EXHIBIT 3.1
FEDERAL IDENTIFICATION
NO. 04-2992806
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Examiner
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
RESTATED ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156B, SECTION 74)
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Name
Approved
We, Robert P. Madonna *President,
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and Christopher Stavros *Clerk,
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of Excel Inc.
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(Exact name of corporation)
located at 255 Independence Drive, Hyannis, MA 02601
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(Street address of corporation in Massachusetts)
do hereby certify that the following Restatement of the Articles of
Organization was duly adopted at a meeting held on September 16, 1997
by a vote of the directors/or:
13,972,800 shares of Common Stock of 13,972,800 shares outstanding,
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shares of Nonvoting Common Stock of 72,000 shares outstanding, and
--- ---------------------- ------
(type, class & series,
if any)
shares of of
--- ---------------------- ----------- shares outstanding,
(type, class & series,
if any)
being at least two-thirds of each type, class or series outstanding
and entitled to vote thereon and of each type, class or series of
stock whose rights are adversely affected thereby:
C [_] ARTICLE I
The name of the corporation is:
P [_]
M [_] Excel Switching Corporation
R.A.[_]
ARTICLE II
The purpose of the corporation is to engage in the following
business activities:
To develop, manufacture and sell computer hardware and software
and to do any and all acts and things permitted to be done by
business corporations under the provisions of Chapter 156B, as
amended, of the General Business Laws of Massachusetts
*Delete the inapplicable words. **Delete the inapplicable clause.
- -------- NOTE: IF THE SPACE PROVIDED UNDER ANY P.C. ARTICLE OR ITEM ON THIS
FORM IS INSUFFICIENT, ADDITIONS SHALL BE SET FORTH ON OF SEPARATE
8 1/2 X 11 SHEETS OF PAPER WITH A LEFT MARGIN OF AT LEAST 1 INCH.
ADDITIONS TO MORE THAN ONE ARTICLE MAY BE MADE ON A SINGLE SHEET
SO LONG AS EACH ARTICLE REQUIRING EACH ADDITION IS CLEARLY
INDICATED.
ARTICLE III
State the total number of shares and par value, if any, of each class of stock
which the corporation is authorized to issue.
WITHOUT PAR VALUE WITH PAR VALUE
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TYPE NUMBER OF TYPE NUMBER OF PAR
SHARES SHARES VALUE
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Common: Common: 85,000,000 $.01
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Nonvoting 15,000,000 $.01
Common
Stock:
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Preferred: Preferred: 10,000,000 $.01
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ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
See Continuation Sheet 4 which is attached hereto and incorporated herein by
reference.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None
ARTICLE VI
**Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its volun-tary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders:
See Continuation Sheet 6 which is attached hereto and incorporated herein by
reference.
**If there are no provisions state "None".
NOTE: THE PRECEDING SIX (6) ARTICLES ARE CONSIDERED TO BE PERMANENT AND MAY ONLY
BE CHANGED BY FILING APPROPRIATE ARTICLES OF AMENDMENT.
EXCEL SWITCHING CORPORATION
Restated Articles of Organization
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CONTINUATION SHEET 4
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The total number of shares of all classes of stock which the Corporation
shall have authority to issue prior to an initial offering of the Common Stock
of the Corporation to the public is 110,000,000 shares, consisting of the
following classes of stock: (A) 10,000,000 shares of Preferred Stock, $.01 par
value per share (the "Preferred Stock"); (B) 85,000,000 shares of Common Stock,
$.01 par value per share (the "Common Stock"); and (C) 15,000,000 shares of Non
Voting Common Stock, $.01 par value per share (the " Non Voting Common Stock").
Effective upon, and subject to, an initial offering of the Common Stock of the
Corporation to the public, the Corporation shall no longer be authorized to
issue shares of Non Voting Common Stock and all 15,000,000 of the authorized
shares of Non Voting Common Stock shall automatically convert and become
15,000,000 shares of authorized Common Stock and the class of Non Voting Common
Stock shall cease to be an independent class such that the total number of
shares of all classes of stock which the Corporation shall have authority to
issue after an initial offering of the Common Stock of the Corporation to the
public will be 110,000,000 shares, consisting of the following classes of stock:
(A) 10,000,000 shares of Preferred Stock, $.01 par value per share (the
"Preferred Stock"); and (B) 100,000,000 shares of Common Stock, $.01 par value
per share (the "Common Stock").
