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EXHIBIT 3.01
FEDERAL IDENTIFICATION
NO. 04-2710876
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)
We, John A. Blaeser , *President,
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and Gary E. Haroian , *Clerk,
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of Concord Communications, Inc. ,
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(Exact name of corporation)
located at 33 Boston Post Road West, Marlboro, MA 01752 ,
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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 9, 1997 by a vote of the
directors/or:
Common Equivalent Stock and shares outstanding,
17,760,443 shares of Common Stock of 18,287,564 +
- --------------- ------------------------------ -----------------
(type, class & series, if any)
Series A Convertible shares outstanding
7,222,804 shares of Preferred of 7,222,804 +
- --------------- ------------------------------ -----------------
(type, class & series, if any)
Series A-1 Convertible shares outstanding, and
72,140 shares of Preferred of 72,140 +
- --------------- ------------------------------ -----------------
(type, class & series, if any)
Series B Convertible shares outstanding,
8,921,578 shares of Preferred of 8,921,578 +
- --------------- ------------------------------ -----------------
(type, class & series, if any)
+Does not give effect to a Reverse Stock Split effected on 10/9/97, but does
indicate actual number of votes cast by each such series of stock
**being at least a majority of each type, class or series outstanding and
entitled to vote thereon:
ARTICLE I
The name of the corporation is:
Concord Communications, Inc.
ARTICLE II
The purpose of the corporation is to engage in the following
business activities:
To develop, market and support automated, software - based performance analysis
and reporting solutions for management of computer networks and in general to
carry on any and all purposes permitted to a corporation organized under the
provisions of Massachusetts General Laws, Chapter 156B.
*Delete the inapplicable words. **Delete the inapplicable clause.
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NOTE: IF THE SPACE PROVIDED UNDER ANY 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.
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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.
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WITHOUT PAR VALUE WITH PAR VALUE
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TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
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Common: Common: 50,000,000 $.01
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Preferred: Preferred: 1,000,000 $.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 Sheets 4.1 and 4.2 which are 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 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:
See Continuation Sheets 6.1 through 6.7 which are 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.
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ARTICLE VII
The effective date of the restated Articles 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: 33 Boston Post Road West,
Marlboro, MA 01752
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:
Treasurer:
Clerk: SEE CONTINUATION SHEET 8.1
Directors:
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
day of the month of: December
d. The name and business address of the resident agent, if any, of the
corporation is: N/A
**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:
Articles III, IV and VI are hereby amended. See Continuation Sheet 8.2 for
further description of such amendments.
SIGNED UNDER THE PENALTIES OF PERJURY, this 20th day of October, 1997,
/s/ John A. Blaeser , *President,
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/s/ Gary E. Haroian , *Clerk.
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*Delete the inapplicable words. **If there are no amendments, state 'None'.
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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:
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WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Louis J. Marett, Esq.
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Testa, Hurwitz & Thibeault, LLP
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High Street Tower
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125 High Street
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Boston, MA 02110
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Telephone: (617) 248-7000
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CONTINUATION SHEET 4.2
CONCORD COMMUNICATIONS, INC.
Restated Articles of Organization
ARTICLE IV
The following is a statement of the designations, preferences, voting
powers, qualifications, and special or relative rights and privileges in respect
of the authorized capital stock of the Corporation.
The shares of Common Stock, par value $.01 per share, authorized under
these Restated Articles of Organization shall be designated the "Common Stock."
The shares of Preferred Stock authorized under these Restated Articles of
Organization shall be designated the "Preferred Stock."
A. Issuance of Preferred Stock in Series.
The 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
in paragraph B 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.
B. Authority to Establish Variations Between Series of Preferred
Stock.
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 issue 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;
(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;
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CONTINUATION SHEET 4.2
(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 Articles.
C. Statement of Voting Powers, Qualifications, Special or Relative
Rights and Privileges in Respect of Shares of Common Stock.
