EXHIBIT 3(ii)
AMENDED AND RESTATED BY-LAWS
OF
@ENTERTAINMENT, INC.
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
stockholders of the Corporation shall be held either within or without the State
of Delaware, at such date, time and place as the Board of Directors may
designate in the call or in a waiver of notice thereof, for the purpose of
electing directors and for the transaction of such other business as may
properly be brought before the meeting.
SECTION 2. SPECIAL MEETINGS. Special Meetings of the
stockholders may be called by the Board of Directors or by the Chief Executive
Officer, and shall be called by the Chief Executive Officer or by the Secretary
upon the written request of the holders of record of at least twenty-five per
cent (25%) of the shares of stock of the Corporation, issued and outstanding and
entitled to vote, at such times and at such place either within or without the
State of Delaware as may be stated in the call or in a waiver of notice thereof.
SECTION 3. NOTICE OF MEETINGS. Notice of the time, place and
purpose of every meeting of stockholders shall be delivered personally or mailed
not less than ten days nor more than sixty days previous thereto to each
stockholder of record entitled to vote, at such stock-holder's post office
address appearing upon the records of the Corporation or at such other address
as shall be furnished in writing by him or her to the Corporation for such
purpose. Such further notice shall be given as may be required by law or by
these By-Laws. Any meeting may be held without notice if all stockholders
entitled to vote are present in person or by proxy, or if notice is waived in
writing, either before or after the meeting, by those not present.
SECTION 4. QUORUM. The holders of record of at least a
majority of the shares of the stock of the Corporation, issued and outstanding
and entitled to vote, present in person or by proxy, shall, except as otherwise
provided by law or by these By-Laws, constitute a quorum at all meetings of the
stockholders; if there be no such quorum, the holders of a majority of such
shares so present or represented may adjourn the meeting from time to time until
a quorum shall have been obtained.
SECTION 5. ORGANIZATION OF MEETINGS. Meetings of the
stockholders shall be presided over by the Chairman of the Board, if there be
one, or if the Chairman of the Board is not present by the Chief Executive
Officer, or if the Chief Executive Officer is not present, by a chairman to be
chosen at the meeting. The Secretary of the Corporation, or in the Secretary of
the Corporation's absence, an Assistant Secretary, shall act as Secretary of the
meeting, if present.
SECTION 6. VOTING. At each meeting of stockholders, except as
otherwise provided by statute or the Certificate of Incorporation, every holder
of record of stock entitled to
vote shall be entitled to one vote in person or by proxy for each share of such
stock standing in his or her name on the records of the Corporation. Elections
of directors shall be determined by a plurality of the votes cast and, except as
otherwise provided by statute, the Certificate of Incorporation, or these
By-Laws, all other action shall be determined by a majority of the votes cast at
such meeting. Each proxy to vote shall be in writing and signed by the
stockholder or by such stockholder's duly authorized attorney.
At all elections of directors, the voting shall be by ballot
or in such other manner as may be determined by the stockholders present in
person or by proxy entitled to vote at such election. With respect to any other
matter presented to the stockholders for their consideration at a meeting, any
stockholder entitled to vote may, on any question, demand a vote by ballot.
A complete list of the stockholders entitled to vote at each
such meeting, arranged in alphabetical order, with the address of each, and the
number of shares registered in the name of each stockholder, shall be prepared
by the Secretary and shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the 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. The 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.
SECTION 7. INSPECTORS OF ELECTION. The Board of Directors in
advance of any meeting of stockholders may appoint one or more Inspectors of
Election to act at the meeting or any adjournment thereof. If Inspectors of
Election are not so appointed, the chairman of the meeting may, and on the
request of any stockholder entitled to vote shall, appoint one or more
Inspectors of Election. Each Inspector of Election, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of Inspector of Election at such meeting with strict impartiality and
according to the best of his or her ability. If appointed, Inspectors of
Election shall take charge of the polls and, when the vote is completed, shall
make a certificate of the result of the vote taken and of such other facts as
may be required by law.
SECTION 8. ACTION BY CONSENT. Any action required or permitted
to be taken at any meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if, prior to such action, a written
consent or consents thereto, setting forth such action, is signed by the holders
of record of shares of the stock of the Corporation, issued and outstanding and
entitled to vote thereon, having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted.