The designations, powers, preferences and relative, participating, optional
or other special rights, and the qualifications, limitations and restrictions
thereof in respect of each class of authorized capital stock of the Corporation
are as follows:
A. UNDESIGNATED PREFERRED STOCK
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Up to 10,000,000 shares of Preferred Stock may be issued in one or more
series at such time or times and for such consideration or considerations as the
Board of Directors may determine. Each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and classes.
Except as to the relative preferences, powers, qualifications, rights and
privileges referred to below, in respect of any or all of which there may be
variations between different series, all shares of Preferred Stock shall be
identical. Different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by classes.
The Board of Directors is expressly authorized, subject to the limitations
prescribed by law and the provisions of these Restated Articles of Organization,
to provide by adopting a vote or votes, a certificate of which shall be filed in
accordance with the Business Corporation Law of the Commonwealth of
Massachusetts, for the issuance of the Preferred Stock in one or more series,
each with such designations, preferences, voting powers, qualifications, special
or relative rights and privileges as shall be stated in the vote or votes
creating such series. The authority of the Board of Directors with respect to
each such series shall include without limitation of the foregoing the right to
determine and fix:
(1) The distinctive designation of such series and the number of shares to
constitute such series;
CONTINUATION PAGE 4-1
(2) The rate at which dividends on the shares of such series shall be
declared and paid, or set aside for payment, whether dividends at the rate so
determined shall be cumulative, and whether the shares of such series shall be
entitled to any participating or other dividends in addition to dividends at the
rate so determined, and if so on what terms;
(3) The right, if any, of the Corporation to redeem shares of the particular
series and, if redeemable, the price, terms and manner of such redemption;
(4) The special and relative rights and preferences, if any, and the amount
or amounts per share, which the shares of such series shall be entitled to
receive upon any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation;
(5) The terms and conditions, if any, upon which shares of such series shall
be convertible into, or exchangeable for, shares of stock of any other class or
classes, including the price or prices or the rate or rates of conversion or
exchange and the terms of adjustment, if any;
(6) The obligation, if any, of the Corporation to retire or purchase shares
of such series pursuant to a sinking fund or fund of a similar nature or
otherwise, and the terms and conditions of such obligation;
(7) Voting rights, if any;
(8) Limitations, if any, on the issuance of additional shares of such series
or any shares of any other series of Preferred Stock; and
(9) Such other preferences, powers, qualifications, special or relative
rights and privileges thereof as the Board of Directors may deem advisable and
are not inconsistent with law and the provisions of these Restated Articles.
B. COMMON STOCK
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1. After the requirements with respect to preferential dividends on the
Preferred Stock shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts, then and not otherwise
the holders of Common Stock shall be entitled to receive such dividends as may
be declared from time to time by the Board of Directors.
2. After distribution in full of the preferential amount to be distributed
to the holders of Preferred Stock, in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or winding up of the
Corporation, the holders of the Common Stock shall be entitled to receive all
the remaining assets of the Corporation, tangible or intangible, of whatever
kind available for distribution to the stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively.
3. Except as may otherwise be required by law or the provisions of these
Restated Articles, or by the Board of Directors pursuant to authority granted in
these Restated Articles, each holder of Common Stock shall have one vote in
respect of each share of stock held by him in all matters voted upon by the
stockholders.
CONTINUATION PAGE 4-2
C. NON VOTING COMMON STOCK
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1. After the requirements with respect to preferential dividends on the
Preferred Stock shall have been met and after the Corporation shall have
complied with all the requirements, if any, with respect to the setting aside of
sums as sinking funds or redemption or purchase accounts, then and not otherwise
the holders of Common Stock shall be entitled to receive such dividends as may
be declared from time to time by the Board of Directors.
2. After distribution in full of the preferential amount to be distributed
to the holders of Preferred Stock, in the event of voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or winding up of the
Corporation, the holders of the Common Stock shall be entitled to receive all
the remaining assets of the Corporation, tangible or intangible, of whatever
kind available for distribution to the stockholders ratably in proportion to the
number of shares of Common Stock held by them respectively.
