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BY-LAWS

OF

EXABYTE CORPORATION

 

TABLE OF CONTENTS

 

                                               Page

 

ARTICLE 1 - Stockholders                         1

 

1.1   Place of Meetings                          1

1.2   Annual Meeting                             1

1.3   Special Meetings                           2

1.4   Notice of Meetings                         3

1.5   Voting List                                3

1.6   Quorum                                     3

1.7   Adjournments                               3

1.8   Voting and Proxies                         4

1.9   Action at Meeting                          4

1.10  Action without Meeting                     4

 

ARTICLE 2 - Directors                            4

 

2.1   General Powers                             4

2.2   Number; Election and Qualification;

       Classes of Directors                      5

2.3   Enlargement of the Board                   6

2.4   Term of Office                             6

2.5   Resignation                                6

2.6   Regular Meetings                           6

2.7   Special Meetings                           6

2.8   Notice of Special Meetings                 6

2.9   Meetings by Telephone Conference Calls     7

2.10  Quorum                                     7

2.11  Action at Meeting                          7

2.12  Action by Consent                          7

2.13  Removal                                    7

2.14  Committees                                 7

2.15  Compensation of Directors                  8

 

ARTICLE 3 - Officers                             8

 

3.1   Enumeration                                8

3.2   Election                                   8

3.3   Qualification                              8

3.4   Tenure                                     8

3.5   Resignation and Removal                    9

3.6   Vacancies                                  9

3.7   Chairman of the Board and Vice-Chairman

       of the Board                              9

3.8   President                                  9

3.9   Vice Presidents                           10

3.10  Secretary and Assistant Secretaries       10

3.11  Treasurer and Assistant Treasurers        10

3.12  Salaries                                  11

 

 

 

 

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ARTICLE 4 - Capital Stock                       11

 

4.1   Issuance of Stock                         11

4.2   Certificates of Stock                     11

4.3   Transfers                                 12

4.4   Lost, Stolen or Destroyed Certificates    12

4.5   Record Date                               12

 

ARTICLE 5 - Indemnification                     13

 

ARTICLE 6 - Restrictions on Transfer of

  Common Stock                                  17

 

6.1   Restrictions on Transfer                  17

6.2   Notice and Offer                          17

6.3   Effect of Failure to Purchase

       Shares and of Tender of Purchase

       Price; Prohibited Transfers              18

6.4   Exceptions to Transfer Restrictions       19

6.5   Termination of Restrictions               19

6.6   Stock Restriction Agreements              19

6.7   Restrictive Legend                        20

6.8   Waiver                                    20

 

ARTICLE 7 - General Provisions                  20

 

7.1   Fiscal Year                               20

7.2   Corporate Seal                            20

7.3   Waiver of Notice                          20

7.4   Voting of Securities                      20

7.5   Evidence of Authority                     20

7.6   Certificate of Incorporation              21

7.7   Transactions with Interested Parties      21

7.8   Severability                              21

7.9   Pronouns                                  21

 

ARTICLE 8 - Amendments                          22

 

8.1   By the Board of Directors                 22

8.2   By the Stockholders                       22

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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PAGE (1)

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BY-LAWS

OF

EXABYTE CORPORATION

 

 

ARTICLE 1  - Stockholders

 

 

1.1   Place of Meetings.  All meetings of stockholders shall be held at such

place within or without the State of Delaware as may be designated from time

to time by the Board of Directors or the President or, if not so designated,

at the registered office of the corporation.

 

1.2   Annual Meeting.

(a) The annual meeting of the stockholders of the corporation, for the purpose

of election of directors and for such other business as may lawfully come

before it, shall be held on such date and at such time as may be designated

from time to time by the Board of Directors.

 

(b)  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: (A) specified

in the notice of meeting (or any supplement thereto) given by or at the

direction of the Board of Directors, (B) otherwise properly brought before

the meeting by or at the direction of the Board of Directors, or (C)

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 one hundred twenty (120) calendar days in advance

of the date of the corporation's proxy statement released to stockholders in

connection with the previous year's annual meeting of stockholders; provided,

however, that in the event that no annual meeting was held in the previous

year or the date of the annual meeting has been changed by more than thirty

(30) days from the date contemplated at the time of the previous year's

proxy statement, notice by the stockholder to be timely must be so received

a reasonable time before the solicitation is 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 and the reasons for conducting

such business at 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, (iv) any material interest of the stockholder in such

business and (v) any other information that is required to be provided by the

stockholder pursuant to Regulation 14A under the Securities Exchange Act of

1934, as amended, in his capacity as a proponent to a stockholder proposal.

Notwithstanding the foregoing, in order to include information with respect

to a stockholder proposal in the proxy statement and form of proxy for a

stockholders' meeting, stockholders must provide notice as required by the

regulations promulgated under the Securities and Exchange Act of 1934, as

amended.  Notwithstanding anything in these By-Laws to the contrary, no

business shall be conducted at any annual meeting except in accordance with

the procedures set forth in this paragraph (b).  The chairman of the annual

meeting shall, if the facts warrant, determine and declare at the meeting that

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business was not properly brought before the meeting and in accordance with

the provisions of this paragraph (b), and, if he should so determine, he shall

so declare at the meeting that any such business not properly brought before

the meeting shall not be transacted.

 

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

forth in this paragraph (c) shall be eligible for election as directors. 

