
of the Option. The Participant further agrees that, if the Company does not
withhold an amount from the Participant’s remuneration sufficient to satisfy the
Company’s income tax withholding obligation, the Participant will reimburse the
Company on demand, in cash, for the amount under-withheld.
|
11.
|
PURCHASE
FOR INVESTMENT
.
|
Unless
the offering and sale of the Shares to be issued upon the particular exercise
of
the Option shall have been effectively registered under the Securities Act
of
1933, as now in force or hereafter amended (the “1933 Act”), the Company shall
be under no obligation to issue the Shares covered by such exercise unless
and
until the following conditions have been fulfilled:
|
(a)
|
The
person(s) who exercise the Option shall warrant to the Company, at
the
time of such exercise, that such person(s) are acquiring such Shares
for
their own respective accounts, for investment, and not with a view
to, or
for sale in connection with, the distribution of any such Shares,
in which
event the person(s) acquiring such Shares shall be bound by the provisions
of the following legend which shall be endorsed upon the certificate(s)
evidencing the Shares issued pursuant to such
exercise:
|
“The
shares represented by this certificate have been taken for investment and they
may not be sold or otherwise transferred by any person, including a pledgee,
unless (1) either (a) a Registration Statement with respect to such shares
shall
be effective under the Securities Act of 1933, as amended, or (b) the Company
shall have received an opinion of counsel satisfactory to it that an exemption
from registration under such Act is then available, and (2) there shall have
been compliance with all applicable state securities laws;” and
|
(b)
|
If
the Company so requires, the Company shall have received an opinion
of its
counsel that the Shares may be issued upon such particular exercise
in
compliance with the 1933 Act without registration thereunder. Without
limiting the generality of the foregoing, the Company may delay issuance
of the Shares until completion of any action or obtaining of any
consent,
which the Company deems necessary under any applicable law (including
without limitation state securities or “blue sky”
laws).
|
|
12.
|
RESTRICTIONS
ON TRANSFER OF SHARES
.
|
12.1
The
Participant agrees that in the event the Company proposes to offer for sale
to
the public any of its equity securities and such Participant is requested by
the
Company and any underwriter engaged by the Company in connection with such
offering to sign an agreement restricting the sale or other transfer of Shares,
then it will promptly sign such agreement and will not transfer, whether in
privately negotiated transactions or to the public in open market transactions
or otherwise, any Shares or other securities of the Company held by him or
her
during such period as is determined by the Company and the underwriters, not
to
exceed 180 days following the closing of the offering, plus such additional
period of time as may be required to comply with Marketplace Rule 2711 of the
National Association of Securities Dealers, Inc. or similar rules thereto (such
period, the “Lock-Up Period”). Such agreement shall be in writing and in form
and substance reasonably satisfactory to the Company and such underwriter and
pursuant to customary and prevailing terms and conditions. Notwithstanding
whether the Participant has signed such an agreement, the Company may impose
stop-transfer instructions with respect to the Shares or other securities of
the
Company subject to the foregoing restrictions until the end of the Lock-Up
Period.
12.2
The
Participant acknowledges and agrees that neither the Company, its shareholders
nor its directors and officers, has any duty or obligation to disclose to the
Participant any material information regarding the business of the Company
or
affecting the value of the Shares before, at the time of, or following a
termination of the employment of the Participant by the Company, including,
without limitation, any information concerning plans for the Company to make
a
public offering of its securities or to be acquired by or merged with or into
another firm or entity.
|
13.
|
NO
OBLIGATION TO MAINTAIN RELATIONSHIP
.
|
The
Company is not by the Plan or this Option obligated to continue the Participant
as an employee, director or consultant of the Company or an Affiliate. The
Participant acknowledges: (i) that the Plan is discretionary in nature and
may
be suspended or terminated by the Company at any time; (ii) that the grant
of
the Option is a one-time benefit which does not create any contractual or other
right to receive future grants of options, or benefits in lieu of options;
(iii)
that all determinations with respect to any such future grants, including,
but
not limited to, the times when options shall be granted, the number of shares
subject to each option, the option price, and the time or times when each option
shall be exercisable, will be at the sole discretion of the Company; (iv) that
the Participant’s participation in the Plan is voluntary; (v) that the value of
the Option is an extraordinary item of compensation which is outside the scope
of the Participant’s employment contract, if any; and (vi) that the Option is
not part of normal or expected compensation for purposes of calculating any
severance, resignation, redundancy, end of service payments, bonuses,
long-service awards, pension or retirement benefits or similar
payments.
Any
notices required or permitted by the terms of this Agreement or the Plan shall
be given by recognized courier service, facsimile, registered or certified
mail,
return receipt requested, addressed as follows:
If
to the
Company:
|
Mediavest,
Inc.
|
|
2121
Avenue of the Stars, Suite 2550
|
|
Los
Angeles, CA 90067
|
If
to the
Participant:
|
[______]
|
|
[______]
|
|
[______]
|
or
to
such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given upon
the earlier of receipt, one business day following delivery to a recognized
courier service or three business days following mailing by registered or
certified mail.
