AMENDED AND RESTATED BY-LAWS

 

                                       OF

 

                    NUTRACEUTICAL INTERNATIONAL CORPORATION

 

                             A Delaware Corporation

 

 

                                   ARTICLE I

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                                    OFFICES

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     Section 1.  Registered Office.  The registered office of Nutraceutical

International Corporation (the "Corporation") in the State of Delaware shall be

located at 1013 Centre Road, in the City of Wilmington, County of New Castle

19805.  The name of the Corporation's registered agent at such address shall be

The Prentice-Hall Corporation System, Inc.  The registered office and/ or

registered agent of the Corporation may be changed from time to time by action

of the Board of Directors.

 

     Section 2.  Other Offices.  The Corporation may also have offices at such

other places, both within and without the State of Delaware, as the Board of

Directors may from time to time determine or the business of the Corporation may

require.

 

 

                                   ARTICLE II

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                            MEETINGS OF STOCKHOLDERS

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     Section 1.   Annual Meeting.  An annual meeting of the stockholders shall

be held each year within 150 days after the close of the immediately preceding

fiscal year of the Corporation or at such other time specified by the Board of

Directors for the purpose of electing Directors and conducting such other proper

business as may come before the annual meeting.  At the annual meeting,

stockholders shall elect Directors and transact such other business as properly

may be brought before the annual meeting pursuant to ARTICLE II, Section 11

hereof.

 

     Section 2.  Special Meetings.  Special meetings of the stockholders may

only be called in the manner provided in the Restated Certificate of

Incorporation.

 

     Section 3.  Place of Meetings.  The Board of Directors may designate any

place, either within or without the State of Delaware, as the place of meeting

for any annual meeting or for any special meeting.  If no designation is made,

or if a special meeting be otherwise called, the place of meeting shall be the

principal executive office of the Corporation.  If for any reason any annual

meeting shall not be held during any year, the business thereof may be

transacted at any special meeting of the stockholders.

 

     Section 4.  Notice.  Whenever stockholders are required or permitted to

take action at a meeting, written or printed notice stating the place, date,

time and, in the case of special meetings, the purpose or purposes, of such

meeting, shall be given to each stockholder entitled to vote at such meeting not

less than 10 nor more than 60 days before the date of the meeting.  All such

notices shall be delivered, either personally or by mail, by or at the direction

of the Board of Directors, the chairman of the board, the president or the

secretary, and if mailed, such notice shall be deemed to be delivered when

deposited in the United States mail, postage prepaid, addressed to the

stockholder at his, her or its address as the same appears on the records of the

Corporation.  Attendance of a person at a meeting shall constitute a waiver of

notice of such meeting, except when the person attends for the express purpose

of objecting at the beginning of the meeting to the transaction of any business

because the meeting is not lawfully called or convened.

 

     Section 5.  Stockholders List.  The officer having charge of the stock

ledger of the Corporation shall make, at least 10 days before every meeting of

the stockholders, a complete list of the stockholders entitled to vote at such

meeting arranged in alphabetical order, 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 10 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 6.  Quorum.  The holders of a majority of the outstanding shares of

capital stock entitled to vote, present in person or represented by proxy, shall

constitute a quorum at all meetings of the stockholders, except as otherwise

provided by the General Corporation Law of the State of Delaware or by the

Restated Certificate of Incorporation.  If a quorum is not present, the holders

of a majority of the shares present in person or represented by proxy at the

meeting, and entitled to vote at the meeting, may adjourn the meeting to another

time and/or place.  When a specified item of business requires a vote by a class

or series (if the Corporation shall then have outstanding shares of more than

one class or series) voting as a class, the holders of a majority of the shares

of such class or series shall constitute a quorum (as to such class or series)

for the transaction of such item of business.

 

     Section 7.  Adjourned Meetings.  When a meeting is adjourned to another

time and place, notice need not be given of the 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 30 days, or if after the adjournment a new record date is fixed for

the adjourned meeting, a notice of the adjourned meeting shall be given to each

stockholder of record entitled to vote at the meeting.