Nominations of persons for election to the Board of Directors of the

corporation may be made at a meeting of stockholders by or at the direction

of the Board of Directors or by any stockholder of the corporation entitled

to vote in the election of directors at the meeting who complies with the

notice procedures set forth in this paragraph (c).  Such nominations, other

than those made by or at the direction of the Board of Directors, shall be

made pursuant to timely notice in writing to the Secretary of the corporation

in accordance with the provisions of paragraph (b) of this Section 1.2.  Such

stockholder's notice shall set forth (i) as to each person, if any, whom the

stockholder proposes to nominate for election or re-election as director: (A)

the name, age, business address and residence address of such person, (B) the

principal occupation or employment of such person, (C) the class and number

of shares of the corporation which are beneficially owned by such person,

(D) a description of all arrangements of understandings between the

stockholder and each nominee and any other person or persons (naming such

person or persons) pursuant to which the nominations are to be made by the

stockholder, and (E) any other information relating to such person that is

required, in each case pursuant to Regulation 14A under the 1934 Act

(including without limitation such person's written consent to being named

in the proxy statement, if any, as a nominee and to serving as a director if

elected); and (ii) as to such stockholder giving notice, the information

required to be provided pursuant to paragraph (b) of this Section 1.2.  At

the request of the board of Directors, any person nominated by a stockholder

for election as a director shall furnish to the Secretary of the corporation

that information required to be set forth in the stockholder's notice of

nomination which pertains to the nominee.  No person shall be eligible for

election as a director of the corporation unless nominated in accordance with

the procedures set forth in this paragraph (c).  The chairman of the meeting

shall, if the facts warrant, determine and declare at the meeting that a

nomination was not made in accordance with the procedures prescribed by these

Bylaws, and if he should so determine, he shall so declare at the meeting,

and the defective nomination shall be disregarded.

 

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1.3  Special Meetings. 

(a)  Special meetings of the stockholders of the corporation may be called,

for any purpose or purposes, by (i) the Chairman of the Board, (ii) the

President, or (iii) the Board of Directors pursuant to a resolution adopted by

a majority of the total number of authorized directors (whether or not there

exist any vacancies in previously authorized directorships at the time any

such resolution is presented to the Board for adoption) or (iv) by the

holders of shares entitled to cast not less than ten percent (10%) of the

votes at the meeting, and shall be held at such place, on such date, and at

such time as they or he shall fix.

 

(b)  If a special meeting is called by any person or persons other than the

Board of Directors, the request shall be in writing, specifying the time of

such meeting and the general nature of the business proposed to be transacted,

and shall be delivered personally or sent by registered mail or by telegraphic

or other facsimile transmission to the Chairman of the Board, the President,

 

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any Vice President, or the Secretary of the corporation.  No business may be

transacted at such special meeting otherwise than specified in such notice.

The officer receiving the request shall cause notice to be promptly given to

the stockholders entitled to vote, in accordance with the provisions of

Section 7 of these By-Laws, that a meeting will be held not less than thirty-

five (35) nor more than sixty (60) days after the receipt of the request.  If

the notice is not given within twenty (20) days after the receipt of the

request, the person or persons requesting the meeting may give the notice.

Nothing contained in this paragraph (b) shall be construed as limiting,

fixing, or affecting the time when a meeting of stockholders called by action

of the Board of Directors may be held.

 

PAGE (3)

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1.4  Notice of Meetings.  Except as otherwise provided by law, written notice

of each meeting of stockholders, whether annual or special, shall be given not

less than 10 nor more than 60 days before the date of the meeting to each

stockholder entitled to vote at such meeting.  The notices of all meetings

shall state the place, date and hour of the meeting.  The notice of a special

meeting shall state, in addition, the purpose or purposes for which the

meeting is called.  If mailed, notice is given when deposited in the United

States mail, postage prepaid, directed to the stockholder at his address as

it appears on the records of the corporation.

 

1.5  Voting List.  The officer who has charge of the stock ledger of the

corporation shall prepare, at least 10 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 10 days prior to the meeting, at a place within the city

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 of the meeting, and

may be inspected by any stockholder who is present.

 

1.6  Quorum.  Except as otherwise provided by law, the Certificate of

Incorporation or these By-Laws, the holders of a majority of the shares

of the capital stock of the corporation issued and outstanding and entitled

to vote at the meeting, present in person or represented by proxy, shall

constitute a quorum for the transaction of business.

 

1.7  Adjournments.  Any meeting of stockholders may be adjourned to any other

time and to any other place at which a meeting of stockholders may be held

under these By-Laws by the stockholders present or represented at the meeting

and entitled to vote, although less than a quorum, or, if no stockholder is

present, by any officer entitled to preside at or to act as Secretary of

such meeting.  It shall not be necessary to notify any stockholder of any

adjournment of less than 30 days if the time and place of the adjourned

meeting are announced at the meeting at which adjournment is taken, unless

after the adjournment a new record date is fixed for the adjourned meeting.

At the adjourned meeting, the corporation may transact any business which

might have been transacted at the original meeting.

 

PAGE(4)

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1.8  Voting and Proxies.  Each stockholder shall have one vote for each share

of stock entitled to vote held of record by such stockholder and a

 

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proportionate vote for each fractional share so held, unless otherwise

provided in the Certificate of Incorporation.  Each stockholder of record

entitled to vote at a meeting of stockholders, or to express consent or

dissent to corporate action in writing without a meeting, may vote or express

such consent or dissent in person or may authorize another person or persons

to vote or act for him by written proxy executed by the stockholder or his

authorized agent and delivered to the Secretary of the corporation.  No such

proxy shall be voted or acted upon after three years from the date of its

execution, unless the proxy expressly provides for a longer period.

 

1.9  Action at Meeting.  When a quorum is present at any meeting, the holders

of a majority of the stock present or represented and voting on a matter (or

if here are two or more classes of stock entitled to vote as separate

classes, then in the case of each such class, the holders of a majority

of the stock of that class present or represented and voting on a matter)

shall decide any matter to be voted upon by the stockholders at such meeting,

except when a different vote is required by express provision of law, the

Certificate of Incorporation or these By-Laws.  Any election by stockholders

shall be determined by a plurality of the votes cast by the stockholders

entitled to vote at the election.

 

1.10  Action without Meeting.

 

(a) Any action required or permitted to be taken at any annual or special

meeting of stockholders of the corporation may be taken without a meeting,

without prior notice and without a vote, if a consent in writing, setting

forth the action so taken, is 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 on such action were present and voted.  Prompt notice of the taking

of corporate action without a meeting by less than unanimous written consent

shall be given to those stockholders who have not consented in writing.

 

(b) Notwithstanding the foregoing, no such action by written consent may be

taken following the effectiveness of the registration of any class of

securities of the corporation under the Securities Exchange Act of 1934,

as amended.

