20111018Application.pdf

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zon OCT Ii PH l: 51
Ms. Jean Jewell, Secreta
Idaho Public Utilties Commission
472 West Washington State House
Boise, il 83720-0074
5Pê -1-/1-0/
Re: Spectrotel, Inc. d/b/a OneTouch Communications d/b/a Touch Base Communications
Application to Provide Facilties-Based Local Exchange and Resale Interexchange Service
Dear Ms. Jewell:
Enclosed for filing please find one original and thee (3) copies of the Application of Spectrotel, Inc. d//a
OneTouch Communications d//a Touch Base Communications to provide facilties-based local exchange
and resale interexchange service within the state of Idaho.
The Applicant is submitting its financial data required as par of this Application, in a sealed envelope,
marked ltconfidential". Due to the competitive nature of the telecommunications industr, Spectrotel
respectflly requests that this information only be inspected by Staff directly associated with this application
and be kept from public disclosure as it contains highly sensitive and proprieta information.
Any questions you may have regarding this filing may be directed to my attention at [phone] or via
e-mail atsthomas~tminc.com. Please acknowledge receipt of this fiing by returning one copy of this
transmittal letter date stamped in the self addressed staped envelope enclosed for that purpose. Thank you
for your assistance.
Sincerely,
Sharon Thomas
Consultat to Spectrotel, Inc.
ST/im.
Enclosure
cc: R. Arle, Spectrotel (Ecopy)
J. Mullin, Spectrotel (Ecopy)
File: Spectrotel- il CLEC
Spectrotel - il AccessTMS: illll00
2600 Maitland Center Parkway, Suite 300 - Maitland, FL 3275 i
P.O. Drawer 200 - Winter Park, FL 32790-0200 - Telephone: [phone] - Facsimile: [phone]
ww.tminc.com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Application of )
Spectrotel, Inc. d/b/a OneTouch Communications ). Case No.:d/b/a Touch Base Communications )
Provide Facilities-based and Resale Local Exchange and )
Resale Interexchange Telecommunications Services )Throughout Idaho )
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CiJ-í..-APPLICATION FOR o~~
CERTIFICATE OF PUBLIC CONVNIENCE AN NECESSITY TO PROVI;:~
FACILITIES-BASED AN RESALE LOCAL AND ~~i:
RESALE INEREXCHAGE TELECOl\fMUl'TICATIONS SERVICES
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Pursuant to Title 62 of the Idaho Code and IDAPA 31.01.11, Spectrotel, Inc. d/b/a OneTouch
Communications d//a Touch Base Communications ("Spectrotel") respectfully requests that the Idaho
Public Utilties Commission ("Commission") to grant the Company a Certificate of Public Convenience
and Necessity to provide facilities-based and resold local exchange and resold interexchange
telecommunications services within the State of Idaho.
In support of its Application, Spectrotel submits the following:
I. Introduction
Spectrotel is requesting authority to provide. basic resold and facilities-based local exchange
services throughout the state of Idaho in all exchanges not exempt fromcompetitionaswell as
intrastate interexchange services statewide.
Spectrotel proposes to provide local and interexchange telecommunications service to business
customers. Spectrotel plans to offer service through UNE-P facilities and resale arangements
with incumbent local exchange carriers. Applicant wil not provide operator assisted services;
Applicant's underlying carier wil handle calls that require operator assistace. Emergency calls
placed by dialing 911 wil not be routed to or handled by Spectrotel. Such calls wil be routed
through the underlying carrier to the appropriate emergency agency serving the originating
location. Spectrotel sets the rates for its services and handles its own customer service. All
services are offered twenty-four hours per day; seven days per week.
Idaho Local Application of
Spectrotel. Inc. d//a OneTouch Communications d/b/a Touch Base Communications
Page 1
II. Form of Business:
(a) Spectrotel, Inc. d/b/a OneTouch Communications d/b/a Touch Base Communications is
incorporated in the State of Delaware. The main address of the corporation is:
Spectrotel, Inc.
d/b/a OneTouch Communications d//a Touch Base Communications
3535 State Highway 66, Suite 7
Neptune, NJ 07753
Telephone: [phone]
Facsimile: [phone]
Toll Free: [phone] (Bus)/[phone] (Resi)
Website: ww.spectrotel.com
(b) All correspondence, notices, inquiries and other communications regarding this
Application should be addressed to:
Sharon Thomas
Consultat to Spectrotel, Inc.
d/b/a OneTouch Communications d//a Touch Base Communications
Technologies Management, Inc.
2600 Maitland Center Parkway, Suite 300
Maitland, Florida 32751
Telephone: [phone]
Facsimile: [phone]
Email: sthomas~tminc.com
(c) The Applicant is a Delaware corporation on February 29, 2000 and is authorized by the
Idaho Secretar of State to transact business within the State ofldaho.
The Company's Registered Agent in Idaho is:
National Registered Agents, Inc.
1423 Tyrell Lane
Boise, ID 83706
(d) Offcers and Directors
Officers and Directors of Spectrotel, Inc. d//a OneTouch Communications d//a Touch
Base Communications are provided as Exhibit C.
(e) Stockholders
Stockholders holding a 5% or greater interest in the Company are provided as Exhibit D.