 

     Section 8.  Vote Required.  When a quorum is present, the affirmative vote

of the majority of shares present in person or represented by proxy at the

meeting and entitled to vote on the subject matter shall be the act of the

stockholders, unless (i) by express provisions of an applicable law or of

the Restated Certificate of Incorporation a different vote is required, in which

case such express provision shall govern and control the decision of such

question, or (ii) the subject matter is the election of Directors, in which case

Section 2 of ARTICLE III hereof shall govern and control the approval of such

subject matter.

 

     Section 9.  Voting Rights.  Except as otherwise provided by the General

Corporation Law of the State of Delaware, the Restated Certificate of

Incorporation of the Corporation or any amendments thereto or these By-laws,

every stockholder shall at every meeting of the stockholders be entitled to one

vote in person or by proxy for each share of common stock held by such

stockholder.

 

     Section 10.  Proxies.  Each stockholder entitled to vote at a meeting of

stockholders or to express consent or dissent to corporate action in writing

without a meeting may authorize another person or persons to act for him or her

by proxy, but no such proxy shall be voted or acted upon after three years from

its date, unless the proxy provides for a longer period.  A duly executed 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 proxy may be made irrevocable regardless of whether the

interest with which it is coupled is an interest in the stock itself or an

interest in the Corporation generally.  Any proxy is suspended when the person

executing the proxy is present at a meeting of stockholders and elects to vote,

except that when such proxy is coupled with an interest and the fact of the

interest appears on the face of the proxy, the agent named in the proxy shall

have all voting and other rights referred to in the proxy, notwithstanding the

presence of the person executing the proxy.  At each meeting of the

stockholders, and before any voting commences, all proxies filed at or before

the meeting shall be submitted to and examined by the secretary or a person

designated by the secretary, and no shares may be represented or voted under a

proxy that has been found to be invalid or irregular.

 

     Section 11.  Business Brought Before an Annual Meeting.  At an annual

meeting of the stockholders, only such business shall be conducted as shall have

been properly brought before the meeting.  To be properly brought before an

annual meeting, business must be (i) specified in the notice of meeting (or any

supplement thereto) given by or at the direction of the Board of Directors, (ii)

brought before the meeting by or at the direction of the Board of Directors or

(iii) otherwise properly brought before the meeting by a stockholder.  For

business to be properly brought before an annual meeting by a stockholder, the

stockholder must have given timely notice thereof in writing to the secretary of

the Corporation.  To be timely, a stockholder's notice must be delivered to or

mailed and received at the principal executive offices of the Corporation, not

less than 60 days nor more than 90 days prior to the meeting; provided, however,

that in the event that less than 70 days' notice or prior public announcement of

the date of the meeting is given or made to stockholders, notice by the

stockholder to be timely must be so received not later than the close of

business on the 10th day following the date on which such notice of the date of

the annual meeting was mailed or such public announcement was made.  A

stockholder's notice to the secretary shall set forth as to

each matter the stockholder proposes to bring before the annual meeting (i) a

brief description of the business desired to be brought before the annual

meeting, (ii) the name and address, as they appear on the Corporation's books,

of the stockholder proposing such business, (iii) the class and number of shares

of the Corporation which are beneficially owned by the stockholder and (iv) any

material interest of the stockholder in such business. Notwithstanding anything

in these By-laws to the contrary, no business shall be conducted at an annual

meeting except in accordance with the procedures set forth in this section. The

presiding officer of an annual meeting shall, if the facts warrant, determine

and declare to the meeting that business was not properly brought before the

meeting and in accordance with the provisions of this section; if he should so

determine, he shall so declare to the meeting and any such business not properly

brought before the meeting shall not be transacted. For purposes of this

section, "public announcement" shall mean disclosure in a press release reported

by Dow Jones News Service, Associated Press or a comparable national news

service. Nothing in this section shall be deemed to affect any rights of

stockholders to request inclusion of proposals in the Corporation's proxy

statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as

amended (the "Exchange Act").

 

                                  ARTICLE III

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                                   Directors

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     Section 1.  General Powers.  The business and affairs of the Corporation

shall be managed by or under the direction of the Board of Directors.  In

addition to such powers as are herein and in the Restated Certificate of

Incorporation  expressly conferred upon it, the Board of Directors shall have

and may exercise all the powers of the Corporation, subject to the provisions of

the laws of Delaware, the Restated Certificate of Incorporation  and these By-

laws.