 

ARTICLE 2  - Directors

 

2.1  General Powers.  The business and affairs of the corporation shall be

managed by or under the direction of a Board of Directors, who may exercise

all of the powers of the corporation except as otherwise provided by law,

the Certificate of Incorporation or these By-Laws.  In the event of a

vacancy in the Board of Directors, the remaining directors, except as

otherwise provided by law, may exercise the powers of the full Board until

the vacancy is filled.

 

PAGE(5)

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2.2  Number; Election and Qualification; Classes of Directors.

 

(a)  The number of directors which shall constitute the whole Board of

Directors shall be determined by resolution of the stockholders or the Board

of Directors, but in no event shall be less than one. The number of directors

may be decreased at any time and from time to time either by the stockholders

or by a majority of the directors then in office, but only to eliminate

vacancies existing by reason of the death, resignation, removal or expiration

 

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of the term of one or more directors.  The directors shall be elected at the

annual meeting of stockholders by such stockholders as have the right to vote

on such election.  Directors need not be stockholders of the corporation.

 

(b)  The Board of Directors shall be divided into three classes:  Class I,

Class II,and Class III, which shall be as nearly equal in number as possible.

Each director shall serve for a term ending on the date of the third annual

meeting of stockholders following the annual meeting at which the director

was elected; provided, however, that each initial director in Class I shall

hold office until the annual meeting of stockholders in 1990; each initial

director in Class II shall hold office until the annual meeting of

stockholders in 1991; and each initial director in Class III shall hold office

until the annual meeting of stockholders in 1992.  Notwithstanding the

foregoing provisions of this section, each director shall serve until his

successor is duly elected and qualified or until his death, resignation or

removal.

 

(c)  In the event of any increase or decrease in the authorized number of

directors, the newly created or eliminated directorships resulting from such

increase or decrease shall be apportioned by the Board of Directors among the

three classes of directors so as to maintain such classes as nearly equal in

number as possible.  No decrease in the number of directors constituting the

Board of Directors shall shorten the term of any incumbent director.  Newly

created directorships resulting from any increase in the number of directors

and any vacancies on the Board of Directors resulting from death, resignation,

disqualification, removal or other cause shall be filled either (i) by the

affirmative vote of the holders of a majority of the voting power of the then

outstanding shares of the corporation's capital stock; or (ii) by the

affirmative vote of a majority of the remaining directors then in office,

even though less than a quorum of the authorized Board of Directors.  Any

director elected in accordance with the preceding sentence shall hold office

for the remainder of the full term of the class of directors in which the new

directorship was created or the vacancy occurred and until such director's

successors shall have been elected and qualified.

 

PAGE(6)

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2.3  Enlargement of the Board.  The number of directors may be increased at

any time and from time to time by the stockholders or by a majority of the

directors then in office.

 

2.4  Term of Office.  If for any cause, the Directors shall not have been

elected at an annual meeting, they may be elected as soon thereafter as

convenient at a special meeting of the stockholders called for that purpose

in the manner provided in these By-Laws.  No reduction of the authorized

number of Directors shall have the effect of removing any Director before

the Director's term of office expires, unless such removal is made pursuant

to the provisions of Section 2.4 hereof.

 

2.5  Resignation.  Any director may resign by delivering his written

resignation to the corporation at its principal office or to the President

or Secretary.  Such resignation shall be effective upon receipt unless it

is specified to be effective at some other time or upon the happening of

some other event.

 

2.6  Regular Meetings.  Regular meetings of the Board of Directors may be

held without notice at such time and place, either within or without the

State of Delaware, as shall be determined from time to time by the Board

 

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of Directors; provided that any director who is absent when such a

determination is made shall be given notice of the determination.  A regular

meeting of the Board of Directors may be held without notice immediately after

and at the same place as the annual meeting of stockholders.

 

2.7  Special Meetings.  Special meetings of the Board of Directors may be

held at any time and place, within or without the State of Delaware,

designated in a call by the Chairman of the Board, President, two or more

directors, or by one director in the event that there is only a single

director in office.

 

2.8  Notice of Special Meetings.  Notice of any special meeting of directors

shall be given to each director by the Secretary or by the officer or one of

the directors calling the meeting.  Notice shall be duly given to each

director (i) by giving notice to such director in person or by telephone

at least 48 hours in advance of the meeting, (ii) by sending a telegram or

telex, or delivering written notice by hand, to his last known business or

home address at least 48 hours in advance of the meeting, or (iii) by mailing

written notice to his last known business or home address at least 72 hours

in advance of the meeting.  A notice or waiver of notice of a meeting of the

Board of Directors need not specify the purposes of the meeting.

 

PAGE(7)

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2.9  Meetings by Telephone Conference Calls.  Directors or any members of any

committee designated by the directors may participate in a meeting of the

Board of Directors or such committee 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 by such means shall

constitute presence in person at such meeting.

 

2.10  Quorum.  A majority of the total number of the whole Board of Directors

shall constitute a quorum at all meetings of the Board of Directors.  In the

event one or more of the directors shall be disqualified to vote at any

meeting, then the required quorum shall be reduced by one for each such

director so disqualified; provided, however, that in no case shall less than

one-third (1/3) of the number so fixed constitute a quorum.  In the absence

of a quorum at any such meeting, a majority of the directors present may

adjourn the meeting from time to time without further notice other than

announcement at the meeting, until a quorum shall be present.

 

2.11  Action at Meeting.  At any meeting of the Board of Directors at which a

quorum is present, the vote of a majority of those present shall be sufficient

to take any action, unless a different vote is specified by law, the

Certificate of Incorporation or these By-Laws.

 

2.12  Action by Consent.  Any action required or permitted to be taken at any

meeting of the Board of Directors or of any committee of the Board of

Directors may be taken without a meeting, if all members of the Board or

committee, as the case may be, consent to the action in writing, and the

written consents are filed with the minutes of proceedings of the Board or

committee.

 

2.13  Removal.  Any director, or the entire Board of Directors, may be removed

from office, (a) with cause by the affirmative vote of the holders of a

majority of the voting power of all of the then-outstanding shares of the

Company's capital stock, voting together as a single class; or (b) without

 

 

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cause, by the affirmative vote of the holders of at least sixty-six and

two-thirds percent (66-2/3%) of the voting power of the Company's capital

stock.