This
Agreement shall be construed and enforced in accordance with the law of the
State of New Jersey, without giving effect to the conflict of law principles
thereof.
|
16.
|
BENEFIT
OF AGREEMENT
.
|
Subject
to the provisions of the Plan and the other provisions hereof, this Agreement
shall be for the benefit of and shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto.
This
Agreement, together with the Plan, embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement not expressly set forth in this Agreement shall affect
or
be used to interpret, change or restrict, the express terms and provisions
of
this Agreement, provided, however, in any event, this Agreement shall be subject
to and governed by the Plan.
|
18.
|
MODIFICATIONS
AND AMENDMENTS
.
|
The
terms
and provisions of this Agreement may be modified or amended as provided in
the
Plan.
|
19.
|
WAIVERS
AND CONSENTS
.
|
Except
as
provided in the Plan, the terms and provisions of this Agreement may be waived,
or consent for the departure therefrom granted, only by written document
executed by the party entitled to the benefits of such terms or provisions.
No
such waiver or consent shall be deemed to be or shall constitute a waiver or
consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
20.
DATA
PRIVACY
.
By
entering into this Agreement, the Participant: (i) authorizes the Company and
each Affiliate, and any agent of the Company or any Affiliate administering
the
Plan or providing Plan recordkeeping services, to disclose to the Company or
any
of its Affiliates such information and data as the Company or any such Affiliate
shall request in order to facilitate the grant of options and the administration
of the Plan; (ii) waives any data privacy rights he or she may have with respect
to such information; and (iii) authorizes the Company and each Affiliate to
store and transmit such information in electronic form.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer, and the Participant has hereunto set his or her hand,
all as of the day and year first above written.
|
|
|
|
MEDIAVEST,
INC.
|
|
|
|
|
By:
|
|
|
Name
|
|
Title
|
|
|
|
|
|
Participant
|
Exhibit
A
NOTICE
OF
EXERCISE OF NON-QUALIFIED STOCK OPTION
TO:
Mediavest,
Inc.
IMPORTANT
NOTICE: This form of Notice of Exercise may only be used at such time as the
Company has filed a Registration Statement with the Securities and Exchange
Commission under which the issuance of the Shares for which this exercise is
being made is registered and such Registration Statement remains
effective.
Ladies
and Gentlemen:
I
hereby
exercise my Non-Qualified Stock Option to purchase _________ shares (the
“Shares”) of the common stock, $0.0001 par value, of Mediavest, Inc.
(the
“Company”), at the exercise price of $________ per share, pursuant to and
subject to the terms of that certain Non-Qualified Stock Option Agreement
between the undersigned and the Company dated [______], 2007.
I
understand the nature of the investment I am making and the financial risks
thereof. I am aware that it is my responsibility to have consulted with
competent tax and legal advisors about the relevant national, state and local
income tax and securities laws affecting the exercise of the Option and the
purchase and subsequent sale of the Shares.
I
am
paying the option exercise price for the Shares as follows:
_____________________________________
Please
issue the Shares (check one):
o
to me; or
o
to me and ____________________________,
as joint tenants with right of survivorship,
at
the
following address:
My
mailing address for shareholder communications, if different from the address
listed above, is:
|
|
|
|
|
Very truly yours,
|
|
|
|
|
|
|
|
Participant
(signature)
|
|
|
|
|
|
Print Name
|
|
|
|
|
|
Date
|
|
|
|
|
|
Social
Security Number
|
Bruce
Stein Joins Mandalay Media, Inc.
Los
Angeles, CA. (November 14, 2007) - Bruce Stein has joined Mandalay Media,
Inc.
(MVSI.OB) as a member of the Board of Directors and will commence services
as its Chief Operating Officer not later than January 1, 2008.
Mr.
Stein
brings a wealth of marketing, operations, and corporate strategy expertise
through his experiences in both small and Fortune 500 companies. He is also
one
of the most accomplished executives in the toy and game industry, having served
in senior management positions at Mattel, Inc., Sony Interactive Entertainment,
Inc., and Kenner Products, Inc. Mr. Stein stated that “Mandalay Media is a
unique opportunity for me to work with extraordinary executive talent and to
help build an innovative media and consumer products company. I'm thrilled
to be
working with a visionary like Peter Guber again as well as the rest of the
Mandalay Media team.”