 

     Section 2.  Number, Election and Term of Office.  Subject to any rights of

the holders of any series of Preferred Stock to elect additional Directors under

specified circumstances, the number of Directors which shall constitute the

Board of Directors shall be fixed from time to time by resolution adopted by the

affirmative vote of a majority of the total number of Directors then in office.

The Directors shall be elected by a plurality of the votes of the shares present

in person or represented by proxy at the meeting and entitled to vote in the

election of Directors; provided that, whenever the holders of any class or

series of capital stock of the Corporation are entitled to elect one or more

Directors pursuant to the provisions of the Restated Certificate of

Incorporation of the Corporation (including, but not limited to, for purposes of

these By-laws, pursuant to any duly authorized certificate of designation), such

Directors shall be elected by a plurality of the votes of such class or series

present in person or represented by proxy at the meeting and entitled to vote in

the election of such Directors.  The Directors shall be elected and shall hold

office only in the manner provided in the Restated Certificate of Incorporation.

 

     Section 3.  Removal and Resignation.  No Director may be removed from

office without cause and without the affirmative vote of the holders of a

majority of the voting power of the then outstanding shares of capital stock

entitled to vote generally in the election of Directors voting

together as a single class; provided, however, that if the holders of any class

or series of capital stock are entitled by the provisions of the Restated

Certificate of Incorporation (it being understood that any references to the

Restated Certificate of Incorporation shall include any duly authorized

certificate of designation) to elect one or more Directors, such Director or

Directors so elected may be removed without cause only by the vote of the

holders of a majority of the outstanding shares of that class or series entitled

to vote. Any Director may resign at any time upon written notice to the

Corporation.

 

     Section 4.  Vacancies.  Vacancies and newly created directorships resulting

from any increase in the total number of Directors may be filled only in the

manner provided in the Restated Certificate of Incorporation.

 

     Section 5.  Nominations.

 

          (a) Only persons who are nominated in accordance with the procedures

set forth in these By-laws shall be eligible to serve as Directors. Nominations

of persons for election to the Board of Directors of the Corporation may be made

at a meeting of stockholders (i) by or at the direction of the Board of

Directors or (ii) by any stockholder of the Corporation who was a stockholder of

record at the time of giving of notice provided for in this By-law, who is

entitled to vote generally in the election of Directors at the meeting and who

shall have complied with the notice procedures set forth below in Section 5(b).

 

          (b) In order for a stockholder to nominate a person for election to

the Board of Directors of the Corporation at a meeting of stockholders, such

stockholder shall have delivered timely notice of such stockholder's intent to

make such nomination in writing to the secretary of the Corporation. To be

timely, a stockholder's notice shall be delivered to or mailed and received at

the principal executive offices of the Corporation (i) in the case of an annual

meeting, not less than 60 nor more than 90 days prior to the first anniversary

of the preceding year's annual meeting; provided, however, that in the event

that the date of the annual meeting is changed by more than 30 days from such

anniversary date, notice by the stockholder to be timely must be so received not

later than the close of business on the 10th day following the earlier of the

day on which notice of the date of the meeting was mailed or public disclosure

of the meeting was made, and (ii) in the case of a special meeting at which

Directors are to be elected, not later than the close of business on the 10th

day following the earlier of the day on which notice of the date of the meeting

was mailed or public announcement of the meeting was made. Such stockholder's

notice shall set forth (i) as to each person whom the stockholder proposes to

nominate for election as a Director at such meeting all information relating to

such person that is required to be disclosed in solicitations of proxies for

election of Directors, or is otherwise required, in each case pursuant to

Regulation 14A under the Exchange Act (including such person's written consent

to being named in the proxy statement as a nominee and to serving as a Director

if elected); (ii) as to the stockholder giving the notice (A) the name and

address, as they appear on the Corporation's books, of such stockholder and (B)

the class and number of shares of the Corporation which are beneficially owned

by such stockholder and also which are owned of record by such stockholder; and

(iii) as to the beneficial owner, if any, on whose behalf the nomination is

made, (A) the name and address of such person and (B) the class and

number of shares of the Corporation which are beneficially owned by such person.

At the request of the Board of Directors, any person nominated by the Board of

Directors for election as a Director shall furnish to the secretary of the

Corporation that information required to be set forth in a stockholder's notice

of nomination which pertains to the nominee.