After the requirements with respect to preferential dividends on the
Preferred Stock (fixed in accordance with the provisions of paragraph B above)
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 (fixed in accordance with the provisions of
said paragraph B), 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.
After distribution in full of the preferential amount (fixed in
accordance with the provisions of said paragraph B) 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 and 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.
Except as may otherwise be required by law or the provision of these
Restated Articles of Organization, or by the Board of Directors pursuant to
authority granted in these Restated Articles of Organization, 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.
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CONTINUATION SHEET 6.1
CONCORD COMMUNICATIONS, INC.
Restated Articles of Organization
ARTICLE VI
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. Board of Directors.
1. Number, Election and Qualification. The number of directors
shall be fixed only by vote of the Board of Directors.
The directors of the corporation shall be classified with respect to
the time for which they severally hold office, into three classes, as nearly
equal in number as possible; the term of office of those of the first class
("Class I Directors") to continue until the first annual meeting following the
date the corporation first had a class of equity securities registered under the
Securities Exchange Act of 1934 (the "Exchange Act") and until their successors
are duly elected and qualified; the term of office of those of the second class
("Class II Directors") to continue until the second annual meeting following the
date the corporation first had a class of equity securities registered under the
Exchange Act and until their successors are duly elected and qualified; and the
term of office of those of the third class ("Class III Directors") to continue
until the third annual meeting following the date the corporation first had a
class of equity securities registered under the Exchange Act and until their
successors are duly elected and qualified. At each annual meeting of the
corporation, the successors to the class of directors whose term expires at that
meeting shall be elected to hold office for a term continuing until the annual
meeting held in the third year following the year of their election and until
their successors are duly elected and qualified. If the authorized number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of an incumbent director.
2. Vacancies. Vacancies and newly-created directorships,
whether resulting from an increase in the size of the Board of Directors, from
the death resignation, disqualification or removal of a director or otherwise,
shall be filled solely by the affirmative vote a majority of the remaining
directors then in office, even though less than a quorum of the Board of
Directors. Any director elected in accordance with the immediately preceding
sentence shall hold office for the remainder of the full term of the class of
directors in which the vacancy occurred or the new directorship was created and
until such director's successor shall have been elected and qualified.
3. Enlargement of the Board. The Board of Directors may only
be enlarged by the vote of a majority of the directors then in office.
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CONTINUATION SHEET 6.2
4. Tenure. Except as otherwise provided by law, these Restated
Articles of Organization or the By-laws, directors shall hold office until the
third year following the year of their election and until their successors are
duly elected and qualified. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the President,
Clerk 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.
5. Removal. Any director elected by the stockholders, or by
the Board of Directors to fill a vacancy, may be removed only for cause by a
vote of a majority of directors then in office or by the stockholders, after
reasonable notice and opportunity to be heard before the annual meeting of
stockholders at which his or her removal is considered and by the affirmative
vote of the holders of at least eighty percent (80%) of the combined voting
power of the shares of capital stock of the Corporation outstanding and entitled
to vote for the election of directors.
For purposes of the foregoing paragraph, "cause", with respect
to the removal of any director, shall mean only (1) conviction of a felony, (2)
declaration of unsound mind by order of court, (3) gross dereliction of duty,
(4) commission of an action involving moral turpitude, or (5) commission of an
action which constitutes intentional misconduct or a knowing violation of law if
such action in either event results in improper substantial personal benefit and
a material injury to the Corporation.
6. Amendment. Notwithstanding any other provision of these
Restated Articles of Organization, or any provision of law which might otherwise
permit a lesser vote or no vote, the affirmative vote of the holders of at least
eighty percent (80%) of the combined voting power of the shares of capital stock
of the corporation outstanding and entitled to vote for the election of
directors shall be required to alter, amend or repeal this Article VI, Part A.
B. Liability of Directors.
The corporation eliminates the personal liability of each director to
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.
