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EXHIBIT 3.106
PATHSOURCE, INC.
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AMENDED AND RESTATED
BYLAWS
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AMENDED AND RESTATED
BYLAWS
OF
PATHSOURCE, INC.
1. OFFICES
1.1. REGISTERED OFFICE
The initial registered office of the Corporation shall be in Wilmington,
Delaware, and the initial registered agent in charge thereof shall be The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801.
1.2. 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 as may be necessary or useful in connection with the business of
the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. PLACE OF MEETINGS
All meetings of the stockholders shall be held at such place as may be
fixed from time to time by the Board of Directors, the Chairman of the Board or
the President.
2.2. ANNUAL MEETINGS
The Corporation shall hold annual meetings of stockholders, commencing with
the year 2001, on such date and at such time as shall be designated from time to
time by the Board of Directors, the Chairman of the Board or the President, at
which stockholders shall elect directors and transact such other business as may
properly be brought before the meeting.
2.3. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the Board of Directors, the
Chairman of the Board or the President, and shall be called by the President or
the Secretary at the request in writing of stockholders possessing at least a
majority of the voting power of the issued and outstanding voting stock of the
Corporation entitled to vote generally for the election of directors. Such
request shall include a statement of the purpose or purposes of the proposed
meeting.
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2.4. NOTICE OF MEETINGS
Notice of any meeting of stockholders, stating the place, date and hour of
the meeting, and (if it is a special meeting) the purpose or purposes for which
the meeting is called, shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting (except to the extent that such notice is waived or is not required by
the Delaware General Corporation Law or these Bylaws). Such notice shall be
given in accordance with, and shall be deemed effective as set forth in, Section
222 (or any successor section) of the Delaware General Corporation Law.
2.5. WAIVERS OF NOTICE
Whenever the giving of any notice is required by statute, the Certificate
of Incorporation of the Corporation (which shall include any amendments thereto
and shall be hereinafter referred to as so amended as the "Certificate of
Incorporation") or these Bylaws, a waiver thereof, in writing and delivered to
the Corporation, signed by the person or persons entitled to said notice,
whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance of a stockholder at a meeting shall
constitute a waiver of notice (a) of such meeting, except when the stockholder
at the beginning of the meeting objects to holding the meeting or transacting
business at the meeting, and (b) (if it is a special meeting) of consideration
of a particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the stockholder objects to considering
the matter at the beginning of the meeting.
2.6. BUSINESS AT SPECIAL MEETINGS
Business transacted at any special meeting of stockholders shall be limited
to the purposes stated in the notice (except to the extent that such notice is
waived or is not required as provided in the Delaware General Corporation Law or
these Bylaws).
2.7. LIST OF STOCKHOLDERS
After the record date for a meeting of stockholders has been fixed, at
least ten days before such meeting, the officer who has charge of the stock
ledger of the Corporation shall make a list of all stockholders entitled to vote
at the meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place in the city where the meeting
is to be held, which place is to be specified in the notice of the meeting, or
at the place where the meeting is to be held. Such list shall also, for the
duration of the meeting, be produced and kept open to the examination of any
stockholder who is present at the time and place of the meeting.
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2.8. QUORUM AT MEETINGS
Stockholders may take action on a matter at a meeting only if a quorum
exists with respect to that matter. Except as otherwise provided by statute or
by the Certificate of Incorporation, the holders of a majority of the shares
entitled to vote at the meeting, and who are present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. Where a separate vote by a class or classes is
required, the holders of a majority of the outstanding shares of such class or
classes, who are present in person or represented by proxy, shall constitute a
quorum entitled to take action on that matter. Once a share is represented for
any purpose at a meeting (other than solely to object (a) to holding the meeting
or transacting business at the meeting, or (b) (if it is a special meeting) to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice), it is deemed present for
quorum purposes for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for the adjourned meeting.
The holders of a majority of the voting shares represented at a meeting, whether
or not a quorum is present, may adjourn such meeting from time to time.
2.9. VOTING AND PROXIES
Unless otherwise provided in the Delaware General Corporation Law or in the
Certificate of Incorporation, and subject to the other provisions of these
Bylaws, each stockholder shall be entitled to one vote on each matter, in person
or by proxy, for each share of the Corporation's capital stock that has voting
power and that is held by such stockholder. No proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer
period. A duly executed appointment of proxy shall be irrevocable if the
appointment form 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.