 

          (c) No person shall be eligible to serve as a Director of the

Corporation unless nominated in accordance with the procedures set forth in this

section. The chairman of the meeting shall, if the facts warrant, determine and

declare to the meeting that a nomination was not made in accordance with the

procedures prescribed by this section, and if he should so determine, he shall

so declare to the meeting and the defective nomination shall be disregarded. A

stockholder seeking to nominate a person to serve as a Director must also comply

with all applicable requirements of the Exchange Act, and the rules and

regulations thereunder with respect to the matters set forth in this section.

 

     Section 6.  Annual Meetings.  The annual meeting of the Board of Directors

shall be held without other notice than this By-law immediately after, and at

the same place as, the annual meeting of stockholders.

 

     Section 7.  Other Meetings and Notice.  Regular meetings, other than the

annual meeting, of the Board of Directors may be held without notice at such

time and at such place as shall from time to time be determined by resolution of

the board.  Special meetings of the Board of Directors may be called by the

chairman of the board, the president (if the president is a Director) or, upon

the written request of at least a majority of the Directors then in office, the

secretary of the Corporation on at least 24 hours notice to each Director,

either personally, by telephone, by mail or by telecopy.

 

     Section 8.  Chairman of the Board, Quorum, Required Vote and Adjournment.

The Board of Directors shall elect, by the affirmative vote of a majority of the

total number of Directors then in office, a chairman of the board, who shall

preside at all meetings of the stockholders and Board of Directors at which he

or she is present and shall have such powers and perform such duties as the

Board of Directors may from time to time prescribe.  If the chairman of the

board is not present at a meeting of the stockholders or the Board of Directors,

the president (if the president is a Director and is not also the chairman of

the board) shall preside at such meeting, and, if the president is not present

at such meeting, a majority of the Directors present at such meeting shall elect

one of their members to so preside.  A majority of the total number of Directors

then in office shall constitute a quorum for the transaction of business.

Unless by express provision of an applicable law, the Restated Certificate of

Incorporation or these By-laws a different vote is required, the vote of a

majority of Directors present at a meeting at which a quorum is present shall be

the act of the Board of Directors.  If a quorum shall not be present at any

meeting of the Board of Directors, the Directors present thereat may adjourn the

meeting from time to time, without notice other than announcement at the

meeting, until a quorum shall be present.

 

     Section 9.  Committees.  The Board of Directors may, by resolution passed

by a majority of the total number of Directors then in office, designate one or

more committees, each committee to consist of one or more of the Directors of

the Corporation, which to the extent provided in such resolution or these By-

laws shall have, and may exercise, the powers of the Board of Directors in the

management and affairs of the Corporation, except as otherwise limited by law.

The Board of Directors may designate one or more Directors as alternate members

of any committee, who may replace any absent or disqualified member at any

meeting of the committee. Such committee or committees shall have such name or

names as may be determined from time to time by resolution adopted by the Board

of Directors. Each committee shall keep regular minutes of its meetings and

report the same to the Board of Directors when required.

 

     Section 10.  Committee Rules.  Each committee of the Board of Directors may

fix its own rules of procedure and shall hold its meetings as provided by such

rules, except as may otherwise be provided by a resolution of the Board of

Directors designating such committee. Unless otherwise provided in such a

resolution, the presence of at least a majority of the members of the committee

shall be necessary to constitute a quorum. Unless otherwise provided in such a

resolution, in the event that a member and that member's alternate, if

alternates are designated by the Board of Directors, of such committee is or are

absent or disqualified, the member or members thereof present at any meeting and

not disqualified from voting, whether or not such member or members constitute a

quorum, may unanimously appoint another member of the Board of Directors to act

at the meeting in place of any such absent or disqualified member.

 

     Section 11.  Communications Equipment.  Members of the Board of Directors

or any committee thereof may participate in and act at any meeting of such board

or committee through the use of a conference telephone or other communications

equipment by means of which all persons participating in the meeting can hear

and speak with each other, and participation in the meeting pursuant to this

section shall constitute presence in person at the meeting.

