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Exhibit 2.2
BY-LAWS
OF
DIAMOND DISCOVERIES INTERNATIONAL CORP.
ARTICLE I - STOCKHOLDERS
Section 1.1 Annual Meetings. The annual meeting of the stockholders of the
Corporation shall be held for the purpose of electing Directors, at such date,
time and place, either within or without the State of Delaware, as may be
designated by resolution of the Board of Directors from time to time. Any other
proper business may be transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called at any time by the Board of Directors or
by a committee of the Board of Directors that has been duly designated by the
Board of Directors and whose powers and authority, as provided in a resolution
of the Board of Directors, include the power to call such meetings or as
otherwise required under the provisions of the General Corporation Law.
Section 1.3 Place of Meetings. All meetings of stockholders shall be held
at the principal office of the Corporation, or at such other places as shall be
designated in the notices or waivers of notice of such meetings.
Section 1.4 Notice of Meetings.
(a) Except as otherwise provided by law or the rules of any stock
exchange or the Nasdaq Stock Exchange, Inc. ("Nasdaq"), whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given that shall state the place,
date and hour of the meeting, and the purpose or purposes for which it is
called, shall be served either personally or by mail, not less than ten or
more than sixty days before the meeting, upon each stockholder of record
entitled to vote at such meeting, and to any other to whom the giving of
notice may be required by law. Notice of a special meeting shall indicate
that it is being issued by, or at the direction of, the person or persons
calling the meeting. If, at any meeting, action is proposed to be taken
that would, if taken, entitle stockholders to receive payment for their
shares pursuant to law, the notice of such meeting shall include a
statement of that purpose and to that effect. If mailed, such notice shall
be deemed to be given when deposited in the United States mail, postage
prepaid, and directed to each such stockholder at his address, as it
appears on the records of the stockholders of the Corporation, unless he
shall have previously filed with the Secretary of the Corporation a
written request that notices intended for him be mailed to the address
designated in such request.
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(b) Notice of any meeting need not be given to any person who may
become a stockholder of record after the record date, as determined under
Section 1.10 of these By-laws and prior to the meeting, or to any
stockholder who attends such meeting, in person or by proxy, or to any
stockholder who, in person or by proxy, submits a signed waiver of notice
either before or after such meeting.
Section 1.5. Adjournments. Any meeting of stockholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting in accordance with Section
1.4.
Section 1.6. Quorum. Except as otherwise provided herein, or by law or the
rules of any stock exchange or Nasdaq, or in the Certificate of Incorporation,
as amended (the "Certificate of Incorporation"), at all meetings of stockholders
of the Corporation, the presence at such meetings in person or by proxy of
stockholders holding of record a majority of the total number of shares of the
Corporation then issued and outstanding and entitled to vote, shall be necessary
and sufficient to constitute a quorum for the transaction of any business. In
the absence of a quorum, the stockholders so present may, by majority vote,
adjourn the meeting from time to time in the manner provided in Section 1.5 of
these By-laws until a quorum shall attend. At any such adjourned meeting at
which a quorum is present, any business may be transacted at the adjournment
thereof which could have been transacted at the meeting as originally called if
a quorum had been present. Shares of its own stock belonging to the Corporation
or to another corporation, if a majority of the shares entitled to vote in the
election of Directors of such other corporation is held, directly or indirectly,
by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
Section 1.7. Organization. Meetings of stockholders shall be presided over
by the Chairman, if any, or in his absence, by the President, or in his absence
by a Vice President, or in the absence of the foregoing persons, by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting by a majority of stockholders present. The
Secretary shall act as secretary of the meeting, but in his absence, the
chairman of the meeting may appoint any person to act as secretary of the
meeting. The chairman of the meeting shall announce at the meeting of
stockholders the date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote.
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Section 1.8. Voting; Proxies.
(a) Except as otherwise provided by law or by the Certificate of
Incorporation, any corporate action, other than the election of Directors
to be taken by vote of the stockholders, shall be authorized by a majority
of votes cast at a meeting of stockholders by the holders of shares
entitled to vote thereon.