Idaho Local Application of
Spectrotel, Inc. d/b/a OneTouch Communications d//a Touch Base Communications
Page 2
III. Description of Service
The Applicant anticipates it wil begin to provide service as soon as this application is approved
by the Commission. Spectrotel proposes to provide facilities-based and resold local exchange and
resold interexchange services through the combination of its own facilties and the resale of other
carriers' facilities and network elements. The Company intends to offer service immediately upon
certification and approval of its interconnection agreement.
Spectrotel intends to offer service in the geographic areas curently served by Qwest
Communications. Spectrotel wil mirror the basic local callng scopes of the incumbent local
exchange companies.
iv. Financial, Technical and Managerial Qualifications
Spectrotel possesses the managerial, technical and financial ability to provide local
telecommunications service in the state of Idaho. Spectrote1 has the financial resources to enable
the Company to successfully provide local and interexchange telecommunications service in the
state of Idaho and the management team in place to manage this operations.
IV.A. Financial Qualifications
(a) Spectrotel is financially and otherwise capable and qualified to offer and maintain all of
its tariffed services in its territories. Spectrotel is providing the financial statements of the
Company (Exhibit E) as proof of its financial abilty to provide service within the state
of Idaho.
(b)As a UNE-P CLEC, Spectrotel wil not build facilities and wil not incur any additional
capital expenditures associated with providing service in the State. Nor wil Spectrotel
require additional sources of funding for its State operations during its initial phase.
IV.B.
(a)
Managerial Qualifications
Spectrotel has an excellent senior management team, backed by experienced employees,
who are competent in telephony engineering, operations and marketing. Attached hereto
as Exhibit F are the biographies of the Spectrotel senior management team.
Idaho Local Application of
Spectrotel, Inc. d//a OneTouch Communications d/b/a Touch Base Communications
Page 3
IV.e.
(a)
Technical Qualifications
Spectrotel's services wil satisfy the minimum standards established by the Commission.
The Company wil fie and maintain tariffs in the same manner and form as required of
incumbent local exchange telecommunications companies with which Spectrotel seeks to
compete.
(b) Spectrotel management team has had prior experience with competitive local exchange
and interexchange service providers and possesses considerable telecommunications
expertise. Based on the experience and proven track record of the Company's
management team, Spectrotel is technically well-qualified to provide local and
interexchange service in Idaho
(c) Spectrotel wil initially utilze resold services and combinations of network elements
provided by the underlying carieres). Underlying carriers wil perform all local
switching, routing and call completion functions. Company personnel have experience
working with underlying carriers of long distance and local services. Applicant's
technical and managerial personnel are well qualified to direct the delivery and biling of
the proposed services.
V. Customer Service
Applicant is responsible for all customer inquiries and complaints. The telephone number for
customer inquiries and complaints is provided by Spectrotel on the customer bil. Spectrotel's
Customer Service Departent may be accessed through a toll-free number: [phone] for
business and [phone] for residential customers. Customer service is available seven days a
week, twenty-four hours a day.
The contact for resolution of customer complaints with the Commission is:
Ross Artale, Chief Operating Officer
Spectrotel, Inc. d/b/a OneTouch Communications d//a Touch Base
Communications
3535 State Highway 66, Suite 7
Neptune, NJ 07753
Telephone: [phone]
Facsimile: [phone]
Toll Free: [phone] (Bus)/[phone] (Resi)
Website: ww.spectrotel.com
Idaho Local Application of
Spectrotel, Inc. d//a OneTouch Communications d//a Touch Base Communications
Page 4
VI. Ilustrative Tariff
The Applicant's proposed local and long distance tariff is included with this application as
Exhibit H. The Applicant's access tariff is included with this Application as Exhibit i.
VII. Service Territory
Spectrotel intends to offer service in the entire state of Idaho.
VIII. Public Interest Standard
Grant of Spectrotel's Application to provide basic resold and facilties-based local exchange
services as well as interexchange services is in the public interest and serves the public
convenience and necessity. In enacting the Federal Telecommunications Act of 1996, the United
States Congress determined that it is in the public interest to promote competition in the provision
of telecommunications services, including local exchange services. Experience with competition
in other telecommunications markets, such as long distance, competitive access, and customer
premises equipment, demonstrates the benefits that competition can bring to consumers.
Consumers are enjoying increased services, lower prices, higher quality, and greater reliabilty.
This is true not only with respect to the service offerings of the new entrants, but also as a result
of the response of incumbent monopoly providers to the introduction of competition.
Spectrotel's proposed services wil provide multiple public benefits by increasing the competitive
choices available to users in Idaho. Enhanced competition in telecommunications services likely
wil further stimulate economic development in Idaho. In addition, increased competition wil
create incentives for all carriers to offer lower prices, more innovative services, and more
responsive customer service.
IX. Waivers and Regulatory Compliance
Spectrotel has reviewed all of the Commission's rules applicable to competitive local exchange
service and interexchange service providers and agrees to comply with those rules except to the
extent the any such rules are explicitly waived generically for carriers in the same class.
Idaho Local Application of
Spectrotel, Inc. d/b/a OneTouch Communications d//a Touch Base Communications
Page 5
X. Conclusion
This Application demonstrates that Spectrote1, Inc. d//a OneTouch Communications d//a Touch
Base Communications possesses the technical, financial and managerial resources to provide local
exchange and interexchange service in Idaho.