 

     Section 12.  Waiver of Notice and Presumption of Assent.  Any member of the

Board of Directors or any committee thereof who is present at a meeting shall be

conclusively presumed to have waived notice of such meeting except when such

member attends for the express purpose of objecting at the beginning of the

meeting to the transaction of any business because the meeting is not lawfully

called or convened. Such member shall be conclusively presumed to have assented

to any action taken unless his or her dissent shall be entered in the minutes of

the meeting or unless his or her written dissent to such action shall be filed

with the person acting as the secretary of the meeting before the adjournment

thereof or shall be forwarded by registered mail to the secretary of the

Corporation immediately after the adjournment of the meeting. Such right to

dissent shall not apply to any member who voted in favor of such action.

 

     Section 13.  Action by Written Consent.  Unless otherwise restricted by the

Restated Certificate of Incorporation, 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 all members of the board or committee, as the case

may be, consent thereto in writing, and the writing or writings are filed with

the minutes of proceedings of the board or committee.

 

                                  ARTICLE IV

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                                   OFFICERS

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     Section 1.  Number.  The officers of the Corporation shall be elected by

the Board of Directors and shall consist of a chairman of the board, a chief

executive officer, a president, one or more vice-presidents, a secretary, a

chief financial officer and such other officers and assistant officers

as may be deemed necessary or desirable by the Board of Directors.  Any number

of offices may be held by the same person.  In its discretion, the Board of

Directors may choose not to fill any office for any period as it may deem

advisable, except that the offices of president and secretary shall be filled as

expeditiously as possible.

 

     Section 2.  Election and Term of Office.  The officers of the Corporation

shall be elected annually by the Board of Directors at its first meeting held

after each annual meeting of stockholders or as soon thereafter as convenient.

Vacancies may be filled or new offices created and filled at any meeting of the

Board of Directors.  Each officer shall hold office until a successor is duly

elected and qualified or until his or her earlier death, resignation or removal

as hereinafter provided.

 

     Section 3.  Removal.  Any officer or agent elected by the Board of

Directors may be removed by the Board of Directors at its discretion, but such

removal shall be without prejudice to the contract rights, if any, of the person

so removed.

 

     Section 4.  Vacancies.  Any vacancy occurring in any office because of

death, resignation, removal, disqualification or otherwise may be filled by the

Board of Directors.

 

     Section 5.  Compensation.  Compensation of all executive officers shall be

approved by the Board of Directors, and no officer shall be prevented from

receiving such compensation by virtue of his or her also being a Director of the

Corporation.

 

     Section 6.  Chairman of the Board.  The chairman of the board shall preside

at all meetings of the stockholders and of the Board of Directors and shall have

such other powers and perform such other duties as may be prescribed to him or

her by the Board of Directors or provided in these By-laws.

 

     Section 7.  Chief Executive Officer.  The chief executive officer shall

have the powers and perform the duties incident to that position.  Subject to

the powers of the Board of Directors and the chairman of the board, the chief

executive officer shall be in the general and active charge of the entire

business and affairs of the Corporation, and shall be its chief policy making

officer.  The chief executive officer shall have such other powers and perform

such other duties as may be prescribed by the Board of Directors or provided in

these By-laws.  The chief executive officer is authorized to execute bonds,

mortgages and other contracts requiring a seal, under the seal of the

Corporation, except where required or permitted by law to be otherwise signed

and executed and except where

the signing and execution thereof shall be expressly delegated by the Board of

Directors to some other officer or agent of the Corporation. Whenever the

president is unable to serve, by reason of sickness, absence or otherwise, the

chief executive officer shall perform all the duties and responsibilities and

exercise all the powers of the president.

 

     Section 8. The President. The president of the Corporation shall, subject

to the powers of the Board of Directors, the chairman of the board and the chief

executive officer, have general charge of the business, affairs and property of

the Corporation, and control over its officers, agents and employees. The

president shall see that all orders and resolutions of the Board of Directors

are carried into effect. The president is authorized to execute bonds, mortgages

and other contracts requiring a seal, under the seal of the Corporation, except

where required or permitted by law to be otherwise signed and executed and

except where the signing and execution thereof shall be expressly delegated by

the Board of Directors to some other officer or agent of the Corporation. The

president shall have such other powers and perform such other duties as may be

prescribed by the chairman of the board, the chief executive officer, the Board

of Directors or as may be provided in these By-laws.