(b) Except as otherwise provided by law or by the Certificate of
Incorporation, each stockholder of record entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held
by him which has voting power upon the matter in question.
(c) Each stockholder entitled to vote at a meeting of stockholders,
or to express consent or dissent to a corporate action in writing without
a meeting, may authorize another person or persons to act for such
stockholder by proxy; provided, however, that the instrument authorizing
such proxy to act shall have been executed in writing by the stockholder
himself, or by his attorney-in-fact thereunto duly authorized in writing.
No such proxy shall be voted or acted upon after three years from its
date, unless the person(s) executing it shall have specified therein the
length of time it is to continue in force. Such proxy shall be exhibited
to the Secretary at the meeting and shall be filed with the records of the
Corporation. A proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and
voting in person or by filing an instrument in writing revoking the proxy
or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary of the Corporation.
(d) At all meetings of stockholders for the election of Directors, a
plurality of the votes cast shall be sufficient to elect. Unless otherwise
provided by law, the Certificate of Incorporation or these By-laws, all
other elections and questions shall, be decided by the vote of the holders
of shares of stock having a majority of the votes which could be cast by
the holders of all shares of stock outstanding and entitled to vote
thereon.
Section 1.9. Fixing of Record Date. 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, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or 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 of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record is adopted by the Board of Directors and which
record date: (i) in the case of determination of stockholders entitled to vote
at any meeting of stockholders or adjournment thereof, shall, unless otherwise
required by law, the rules of any stock exchange or Nasdaq, not be more than
sixty nor less than ten days before the date of such meeting; (ii) in the case
of determination of stockholders entitled to express
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consent to corporate action in writing without a meeting, shall not be more than
ten days from the date upon which the resolution fixing the record date is
adopted by the Board of Directors; and (iii) in the case of any other action,
shall not be more than sixty days prior to such other action. If no record date
is fixed: (i) 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 preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day preceding the day on which the meeting is held;
(ii) the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting when no prior action of the Board
of Directors is required by law, 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 in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action; and (iii) the record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. 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 of Directors may fix a new record date for the adjournment.
Section 1.10. List of Stockholders Entitled to Vote. The Secretary, after
consultation with the transfer agent, shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, 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 the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at the place where the
meeting is to be held, or at another place within the city where the meeting is
to be held, which other place shall be specified in the notice of the meeting.
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. The stock ledger maintained by the transfer agent shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list of stockholders or the books of the Corporation, or to vote in person
or by proxy at any meeting of stockholders.
Section 1.11. Action by Consent of Stockholders. Any resolution in writing
signed by all of the stockholders entitled to vote thereon shall be and
constitute action by such stockholders to the effect therein expressed, with the
same force and effect as if the same had been duly passed by unanimous vote at a
duly called meeting of stockholders and such resolution so signed shall be
inserted in the Minute Book of the Corporation under its proper date. Unless
otherwise restricted by the Certificate of Incorporation or the rules of any
stock exchange or Nasdaq, any action required or permitted to be taken at any
annual or special meeting of the stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock 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 and shall be delivered (by hand, by
certified mail, return receipt requested, or by overnight courier
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from which evidence of receipt may be obtained) 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 Minute
Book in which proceedings of minutes of stockholders are recorded. Prompt notice
of the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
ARTICLE II - BOARD OF DIRECTORS
Section 2.1. Number, Election and Term of Office.
(a) The number of directors which shall constitute the whole Board
shall be not fewer than one nor more than five. Within the limits above
specified, the number of directors shall be determined by the Board of
Directors pursuant to a resolution adopted by a majority of the directors
then in office.
(b) Except as may otherwise be provided herein or in the Certificate
of Incorporation, at each annual meeting of stockholders, each member of
the Board of Directors of the Corporation shall be elected by a plurality
of the votes cast at such meeting.
(c) Each Director shall hold office until the annual meeting of the
stockholders next succeeding his election, and until his successor is duly
elected and qualified, or until his prior death, resignation or removal.