ARTICLE II
DIRECTORS
SECTION 1. NUMBER, QUORUM, TERM, VACANCIES, REMOVAL. The Board
of Directors of the Corporation shall consist of such number of directors as may
be determined from time to
time by resolution of the Board of Directors. The number of directors may be
changed by a resolution passed by a majority of the whole Board or by a vote of
the holders of record of at least a majority of the shares of stock of the
Corporation, issued and outstanding and entitled to vote.
A majority of the members of the Board of Directors then
holding office (but not less than one-third of the total number of directors nor
less than two directors) shall constitute a quorum for the transaction of
business, but if at any meeting of the Board there shall be less than a quorum
present, a majority of those present may adjourn the meeting from time to time
until a quorum shall have been obtained.
Directors shall hold office until the next annual election and
until their successors shall have been elected and shall have qualified, unless
sooner displaced.
Whenever any vacancy shall have occurred in the Board of
Directors, by reason of death, resignation, or otherwise, other than removal of
a director with or without cause by a vote of the stockholders, it shall be
filled by a majority of the remaining directors, though less than a quorum
(except as otherwise provided by law), or by the stockholders, and the person so
chosen shall hold office until the next annual election and until a successor is
duly elected and has qualified.
Any one or more of the directors of the Corporation may be
removed either with or without cause at any time by a vote of the holders of
record of at least a majority of the shares of stock of the Corporation, issued
and outstanding and entitled to vote, and thereupon the term of the director or
directors who shall have been so removed shall forthwith terminate and there
shall be a vacancy or vacancies in the Board of Directors, to be filled by a
vote of the stockholders as provided in these By-Laws.
SECTION 2. MEETINGS, NOTICE. Meetings of the Board of
Directors shall be held at such place either within or without the State of
Delaware, as may from time to time be fixed by resolution of the Board, or as
may be specified in the call or in a waiver of notice thereof. Regular meetings
of the Board of Directors shall be held at such times as may from time to time
be fixed by resolution of the Board, and special meetings may be held at any
time upon the call of two directors, the Chairman of the Board, if one be
elected, or the Chief Executive Officer, by oral, telegraphic or written notice,
duly served on or sent or mailed to each director not less than two days before
such meeting. A meeting of the Board may be held without notice immediately
after the annual meeting of stockholders at the same place at which such meeting
was held. Notice need not be given of regular meetings of the Board. Any meeting
may be held without notice, if all directors are present, or if notice is waived
in writing, either before or after the meeting, by those not present.
SECTION 3. COMMITTEES. The Board of Directors may, in its
discretion, by resolution passed by a majority of the whole Board, designate
from among its members one or more committees which shall consist of two or more
directors. The Board may designate one or more directors as alternate members of
any such committee, who may replace any absent or disqualified member at any
meeting of the committee. Such committees shall have and may
exercise such powers as shall be conferred or authorized by the resolution
appointing them. A majority of any such committee may determine its action and
fix the time and place of its meetings, unless the Board of Directors shall
otherwise provide. The Board shall have power at any time to change the
membership of any such committee, to fill vacancies in it, or to dissolve it.
SECTION 4. ACTION BY CONSENT. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting, if prior to such action a written
consent or consents thereto is signed by all members of the Board, or of such
committee as the case may be, and such written consent or consents is filed with
the minutes of proceedings of the Board or committee.
SECTION 5. COMPENSATION. The Board of Directors may determine,
from time to time, the amount of compensation which shall be paid to its
members. The Board of Directors shall also have power, in its discretion, to
allow a fixed sum and expenses for attendance at each regular or special meeting
of the Board, or of any committee of the Board. In addition, the Board of
Directors shall also have power, in its discretion, to provide for and pay to
directors rendering services to the Corporation not ordinarily rendered by
directors, as such, special compensation appropriate to the value of such
services, as determined by the Board from time to time.