3. Except as may otherwise be required by law or the provisions of these
Restated Articles, or by the Board of Directors pursuant to authority granted in
these Restated Articles, the holders of Non Voting Common Stock shall have no
voting power. In any case where a right to vote is required by law, the Non
Voting Common Stock shall, subject to any agreement among holders of the Non
Voting Common Stock to the contrary, vote together with the Common Stock as a
single class and each holder of record of Non Voting Common Stock shall be
entitled to one vote for each share of Non Voting Common Stock standing in such
holder's name on the books of the Corporation as of the record date for such
vote. Except to the extent otherwise required by law, the holders of shares of
Non Voting Common Stock shall not be entitled to notice of stockholder meetings
or have the right to attend such meetings.
4. Subject to the consummation of an initial public offering of the Common
Stock of the Corporation, all of the issued and outstanding Non Voting Common
Stock shall be automatically and without any action on the part of the
Corporation deemed to be converted into fully paid and nonassessable shares of
Common Stock, at a rate of one (1) share of Common Stock for every one (1) share
of Non Voting Common Stock, as of the effective date of such initial public
offering. Holders of shares of Non Voting Common Stock converted pursuant to
this paragraph 4 may deliver to the Corporation at its principal office (or such
other office or agency of the Corporation as the Corporation may designate by
notice in writing to such holders) during its usual business hours, the
certificate or certificates for the shares so converted. As promptly as
practicable thereafter, the Corporation shall issue and deliver to such holder a
certificate or certificates for the number of whole shares of Common Stock to
which such holder is entitled, together with any cash dividends and payment in
lieu of fractional shares to which such holder may be entitled. Until such time
as a holder of shares of Non Voting Common Stock shall surrender his or its
certificates therefor as provided above, such certificates shall be deemed to
represent the shares of Common Stock to which such holder shall be entitled upon
the surrender thereof.
5. Upon the conversion of the shares of Non Voting Common Stock into
shares of Common Stock of the Corporation, as provided herein, all outstanding
options and rights to acquire shares of Non Voting Common Stock of the
Corporation will automatically and immediately become options and rights to
acquire shares of Common Stock of the Corporation.
CONTINUATION PAGE 4-3
EXCEL SWITCHING CORPORATION
Restated Articles of Organization
---------------------------------
CONTINUATION SHEET 6
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6. Other provisions for the conduct and regulation of the business and
affairs of the Corporation, for its voluntary dissolution, or for limiting,
defining, or regulating the powers of the Corporation, or of its directors or
stockholders, or of any class of stockholders, are as follows:
A. Liability of Directors.
----------------------
The Corporation eliminates the personal liability of each director of the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided, however, that, to the extent provided by applicable law, this
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 61 or 62 or
successor provisions of the Massachusetts Business Corporation Law, or (iv) for
any transaction from which the director derived an improper personal benefit.
This provision shall not eliminate or limit the liability of a director of the
Corporation for any act or omission occurring prior to the date on which this
provision becomes effective. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director for or with respect to any acts or omissions of such director occurring
prior to such amendment or repeal.
B. Indemnification.
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1. Actions, Suits and Proceedings. The Corporation shall indemnify
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each person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was, or has agreed to become, a director or officer of the Corporation, or is or
was serving, or has agreed to serve, at the request of the Corporation, as a
director or officer of, or in a similar capacity with, another organization or
in any capacity with respect to any employee benefit plan of the Corporation
(all such persons being referred to hereafter as an "Indemnitee"), or by reason
of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys' fees), judgments and fines incurred by him or
on his behalf in connection with such action, suit or proceeding and any appeal
therefrom, unless such indemnification is prohibited by the Business Corporation
Law of the Commonwealth of Massachusetts. Notwithstanding anything to the
contrary in this Article, except as set forth in Section 5 below, the
Corporation shall not indemnify an Indemnitee seeking indemnification in
connection with a proceeding (or part thereof) initiated by the Indemnitee
unless the initiation thereof was approved by the Board of Directors of the
Corporation.
2. Settlements. The right to indemnification conferred in this
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Article shall include the right to be paid by the Corporation for amounts paid
in settlement of any such action, suit or proceeding and any appeal therefrom,
and all expenses (including attorneys' fees) incurred in connection with such
settlement, pursuant to a consent decree or otherwise, unless and to the extent
it is determined pursuant to Section 5 below that the Indemnitee did not act in
good faith in the reasonable belief that his action was in the best interests of
the Corporation or, to the extent such matter relates to service with
CONTINUATION PAGE 6-1
respect to an employee benefit plan, in the best interests of the participants
or beneficiaries of such employee benefit plan.