 

     Section 9. Vice-Presidents. The vice-president, or if there shall be more

than one, the vice-presidents in the order determined by the Board of Directors

or the chairman of the board, shall, in the absence or disability of the

president, act with all of the powers and be subject to all the restrictions of

the president. The vice-presidents shall also perform such other duties and have

such other powers as the Board of Directors, the chairman of the board, the

chief executive officer, the president or these By-laws may, from time to time,

prescribe. The vice-presidents may also be designated as executive vice-

presidents or senior vice-presidents, as the Board of Directors may from time to

time prescribe.

 

     Section 10. The Secretary and Assistant Secretaries. The secretary shall

attend all meetings of the Board of Directors, all meetings of the committees

thereof and all meetings of the stockholders and record all the proceedings of

the meetings in a book or books to be kept for that purpose or shall ensure that

his or her designee attends each such meeting to act in such capacity. Under the

chairman of the board's supervision, the secretary shall give, or cause to be

given, all notices required to be given by these By-laws or by law; shall have

such powers and perform such duties as the Board of Directors, the chairman of

the board, the chief executive officer, the president or these By-laws may, from

time to time, prescribe; and shall have custody of the corporate seal of the

Corporation. The secretary, or an assistant secretary, shall have authority to

affix the corporate seal to any instrument requiring it and when so affixed, it

may be attested by his or her signature or by the signature of such assistant

secretary. The Board of Directors may give general authority to any other

officer to affix the seal of the Corporation and to attest the affixing by his

or her signature. The assistant secretary, or if there be more than one, any of

the assistant secretaries, shall in the absence or disability of the secretary,

perform the duties and exercise the powers of the secretary and shall perform

such other duties and have such other powers as the Board of Directors, the

chairman of the board, the chief executive officer, the president, or secretary

may, from time to time, prescribe.

 

     Section 11. The Chief Financial Officer. The chief financial officer shall

have the custody of the corporate funds and securities; shall keep full and

accurate all books and accounts of the Corporation as shall be necessary or

desirable in accordance with applicable law or generally accepted accounting

principles; shall deposit all monies and other valuable effects in the name and

to the credit of the Corporation as may be ordered by the chairman of the board

or the Board of Directors; shall cause the funds of the Corporation to be

disbursed when such disbursements have been duly authorized, taking proper

vouchers for such disbursements; and shall render to the Board of Directors, at

its regular meeting or when the Board of Directors so requires, an account of

the Corporation; shall have such powers and perform such duties as the Board of

Directors, the chairman of the board, the chief executive officer, the president

or these By-laws may, from time to time, prescribe. If required by the Board of

Directors, the chief financial officer shall give the Corporation a bond (which

shall be rendered every six years) in such sums and with such surety or sureties

as shall be satisfactory to the Board of Directors for the faithful performance

of the duties of the office of chief financial officer and for the restoration

to the Corporation, in case of death, resignation, retirement or removal from

office of all books, papers, vouchers, money and other property of whatever kind

in the possession or under the control of the chief financial officer belonging

to the Corporation.

 

     Section 12. Other Officers, Assistant Officers and Agents. Officers,

assistant officers and agents, if any, other than those whose duties are

provided for in these By-laws, shall have such authority and perform such duties

as may from time to time be prescribed by resolution of the Board of Directors.

 

     Section 13. Absence or Disability of Officers. In the case of the absence

or disability of any officer of the Corporation and of any person hereby

authorized to act in such officer's place during such officer's absence or

disability, the Board of Directors may by resolution delegate the powers and

duties of such officer to any other officer or to any Director, or to any other

person selected by it.

 

 

                                   ARTICLE V

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                             CERTIFICATES OF STOCK

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     Section 1. Form. Every holder of stock in the Corporation shall be entitled

to have a certificate, signed by, or in the name of the Corporation by the

chairman of the board, the chief executive officer or the president and the

secretary or an assistant secretary of the Corporation, certifying the number of

shares owned by such holder in the Corporation. If such a certificate is

countersigned (i) by a transfer agent or an assistant transfer agent other than

the Corporation or its employee or (ii) by a registrar, other than the

Corporation or its employee, the signature of any such chairman of the board,

chief executive officer, president, secretary or assistant secretary may be

facsimiles. In case any officer or officers who have signed, or whose facsimile

signature or signatures 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 have

been delivered by the Corporation, such certificate or certificates may

nevertheless be issued and delivered as though the person or persons who signed such

certificate or certificates or whose facsimile signature or signatures have been

used thereon had not ceased to be such officer or officers of the Corporation.