Wherefore, Spectrote1, Inc. d//a OneTouch Communications d//a Touch Base Communications
respectfully requests that the Commission:
1. grant Spectrote1, Inc. d//a OneTouch Communications d/b/a Touch Base
Communications authority to operate as a provider of resold and facilities-based basic
local exchange and resold interexchange telecommunications services within the state of
Idaho;
2. grant the waivers requested in this Application; and
3. grant such other relief as it deems necessar and appropriate.
Respectfully submitted,
Spectrotel, Inc. d/b/a OneTouch Communications
d/b/a Touch Base Communications
Idaho Local Application of
Spectrotel, Inc. d//a OneTouch Communications d/b/a Touch Base Communications
Page 6
SPECTROTEL, INC.
D/B/A ONETOUCH COMMUICATIONS D/B/A TOUCH BASE COMMICATIONS
Exhibit A
Articles of Incorporation
Ðefaware PAGE 1
fJ :First State
I, JEFFRY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF
DELAWAR, ri HEREBY CERTIFY THE ATTACHED ARTRrJ AND CORRCT
COPISS OF ALL riCfJNTS ON FILE OF "S'PECTROTEL, INC." AS
RECEIVED AND FILED IN THIS OFFICE.
THE FOLLOWING DOUMNTS HAVE BEEN CERTIFIED:
CERTIFICATE OF INCORPORATION, FILED T.HE TWNTY-NINTH DAY OF
FEBRUARY, A.D. 2000, AT 9 O'CLOCK A.M.
CERTIFICATE OF DESIGNATION, FILED THE THIRD DAY OF .ARIL,
A. D. 2000 f AT 6 0' CLOCg P. M.
CERTIFICATE OF MERGER, FILED T.HE FOURTH DAY OF .ARIL, A.D.
2000, AT 1 O'CLOCK P.M.
CERTIFICATE OF CHAGE OF REGISTERED AGENT, FILED THE TWELFTH
DAY OF AUGUST, A.D. 2002, AT 9 O'CLOCK A.M.
RESTATED CERTIFICATE, CHAGING ITS NAM FROM "PLA B
COMMICATIONS, INC." TO "S'PECTROTEL, INC.", FILED THE ELEVENTH
DAY OF OCTOBER, A.D. 2002, AT 11:30 O'CLOCg A.M.
CERTIFICATE OF CHAGE OF RSGISTERED AGENT, FILED THE EIGHTH
DAY OF MAY, A. D. 2003, AT 1: 11 0' CLOCtr P.M.
AND I DO HEREBY FUTHER CERTin THAT T.HE AFORESAID
CERTIFICATES AR THE ONLY CERTIFICATES ON RECORD OF THE
3185104 8100H
110764720
Jeffy W. Bullock. Secretary of StateTION: 8865573
DATE: 06-27-11
yot, iiy vøri£y tbfs cei:tf£fcat:e online
at: co~. delaware. gov/autbver. sht:
'De(aware PAGE 2
rJ Jirst State
AFORESAID CORPORATION, "SPECTROTEL, INC.".
3185104 8100B
110764720
AUTBE
DATE: 06-27-11
You niy 'lrlty this cørti.icate qniine
at corp.cliawar.gov/authver.shtni
STA'JE OF l)E1.1lWAR
SECRETA,Y OF SPATE
DIVISION OF CORPRATIONS
~ILED 09:00 AM 02/29/2000
001102229 - 3185104
CERTIFICATE OF INCORPORATION
OF
PLAN B COMMUNICATIONS. INC.
(Under Section 102 oftle General Cøi:ra'tøn Law)
It is hereby certified:
FIRST: Thenaie of the corporaion is Plan B CoinUncations, Inc. (the
"Corporation").
SECOND: Th registered offce of the Corporation. is to be located àt 15 East
North Streeti City of Dover~ County of Kent, State of Delaware 19901. The namQ of itS
registered agent a.t th address is United Cotporate Serices. Inc.
THIR: The puiose of the Corporaton is to engage in any lavdlil act or
activity Jor which a corporation may be organized under the Geeral Corporation. La'" of
Delaware.
FOURTH: The total number of shares of ai: classes of stock which the
Coro¡ation shall be authoried to issue is 55,000.000. of which 501000.000 sb.l beilesìgnated
as Common Stock with a :par vaue of S.OOlper share, and 5.000.000 shl be deignated as
Preferred Stock with aparvalue of$.OOl pershan:::.
The Board of Directors may divide the Preferrd Stoele into any number of series,
fix the designon and numbér of shaes of each such series. and detemin or cligethe
designa.tion, relative rights. preferences. .and limtatons of any seres of Preferrd Stool(. The
Board of Directors (withn tIie limits and restrctons of any resolutions adopted by it originaly
fixing the number of shares of any seres of Preferred Stock) uiay inc:r~ase or decrease the
number of shares initially fixed for ~y series, but no such decrease shal reduce the number
below the number of shares then outstanding and shares duly resered for issuance.
FIFTH: The name of the incorporator is Orlando Figueroa. . His mailing
address is c/o Loeb & Loeb LiP, 345 Park Avenue, New York. New Yor1(' 10154.0037.
SIXTH: The election of diedtors need not be by wrtten ballot. uness the by-
laws so provide.
SEVENTH: No stockholòershall bnng any actionaga.t the Coiporationor
any ofñceior dìiector ofthe Corporation (in their respective capacities). unesssu.çh .stockholder
and any person controlling such s:ockholder shall have entered an agreement with the.