ARTICLE III
OFFICERS
SECTION 1. TITLES AND ELECTION. The officers of the
Corporation shall be chosen by the Board of Directors and may include a Chairman
of the Board of Directors (who must be a director) and shall include a Chief
Executive Officer, one or more Vice Presidents (if so elected by the Board of
Directors), a Secretary and a Chief Financial Officer. The Board of Directors
also may appoint a Treasurer and such Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers as the Board of Directors
shall determine. Any two or more offices may be held by the same person. With
the exception of the Chairman of the Board of Directors, none of the officers
need be a director of the Corporation. None of the officers need be a
stockholder of the Corporation or a resident of the State of Delaware.
SECTION 2. TERMS OF OFFICE. Officers shall hold office until
their successors are chosen and qualify.
SECTION 3. REMOVAL. Any officer may be removed, either with or
without cause, at any time, by the affirmative vote of a majority of the Board
of Directors.
SECTION 4. RESIGNATIONS. Any officer may resign at any time by
giving written notice to the Board of Directors or to the Secretary. Such
resignation shall take effect at the time specified therein, and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 5. VACANCIES. If the office of any officer or agent
becomes vacant by
reason of death, resignation, retirement, disqualification, removal from office
or otherwise, the directors may choose a successor, who shall hold office for
the unexpired term in respect of which such vacancy occurred.
SECTION 6. AUTHORITY AND DUTIES. Each of the officers of the
Corporation shall have such authority and shall perform such duties incident to
each of their respective offices and such other duties as may be specified from
time to time by the Board of Directors in a resolution which is not inconsistent
with applicable law, the Certificate of Incorporation or these Bylaws.
SECTION 7. DUTIES OF OFFICERS MAY BE DELEGATED. In case of the
absence or disability of any officer of the Corporation, or for any other reason
that the Board may deem sufficient, the Board may delegate, for the time being,
the powers or duties, or any of them, of such officer to any other officer, or
to any director.
ARTICLE IV
INDEMNIFICATION
SECTION 1. ACTIONS BY OTHERS. The Corporation (1) shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or she is or was a
director or an officer of the Corporation and (2) except as otherwise required
by Section 3 of this Article, may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he or she is or was an employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee,
agent of or participant in another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
SECTION 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, agent of or participant in another corporation,
partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his or her duty to the
Corporation unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
SECTION 3. SUCCESSFUL DEFENSE. To the extent that a person who
is or was a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 or Section 2 of this Article, or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
SECTION 4. SPECIFIC AUTHORIZATION. Any indemnification under
Section 1 or Section 2 of this Article (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of conduct
set forth in said Sections 1 and 2. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
SECTION 5. ADVANCE OF EXPENSES. Expenses incurred by any
person who may have a right of indemnification under this Article in defending a
civil or criminal action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he or she is entitled
to be indemnified by the Corporation pursuant to this Article.
SECTION 6. RIGHT OF INDEMNITY NOT EXCLUSIVE. The
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her 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.
SECTION 7. INSURANCE. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of or participant in
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify him or her against such
liability under the provisions of this Article, Section 145 of the General
Corporation Law of the State of Delaware or otherwise.
SECTION 8. INVALIDITY OF ANY PROVISIONS OF THIS ARTICLE. The
invalidity or unenforceability of any provision of this Article shall not affect
the validity or enforceability of the remaining provisions of this Article.
ARTICLE V
CAPITAL STOCK
SECTION 1. CERTIFICATES. The interest of each stockholder of
the Corporation shall be evidenced by certificates for shares of stock in such
form as the Board of Directors may from time to time prescribe. The certificates
of stock shall be signed by the Chief Executive Officer or a Vice President and
by the Secretary, or the Chief Financial Officer, or the Treasurer, or an
Assistant Secretary, or an Assistant Treasurer, sealed with the seal of the
Corporation or a facsimile thereof, and countersigned and registered in such
manner, if any, as the Board of Directors may by resolution prescribe. Where any
such certificate is countersigned by a transfer agent other than the Corporation
or its employee, or registered by a registrar other than the Corporation or its
employee, the signature of any such officer may be a facsimile signature. In
case any officer or officers who shall have signed, or whose facsimile signature
or signatures shall have been used on, 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 or certificates or
whose facsimile signature or signatures shall have been used thereon had not
ceased to be such officer or officers of the Corporation.