 

2.14  Committees.  The Board of Directors may, by resolution passed by a

majority of the whole Board, designate one or more committees, each committee

to consist of one or more of the directors of the corporation.  The Board 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. In

the absence or disqualification of a member of a committee, the member or

members of the committee present at any meeting and not disqualified from

voting, whether or not he or they constitute a quorum, may unanimously

appoint another member of the Board of Directors to act at the meeting in

the place of any such absent or disqualified member.  Any such committee,

to the extent provided in the resolution of the Board of Directors and subject

to the provisions of the General Corporation Law of the State of Delaware,

shall have and may exercise all the powers and authority of the Board of

Directors in the management of the business and affairs of the corporation

and may authorize the seal of the corporation to be affixed to all papers

which may require it. Each such committee shall keep minutes and make such

reports as the Board of Directors may from time to time request.  Except as

the Board of Directors may otherwise determine, any committee may make rules

for the conduct of its business, but unless otherwise provided by the

directors or in such rules, its business shall be conducted as nearly as

possible in the same manner as is provided in these By-Laws for the Board of

Directors.

 

PAGE(8)

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2.15  Compensation of Directors.  Directors may be paid such compensation for

their services and such reimbursement for expenses of attendance at meetings

as the Board of Directors may from time to time determine.  No such payment

shall preclude any director from serving the corporation or any of its parent

or subsidiary corporations in any other capacity and receiving compensation

for such service.

 

ARTICLE 3  - Officers

 

3.1  Enumeration.  The officers of the corporation shall consist of a

President, a Secretary, a Treasurer and such other officers with such other

titles as the Board of Directors shall determine, including a Chairman of

the Board, a Vice-Chairman of the Board, and one or more Vice Presidents,

Assistant Treasurers, and Assistant Secretaries.  The Board of Directors

may appoint such other officers as it may deem appropriate.

 

3.2  Election.  The President, Treasurer and Secretary shall be elected

annually by the Board of Directors at its first meeting following the

annual meeting of stockholders.  Other officers may be appointed by the

Board of Directors at such meeting or at any other meeting.

 

3.3  Qualification.  No officer need be a stockholder.  Any two or more

offices may be held by the same person.

 

3.4  Tenure.  Except as otherwise provided by law, by the Certificate of

Incorporation or by these By-Laws, each officer shall hold office until his

successor is elected and qualified, unless a different term is specified in

the vote choosing or appointing him, or until his earlier death, resignation

or removal.

 

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PAGE(9)

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3.5  Resignation and Removal.  Any officer may resign by delivering his written

resignation to the corporation at its principal office or to the President or

Secretary.  Such resignation shall be effective upon receipt unless it is

specified to be effective at some other time or upon the happening of some

other event.

 

Any officer may be removed at any time, with or without cause, by vote of a

 majority of the entire number of directors then in office.

 

Except as the Board of Directors may otherwise determine, no officer who

resigns or is removed shall have any right to any compensation as an officer

for any period following his resignation or removal, or any right to damages

on account of such removal, whether his compensation be by the month or by

the year or otherwise, unless such compensation is expressly provided in a

duly authorized written agreement with the corporation.

 

3.6  Vacancies.  The Board of Directors may fill any vacancy occurring in any

office for any reason and may, in its discretion, leave unfilled for such

period as it may determine any offices other than those of President,

Treasurer and Secretary.  Each such successor shall hold office for the

unexpired term of his predecessor and until his successor is elected and

qualified, or until his earlier death, resignation or removal.

 

3.7  Chairman of the Board and Vice-Chairman of the Board. The Board of

Directors may appoint a Chairman of the Board and may designate the

Chairman of the Board as Chief Executive Officer. If the Board of

Directors appoints a Chairman of the Board, he shall perform such duties

and possess such powers as are assigned to him by the Board of Directors. 

If the Board of Directors appoints a Vice-Chairman of the Board, he shall,

in the absence or disability of the Chairman of the Board, perform the

duties and exercise the powers of the Chairman of the Board and shall perform

such other duties and possess such other powers as may from time to time be

vested in him by the Board of Directors.

 

3.8  President.  The President shall be the Chief Operating Officer of the

corporation.  Unless the Board of Directors has designated the Chairman

of the Board as Chief Executive Officer, the President shall also be the

Chief Executive Officer of the corporation.  The President shall, subject

to the direction of the Board of Directors, have general charge and

supervision of the business of the corporation.  Unless otherwise provided

by the Board of Directors, he shall preside at all meetings of the

stockholders, if he is a director, at all meetings of the Board of Directors.

The President shall perform such other duties and shall have such other powers

as the Board of Directors may from time to time prescribe.

 

PAGE(10)

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3.9  Vice Presidents.  Any Vice President shall perform such duties and possess

such powers as the Board of Directors or the President may from time to time

prescribe.  In the event of the absence, inability or refusal to act of the

President, the Vice President (or if there shall be more than one, the Vice

Presidents in the order determined by the Board of Directors) shall perform

the duties of the President and when so performing shall have all the powers

of and be subject to all the restrictions upon the President.  The Board of

Directors may assign to any Vice President the title of Executive Vice

President, Senior Vice President or any other title selected by the Board of

Directors.

<PAGE> 11

3.10   Secretary and Assistant Secretaries.  The Secretary shall perform such

duties and shall have such powers as the Board of Directors or the President

may from time to time prescribe.  In addition, the Secretary shall perform

such duties and have such powers as are incident to the office of the

secretary, including without limitation the duty and power to give notices

of all meetings of stockholders and special meetings of the Board of

Directors, to attend all meetings of stockholders and the Board of Directors

and keep a record of the proceedings, to maintain a stock ledger and prepare

lists of stockholders and their addresses as required, to be custodian of

corporate records and the corporate seal and to affix and attest to the same

on documents.