Corporation. reasonably satisfa.ctory to it, requing the losing par, and any pets6n controllng
the støckholder, if the stookholder shall be the lø.sing par, to pay to the prevaiIl par ùe
attorneys' fees and expenses incured by the prevailìng par in such. action. 'IlSAricle
SEVENTH shall not apply to any clai arsìng before the Corporation shall have first filed a.
.., ,.--".., ..,. ..-.. .... ........--_._-_._-- ."?'..-..' ....... ......-............~____._...._.....__..~_.."..... k" _.....~....__~~ .....-....-
regîsrrtion statement wîth respeet to a class of equity securty under the SecUrties Act of 1933
or the Secures Exchage Act of 1934 ("Exchange Act"). As used il t1 Arele SEVBNTH.
the ter 'fierson'J shall have the meaning given it in Section l:J(d) oftbc ExChane Act, and th
term "controllng" shall have the meanin given ìi in Rule 12b-2 iier the. Exchange Act.
EIGHTH: The Board of Directors shall have power without the assent or vote of
the stockholders to make, alter, amend, chage, add to or repeal the By-Laws of the CorporatìOll.
NITH:. The Corporation shall indemify iud advanee expenes totbe f1J1est
extent permitted. by Section 145 of the General Corporation Law of Delaware, as aiendedfrom
time to time, each person who Is or was a diector or offcer of the Corporation and the heirs,
e.xecutors and adinistators of such a person.
TEl\"TH: Whenever aeompromise or arangement is proposed between tbe
COIporation and its credtors or any class of thei andJor between the Corporation and its
stockholders or any class of them, any cour of equitable jursdiction with the State of
Delawar may, on application ìn a sumar way of the Corporation or ofaoy creditor or
stockholder thereof or on the aplication of any receiver or receivers app.oin.ted for the
Coiporation under the provisions of Sei:tion 291 of Title 8 of the Delawaxe Code or on the
application of trstees in dissolution or of any reeiver or receivers appointed for the Corporation
under the prc:)Visions of Section 279 of Title 8 of the Delaware Code order a meetig of the
creditors or class of creditors, and/or of' the stookholders or a class of stockholders of 1le
Corportion, as the case rnay be, to be sumoned in such manerBS the said cour directs. If a
maJority in number reresenting thee-four in value of the oreditors or class of crøditots,
and/or of the stockholders or classofstockholders oftheCotporation..as the case iuay be, agr~
to any compromise or arangemel1tand to any teotgaiation of the Corporation as a
consequence of such compromise or argement, the said compromise or arangement and the
said reorganization shan. if sanctioned by the cour to wlùch the said application ha been made,
be binding on all the creditors or class of credtors, and/or on all the 5tockholders or clas of
stockholders, of the Corporation, as the case may be, and also on the Corporation.
ELEVENTH: The personal liabilty of directors of the Corporation is heréby
elinùated to the full extent pemitted by Section 102(b)(7) of the General Corpora.tion Law of
thc State of Delaware as the same may be amended and supplemented.
TWELFTH: The Co.rporation reserves the right tOâlend, alter, change or
repeal any provision contaied in this Certifcate of Incorporation in the ma:er now or hereafter
prescribed by law, and all rights and powers conferred herein on stockholders, directors and
officers are subjêci to this reserved power.
2
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/'"/-
1N WlT1ITESS VvREOF,ths Certfieate bas beensu1)scribed t~ ths ~day
of Februar, 2000 by the undersigned, who affirms tht thestatoments ma.de herein are tre
und.er the penalty of peijur.
/51 Orlando Figuera
Orlando Figueroa
hicorpora.tor
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154-0037
3
..... - ... _.. - '.. ~ _. ..... .. - ........ 0' ...._._........ . ........._._____......
STATE OF' DELAWAR
SECiæTAIYOF STATE
DIVISION OR" CORPRATION$
FILED 06: 00 PM 04/03/2000
0(;1169275 - 3185104
CETICATE OPOESIGNAnO~. PRE\tCES
AN RIGms OF Sli A CONVETmLE
I'RERR STOCK
-OF..
PLAN B CO!v.IM:tJNrCATIONS. INC.
Plan B Coniu."lca:ions, Inc., a cQrpation organ:id and ~X1Stingundo tbe laws of tbe
Stlìte of Dclawii (the "Company"), by i~ Piemdent and Secret. d~ h~by ceiy that.
pursuant to authonty coiierred upon the Board of Direclors by Aricle :Fourt of the Certfcnr.
of Iiicotpiation of the Company, llthoniing a class of 5,OOujOOQ abareil of preferad SEoÇkof
the Company, the Board of' Dlrector~ of the Couiany, by unanimus written consent, hu duly
adopted resolution~ providing for the isstice Out of such cllls of a series of up to 5$0,000shMed of Series A Convetttile Preferred Stöck at an issuance pricl of $30.00 per shar (the
"Orginal Purcho.oePrce'" and setting forth the votiri'g power, deignation, prefereiee8and
relative, participating, optional ánd other speal rights,aid the qualificaùons¡ limitaons aDd
resuict.onsthenmt. which resolution is as follows:
RESOLVE, that purcl1ant to the AUthOrity vested in th Soard ofDitectpts of the
Compa.'Y in accordance with the provisions of its Arcles l.1Incoiporaticn, as ancld. there
be, and hery is. created out of the class of 5,000,000 shars of prefered stock of tb& Oompany
autiioriied in of Ait.cle Fourti of iis Certficate of Incorporaon,a. series of prefeuedsroekof
the Company With ~hø fOllOWing votig powers.de.signatîon, pi;terenee andteiatÎv~.
ptlicipèting. optiu'll and other special rights, and quaJitcation.limita.OìS and rettctìOl:
l. DeSignation al1dNul1ber of Sharca. 550,00 shares of pref6rred stoe(thil
"Shares"lare bereby desjgnat~cí ii Series A Convmble Prfe.ied Stoek (the "Seres AtJréfer
Srock").