2.10. REQUIRED VOTE
When a quorum is present at any meeting of stockholders, all matters shall
be determined, adopted and approved by the affirmative vote (which need not be
by ballot) of the holders of a majority of the shares present in person or
represented by proxy at the meeting and entitled to vote with respect to the
matter, unless the proposed action is one upon which, by express provision of
statute or the Certificate of Incorporation, a different vote is specified and
required, in which case such express provision shall govern and control the
decision of such question. Where a separate vote by a class or classes is
required and a quorum exists with respect to such class or classes, the
affirmative vote of the holders of a majority of the shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class, unless the proposed action is one upon which, by express
provision of statute or the Certificate of Incorporation, a different vote is
specified and required, in which case such express provision shall govern and
control the decision of such question. Notwithstanding the foregoing, 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 on the election of
directors.
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2.11. ACTION WITHOUT A MEETING
Any action required or permitted to be taken at a stockholders' meeting may
be taken without a meeting, without prior notice and without a vote, if the
action is taken by persons who would be entitled to vote at a meeting and who
hold shares having voting power not less than the minimum number of votes that
would be necessary to authorize or take the action at a meeting at which all
stockholders entitled to vote were present or represented by proxy and voted.
The action must be evidenced by one or more written consents describing the
action taken, signed by the stockholders entitled to take action without a
meeting, and delivered to the Corporation in the manner prescribed by the
Delaware General Corporation Law for inclusion in the minute book. No consent
shall be effective to take the corporate action specified unless the number of
consents required to take such action are delivered to the Corporation within
sixty days of the delivery of the earliest-dated consent. All stockholders
entitled to vote on the record date of such written consent who do not
participate in taking the action shall be given written notice thereof in
accordance with the Delaware General Corporation Law.
3. DIRECTORS
3.1. POWERS
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things, subject to any
limitation set forth in the Certificate of Incorporation or as otherwise may be
provided in the Delaware General Corporation Law. The Board of Directors may
elect a Chairman of the Board from among its members and shall designate, when
present, either the Chairman of the Board (if any) or the President to preside
at its meetings. If neither the Chairman of the Board nor the President is
present, the Board of Directors may designate another director to preside at
such meeting. The Chairman of the Board and the President may be the same
person. The Board of Directors may also elect one or more Vice Chairmen from
among its members, with such duties as the Board of Directors shall from time to
time prescribe.
3.2. NUMBER, ELECTION AND TERM OF OFFICE
The number of directors constituting the Board of Directors shall be as
authorized from time to time by resolution of the stockholders or of the Board
of Directors. Directors shall be elected at annual meetings of the stockholders,
except as provided in Section 3.3 hereof, and each director elected shall hold
office until his or her successor is elected and qualified or until his or her
earlier death, resignation or removal. Directors need not be stockholders.
Directors shall have the number of votes per director as specified in the
Certificate of Incorporation.
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3.2. VACANCIES
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors may be filled by the affirmative vote of
directors having a majority of the total votes of the directors then in office,
although fewer than a quorum, or by a sole remaining director. Each director so
chosen shall hold office until his or her successor is elected and qualified or
until his or her earlier death, resignation or removal. In the event that one or
more directors resigns from the Board, effective at a future date, directors
having a majority of the total votes of directors then in office, including
those who have so resigned, shall have power to fill such vacancy or vacancies,
the vote thereon to take effect when such resignation or resignations shall
become effective, and each director so chosen shall hold office until his or her
successor is elected and qualified or until his or her earlier death,
resignation or removal.
3.3. MEETINGS
3.3.1. REGULAR MEETINGS
Regular meetings 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 the Board of Directors. A meeting of the Board of Directors for the election
of officers and the transaction of such other business as may come before it may
be held without notice immediately following the annual meeting of stockholders.
3.3.2. SPECIAL MEETINGS
Special meetings of the Board may be called by the Chairman of the
Board or the President on one day's notice to each director, either personally
or by telephone, express delivery service (so that the scheduled delivery date
of the notice is at least one day in advance of the meeting), telegram or
facsimile transmission, or on five days' notice by mail (effective upon deposit
of such notice in the mail). The notice need not describe the purpose of the
special meeting but shall indicate the date, time and place of the special
meeting.