 

Any Assistant Secretary shall perform such duties and possess such powers as

the Board of Directors, the President or the Secretary may from time to time

prescribe.  In the event of the absence, inability or refusal to act of the

Secretary, the Assistant Secretary, (or if there shall be more than one, the

Assistant Secretaries in the order determined by the Board of Directors)

shall perform the duties and exercise the powers of the Secretary.

 

In the absence of the Secretary or any Assistant Secretary at any meeting of

stockholders or directors, the person presiding at the meeting shall designate

a temporary secretary to keep a record of the meeting.

 

3.11  Treasurer and Assistant Treasurers.  The Treasurer shall perform such

duties and shall have such powers as may from time to time be assigned to him

by the Board of Directors or the President.  In addition, the Treasurer shall

perform such duties and have such powers as are incident to the office of

treasurer, including without limitation the duty and power to keep and be

responsible for all funds and securities of the corporation, to deposit funds

of the corporation in depositories selected in accordance with these By-Laws,

to disburse such funds as ordered by the Board of Directors, to make proper

accounts of such funds, and to render as required by the Board of Directors

statements of all such transactions and of the financial condition of the

corporation.

 

The Assistant Treasurers shall perform such duties and possess such powers as

the Board of Directors, the President or the Treasurer may from time to time

prescribe.  In the event of the absence, inability or refusal to act of the

Treasurer, the Assistant Treasurer, (or if there shall be more than one, the

Assistant Treasurers in the order determined by the Board of Directors) shall

perform the duties and exercise the powers of the Treasurer.

 

PAGE(11)

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3.12  Salaries.  Officers of the corporation shall be entitled to such salaries,

compensation or reimbursement as shall be fixed or allowed from time to time

by the Board of Directors.

 

 

ARTICLE 4  - Capital Stock

 

4.1  Issuance of Stock.  Unless otherwise voted by the stockholders and subject

to the provisions of the Certificate of Incorporation, the whole or any part

of any unissued balance of the authorized capital stock of the corporation or

the whole or any part of any unissued balance of the authorized capital stock

of the corporation held in its treasury may be issued, sold, transferred or

otherwise disposed of by vote of the Board of Directors in such manner, for

such consideration and on such terms as the Board of Directors may determine.

 

<PAGE> 12

4.2  Certificates of Stock.  Every holder of stock of the corporation shall be

entitled to have a certificate, in such form as may be prescribed by law and

by the Board of Directors, certifying the number and class of shares owned by

him in the corporation.  Each such certificate shall be signed by, or in the

name of the corporation by, the Chairman or Vice-Chairman, if any, of the

Board of Directors, or the President or a Vice President, and the Treasurer

or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the

corporation.  Any or all of the signatures on the certificate may be a

facsimile.

 

Each certificate for shares of stock which are subject to any restriction on

transfer pursuant to the Certificate of Incorporation, the By-Laws, applicable

securities laws or any agreement among any number of shareholders or among

such holders and the corporation shall have conspicuously noted on the face or

back of the certificate either the full text of the restriction or a statement

of the existence of such restriction.

 

PAGE(12)

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4.3  Transfers.  Except as otherwise established by rules and regulations

adopted by the Board of Directors, and subject to applicable law, shares of

stock may be transferred on the books of the corporation by the surrender to

the corporation or its transfer agent of the certificate representing such

shares properly endorsed or accompanied by a written assignment or power of

attorney properly executed, and with such proof of authority or the

authenticity of signature as the corporation or its transfer agent may

reasonably require.  Except as may be otherwise required by law, by the

Certificate of Incorporation or by these By-Laws, the corporation shall

be entitled to treat the record holder of stock as shown on its books as

the owner of such stock for all purposes, including the payment of dividends

and the right to vote with respect to such stock, regardless of any transfer,

pledge or other disposition of such stock until the shares have been

transferred on the books of the corporation in accordance with the

requirements of these By-Laws.

 

4.4  Lost, Stolen or Destroyed Certificates.  The corporation may issue a new

certificate of stock in place of any previously issued certificate alleged to

have been lost, stolen, or destroyed, upon such terms and conditions as the

Board of Directors may prescribe, including the presentation of reasonable

evidence of such loss, theft or destruction and the giving of such indemnity

as the Board of Directors may require for the protection of the corporation or

any transfer agent or registrar.

 

4.5  Record Date.  The Board of Directors may fix in advance a date as a record

date for the determination of the stockholders entitled to notice of or to

vote at any meeting of stockholders or to express consent (or dissent) to

corporate action in writing without a meeting, or entitled to receive payment

of any dividend or other distribution or allotment of any rights in respect

of any change, conversion or exchange of stock, or for the purpose of any

other lawful action.  Such record date shall not be more than 60 nor less

than 10 days before the date of such meeting, nor more than 60 days prior

to any other action to which such record date relates.

 

If no record date is fixed, 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 before the day on which notice is given,

or, if notice is waived, at the close of business on the day before the

day on which the meeting is held.  The record date for determining

 

<PAGE> 13

stockholders entitled to express consent to corporate action in writing

without a meeting, when no prior action by the Board of Directors is necessary,

shall be the day on which the first written consent is expressed.  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 to such purpose.

 

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.

 

 

PAGE (13-16)

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ARTICLE 5  - Indemnification

 

5.1  Directors.  The corporation shall indemnify its directors and executive

officers to the fullest extent not prohibited by the Delaware General

Corporation Law; provided, however, that the corporation may limit the

extent of such indemnification by individual contracts with its directors

and executive officers; and, provided, further, that the corporation shall

not be required to indemnify any director or executive officer in connection

with any proceeding (or part thereof) initiated by such person or any

proceeding by such person against the corporation or its directors, officers,

employees or other agents unless (a) such indemnification is expressly

required to be made by law, (b) the proceeding was authorized by the Board

of Directors of the corporation or (c) such indemnification is provided by

the corporation, in its sole discretion, pursuant to the powers vested in

the corporation under the Delaware General Corporation Law.

 

5.2  Officers, Employees and Other Agents.  The corporation shall have power

to indemnify its other officers, employees and other agents as set forth in

the Delaware General Corporation Law.