3. Notification and Defense of Claim. As a condition precedent to
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his right to be indemnified, the Indemnitee must notify the Corporation in
writing as soon as practicable of any action, suit, proceeding or investigation
involving his for which indemnify will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with the such
claim, other than as provided below in this Section 3. The Indemnitee shall
have the right to employ his own counsel in connection with such claim, but the
fees and expenses of such counsel incurred after notice from the Corporation of
its assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between the Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which case the fees and expenses
of counsel for the Indemnitee shall be at the expense of the Corporation, except
as otherwise expressly provided by this Article. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which counsel for
the Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above.
4. Advance of Expenses. Subject to the provisions of Section 5
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below, in the event that the Corporation does not assume the defense pursuant to
Section 3 of this Article of any action, suit, proceeding or investigation of
which the Corporation receives notice under this Article, any expenses
(including attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal therefrom shall
be paid by the Corporation in advance of the final disposition of such matter,
provided, however, that the payment of such expenses incurred by an Indemnitee
- -------- -------
in advance of the final disposition of such matter shall be made only upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as authorized in
this Article. Such undertaking may be accepted without reference to the
financial ability of the Indemnitee to make such repayment.
5. Procedure for Indemnification. In order to obtain indemnification
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or advancement of expenses pursuant to Section 1, 2 or 4 of this Article, the
Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses shall be made promptly, and in
any event within sixty days after receipt by the Corporation of the written
request of the Indemnitee, unless the Corporation determines within such sixty-
day period that the Indemnitee did not meet the applicable standard of conduct
set forth in Section 1 or 2, as the case may be. Such determination shall be
made in each instance by (a) a majority vote of a quorum of the directors of the
Corporation, (b) a majority vote of a quorum of the outstanding shares of stock
of all classes entitled to vote for directors, voting as a single class, which
quorum shall consist of stockholders who are not at that time parties to the
action, suit or
CONTINUATION PAGE 6-2
proceeding in question, (c) independent legal counsel (who may be regular legal
counsel to the Corporation), or (d) a court of competent jurisdiction.
6. Remedies. The right to indemnification or advances as granted by
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this Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the sixty-day period referred to above in
Section 5. Unless otherwise provided by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of expenses under
this Article shall be on the Corporation. Neither the failure of the
Corporation to have made a determination prior to the commencement of such
action that indemnification is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Corporation pursuant to Section 5 that the Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the Indemnitee has not met such applicable standard of
conduct. The Indemnitee's expenses (including attorneys' fees) incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such proceeding shall also be indemnified by the Corporation.
7. Subsequent Amendment. No amendment, termination or repeal of this
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Article or of the relevant provisions of Chapter 156B of the Massachusetts
General Laws or any other applicable laws shall affect or diminish in any way
the rights of any Indemnitee to indemnification under the provisions hereof with
respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
8. Other Rights. The indemnification and advancement of expenses
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provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or directors or otherwise, both as to action in his official capacity and as to
action in any other capacity while holding office for the Corporation, and shall
continue as to an Indemnitee who has ceased to be a director or officer, and
shall inure to the benefit of the estate, heirs, executors and administrators of
the Indemnitee. Nothing contained in this Article shall be deemed to prohibit,
and the Corporation is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and procedures different
from those set forth in this Article. In addition, the Corporation may, to the
extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the Corporation or other
persons serving the Corporation and such rights may be equivalent to, or greater
or less than, those set forth in this Article.
9. Partial Indemnification. If an Indemnitee is entitled under any
-----------------------
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
10. Insurance. The Corporation may purchase and maintain insurance,
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at its expense, to protect itself and any director, officer, employee or agent
of the Corporation or another organization or employee benefit plan against any
expense, liability or loss incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
CONTINUATION PAGE 6-3
indemnify such person against such expense, liability or loss under Chapter 156B
of the Massachusetts General Laws.