2. Rane. The Seties A Preferrd 5 tock ~lial ranc: (î)juntor to any other åla.s ør
seres of cap.itllI stock of the Cöiption hereafer created specifcally 1" by ita tenn setot
LO the Ser1~ A Proferred Stock (the "Senior Securties")¡ (ii)prior ro all of the COrpration's
common stock, $.001 pai viilùe per shii'e (the llComon Stock"); (íi) prior tollyclass Or &erie!
øf capit.& stoek öf the eòrpratioJl hereafr created not SpeCifically rainS by its tettt $imor to
or on piuüy wiUJ the Seres A PrefEllTed Stock (colJeclively, wìthtne CQmi(ln Stcxk. liJ'1.ìÙQr
Securties");.and (iv) on partywühthe Seres A Ptdd Stock ofthè Corporation
and iiyc1as$or seres of capital stock of the Cororaùonhereatei" crete specifically rlWking by itatenns on paity with the Series A Prefer Stock (the "Party Securtiesll). in eacli casr; ii tCJthe
cUrnbution 0: asSëts upon iiquidation. disSölutiotl or wincfhß up of the Corpration. the
Coipratíonmay Usu=. in the future. without the consent of holder of the Seii05 A PreferedStock, other Sei:ior, Junior or parity Securities..
--: .......-: .,,. '"
; ,.;.. ¡. .~. ..... .. .
3. LiQl1dation.
(a) . Upon any liquidation, dissolution orWinditig up of.tl.Co.roration,whCltler
volunta Ot invølUntll ("Liquidation"), the holdCll'ofrecordof theiharesof the -Seres A
Prferred Stock shal be entited to teceive, imedia~lyaf any dütrbution. t() Seniøi
Securties required by the Coiration '~ Cerficate ofIiic01oratioii and iuyeerñc.(~) of
deS!N1ation, powers. pr:etencesand J:ßlta. and betOR and in preien(l$ to my di6tbuonor
pAyineiitof assats of the Corporaiion OJ' the prees thereof xnay be made Or set .aart f9r the
holden of Junior Securities, an aiountiri eab equal to Sl00.00pesha,l3ubjeç to adjustent
¡nthe event of ìltock spli ts. cobinatlonsor similar events (the l'Lquidaton VlÙue"). If,upn
such LiquIdation. the assets of the Corporation av¡ulable for distbution totM hDlde 01 Séres
A Pt'ferrd Stock and my Paity SêeLltiessbaIl be insuficìe'ltto peimt payment ìn ful (0 the
holders of the Senes A Preferred Stook and Party Sec\.rics. then the
entire assets and funds ofthe Corporation legally available for dìiitrbution tö such holders and tteholde oflhepatry
SCCtitlties then ol.tStan:ling shall be distrbuted r;iably aiong the holders of the Seres A
Piercrrcd Stock and Party Securities based 'lpon the proorton the lota amount distbutable oneach .\hare upon liquidation. bears to the aggtegate amount available fo1' distrbutionoJl all sharor chi: .sr:ri~s A Preferred .sioek and of siioh Panty Securities, ìf iuy,
(h) Upon the completion of the wstrbntlons reqUired byaiibpaagraph (a) of thsPar.giiiph 2, if assetS remain in the Corpratil,n, they shal be distrbuted to holde of1unør
Securties in accordance with the COI'orariOtn CeJ:tiflcate oflncorpraton and any ce.fiet(&)
of designation, powers, preferences anù rights.
(C) For pUrposes of this Paril¡raph 3. ll merger or consolidaton or a sale of all or
substatially all 01 the assets of the Corpora.tion :ihåll be CO$icked a Ligudation except iritleevent thac in such a I:Ansaetion, the holders of the Serli:.A Preferred IStock receive secuties of
the~l.vivinB corporation haVing substanuaUy 31tiilÌgh~:: as. the Benes A. Prefen:ed Stock.
4. Dividends.. Subject to the rights of êl.votber seres of
:Perred Stock thåtinayfrom titt to t~ come into existence, the holders nf shars of Series A Prefeied StQ(k iihâlbe
entitled to receive dividends, out of any assets legilyavailablé therfor, rata.bly lòtl mlY
declattíon 01 payment of any dividend with holders of the Co.ion Ste ()f othr junior
$#!C:Urities ofths Ccirpçni.tion. when,.5 and;! declared by the Boar Of~Ctor5. based òii the
riiirr,ber of staes of Common Stock into which each shar of Series A PteteiedStok is thencOhvertble.
5, Coriver6ìon Riglt~ Bach holde of leèrrl of shares of the Seos Al;cefen-eò
Stock .ihall have the right to convert all or any pan of such holder's share (If Serie6 A Prefene
Stock mto COnlcin Srock 2.S foHows:
(a) Optional Coltvetslon. Subjeci 10 and upon coipJiane With the¡:ovisions of ths
Secboii 5, the holder of any shai ofSe.ioa A Preferted Stok &liall have tbé nght at suc
h.lder's opton. at any tieor from timi; to rime, to convenany of &uch shar ofStUes A
'Peferrd Stok into fuly paid and nooiUsesSiabie sha. of Conion StQçk ae the Converion
Prce (1l ciefinw: in Secùmi (5)(c) below) in effec on the CoiivÐ1"ion bate (as de:fcdm Secbon
Sed) beiow) upon the tenDS he~ter oSet foitl.