 

5.3  Good Faith.

 

(a)  For purposes of any determination under this By-Law, a director or

executive officer shall be deemed to have acted in good faith and in a

manner he reasonably believed to be in or not opposed to the best interests

of the corporation, and, with respect to any criminal action or proceeding,

to have had no reasonable cause to believe that his conduct was unlawful,

if his action is based on information, opinions, reports and statements,

including financial statements and other financial data, in each case

prepared or presented by:

 

  (i) one or more officers or employees of the corporation whom the director

      or executive officer believed to be reliable and competent in the

      matters presented;

 

  (ii) counsel, independent accountants or other persons as to matters which

       the director or executive officer believed to be within such person's

       professional competence; and

 

  (iii) with respect to a director, a committee of the Board upon which such

        director does not serve, as to matters within such Committee's

        designated authority, which committee the director believes to merit

        confidence;

 

<PAGE> 14

        so long as, in each case, the director or executive officer acts

        without knowledge that would cause such reliance to be unwarranted.

 

(b) The termination of any 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 he reasonably believed to be in or not opposed to the best

interests of the corporation, and, with respect to any criminal proceeding,

that he had reasonable cause to believe that his conduct was unlawful.

 

(c) The provisions of this Section 5.3 shall not be deemed to be exclusive

or to limit in any way the circumstances in which a person may be deemed to

have met the applicable standard of conduct set forth by the Delaware

General Corporation Law.

 

5.4  Expenses.  The corporation shall advance, prior to the final disposition

of any proceeding, promptly following request therefor, all expenses incurred

by any director or executive officer in connection with such proceeding upon

receipt of an undertaking by or on behalf of such person to repay said

amounts if it should be determined ultimately that such person is not

entitled to be indemnified under this By-Law or otherwise.

 

Notwithstanding the foregoing, unless otherwise determined pursuant to

Section 5.5 of this By-Law, no advance shall be made by the corporation if

a determination is reasonably and promptly made (a) by the Board of Directors

by a majority vote of a quorum consisting of directors who were not parties

to the proceeding, or (b) if such quorum is not obtainable, or, even if

obtainable, a quorum of disinterested directors so directs, by independent

legal counsel in a written opinion, that the facts known to the decision

making party at the time such determination is made demonstrate clearly and

convincingly that such person acted in bad faith or in a manner that such

person did not believe to be in or not opposed to the best interests of the

corporation.

 

5.5  Enforcement.  Without the necessity of entering into an express contract,

all rights to indemnification and advances to directors and executive officers

under this By-Law shall be deemed to be contractual rights and be effective

to the same extent and as if provided for in a contract between the

corporation and the director or executive officer.  Any right to

indemnification or advances granted by this By-Law to a director or

executive officer shall be enforceable by or on behalf of the person

holding such right in any court of competent jurisdiction if

 

(a) the claim for indemnification or advances is denied, in whole or in part,

or

           

(b) no disposition of such claim is made within ninety (90) days of request

therefor.  The claimant in such enforcement action, if successful in whole

or in part, shall be entitled to be paid also the expense of prosecuting his

claim.  The corporation shall be entitled to raise as a defense to any such

action that the claimant has not met the standards of conduct that make it

permissible under the Delaware General Corporation Law for the corporation

to indemnify the claimant for the amount claimed.  Neither the failure of

the corporation (including its Board of Directors, independent legal counsel

or its stockholders) to have made a determination prior to the commencement

of such action that indemnification of the claimant is proper in the

circumstances because he has met the applicable standard of conduct set

forth in the Delaware General Corporation Law, nor an actual determination

by the corporation (including its Board of Directors, independent legal

<PAGE> 15

counsel or its stockholders) that the claimant has not met such applicable

standard of conduct, shall be a defense to the action or create a presumption

that claimant has not met the applicable standard of conduct.

 

5.6  Non-Exclusivity of Rights.  The rights conferred on any person by this

By-Law shall not be exclusive of any other right which such person may have

or hereafter acquire under any statute, provision of the Certificate of

Incorporation, By-Laws, agreement, vote of stockholders or disinterested

directors or otherwise, both as to action in his official capacity and as

to action in another capacity while holding office.  The corporation is

specifically authorized to enter into individual contracts with any or

all of its directors, officers, employees or agents respecting

indemnification and advances, to the fullest extent not prohibited by the

Delaware General Corporation Law.

 

5.7  Survival of Rights.  The rights conferred on any person by this

By-Law shall continue as to a person who has ceased to be a director,

officer, employee or other agent and shall inure to the benefit of the

heirs, executors and administrators of such a person.

 

5.8  Insurance.   To the fullest extent permitted by the Delaware General

Corporation Law, the corporation, upon approval by the Board of Directors,

may purchase insurance on behalf of any person required or permitted to be

indemnified pursuant to this By-Law.

 

5.9  Amendments.  Any repeal or modification of this By-Law shall only be

prospective and shall not affect the rights under this By-Law in effect at

the time of the alleged occurrence of any action or omission to act that is

the cause of any proceeding against any agent of the corporation.

 

5.10  Saving Clause.  If this By-Law or any portion hereof shall be

invalidated on any ground by any court of competent jurisdiction, then

the corporation shall nevertheless indemnify each director and executive

officer to the full extent not prohibited by any applicable portion of this

By-Law that shall not have been invalidated, or by any other applicable law.

 

5.11  Certain Definitions.   For the purposes of this By-Law, the following

definitions shall apply:

 

(a) The term "proceeding" shall be broadly construed and shall include,

without limitation, the investigation, preparation, prosecution, defense,

settlement, arbitration and appeal of, and the giving of testimony in,

any threatened, pending or completed action, suit or proceeding, whether

civil, criminal, administrative or investigative.

 

(b) The term "expenses" shall be broadly construed and shall include,

without limitation, court costs, attorneys' fees, witness fees, fines, amounts

paid in settlement or judgment and any other costs and expenses of any nature

or kind incurred in connection with any proceeding.