Section 2.2. Duties and Powers. The Board of Directors shall be
responsible for the control and management of the affairs, property and
interests of the Corporation, and may exercise all powers of the Corporation,
except as are in the Certificate of Incorporation or by law expressly conferred
upon or reserved to the stockholders.
Section 2.3 Annual and Regular Meetings; Notice.
(a) A regular annual meeting of the Board of Directors shall be held
immediately following the annual meeting of the stockholders, at the place
of such annual meeting of stockholders.
(b) The Board of Directors, from time to time, may provide by
resolution for the holding of other regular meetings of the Board of
Directors and may fix the time and place thereof.
(c) Notice of any regular meeting of the Board of Directors shall
not be required to be given and, if given, need not specify the purpose of
the meeting; provided, however, that in case the Board of Directors shall
fix or change the time or place of any regular meeting, notice of such
action shall be given to each Director who shall not have been
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present at the meeting at which such action was taken within the time
limit, and in the manner set forth, in paragraph (b) of Section 2.4 of
this Article II, with respect to special meetings, unless such notice
shall be waived in the manner set forth in paragraph (c) of such Section
2.4.
Section 2.4. Special Meetings; Notice.
(a) Special meetings of the Board of Directors shall be held
whenever called by the President or by one of the Directors (including the
Chairman), at such time and place as may be specified in the respective
notices or waivers of notice thereof.
(b) Except as otherwise required by law, notice of a special meeting
shall be mailed directly to each Director, addressed to him at his
residence or usual place of business, at least two (2) days before the day
on which the meeting is to be held, or shall be sent to him at such place
by telegram, radio or cable, or shall be delivered to him personally or
given to him orally, not later than the day before the day on which the
meeting is to be held. A notice, or waiver of notice, except as required
by Section 2.8 of this Article II, need not specify the purpose of the
meeting.
(c) Notice of any special meeting shall not be required to be given
to any Director who shall attend such meeting without protesting prior
thereto or at its commencement, the lack of notice to him, or who submits
a signed waiver of notice, whether before or after the meeting. Notice of
any adjournment of a meeting shall not be required to be given.
Section 2.5 Organization. At all meetings of the Board of Directors the
Chairman of the Board, if any and if present, shall preside. If there shall be
no Chairman, or he shall be absent, then the President shall preside, and in his
absence, a chairman chosen by the Directors shall preside. The Secretary shall
act as secretary of the meeting, but in his absence, the chairman of the meeting
may appoint any person to act as secretary of the meeting.
Section 2.6 Quorum and Adjournments.
(a) At all meetings of the Board of Directors, the presence of a
majority of the entire Board shall be necessary and sufficient to
constitute a quorum for the transaction of business, except as otherwise
provided by law, the rules of any stock exchange or Nasdaq, by the
Certificate of Incorporation, or by these By-laws.
(b) A majority of the Directors present at the time and place of any
regular or special meeting, although less than a quorum, may adjourn the
same from time to time without notice, until a quorum shall be present.
Section 2.7. Manner of Acting; Telephonic Meetings; Unanimous Consent
Permitted.
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(a) At all meetings of the Board of Directors, each Director present
shall have one vote, irrespective of the number of shares of stock, if
any, which he may hold.
(b) Members of the Board of Directors, or any committee designated
by the Board of Directors, may participate in a meeting thereof by means
of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 2.7(b) shall
constitute presence in person at such meeting.
(c) Except as otherwise provided by law or the rules of any stock
exchange or Nasdaq, by the Certificate of Incorporation, or these By-laws,
the action of a majority of the Directors present at any meeting at which
a quorum is present shall be the act of the Board of Directors. Any action
authorized in writing, by all of the Directors entitled to vote thereon
and filed with the minutes of the Corporation, shall be the act of the
Board of Directors with the same force and effect as if the same had been
passed by unanimous vote at a duly called meeting of the Board of
Directors.