-2-
. . - .. -: ~ -= ... ," ...,.1., .:'.:.......-:
(b) ø,ucom¡¡tic Cql1'VefiQn. Each outstanding shii of SenesAPiered S~ahlauo.ticdly bø COD'Veited, without any fuher aet of th Corporaûon or its stQkbØldes, into
fully paid and nona5~essahleshaes of CODUon Stocktt the ConveisioIlPice thcninefftwt: (i)
upo the closìng of a public offerng tir prvate placeeJ1ofthe Com))any'¡ secUtiies raising
gross piuceeds i.exce ot $15 niIUon and. in th case of a privatepjaçement, at II pe&be
¡i.. of -. than ll2.ói fa ßQtifed O!r'~~;l"ai .. "lld.aín bid pi fò
the Common Stock (lfthe Company bas equaled at~t300% the Converon Prce fora perod
of 20 comiecutive tr.ang days. proVided that the CoiStock of the.CQmpatYistmg ox! a
national secunties exchan¡e or the l'asdaq SmalJ Cap or.Na,tioiiw Maket Srstm.and the
Conversion Shares a, fully tegi&tered for teale and not subject
to any IOc,-up prvisiØ:i 01(iii)ai sooh time as 80% Oftlie total number of~feted Shars i$!ue by
the CortldÍO bå\teconvered to Conuon Stôck.
(c) ConverslQn Prce. .Sa .share of the Seres A Prete.ed Srok Shaii be covertible
into that number of fuly paid and non..asses4Qble ahates of Common Stoc of the Compaiy
tqualto the Original Puhase Price divided by t1e c:onvet8Ìcm price in efeCl.at the time ofcöilVersion (the "ConversiOJl Prce"), determned as he:inafer provided. The Con\letonPrce
&hall mUilÙly be $3.00 per shar; prcMLlec, hOWe\lel1 that in tbe eVêntthe average closng pice
of the Company's ComlOn Stock, if publicly traded. ¡sIess ihii the Coverion Price dung the
20 trading day/) precedng th first anniversar of the. firsr date a lhíto of Series A PrÙered
Srock was issuedi the ConveSion PriCIl will be reot ro such lower price. The nUmber of sham
of Cornon Stook uuo which each share of Prf~cd .Stock is convertble is herein rlf~md to .aõ
the "Conversion Rate." The ConversiönPraes.hall be subject to adjUstment .ssec forh in
Secnori 6 hereof.
Cd) Mechanics of ConversiQ!, Beftreany holder of SeriesÁ Prferrd StI\$lian.be
entiUed tQ convert the same into sha.$of Commn Stock, suchhølde Shall suendértle
cemticare or Cerificates therefor, duly eiidor.sed. at the office of the Comp.any 01 Of anyttsfer
agem fOr the Setìes A Preferd Srock,åtdshali give written notice to the CODlPay at its
principal coiprate office, of tJielecdon to convert the SÆUe and shall stae therin ræ name or
name! in ..hich the certîfcaieorcerficates for shares of Common 5wck are to .~. iSsued. The
Ccmpany shall. as SOon lUi practicable thereate, issue ar.d deliver at $Uch offce to such holdci
of Series A Prefered Stock, or to ihenOnine Dr nominees of suebolder, a certfiCAte or
cerfJticates for the number of shars of Common
Stock to which such hOlder shal be entitled ticiforesaid. Conversion shall be lkcmed (0
have be effected on the dat when delivery of
notieof ail election to eon \lért and certificates for ghaes iii ttde in 8Co(dance With Section 5(1) or OD
the date of the Occurence of an event ~pedfied in Sectmn 5(b), as the ca.se nay bc,8ld suob da
is referred to he.reìn SiS the "COnversion Date." All Coin.110n StOck which ma)' be iSSU8d upon
conversion of the SlllÌes A Preferred Stock wil, upon i$suance, be duly isued, fully paid and
non.assessable and free from all taires, hens, and charges With r~pect to thei.siiançe dieteöf. Ât
all Innes that any .shares of Sênes A Pr~fen'd Sto¡;k are outstadig. the C0ttpaiy shall have
aurhorzed and shalliiive rcserl'eci for the PUrose otissuance upon suçh ~on'\er$Îon intCl
Common Stock of all Series A Pl'efeird S.tock. 8sut'cieni numr ofahares Øf Commot! Stock
to provide for the conVersibu of all OUt$lán4îiig shars of Seres A ~eifel'red. Stock
at the thencffectiv0 Conversion Race. WithOUt limiting
the generaty of the foregoing, if, in tmy time, th6Cunversion Price is decreaSed, the nunbe of shar$ of Conuon Stock ti\.thor:zed qd resed
-3~
.. '. ,." '..-
: .......":...": ...-.. ~"~::':
-'.-~. I'
for issuance upon the convet-sio:1 otthe SeléS A Preferd Stoc.k shall be proportoIlatly
Înereas~d.
(e) Conversion Prce Adjustments. Th Conversion Prce shall be subjeot to th
adjuitinent pi:ovisiölls of Section 6 below.