 

(c) The term the "corporation" shall include, in addition to the resulting

corporation, any constituent corporation (including any constituent of a

constituent) absorbed in a consolidation or merger which, if its separate

existence had continued, would have had power and authority to indemnify its

directors, officers, and employees or agents, so that any person who is or

was a director, officer, employee or agent of such constituent corporation,

or is or was serving at the request of such constituent corporation as a

 

 

<PAGE> 16

director, officer, employee or agent of another corporation, partnership,

joint venture, trust or other enterprise, shall stand in the same position

under the provisions of this By-Law with respect to the resulting or

surviving corporation as he would have with respect to such constituent

corporation if its separate existence had continued.

 

(d) References to a "director," "officer," "employee," or "agent" of the

corporation shall include, without limitation, situations where such

person is serving at the request of the corporation as a director, officer,

employee, trustee or agent of another corporation, partnership, joint

venture, trust or other enterprise.

 

(e) References to "other enterprises" shall include employee benefit plans;

references to "fines" shall include any excise taxes assessed on a person

with respect to an employee benefit plan; and references to "serving at the

request of the corporation" shall include any service as a director, officer,

employee or agent of the corporation which imposes duties on, or involves

services by, such director, officer, employee, or agent with respect to an

employee benefit plan, its participants, or beneficiaries; and a person who

acted in good faith and in a manner he reasonably believed to be in the

interest of the participants and beneficiaries of an employee benefit plan

shall be deemed to have acted in a manner "not opposed to the best interests

of the corporation" as referred to in this By-Law.

 

 

PAGE(17)

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ARTICLE 6  - Restrictions on Transfer of Common Stock

 

6.1  Restrictions on Transfer.  No stockholder shall sell, pledge, transfer,

donate, assign or otherwise dispose of (collectively "transfer"), whether

voluntarily or by operation of law, any shares of Common Stock of the

corporation held by such stockholder, or any beneficial interest therein,

except as permitted by this Article 6.  The provisions of this Article 6

shall not apply to any shares of Preferred Stock of the corporation or any

shares of Common Stock of the corporation issued upon the conversion of

such Preferred Stock.

 

6.2  Notice and Offer.

 

(a) If any stockholder intends to transfer any shares of Common Stock of

the corporation ("Shares"), he shall deliver to the corporation a written

notice ("Notice") of his intention to transfer such Shares, setting forth

in reasonable detail: (i) the proposed price, (ii) the identity of the

proposed transferee, (iii) the other terms and conditions of the proposed

transfer of such Shares, and (iv) an offer to sell such Shares to the

corporation as provided in this Article 6.  The stockholder intending to

transfer such Shares is hereinafter referred to as the "Offering Stockholder"

and the shares so offered are hereinafter referred to as the "Offered Shares".

 

(b) The corporation shall have the right to accept the Offering Stockholder's

offer, in whole or in part, at any time during the 30-day period following its

receipt of the Offering Stockholder's Notice.  If the corporation fails to

respond to such offer within such 30-day period, it shall be deemed to have

rejected the offer.  The corporation shall be entitled to purchase all or

any of the Offered Shares from the Offering Stockholder at the same price and

on the same terms and conditions as the Offering Stockholder proposes to

transfer the Offered Shares to the proposed transferee identified in the

Notice.

 

<PAGE> 17

(c) Unless the Offering Stockholder and the corporation otherwise agree, the

closing of the purchase of the Offered Shares to be purchased by the

corporation shall take place at the principal offices of the corporation at

10:00 a.m. on the tenth day after the expiration of the 30-day period

referred to in subsection (b) above.  At such closing, the Offering

Stockholder shall tender the Shares to be sold to the corporation, together

with appropriate instruments of transfer endorsed to the corporation, and the

corporation shall tender a bank check in the amount of the purchase price

therefor.

 

(d) If all of the Offered Shares offered by the Offering Stockholder are not

purchased by the corporation pursuant to this Article 6, the remaining

Offered Shares not purchased by the corporation may be transferred by the

Offering Stockholder to the proposed transferee identified by the Offering

Stockholder in his Notice on terms and conditions which are no more favorable

to such transferee than the terms stated in such Notice, any time within a

period of 120 days after the earlier of the rejection by the corporation of

the Offering Stockholder's offer or the expiration of the 30-day period

referred to in subsection (b) above.  If any such Offered Shares are

transferred to the transferee named in the Offering Stockholder's Notice,

provided in this Article 6, the restrictions on transfer contained in this

Article 6 shall again be applicable to the Shares so acquired by such

transferee, and such transferee shall not again transfer such Shares without

first offering such Shares to the corporation in accordance with this

Article 6.

 

PAGE(18)

6.3  Effect of Failure to Purchase Shares and of Tender of Purchase Price;

Prohibited Transfers.               

 

(a) Any portion of the Offered Shares which is not purchased by the

corporation or by the proposed transferee pursuant to Section 6.2 above

may be retained by the Offering Stockholder, but shall remain subject to

the restrictions on transfer set forth herein and may not thereafter be

transferred unless they are again offered to the corporation pursuant to

this Article 6.

 

(b) After tender to an Offering Stockholder of the purchase price of any

Shares by the corporation in accordance with the provisions of this Article

6, the corporation shall not pay any dividends to the Offering Stockholder or

permit it to exercise any privileges of a stockholder of the corporation with

respect to such Shares, but shall treat the corporation as the owner of the

Shares to the extent permitted by law.

 

(c) If any transfer of Shares is made or attempted by a stockholder contrary

to the terms of this Article 6, the corporation shall have the right to

purchase the Shares from the transferee at any time before or after the

transfer, at the price and on the terms established herein and, in such

event, the transferee shall be bound by all the terms and provisions of this

Article 6.  In addition to any other legal or equitable rights which it may

have, the corporation may enforce its rights by specific performance to the

extent permitted by law.  The corporation may refuse for any purpose to

recognize any transferee who receives Shares contrary to the provisions of

this Article 6 as a stockholder of the corporation any may retain and/or

recover all dividends on such Shares which were paid or payable subsequent

to the date on which the prohibited transfer was made or attempted.