Immediately
prior to joining Mandalay Media, Mr. Stein was founder and Co-CEO of The
Hatchery, LLC., a company specializing in intellectual property development
and
entertainment production of kids and family franchises. During this time period,
Mr. Stein also served as a Board Director and Chairman of the Compensation
Committee of ViewSonic, Inc. Previously Mr. Stein served in various executive
capacities at Mattel, Inc. over a period of ten years, including Worldwide
President, Chief Operating Officer, and a member of the Board of directors
from
August, 1996 to March, 1999. From August 1995 to August 1996, Mr. Stein
was Chief Executive Officer of Sony Interactive Entertainment Inc., a subsidiary
of Sony Computer Entertainment America Inc. At various times between January
1995 and June 1998, Mr. Stein was a consultant to DreamWorks SKG, a motion
picture company, Warner Bros. Entertainment, and Mandalay Entertainment, a
film
production company. From January 1987 through 1994, Mr. Stein served as
President of Kenner Products, Inc. Mr. Stein holds a B.A. from
Pitzer College in Claremont and an M.B.A. from the University of
Chicago.
About
Mandalay Media, Inc.
Mandalay
Media, Inc. is a development stage company. It intends to complete an asset
acquisition, merger, exchange of capital stock, or other business combination
with a domestic or foreign business.
Safe
Harbor
This
press release contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995, about MVSI. Forward
looking statements are statements that are not historical facts. Such
forward-looking statements, based upon the current beliefs and expectations
of
MVSI's management, are subject to risks and uncertainties, which could cause
actual results to differ from the forward looking statements. The following
factors, among others, could cause actual results to differ from those set
forth
in the forward-looking statements: general economic conditions; geopolitical
events and regulatory changes, as well as other relevant risks detailed in
MSVI’s filings with the Securities and Exchange Commission. The information set
forth herein should be read in light of such risks. MSVI assumes no obligation
to update the information contained in this press release.
Robert
Zangrillo Named to Board of Directors of Mandalay Media,
Inc.
Los
Angeles, CA. (November 13, 2007) - Robert Zangrillo has joined Mandalay Media,
Inc. (MVSI.OB) as a member of its Board of Directors. Mr. Zangrillo is a 19
year
veteran of the financial services, software and Internet-based industries.
He is
a veteran in the financial services, software and Internet-enabled industries,
and his talents for building teams dedicated to delivering leading industry
solutions are widely known. "I am proud to be working with the talented Mandalay
Media team led by Co-Chairman Peter Guber. Peter’s experience and insight should
prove invaluable as Mandalay Media looks to capitalize on the significant
transformation in the media industry to new business models, including ad
networks, interactive out-of-home, mobile applications, social networks and
Web
properties."
Mr.
Zangrillo is the Founder, Chairman and Chief Executive Officer of North Star
Systems International (“North Star”), which provides wealth management software
to financial services institutions. Prior to joining North Star, Mr.
Zangrillo was Founder, Chairman and Chief Executive Officer of InterWorld,
Corp., a provider of eCommerce software applications. Over the last 19
years, Mr. Zangrillo has held various positions including Chairman, Chief
Executive Officer, private equity investor, director and advisor to numerous
growth companies including ArcSight, Inc., Dick’s Sporting Goods Inc. (NYSE:
DKS), EarthLink, Inc. (NASDAQ: ELNK), HomeSpace (acquired by Lending Tree
International, Inc., NASDAQ: LTRE), InterWorld Corp. (acquired by The Essar
Group), Imperium Renewables, Inc., Loudeye Corp. (acquired by Nokia, NYSE:
NOK),
Overture (acquired by Yahoo, NASDAQ: YHOO), Project PlayList, UGO Networks
(acquired by the Hearst Corporation), Ulta Salon, Cosmetics & Fragrance,
Inc. (NASDAQ:ULTA) and YOUcentric Inc. (acquired by JG Edwards, NASDAQ:
ORCL). Mr. Zangrillo also worked as an associate in the Investment Banking
Division of Donaldson, Lufkin & Jenrette. He recently served as a
member of the Council on Foreign Relations, where he served on the Committee
on
Finance and Budget. Mr. Zangrillo received a BA from the University of
Vermont and a MBA from Stanford University Graduate School of
Business.
About
Mandalay Media, Inc.
Mandalay
Media, Inc. is a development stage company. It intends to complete an asset
acquisition, merger, exchange of capital stock, or other business combination
with a domestic or foreign business.
Safe
Harbor
This
press release contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995, about MVSI. Forward looking
statements are statements that are not historical facts. Such forward-looking
statements, based upon the current beliefs and expectations of MVSI's
management, are subject to risks and uncertainties, which could cause actual
results to differ from the forward looking statements. The following factors,
among others, could cause actual results to differ from those set forth in
the
forward-looking statements: general economic conditions; geopolitical events
and
regulatory changes, as well as other relevant risks detailed in MSVI’s filings
with the Securities and Exchange Commission. The information set forth herein
should be read in light of such risks. MSVI assumes no obligation to update
the
information contained in this press release.