All certificates for shares shall be consecutively numbered or otherwise

identified. The name of the person to whom the shares represented thereby are

issued, with the number of shares and date of issue, shall be entered on the

books of the Corporation. Shares of stock of the Corporation shall only be

transferred on the books of the Corporation by the holder of record thereof or

by such holder's attorney duly authorized in writing, upon surrender to the

Corporation of the certificate or certificates for such shares endorsed by the

appropriate person or persons, with such evidence of the authenticity of such

endorsement, transfer, authorization and other matters as the Corporation may

reasonably require, and accompanied by all necessary stock transfer stamps. In

that event, it shall be the duty of the Corporation to issue a new certificate

to the person entitled thereto, cancel the old certificate or certificates and

record the transaction on its books. The Board of Directors may appoint a bank

or trust company organized under the laws of the United States or any state

thereof to act as its transfer agent or registrar, or both in connection with

the transfer of any class or series of securities of the Corporation.

 

     Section 2. Lost Certificates. The Board of Directors may direct a new

certificate or certificates to be issued in place of any certificate or

certificates previously issued by the Corporation alleged to have been lost,

stolen or destroyed, upon the making of an affidavit of that fact by the person

claiming the certificate of stock to be lost, stolen or destroyed. When

authorizing such issue of a new certificate or certificates, the Corporation

may, in its discretion and as a condition precedent to the issuance thereof,

require the owner of such lost, stolen or destroyed certificate or certificates,

or his or her legal representative, to give the Corporation a bond sufficient to

indemnify the Corporation against any claim that may be made against the

Corporation on account of the loss, theft or destruction of any such certificate

or the issuance of such new certificate.

 

     Section 3. Fixing a Record Date for Stockholder Meetings. 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 of Directors

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 of Directors, and

which record date shall not be more than 60 nor less than 10 days before the

date of such meeting. If no record date is fixed by the Board of Directors, the

record date for determining stockholders entitled to notice of or to vote at a

meeting of stockholders shall be the close of business on the next day preceding

the day on which notice is first given. 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 adjourned meeting.

 

     Section 4. Fixing a Record Date for Other Purposes. In order that the

Corporation may determine the stockholders entitled to receive payment of any

dividend or other distribution or allotment or any rights or the stockholders

entitled to exercise any rights in respect of any change, conversion or exchange

of stock, or for the purposes 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 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 of Directors adopts the resolution relating

thereto.

 

     Section 5. Registered Stockholders. Prior to the surrender to the

Corporation of the certificate or certificates for a share or shares of stock

with a request to record the transfer of such share or shares, the Corporation

may treat the registered owner as the person entitled to receive dividends, to

vote, to receive notifications and otherwise to exercise all the rights and

powers of an owner. The Corporation shall not be bound to recognize any

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.

 

     Section 6. Subscriptions for Stock. Unless otherwise provided for in the

subscription agreement, subscriptions for shares shall be paid in full at such

time, or in such installments and at such times, as shall be determined by the

Board of Directors. Any call made by the Board of Directors for payment on

subscriptions shall be uniform as to all shares of the same class or as to all

shares of the same series. In case of default in the payment of any installment

or call when such payment is due, the Corporation may proceed to collect the

amount due in the same manner as any debt due the Corporation.

 

 

                                  ARTICLE VI

                                  ----------

 

                              GENERAL PROVISIONS

                              ------------------

 

     Section 1. Dividends. Dividends upon the capital stock of the Corporation,

subject to the provisions of the certificate of , if any, may be declared by the

Board of Directors at any regular or special meeting, in accordance with

applicable law. Dividends may be paid in cash, in property or in shares of the

capital stock, subject to the provisions of the Restated Certificate of

Incorporation. Before payment of any dividend, there may be set aside out of any

funds of the Corporation available for dividends such sum or sums as the

Directors from time to time, in their absolute discretion, think proper as a

reserve or reserves to meet contingencies, or for equalizing dividends, or for

repairing or maintaining any property of the Corporation, or any other purpose

and the Directors may modify or abolish any such reserve in the manner in which

it was created.