 

 

<PAGE> 18

PAGE(19)

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6.4  Exceptions to Transfer Restrictions.  Notwithstanding anything to the

contrary in this Article 6, the restrictions upon transfer set forth in this

Article 6 shall not apply to any transfer of Shares by a stockholder to (i)

such stockholder's heirs, executors, administrators or other personal

representatives upon the death of such stockholder; (ii) the spouse, children

or grandchildren of the stockholder of a trust or trusts for the benefit of

such spouse, children or grandchildren, or (iii) if such stockholder is a

partnership, any partner or partners of such partnership, provided that these

restrictions on transfer shall continue to apply to any Shares received by

any such permitted transferee and such permitted transferee shall not again

transfer such Shares without first offering such Shares to the corporation

in accordance with this Article 6 (except as otherwise provided in this

Section 6.4).

 

6.5  Termination of Restrictions.  All restrictions contained in this

Article 6 shall terminate in their entirety on (and shall not apply to

any transfer of Shares in connection with) the earliest to occur of the

following: (i) the merger or consolidation of the corporation with or into

another corporation if the corporation is not the survivor of such merger

or consolidation, or the sale of all or substantially all of the assets of

the corporation, or (ii) the completion of the first underwritten public

offering of Common Stock pursuant to an effective registration statement

under the Securities Act of 1933 resulting in at least $2,000,000 of gross

proceeds to the corporation.

 

6.6  Stock Restriction Agreements.  Notwithstanding anything to the contrary

herein, the restrictions contained in this Article 6 shall not apply to any

sale of Shares by an employee of the corporation to the corporation pursuant

to a Stock Restriction Agreement between the corporation and such employee,

and the restrictions contained in any such Agreement are in addition to,

and not in lieu of, any restrictions on transfer set forth in this Article 6.

 

PAGE(20)

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6.7  Restrictive Legend.  Until the termination of the restrictions set forth

in this Article 6, all certificates representing outstanding shares of

Common Stock of the Corporation shall have affixed thereto a legend

substantially in the following form:

 

  "The shares of stock represented by this certificate are subject to certain

   restrictions on transfer set forth in the By-Laws of the corporation, said

   By-Laws being available for inspection without charge at the offices of the

   Treasurer or the Company.

 

6.8  Waiver.  The restrictions on transfer set forth in this Article 6 may be

waived in any particular instance or instances by a majority of the Board of

Directors of the corporation.

 

 

ARTICLE 7  - General Provisions

 

7.1  Fiscal Year.  Except as from time to time otherwise designated by the

Board of Directors, the fiscal year of the corporation shall begin on the

first day of January in each year and end on the last day of December in

each year.

 

 

<PAGE> 19

7.2  Corporate Seal.  The corporate seal shall be in such form as shall be

approved by the Board of Directors.

 

7.3  Waiver of Notice.  Whenever any notice whatsoever is required to be

given by law, by the Certificate of Incorporation or by these By-Laws, a

waiver of such notice either in writing signed by the person entitled to such

notice or such person's duly authorized attorney, or by telegraph, cable or

any other available method, whether before, at or after the time stated in

such waiver, or the appearance of such person or persons at such meeting in

person or by proxy, shall be deemed equivalent to such notice.

 

7.4  Voting of Securities.  Except as the directors may otherwise designate,

the President or Treasurer may waive notice of, and act as, or appoint any

person or persons to act as, proxy or attorney-in-fact for this corporation

(with or without power of substitution) at, any meeting of stockholders or

shareholders of any other corporation or organization, the securities of

which may be held by this corporation.

 

7.5  Evidence of Authority.  A certificate by the Secretary, or an Assistant

Secretary, or a temporary Secretary, as to any action taken by the

stockholders, directors, a committee or any officer or representative of

the corporation shall as to all persons who rely on the certificate in good

faith be conclusive evidence of such action.

 

PAGE(21)

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7.6  Certificate of Incorporation.  All references in these By-Laws to the

Certificate of Incorporation shall be deemed to refer to the Certificate of

Incorporation of the corporation, as amended and in effect from time to

time.

 

7.7  Transactions with Interested Parties.  No contract or transaction between

the corporation and one or more of the directors or officers, or between the

corporation and any other corporation, partnership, association, or other

organization in which one or more of the directors or officers are directors

or officers, or have a financial interest, shall be void or voidable solely

for this reason, or solely because the director or officer is present at or

participates in the meeting of the Board of Directors or a committee of the

Board of Directors which authorizes the contract or transaction or solely

because his or their votes are counted for such purpose, if:

 

(1) The material facts as to his relationship or interest and as to the

contract or transaction are disclosed or are known to the Board of Directors

or the committee, and the Board or committee in good faith authorizes the

contract or transaction by the affirmative votes of a majority of the

disinterested directors, even though the disinterested directors be less

than a quorum;

 

(2) The material facts as to his relationship or interest and as to the

contract or transaction are disclosed or are known to the stockholders

entitled to vote thereon, and the contract or transaction is specifically

approved in good faith by vote of the stockholders; or

 

(3) The contract or transaction is fair as to the corporation as of the

time it is authorized, approved or ratified, by the Board of Directors, a

committee of the Board of Directors, or the stockholders.

 

 

 

<PAGE> 20

Common or interested directors may be counted in determining the presence of

a quorum at a meeting of the Board of Directors or of a committee which

authorizes the contract or transaction.

 

7.8  Severability.  Any determination that any provision of these By-Laws is

for any reason inapplicable, illegal or ineffective shall not affect or

invalidate any other provision of these By-Laws.

 

7.9  Pronouns.  All pronouns used in these By-Laws shall be deemed to refer

to the masculine, feminine or neuter, singular or plural, as the identity of

the person or persons may require.

 

 

PAGE(22)

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ARTICLE 8  - Amendments

 

8.1  By the Board of Directors.  These By-Laws may be altered, amended or

repealed or new by-laws may be adopted by the affirmative vote of a majority

of the directors present at any regular or special meeting of the Board of

Directors at which a quorum is present.

 

8.2  By the Stockholders.  These By-Laws may be altered, amended or repealed

or new by-laws may be adopted by the affirmative vote of the holders of a

majority of the shares of the capital stock of the corporation issued and

outstanding and entitled to vote at any regular meeting of stockholders, or

at any special meeting of stockholders, provided notice of such alteration,

amendment, repeal or adoption of new by-laws shall have been stated in the

notice of such special meeting.