Section 2.8. Vacancies. Any vacancy in the Board of Directors occurring by
reason of an increase in the number of Directors, or by reason of the death,
resignation, disqualification, removal (unless a vacancy created by the removal
of a Director by the stockholders shall be filled by the stockholders at the
meeting at which the removal was effected) or inability to act of any Director,
or otherwise, shall be filled for the unexpired portion of the term by a
majority vote of the remaining Directors, though less than a quorum, at any
regular meeting or special meeting of the Board of Directors called for that
purpose.
Section 2.9 Resignation. Any Director may resign at any time by giving
written notice to the Board of Directors, the President or the Secretary of the
Corporation. Unless otherwise specified in such written notice, such resignation
shall take effect upon receipt thereof by the Board of Directors or such
officer, and the acceptance of such resignation shall not be necessary to make
it effective.
Section 2.10. Removal. Any Director may be removed with or without cause
at any time by the affirmative vote of stockholders holding of record in the
aggregate at least a majority of the outstanding shares of the Corporation at a
special meeting of the stockholders called for that purpose, and may be removed
for cause by action of the Board of Directors.
Section 2.11. Salary. An annual fee in an amount to be determined by
resolution by the Board of Directors shall be paid to each Director, for his or
her services as such, and by resolution of the Board of Directors, a fixed sum
plus expenses of attendance, if any, may be allowed for attendance at each
regular or special meeting of the Board; provided, however, that nothing herein
contained shall be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.
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Section 2.12. Contracts.
(a) No contract or other transaction between the Corporation and any
other Corporation shall be impaired, affected or invalidated, nor shall
any Director be liable in any way by reason of the fact that any one or
more of the Directors of this Corporation is or are interested in, or is a
Director or officer, or are Directors or officers of such other
Corporation, provided that such facts are disclosed or made known to the
Board of Directors and the stockholders.
(b) Any Director, personally and individually, may be a party to or
may be interested in any contract or transaction of the Corporation, and
no Director shall be liable in any way by reason of such interest,
provided at the fact of such interest be disclosed or made known to the
Board of Directors and the stockholders, and provided that the Board of
Directors shall authorize, approve or ratify such contract or transaction
by the vote (not counting the vote of any such Director) of a majority of
a quorum, notwithstanding the presence of any such Director at the meeting
at which such action is taken. Such Director or Directors may be counted
in determining the presence of a quorum at such meeting. This Section 2.12
shall not be construed to impair or invalidate or in any way affect any
contract or other transaction which would otherwise he valid under the law
(common, statutory or otherwise) applicable thereto.
Section 2.13. Committees. The Board of Directors, by resolution adopted by
a majority of the entire Board, may from time to time designate from among its
members an Executive Committee, an Audit Committee, a Compensation Committee and
such other committees, and alternate members thereof, as they deem desirable,
each consisting of one or more Directors, with such powers and authority (to the
extent permitted by law and the rules of any stock exchange or Nasdaq) as may be
provided in such resolution.
ARTICLE III - OFFICERS
Section 3.1 Number, Election and Term of Office.
(a) The officers of the Corporation shall consist of a President and
Chief Operating Officer, a Secretary, a Chief Financial Officer, and such
other officers, including a Chairman and Chief Executive Officer, and one
or more Vice Presidents, as the Board of Directors may from time to time
deem advisable. The Chairman of the Board of Directors shall, and any
other officer may, be a Director of the Corporation. Any two or more
offices may be held by the same person.
(b) The officers of the Corporation shall be elected by the Board of
Directors at the regular annual meeting of the Board following the annual
meeting of stockholders.
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(c) Each officer shall hold office until the annual meeting of the
Board of Directors next succeeding his election, and until his successor
shall have been duly elected and qualified, or until his death,
resignation or removal.
Section 3.2. Resignation. Any officer may resign at any time by giving
written notice of such resignation to the Board of Directors, or to the
President or the Secretary of the Corporation. Unless otherwise specified in
such written notice, such resignation shall take effect upon receipt thereof by
the Board of Directors or by the President or Secretary, and the acceptance of
such resignation shall not be necessary to make it effective.