11. Merger or Consolidation. If the Corporation is merged into or
-----------------------
consolidated with another Corporation and the Corporation is not the surviving
Corporation, the surviving Corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
12. Savings Clause. If this Article or any portion hereof shall be
--------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
13. Subsequent Legislation. If the Massachusetts General Laws are
----------------------
amended after adoption of this Article to expand further the indemnification
permitted to Indemnitees, then the Corporation shall indemnify such persons to
the fullest extent permitted by the Massachusetts General Laws, as so amended.
C. Location of Stockholders' Meetings.
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Meetings of the stockholders of the Corporation may be held anywhere in the
United States.
D. Amendment of By-Laws.
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The directors of the Corporation may make, amend or repeal the By-laws in
whole or in part, except with respect to any provision thereof which by law or
the By-laws requires action by the stockholders.
E. Issuance of Shares.
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The whole or any part of the authorized but unissued shares of capital stock
of the Corporation may be issued at any time or from time to time by the Board
of Directors without further action by the stockholders.
F. Corporation As Partner.
----------------------
The Corporation may become a partner in any business.
CONTINUATION PAGE 6-4
ARTICLE VII
The effective date of the restated Artiicles of Organization of the corporation
shall be the date approved and filed by the Secretary of the Commonwealth. If a
later effective date is desired, specify such date which shall not be more than
thirty days after the date of filing.
ARTICLE VIII
THE INFORMATION CONTAINED IN ARTICLE VIII IS NOT A PERMANENT PART OF THE
ARTICLES OF ORGANIZATION.
a. The street address (post office boxes are not acceptable) of the principal
office of the corporation in Massachusetts is:
255 Independence Drive, Hyannis, MA 02601
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
President: Robert P. Madonna 208 Carlson Lane 255 Independence Drive
West Barnstable, MA Hyannis, MA 02601
Treasurer: Nathan C. Apatow 19 Mallard Drive 255 Independence Drive
Orleans, MA 02653 Hyannis, MA 02601
Clerk: Christopher Stavros 300 Danielle Lane 255 Independence Drive
Mansfield, MA Hyannis, MA 02601
Directors: Robert P. Madonna Same as above Same as above
Christopher Stavros Same as above Same as above
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
Saturday of the month of: December
d. The name and business address of the resident agent, if any, of the
corporation is:
**We further certify that the foregoing Restated Articles of Organization affect
no amendments to the Articles of Organization of the corporation as heretofore
amended, except amendments to the following articles. Briefly describe
amendments below:
See Continuation Sheet 8 which is
attached hereto and incorporated
herein by reference.
SIGNED UNDER THE PENALTIES OF PERJURY, this 16th day of September , 1997,
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/s/ Robert P. Madonna , *President,
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/s/ Christopher Stavros , *Clerk.
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*Delete the inapplicable words. **If there are no amendments, state 'None'.
EXCEL, INC.
Restated Articles of Organization
---------------------------------
CONTINUATION SHEET 8
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Article I: amended to change the name of the Corporation from Excel Inc. to
Excel Switching Corporation
Article II: amended to reflect the current purposes for which the Corporation
is formed.
Articles III amended (i) to authorize the Corporation to issue 85,000,000
and IV: shares of Common Stock; 15,000,000 shares of Non Voting Common
Stock, which will automatically convert to 15,000,000 shares of
authorized Common Stock upon the effective date, and subject to
the consummation, of the initial offering of the Common Stock of
the Corporation to the public; and 10,000,000 shares of Preferred
Stock having the preferences, voting powers, qualifications,
special or relative rights or privileges set forth in Article IV;
and (ii) to authorize the exchange of the authorized shares of
Common and Non Voting Common Stock of the Corporation, no par
value, for the same number of shares of Common and Non Voting
Common Stock, par value of $.01 per share.
Article VI: amended to reflect additional provisions for the conduct and
regulation of the business and affairs of the Corporation
including provisions relating to the indemnification of directors
and officers.
CONTINUATION PAGE 8-1
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156B, SECTION 74)
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I hereby approve the within Restated Articles of Organization
and, the filing fee in the amount of $____________ having been
paid, said articles are deemed to have been filed with me this
______ day of ______________________ 19__.
Effective date:__________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
John Hession
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Testa, Hurwitz & Thibeault, LLP
125 High Street
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High Street Tower
Boston, MA 02110
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Telephone: (617) 248-7000
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