 

     Section 2. Checks, Drafts or Orders. All checks, drafts or other orders for

the payment of money by or to the Corporation and all notes and other evidences

of indebtedness issued in the name of the Corporation shall be signed by such

officer or officers, agent or agents of the Corporation, and in such manner, as

shall be determined by resolution of the Board of Directors or a duly authorized

committee thereof.

 

     Section 3. Contracts. In addition to the powers otherwise granted to

officers pursuant to ARTICLE IV hereof, the Board of Directors may authorize any

officer or officers, or any agent or agents, of the Corporation to enter into

any contract or to execute and deliver any instrument in the name of and on

behalf of the Corporation, and such authority may be general or confined to

specific instances.

 

     Section 4. Loans. The Corporation may lend money to, or guarantee any

obligation of, or otherwise assist any officer or other employee of the

Corporation or of its subsidiaries, including any officer or employee who is a

Director of the Corporation or its subsidiaries, whenever, in the judgment of

the Directors, such loan, guaranty or assistance may reasonably be expected to

benefit the Corporation. The loan, guaranty or other assistance may be with or

without interest, and may be unsecured, or secured in such manner as the Board

of Directors shall approve, including, without limitation, a pledge of shares of

stock of the Corporation. Nothing in this section shall be deemed to deny, limit

or restrict the powers of guaranty or warranty of the Corporation at common law

or under any statute.

 

     Section 5. Fiscal Year. The fiscal year of the Corporation shall be fixed

by resolution of the Board of Directors.

 

     Section 6. Corporate Seal. The Board of Directors may provide a corporate

seal which shall be in the form of a circle and shall have inscribed thereon the

name of the Corporation and the words "Corporate Seal, Delaware." The seal may

be used by causing it or a facsimile thereof to be impressed or affixed or

reproduced or otherwise.

 

     Section 7. Voting Securities Owned By Corporation. Voting securities in any

other Corporation held by the Corporation shall be voted by the chief executive

officer, the president or a vice-president, unless the Board of Directors

specifically confers authority to vote with respect thereto, which authority may

be general or confined to specific instances, upon some other person or officer.

Any person authorized to vote securities shall have the power to appoint

proxies, with general power of substitution.

 

     Section 8. Inspection of Books and Records. The Board of Directors shall

have power from time to time to determine to what extent and at what times and

places and under what conditions and regulations the accounts and books of the

Corporation, or any of them, shall be open to the inspection of the

stockholders; and no stockholder shall have any right to inspect any account or

book or document of the Corporation, except as conferred by the laws of the

State of Delaware, unless and until authorized so to do by resolution of the

Board of Directors or of the stockholders of the Corporation.

 

     Section 9. Section Headings. Section headings in these By-laws are for

convenience of reference only and shall not be given any substantive effect in

limiting or otherwise construing any provision herein.

 

     Section 10. Inconsistent Provisions. In the event that any provision of

these By-laws is or becomes inconsistent with any provision of the Restated

Certificate of Incorporation, the General Corporation Law of the State of

Delaware or any other applicable law, the provision of these By-laws shall not

be given any effect to the extent of such inconsistency but shall otherwise be

given full force and effect.

 

 

                                  ARTICLE VII

                                  -----------

 

                                  AMENDMENTS

                                  ----------

 

     In furtherance and not in limitation of the powers conferred by statute,

the Board of Directors of the Corporation is expressly authorized to make,

alter, amend, change, add to or repeal these By-laws by the affirmative vote of

a majority of the total number of Directors then in office. Any alteration or

repeal of these By-laws by the stockholders of the Corporation shall require the

affirmative vote of a majority of the outstanding shares of the Corporation

entitled to vote on such alteration or repeal; provided, however, that Section

11 of ARTICLE II and Sections 2, 3, 4 and 5 of ARTICLE III and this ARTICLE VII

of these By-laws shall not be altered, amended or repealed and no provision

inconsistent therewith shall be adopted without the affirmative vote of the

holders of at least 66% of the outstanding shares of the Corporation entitled

to vote on such alteration or repeal.

[As Filed: 01/28/1998]