3.3.3. TELEPHONE MEETINGS
Members of the Board of Directors may participate in a meeting of
the Board of Directors by any communication by means of which all participating
directors can hear each other during the meeting. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
3.3.4. ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if the action is taken by all
members of the Board of Directors. The action must be evidenced by one or more
written consents describing the
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action taken, signed by each director, and delivered to the Corporation for
inclusion in the minute book.
3.3.5. WAIVER OF NOTICE OF MEETING
A director may waive any notice required by statute, the Certificate
of Incorporation or these Bylaws before or after the date and time stated in the
notice. Except as set forth below, the waiver must be in writing, signed by the
director entitled to the notice, and delivered to the Corporation for inclusion
in the minute book. Notwithstanding the foregoing, a director's attendance at or
participation in a meeting waives any required notice to the director of the
meeting unless the director at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting and does not thereafter vote
for or assent to action taken at the meeting.
3.4. QUORUM AND VOTE AT MEETINGS
At all meetings of the Board of Directors, a quorum of the Board of
Directors consists of the presence of directors having at least a majority of
the total votes of the total number of directors constituting the entire Board
of Directors. The affirmative vote of directors having a majority of the total
votes of directors present at any meeting at which there is a quorum shall be
the act of the Board of Directors, except as may be otherwise specifically
provided by statute, the Certificate of Incorporation or these Bylaws.
3.5. COMMITTEES OF DIRECTORS
The Board of Directors may, by resolution passed by the affirmative vote of
directors having a majority of the total votes of the total number of directors
constituting the entire Board of Directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
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. If a member of a committee shall be absent from any
meeting, or disqualified from voting thereat, the remaining member or members
present and not disqualified from voting, whether or not such member or members
constitute a quorum, may, by unanimous vote, appoint another member of the Board
of Directors to act at the meeting in the place of such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, 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; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation pursuant to Sections 251 or 252 of the
Delaware General Corporation Law, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws; and unless the resolutions,
these Bylaws or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend, to authorize
the issuance of stock, or to adopt a
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certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law. 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. Unless otherwise specified in the resolution of the Board of
Directors designating the committee, at all meetings of each such committee of
directors, a majority of the total votes of the total number of members of the
committee shall constitute a quorum for the transaction of business, and the
affirmative vote of a majority of the total votes of the members of the
committee present at any meeting at which there is a quorum shall be the act of
the committee. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors, when required. A director serving as
a member of a committee shall have the same number of votes as such director has
with respect to matters voted or acted upon by the Board of Directors, as
specified in the Certificate of Incorporation. The Board of Directors may at any
time, by resolution passed by the affirmative vote of directors having a
majority of the total votes of the total number of directors constituting the
entire Board of Directors, discharge any committee, change the membership of any
committee, fill vacancies occurring in any committee or remove any member of any
committee, with or without cause.
3.6. COMPENSATION OF DIRECTORS
The Board of Directors shall have the authority to fix the compensation of
directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
3.7. RESIGNATION
A director may resign at any time by giving written notice to the Chairman
of the Board, the President or the Secretary. Unless otherwise stated in such
notice of resignation, the acceptance thereof shall not be necessary to make it
effective; and such resignation shall take effect at the time specified therein
or, in the absence of such specification, it shall take effect upon the receipt
thereof.
4. OFFICERS
4.1. POSITIONS
The officers of the Corporation shall be a President, a Treasurer and a
Secretary. The Board of Directors may elect or appoint, or provide for the
appointment of, such other officers (including a Chairman of the Board, one or
more Vice Chairmen, a Chief Financial Officer, one or more Vice Presidents in
such gradation as the Board of Directors may determine, one or more Assistant
Secretaries and one or more Assistant Treasurers) or agents as may from time to
time appear necessary or advisable in the conduct of the business and affairs of
the Corporation. Each such officer shall exercise such powers and perform such
duties as shall be set forth below and such other powers and duties as from time
to time may be specified by the Board of Directors or by any officer(s)
authorized by the Board of Directors to prescribe the duties of such other
officers. Any number of offices may be held by the same person. Each of the
Chairman of the Board (if any), the President, the Chief Financial Officer (if
any), and/or
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any Vice President may execute bonds, mortgages, notes, contracts and other
documents on behalf of the Corporation, except as otherwise required by law and
except where the execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
4.2. CHAIRMAN OF THE BOARD
The Chairman of the Board, if any, shall (when present) preside at all
meetings of the Board of Directors and stockholders and shall ensure that all
orders and resolutions of the Board of Directors are carried into effect. The
Chairman of the Board, if any, shall in general perform all duties incident to
such office, including those duties customarily performed by persons holding
such office, and shall perform such other duties as, from time to time, may be
assigned to him or her by the Board of Directors.