Section 3.3. Removal. Any officer may be removed, either with or without
cause, and a successor elected by a majority of the Board of Directors at any
time.
Section 3.4. Vacancies. A vacancy in any office by reason of death,
resignation, inability to act, disqualification, or any other cause, may at any
time be filled for the unexpired portion of the term by the Board of Directors.
Section 3.5. Duties of Officers. Officers of the Corporation shall, unless
otherwise provided by the Board of Directors, each have such powers and duties
as generally pertain to their respective offices as well as such powers and
duties as may be set forth in these By-laws, or may from time to time be
specifically conferred or imposed by the Board of Directors.
Section 3.6. Sureties and Bonds. In case the Board of Directors shall so
require, any officer, employee or agent of the Corporation shall execute to the
Corporation a bond in such sum, and with such surety or sureties as the Board of
Directors may direct, conditioned upon the faithful performance of his duties to
the Corporation, including responsibility for negligence and for the accounting
for all property, funds or securities of the Corporation which may come into his
hands.
Section 3.7 Shares of Other Corporations. Whenever the Corporation is the
holder of shares of any other Corporation, any right or power of the Corporation
as such (including the attendance, acting and voting at stockholders' meetings
and execution of waivers, consents, proxies or other instruments) may be
exercised on behalf of the Corporation by the Chairman, the President, any Vice
President, the Chief Financial Officer, or such other person as the Board of
Directors may authorize.
ARTICLE IV - SHARES OF STOCK
Section 4.1 Certificate of Stock.
(a) The certificates representing shares of the Corporation shall be
in such form as shall be adopted by the Board of Directors, and shall be
numbered and registered in the order issued. They shall bear the holder's
name and the number of shares, and shall be signed by (i) the Chairman or
the President or a Vice President, and (ii) the Secretary or
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Chief Financial Officer, and shall bear the corporate seal, if any. Such
signatures and corporate seal may be imprinted or facsimiles.
(b) No certificate representing shares shall be issued until the
full amount of consideration therefor has been paid, except as otherwise
permitted by law.
(c) To the extent permitted by law or the rules of any stock
exchange or Nasdaq, the Board of Directors may authorize the issuance of
certificates for fractions of a share which shall entitle the holder to
exercise voting rights, receive dividends and participate in liquidating
distributions, in proportion to the fractional holdings; or it may
authorize the payment in cash of the fair value of fractions of a share as
of the time when those entitled to receive such fractions are determined;
or it may authorize the issuance, subject to such conditions as may be
permitted by law, of scrip in registered or bearer form over the signature
of an officer or agent of the Corporation, exchangeable as therein
provided for full shares, but such scrip shall not entitle the holder to
any rights of a stockholder, except as therein provided.
Section 4.2. Lost or Destroyed Certificates. The holder of any certificate
representing shares of the Corporation shall notify the Corporation of any loss
or destruction of the certificate representing the same. The Corporation through
its transfer agent may issue a new certificate in the place of any certificate
theretofore issued by it, alleged to have been lost or destroyed. On production
of such evidence of loss or destruction as the Board of Directors in its
discretion may require, the Board of Directors may, in its discretion, require
the owner of the lost or destroyed certificate, or his legal representatives, to
give the Corporation a bond in such sum as the Board may direct, and with such
surety or sureties as may be satisfactory to the Board, to indemnify the
Corporation against any claims, loss, liability or damage it may suffer on
account of the issuance of the new certificate. A new certificate may be issued
without requiring any such evidence or bond when, in the judgment of the Board
of Directors, it is proper so to do. The Board of Directors, by resolution or
resolutions duly adopted, may delegate to the Transfer Agent of the Corporation,
the authority to issue replacement stock certificates in such manner and on such
terms as are deemed appropriate by the Board of Directors and specified in such
resolution or resolutions.
Section 4.3. Transfers of Shares.