(f Fractional SIUlre. No fractional shares or scrp repi:e3cnüng fnctiOD,ii shes of
COm1on Stok shall be iSSl1d upon th conversion of the Seres A Prferred Stock. Ii lieu øf
anyftctional sbares to which a holder would otherise be entltled. me Corpratlonshå pay
cash, equal to such fraotion muldti1ìed by the closing prce (as d!fined in Section 6(h) heref) of
ùie Coriol' 5mck on the day of converson
6. Anti~Pi lutton Provisions. The COl1versloi Prce in ~ffectll any umean.th
number and. kiM of seeurtics issuable upon theconvetsion of the Seres APlfe: Stocksha
be subject ti adjustment from time ro time u.pon the haPleiiing ofcereventSQ fOllows:
(a) Iii case theCompaty shill hereafe:r(í) delare a dividend ør in. a distrbutioJl
on itS out:tanding shars of Common Stock in shares of Common Siok,(U) sUbdivide or
rec1!~lIify ito tJllrstanding shari: of Common Stock into a greater numbe. of shar, o't
(iü) CODibine 01' rec1asifyi:& outstandiiig sba.eJ of cottn Sloekinto a smer ftllber of
shares, the Conversion Price in effect at thtime of the reötd date for such dìvided or
dist.-ìbution or of the effective date of suchsubdivíøion. combination or relassifcation shll1 be
adjusted so lhat it shaU equal the priee ootermed by multipiying the ConverSiOn Prce by &
fraction, the denomina.tOr of whichshall be the number of sfues of CQrtOJ' Sttk outstidìng
afr giving effect to such action. and the numerator of which shall be the numperof iib.iesof
Common Stock otitstanding immedìately prior to such action. Such adjiistmntshiibe made
sueCêsively wher.ever ~y ~,..tnt li5ted above shall occur.
(b) In ca¡¡e the Conipany shall fíx a reeord date for theiBsuançe Gt rights or waiants
to all hOll'rò of its Common Stock entitling them to subscribe for Ql'purhsis shars of CoOt
Stock (at securties convertible into Comuon Stock) at a price (th "SubScription 'Pc0") (or
having a conversion pnce per share) less than the Converion Price on such l'eeorddate, the
Conversion Price shall be adjusted so tha.t the same shall equal the price decene 'by
multiplying the Conversion Prce ìn efieci imiedíately prior to the record date of Iluchissuance
by a fraction, the numerator of which shall be the Bum of the number of shares of COmrQß Stock
outstandîng on the record dat and the number of additional shars of Common Stock whicbthe
aggregate offering pnce of theroml number of shars of Common Stock 50 offd (or the
a~itagate cot!ve:sion price of the convei'tble securities 60 oífeied)w(luJd ptiçhas at the
ConvetSion Price in cf(ect uii:iedately pnolr( the reord. and the denominator of which 5balJ
be the sum of the Ilumberof shiies of Common Stock o;.uuanding on auch record l1te and the
numbe of additional shares of Common Stock offered foNubscriprioii 01' purchas (or intO
which the convertble securties so offered ar converble). Such atlustngnt shal be mad
success1vely whenever such riehts or warants are issue and shal beaome effeei.e imediâtely
after the record date for rhe detemnârlon of shareholders entitled to receive such rights or
wanants; and to the extent tbi shares of Common Stock e.e Dot delivered (or secl1ties
.:.mvertble into Cönuon Stock are not dtHvc:red) Qfet the expiråtion ot SUch rightsOf Wmârts
the Conversìor. Pace shall be readjuste:i (0 ttie Conversion Priee Which would. thênbein 6f1ect
.4.
0._ "
. ..".,.::, :.:~, F.:
.
;OJ
l1adtbeadju:illIcnts mad \ln the issuance of suehrigbts or waiants been ma upon the oms
of deivey of only the number ()f shas of Common Stock (or securlies IZnvertbl/& into
Common Stoc)acaUy d.elivered..
(c) Incase the Company shall hereU' distrbute to thtliolder of its Coon Stok
evidences of its ini:biedness or asets (excluding cå'4b dividcnd or dì6tibi.tions andivÌ¡;nds
Of distrbutions :efeiTCdto in Subisction (ii) above) or subscripton n~tsor warants (Ciciuding
ttosc refen'èd ioin Subsection (b)ahove), then in eah such CiasOthc Coiwciaion Proe încfiit
thc~rsbaU be deinncd byniuJtiplying tho Conve.on Pncøin effect~~y J)nør to
the distrbution date by a fracdon,t1e nuniei8tor of which shall be the-tOtal tiumbe ohbarcs of
Common StOc1\ oiitstanding multiplied by th currnt market prce per share of Comn Stoek,
Jess the fai markei value (as deennned by the Coiiaiy's Board of Diretors) of sad wetS or
evidences ofindebtedness so distrbud or of such n¡tht! or warants, and the denomiatopf
which shall be the total number of shar!! of Corion Stock oumanding mWtiJ)liedby such
ei.ert l'i'ket price per shii of Common Stock. Such adjc$trttt shall be ~ &U~siveJy
whenever sU(h So record date is rued. Such ådjuiitr.ntshall be ii$d whenve. æiy such
distrbution is niadeand shal b~ome effectl've immediately afcl.the l'CCOrd date tor the
determnation of shareholders etti1ed to receive such distrbution.