4.3. PRESIDENT
The President shall be the chief executive officer of the Corporation and
as such shall have overall executive responsibility and authority for management
of the business, affairs and operations of the Corporation (subject to the
authority of the Board of Directors), and, in general, shall perform all duties
incident to the office of a president and chief executive officer of a
corporation, including those duties customarily performed by persons holding
such offices, and shall perform such other duties as, from time to time, may be
assigned to him or her by the Board of Directors.
4.4. CHIEF FINANCIAL OFFICER
The Chief Financial Officer of the Corporation, if any, shall have general
charge and supervision of the financial affairs of the Corporation, including
budgetary, accounting and statistical methods, and shall approve for payment, or
designate others serving under him or her to approve for payment, all vouchers
and warrants for disbursements of funds, and, in general, shall perform such
other duties as are incident to the office of a chief financial officer of a
corporation, including those duties customarily performed by persons occupying
such office, and shall perform such other duties as, from time to time, may be
assigned to him or her by the Board of Directors or the President.
4.5. VICE PRESIDENT
In the absence of the President or in the event of the President's
inability or refusal to act, the Vice President (or in the event there be more
than one Vice President, the Vice Presidents in the order designated, or in the
absence of any designation, then in the order of their election) shall perform
the duties of the President, and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the President. The Vice President
or Vice Presidents, in general, shall perform such other duties as are incident
to the office of a vice president of a corporation, including those duties
customarily performed by persons occupying such office, and shall perform such
other duties as, from time to time, may be assigned to him or her or them by the
Board of Directors or the President. The Board of
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Directors may designate one or more Vice Presidents as Executive Vice Presidents
or Senior Vice Presidents.
4.6. SECRETARY
The Secretary, or an Assistant Secretary, shall attend all meetings of the
Board of Directors and all meetings of the stockholders, and shall record all
the proceedings of the meetings of the stockholders and of the Board of
Directors in a book to be kept for that purpose, and shall perform like duties
for the standing committees, when required. The Secretary shall have custody of
the corporate seal of the Corporation, and the Secretary, or an Assistant
Secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed it may be attested by the signature of the Secretary 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 such officer's signature. The Secretary or an
Assistant Secretary may also attest all instruments signed by the President, the
Chief Financial Officer or any Vice President. The Secretary, or an Assistant
Secretary, shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and, in general,
shall perform all duties as are incident to the office of a secretary of a
corporation, including those duties customarily performed by persons occupying
such office, and shall perform such other duties as, from time to time, may be
assigned to him or her by the Board of Directors, the President, the Chief
Financial Officer or any Vice President.
4.7. ASSISTANT SECRETARY
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of the Secretary's inability or
refusal to act or when requested by the Chairman of the Board, the President,
the Chief Financial Officer or any Vice President, perform the duties and
exercise the powers of the Secretary, and, in general, shall perform all duties
as are incident to the office of an assistant secretary of a corporation,
including those duties customarily performed by persons holding such office, and
shall perform such other duties as, from time to time, may be assigned to him or
her or them by the Board of Directors, the President, the Chief Financial
Officer, any Vice President or the Secretary. An Assistant Secretary may or may
not be an officer, as determined by the Board of Directors.
4.8. TREASURER
The Treasurer shall have responsibility for the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall also render to the President, upon request, and to the Board
of Directors at its regular meetings, or when the Board of Directors so
requires, an account of all financial transactions and of the financial
condition of the Corporation and, in
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general, shall perform such duties as are incident to the office of a treasurer
of a corporation, including those customarily performed by persons occupying
such office, and shall perform all other duties as, from time to time, may be
assigned to him or her by the Board of Directors, the President, the Chief
Financial Officer or any Vice President.