SECTION 2. TRANSFER. The shares of stock of the Corporation
shall be transferred only upon the books of the Corporation by the holder
thereof in person or by his or her attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof of
the authenticity of the signature as the Corporation or its agents may
reasonably require.
SECTION 3. RECORD DATES. The Board of Directors may fix in
advance a date, not less than ten nor more than sixty days preceding the date of
any meeting of stockholders, or the date for the payment of any dividend, or the
date for the distribution or allotment of any rights, or the date when any
change, conversion or exchange of capital stock shall go into effect, as a
record date for the determination of the stockholders entitled to notice of, and
to vote at, any such
meeting, or entitled to receive payment of any such dividend, or to receive any
distribution or allotment of such rights, or to exercise the rights in respect
of any such change, conversion or exchange of capital stock, and in such case
only such stockholders as shall be stockholders of record on the date so fixed
shall be entitled to such notice of, and to vote at, such meeting, or to receive
payment of such dividend, or to receive such distribution or allotment or rights
or to exercise such rights, as the case may be, notwithstanding any transfer of
any stock on the books of the Corporation after any such record date fixed as
aforesaid.
SECTION 4. LOST CERTIFICATES. In the event that any
certificate of stock is lost, stolen, destroyed or mutilated, the Board of
Directors may authorize the issuance of a new certificate of the same tenor and
for the same number of shares in lieu thereof. The Board may in its discretion,
before the issuance of such new certificate, require the owner of the lost,
stolen, destroyed or mutilated certificate, or the legal representative of the
owner to make an affidavit or affirmation setting forth such facts as to the
loss, destruction or mutilation as it deems necessary, and to give the
Corporation a bond in such reasonable sum as it directs to indemnify the
Corporation.
ARTICLE VI
CHECKS, NOTES, ETC.
SECTION 1. CHECKS, NOTES, ETC. All checks and drafts on the
Corporation's bank accounts and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money, may
be signed by the Chief Executive Officer, any Vice President, the Chief
Financial Officer or the Treasurer and may also be signed by such other officer
or officers, agent or agents, as shall be thereunto authorized from time to time
by the Board of Directors.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 1. OFFICES. The registered office of the Corporation
shall be located at 30 Old Rudnick Lane, Suite 100, Dover, County of Kent in the
State of Delaware, and said corporation shall be the registered agent of this
Corporation in charge thereof. The Corporation may have other offices either
within or without the State of Delaware at such places as shall be determined
from time to time by the Board of Directors or the business of the Corporation
may require.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation
shall be determined by the Board of Directors.
SECTION 3. CORPORATE SEAL. The seal of the Corporation shall
be circular in form and contain the name of the Corporation, and the year and
state of its incorporation. Such seal may be altered from time to time at the
discretion of the Board of Directors.
SECTION 4. BOOKS. There shall be kept at such office of the
Corporation as the Board of Directors shall determine, within or without the
State of Delaware, correct books and records of account of all its business and
transactions, minutes of the proceedings of its stockholders, Board of Directors
and committees, and the stock book, containing the names and addresses of the
stockholders, the number of shares held by them, respectively, and the dates
when they respectively became the owners of record thereof, and in which the
transfer of stock shall be registered, and such other books and records as the
Board of Directors may from time to time determine.
SECTION 5. VOTING OF STOCK. Unless otherwise specifically
authorized by the Board of Directors, all stock owned by the Corporation, other
than stock of the Corporation, shall be voted, in person or by proxy, by the
Chief Executive Officer or any Vice President of the Corporation on behalf of
the Corporation.
ARTICLE VIII
AMENDMENTS
SECTION 1. AMENDMENTS. The vote of the holders of at least a
majority of the shares of stock of the Corporation, issued and outstanding and
entitled to vote, shall be necessary at any meeting of stockholders to amend or
repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended
or repealed, or new by-laws adopted, at any meeting of the Board of Directors by
the vote of at least a majority of the entire Board; provided that any by-law
adopted by the Board may be amended or repealed by the stockholders in the
manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new
by-laws shall be stated in the notice of the meeting of the Board of Directors
or the stockholders, or in the waiver of notice thereof, as the case may be,
unless all of the directors or the holders of record of all of the shares of
stock of the Corporation, issued and outstanding and entitled to vote, are
present at such meeting.