(a) Transfers of shares of the Corporation shall be made on the
share records of the Corporation only by the holder of record thereof, in
person or by his duly authorized attorney, upon surrender for cancellation
of the certificate or certificates representing such shares, with an
assignment or power of transfer endorsed thereon or delivered therewith,
duly executed, with such proof of the authenticity of the signature and of
authority to transfer and of payment of transfer taxes as the Corporation
or its agents may require.
(b) The Corporation shall be entitled to treat the holder of record
of any share or shares as the absolute owner thereof for all purposes and,
accordingly, shall not be bound
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to recognize any legal, equitable or other claim to, or interest in, such
share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise expressly
provided by law.
ARTICLE V - DIVIDENDS
Subject to applicable law, dividends may be declared and paid out of any
funds available therefor, as often, in such amounts, and at such time or times
as the Board of Directors may determine.
ARTICLE VI - FISCAL YEAR
The fiscal year of the Corporation shall commence on the 1st day of
January of each year and end on the 31st day of December of each year, unless
and until amended by the Board of Directors and subject to applicable law.
ARTICLE VII - CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be approved
from time to time by the Board of Directors.
ARTICE VIII - AMENDMENT
Section 8.1. By-laws. All By-laws of the Corporation shall be subject to
alteration or repeal, and new By-laws may be made, by the affirmative vote of
stockholders holding of record in the aggregate at least a majority of the
outstanding shares entitled to vote in the election of Directors at any annual
or special meeting of stockholders, provided that the notice or waiver of notice
of such meeting shall have summarized or set forth in full therein, the proposed
amendment.
Section 8.2 By Directors. The Board of Directors shall have power to make,
adopt, alter, amend and repeal, from time to time, By-laws of the Corporation;
provided, however, that the stockholders entitled to vote with respect thereto
as in this Article VIII above-provided may alter, amend or repeal By-laws made
by the Board of Directors, except that the Board of Directors shall have no
power to change the quorum for meetings of stockholders or of the Board of
Directors, or to change any provisions of the By-laws with respect to the
removal of Directors or the filling of vacancies in the Board resulting from the
removal by the stockholders. If any By-law regulating an impending election of
Directors is adopted, amended or repealed by the Board of Directors, there shall
be set forth in the notice of the next meeting of stockholders for the election
of Directors the By-law so adopted, amended or repealed, together with a concise
statement of the changes made.
ARTICLE IX - INDEMNIFICATION
Section 9.1. Right to Indemnification. The Corporation shall indemnify and
hold harmless, to the full extent permitted by applicable law as it presently
exists or may hereafter be
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amended, any person who was or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact that he,
or a person for whom he is the legal representative, is or was a director or
officer of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all liability
and loss suffered and expenses (including attorneys' fees) reasonably incurred
by such person. The Corporation shall be required to indemnify a person in
connection with a proceeding (or part thereof) initiated by such person only if
the proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation.
Section 9.2. Payment of Expenses. The Corporation may, in its discretion,
pay the expenses (including attorneys' fees) incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should ultimately
be determined that the director or officer is not entitled to be indemnified
under this Article or otherwise.
Section 9.3. Claims. If a claim for indemnification or payment of expenses
under this Article is not paid in full within sixty days after a written claim
therefor has been received by the Corporation, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action, the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification or payment of expenses under
applicable law.
Section 9.4 Non-Exclusivity of Rights. The rights conferred on any person
by this Article IX shall not be exclusive of any of the rights which such person
may have or hereafter acquire under any statute, provision of the certificate of
incorporation, these by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 9.5. Other Indemnification. The Corporation's obligation, if any,
to indemnify any person who was or is serving at its request as a director,
officer, employee, or agent of another corporation, partnership, limited
liability company, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person may collect as indemnification from such other
corporation, partnership, limited liability company, joint venture, trust,
enterprise or nonprofit enterprise.
Section 9.6. Amendment or Repeal. Any repeal or modification of the
foregoing paragraph by the stockholders of the Corporation shall not adversely
affect any right or protection of the director of the Corporation existing at
the time of such repeal or modification.
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