4.9. ASSISTANT TREASURER
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability or
refusal to act, perform the duties and exercise the powers of the Treasurer,
and, in general, shall perform all duties as are incident to the office of an
assistant treasurer of a corporation, including those duties customarily
performed by persons occupying such office, and shall perform such other duties
as, from time to time, may be assigned to him or her or them by the Board of
Directors, the President, the Chief Financial Officer, any Vice President or the
Treasurer. An Assistant Treasurer may or may not be an officer, as determined by
the Board of Directors.
4.10. TERM OF OFFICE
The officers of the Corporation shall hold office until their successors
are chosen and qualify or until their earlier death, resignation or removal. Any
officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board of Directors may be removed at any
time, with or without cause, by the affirmative vote of directors having a
majority of the total votes of the total number of directors constituting the
entire Board of Directors.
4.11. COMPENSATION
The compensation of officers of the Corporation shall be fixed by the Board
of Directors or by any officer(s) authorized by the Board of Directors to
prescribe the compensation of such other officers.
4.12. FIDELITY BONDS
The Corporation may secure the fidelity of any or all of its officers or
agents by bond or otherwise.
5. CAPITAL STOCK
5.1. CERTIFICATES
The shares of the Corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution that some or all
of any or all classes or series of the Corporation's stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Corporation.
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Notwithstanding the adoption of such a resolution by the Board of Directors,
every holder of stock represented by certificates, and upon request every holder
of uncertificated shares, shall be entitled to have a certificate (representing
the number of shares registered in certificate form) signed in the name of the
Corporation by the Chairman of the Board, the President or any Vice President,
and by the Treasurer, the Secretary or any Assistant Treasurer or Assistant
Secretary of the Corporation. Any or all the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar whose signature
or facsimile signature appears on a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
5.2. LOST CERTIFICATES
The Board of Directors, the Chairman of the Board, the President, the Chief
Financial Officer or the Secretary may direct a new certificate of stock to be
issued in place of any certificate theretofore issued by the Corporation and
alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming that the certificate of stock has been lost,
stolen or destroyed. When authorizing such issuance of a new certificate, the
Board of Directors or any such officer may, as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or such owner's legal representative, to advertise
the same in such manner as the Board of Directors or such officer shall require
and/or to give the Corporation a bond or indemnity, in such sum or on such terms
and conditions as the Board of Directors or such officer may direct, as
indemnity against any claim that may be made against the Corporation on account
of the certificate alleged to have been lost, stolen or destroyed or on account
of the issuance of such new certificate.
5.3. RECORD DATE
5.3.1. ACTIONS BY STOCKHOLDERS
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders, 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 sixty days nor less than
ten 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 day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting, unless the Board of Directors fixes a new record date for the adjourned
meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the
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record date is adopted by the Board of Directors, and which record date shall
not be more than ten days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. If no record date has been
fixed by the Board of Directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is required by the Delaware General
Corporation Law, shall be at the close of business on the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in the manner prescribed by Section 2l3(b) of the
Delaware General Corporation Law. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is required by the
Delaware General Corporation Law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
5.3.2. PAYMENTS
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board 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 sixty 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.
5.4. STOCKHOLDERS OF RECORD
The Corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends, to
receive notifications, to vote as such owner, and 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,
except as otherwise may be required by the Delaware General Corporation Law.