C. Indemnification.
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CONTINUATION SHEET 6.3
1. Actions, Suits and Proceedings. The corporation shall
indemnify 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
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 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 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 him for which indemnity 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 cases 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
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CONTINUATION SHEET 6.4
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
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 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, by
clear and convincing evidence, 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 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 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
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CONTINUATION SHEET 6.5
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 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 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, 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 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.
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CONTINUATION SHEET 6.6
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.
D. Location of Stockholders' Meetings.
Meetings of the stockholders of the corporation may be held anywhere in
the United States.
E. Amendment of By-laws.
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.
F. Issuance of Shares.
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.
G. Corporation As Partner.
The corporation may become a partner in any business.
H. Certain Actions by Majority Vote.
The corporation, by vote of a majority of the stock outstanding and
entitled to vote thereon (or if there are two or more classes of stock entitled
to vote as separate classes, then by vote of a majority of each such class of
stock outstanding) may (i) authorize any amendment to these Restated Articles of
Organization, (ii) authorize the sale, lease or exchange of all or substantially
all of the corporation's property and assets, including its goodwill and (iii)
approve a merger or consolidation of the corporation with or into any other
corporation, provided that such amendment, sale, lease, exchange, merger or
consolidation shall have been approved by the Board of Directors or by a vote of
two-thirds of the stock outstanding and entitled to vote thereon (or if
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CONTINUATION SHEET 6.7
there are two or more classes of stock entitled to vote as separate classes,
then by vote of a majority of each such class of stock outstanding).
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CONTINUATION SHEET 8.1
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
PRESIDENT: John Blaeser 21 Georgetown Road 33 Boston Post Road West
Boxford, MA 01921 Suite 400
Marlboro, MA 01752
TREASURER: Gary Haroian 31 Tammer Lane 33 Boston Post Road West
Hopkinton, MA 01742 Suite 400
Marlboro, MA 01752
CLERK: Gary Haroian 31 Tammer Lane 33 Boston Post Road West
Hopkinton, MA 01742 Suite 400
Marlboro, MA 01752
DIRECTORS: John Blaeser 21 Georgetown Road 33 Boston Post Road West
Boxford, MA 01921 Suite 400
Marlboro, MA 01752
Rick Burnes 17 Pinkey Street Charles River Ventures
Boston, MA 02114 Bay Colony Corporate Center
1000 Winter Street, Ste. 3300
Waltham, MA 02154
Rob Wadsworth 27 Bogostow Circle Hancock Venture Partners
Millis, MA 02054 One Financial Center
44th Floor
Boston, MA 02111
Rick Bolander 1910 North Burling #A Apex Investment Partners
Chicago, Il 60614 233 South Wacker Drive
Suite 9600
Chicago, IL 60606
Deepak Kamra 75 Redwood Way Canaan Partners
Atherton, CA 94027 2884 Sand Hill Road, Suite 115
Menlo Park, CA 94025
Rob Held 116 Bear Hill Road 116 Bear Hill Road
Bolton, MA 01740 Bolton, MA 01740
Robert Hawk 7585 S. Biscay U.S. West Multimedia Comm.
Aurora, CO 80016 9785 Maroon Circle, Ste. 400
Englewood, CO 80112
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CONTINUATION SHEET 8.2
At a special meeting of stockholders on September 9, 1997, the
stockholders of the corporation adopted amendments to the corporation's articles
of organization to (i) eliminate the terms of the Series A Convertible Preferred
Stock, the Series A-1 Convertible Preferred Stock and the Series B Convertible
Preferred Stock; (ii) authorize 1,000,000 shares of undesignated Preferred
Stock, par value $.01 per share (the "Blank-Check Preferred"); and (iii)
authorize the Board of Directors to determine the preferences, voting powers,
qualifications and special or relative rights or privileges of the Blank-Check
Preferred in accordance with Section 26 of Chapter 156B of the Massachusetts
General Laws.