6. INDEMNIFICATION
6.1. AUTHORIZATION OF INDEMNIFICATION
Each person who was or is a party or is threatened to be made a party to or
is involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether by or in
the right of the Corporation or otherwise (a "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee, partner (limited or
general) or agent of another corporation or of a partnership, joint venture,
limited liability company, trust
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or other enterprise, including service with respect to an employee benefit plan,
shall be (and shall be deemed to have a contractual right to be) indemnified and
held harmless by the Corporation to the fullest extent authorized by, and
subject to the conditions and (except as provided herein) procedures set forth
in the Delaware General Corporation Law, as the same exists or may hereafter be
amended (but any such amendment shall not be deemed to limit or prohibit the
rights of indemnification hereunder for past acts or omissions of any such
person insofar as such amendment limits or prohibits the indemnification rights
that said law permitted the Corporation to provide prior to such amendment),
against all expenses, liabilities and losses (including attorneys' fees,
judgments, fines, ERISA taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith; provided however, that the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person (except for a suit or action pursuant to Section 6.2
hereof) only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. Persons who are not directors or officers of the
Corporation may be similarly indemnified to the extent authorized at any time by
the Board of Directors of the Corporation. The indemnification conferred in this
Section 6.1 also shall include the right to be paid by the Corporation the
expenses (including attorneys' fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition;
provided, however, that, if and to the extent the Delaware General Corporation
Law requires, the payment of such expenses (including attorneys' fees) incurred
by a director or officer in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so paid in advance if it
shall ultimately be determined that such director or officer is not entitled to
be indemnified under this Section 6.1 or otherwise; and provided further, that,
such expenses incurred by persons who are not directors or officers of the
Corporation may be so paid in advance upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
6.2. RIGHT OF CLAIMANT TO BRING ACTION AGAINST THE CORPORATION
If a claim under Section 6.1 is not paid in full by the Corporation within
sixty days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring an action against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
action. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in connection with any proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the claimant has not met
the standards of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the amount
claimed or is otherwise not entitled to indemnification under Section 6.1 but
the burden of proving such defense shall be on the Corporation. The failure of
the Corporation (in the manner provided under the Delaware General Corporation
Law) to have made a determination prior to or after the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law shall not be a defense to the action or create
a presumption that the claimant has not met the applicable
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standard of conduct. Unless otherwise specified in an agreement with the
claimant, an actual determination by the Corporation (in the manner provided
under the Delaware General Corporation Law) after the commencement of such
action that the claimant has not met such applicable standard of conduct shall
not be a defense to the action, but shall create a presumption that the claimant
has not met the applicable standard of conduct.
6.3. NON-EXCLUSIVITY
The rights to indemnification and advance payment of expenses provided by
Section 6.1 hereof shall not be deemed exclusive of any other rights to which
those seeking indemnification and advance payment of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
6.4. INSURANCE
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, including service with respect to an employee benefit plan,
against any liability asserted against such person or incurred by such person in
any such capacity, or arising out of such person's status as such, and related
expenses, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of the Delaware General
Corporation Law.
6.5. SURVIVAL OF INDEMNIFICATION
The indemnification, advance payment of expenses and other rights and
provisions provided by, or granted pursuant to, Sections 6.1 through Section 6.5
hereof shall, unless otherwise provided when authorized or ratified, continue as
to a person who has ceased to be a director, officer, employee, partner or agent
and shall inure to the benefit of the personal representatives, heirs, executors
and administrators of such person. In addition, all of the indemnification,
advance payment of expenses and other rights and provisions set forth in
Sections 6.1 through Section 6.5 hereof shall be binding upon any successor (by
merger or otherwise) to the Corporation.
7. GENERAL PROVISIONS
7.1. INSPECTION OF BOOKS AND RECORDS
Any stockholder, in person or by attorney or other agent, shall upon
written demand under oath stating the purpose thereof, have the right during
usual business hours to inspect for any proper purpose the Corporation's stock
ledger, a list of its stockholders, and its other books and records, and to make
copies or extracts therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every instance where
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an attorney or other agent shall be the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing which authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office or at its principal place of business.
7.2. DIVIDENDS
The Board of Directors may declare dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation and
the laws of the State of Delaware.
7.3. RESERVES
The directors of the Corporation may set apart, out of the funds of the
Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve.
7.4. EXECUTION OF INSTRUMENTS
All checks, drafts or other orders for the payment of money, and promissory
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
7.5. FISCAL YEAR
The fiscal year of the Corporation shall initially be the calendar year
ending December 31, but may be changed at any time and from time to time by
resolution of the Board of Directors.
7.6. SEAL
The corporate seal shall be in such form as the Board of Directors shall
approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
7.7. PRONOUNS
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the person
or entity may require.
7.8. AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the stockholders or the Board of Directors.
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IN WITNESS WHEREOF, the foregoing Amended and Restated Bylaws were adopted
by the sole stockholder of the Corporation on June 30, 2000.
PATHSOURCE, INC.
By: /s/ Brian C. Carr
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Brian C. Carr
Chief Executive Officer
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