(d) In case the Company shall hereafr issue shars of its Common Stk (eiccludg
shares issued (i) in any öfthe trsactions descbed in Subsecton (a) above, (ii) upê eierce
6t options granted to thi: çompany'& offcers, direcors. employeesand consultants wideapiiin
or plans adopted by the CompllY' s Board of Direotors and approved by its shareholders, if such
shares would otherwise be ~neiuded in this SUbsection (d), (but only to th extent that the
aggøga,te number of shares exclude hereby and issued after the da.te hereof, shaD not ClltCee
15% of the Compay's Common Stock o\Jtstading, on a fil1y clluted biiis, at the tie of ary
option lS5tmnce), (iii) upvn exerise of optiona, \\atatts1converblt7 securtis and conveiüble
cebetltures outstading as of thci fillal closing of the Prvate Placcmertt, a Qualfied Offede,oi
conversion of the Shares. (iv) ~o sharholders of any cororation wltcli mers into the
Company in tiroportion to their stock holdings of such corporation ìi:&te1y prior to such
l!erg~r. upon such merger, (v) issued in a private placementth:"ough COm1oßwealt Á.aOQiaws,
L..P.. as placem~nt agent. or upon CJlt:ccise or COl1vi:rsìoIl of ilY securties Íasiitd i. or in
connecuon with suchap:ívaie pla.çeinent (including agent, cor:sulting or advisol) warants). (vi)
i ssued In a pn v ate placement where the Offenng Pnoe (as defined below) is at least 90% of di~
cutent markctpnce. (vii) issued in 11 boni fide pUblic offering pursuant 10 a finn eomtmnt
underwiitinij. or (viii) lS5Ueù in connection with an acquisition of abusiries8 or tecology which
has l,een at:ptov&dby a majority o.fthe Company's outsii; dil'etoi'S but onl~ if no adjustnt ~
réqul.d puruant to any other spécific subsecrìon of this Sec:don 6 (withOut re~ar tb
Subsettion (i) below) with respect to the lIacdongiving rise to such rights)for ii
ci,nJideia~onfei' shai-e (the "Ofeting Prce") less than the CQnvet$Ìon Prce) the Convoraion
Price shl be adjuilted jriedateJy theieiifterso that it ~aJl equal the price cìtered by
multipl ying the Conversion Prce in effect iriedtely prior to the date of issuance by a frctioii.
We nunietor of which sha.ll be the sum ofthe nuinbet of ~hareSof Coinon Stock oiitstg
inidiately prior to the issuance of such additiona shares and the mimbcr of shiieii of ConuGn
Stock which the aggregate eonsideation receved for the lôsuanee of such addtiQnu shares
\1øi:~d pW'chase at me. Conve.rsion Pre ineffeet immdio.tr:ly prtoi: to th dare of issuee i and
the denomiator of which shall be the numQer of shares of Coi:n Stock Qutstading
-$-
. . - . -: . -: .. ~ ...
..... ........
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'.
imme.diately after the issuance of such adional shares. Such ii;ustm~ts1all:eriadti
successively wheiLi'ter such an iasuuee ii:i:..
(e) In case theComplty shaH heafr bsii any scøUrdes con...e.bl-úito.()
exc:han¡t:aDlc for its Common Stoek (e~eludùg secti is5U ìn transaetions de.rlbediii
Subsections .(0), (e) and (d)(i) tbtøugl (vii) above) (in acoi1sidetation pet shii of CoauOJ1
Stock (the ¡'Exchange Pnee") brltially delverable uponçonvoIliOf or exohange of st:
securities (determed ll provided in subsection (g)bélow) less th th Conversion Nee, the
Con version Price shall be adjusted immately thare.r Sô mat it $hll equaltheprlc.e
ettened by multiplyingthc. coverson Prce in effect immdiately prir to me da of
issunc by a fraction, the nuinrator ofwbìeh iib,ii be tha sum of thenunbet øf sha of
Common Stockouistanding imtarely prior to theiS!lila.nce of such secrities antle number
of ahar of Commoi Stok which the agpgate considera.ûon reCCVed for such scciitities
would puri;hllse at the Conversion Price in effect immedately prOl' to the date of issuance and
ehe denominator of which shan be the :fUM of thenumer of !hses of Comi Stock
öutst&nding indiately pror to such iS$uøn~ and the inum num.berotsl of CooiOn
Stock of the Company deliverable upon coversion of or in exchage for 8Ich secties øt the
initial con verion tlrexchange pnce or nne. Suen adjustment shall be mad sucoessi\'l-Y
whenever soon an issuance is R'ad.
(f) Whenever the Converson Prce Ì$ adjusted purant to Subsections
(il), (b), (ii),
(d.) ¡md ee) above and (j) belöw, the numbe of Cot'veiion Shares íssuableupon converìonci
the. Seres A Preferred Sieek !lhal ieímultaneously be adjuste by iñu1tip¡ying tbe number of
Conversion Shar; initially ì$.$uable upon converóìon of the Series A Prefer Stock by tt
Con vetsionPrice Ln effect on the date hereofand dividíng the pioductso obtaned by th
COTivc~iun Price, as adjusted.
(g) For purposes of any eomputation rcpectig considetion recei\'ed pursuant tn
Subsections (d) and (e) above, the fol1owìng shall apply:
(i) ll1 ihecase of me issuance of shares of Coinn Stok for cesh,th
consideration shall be the smouin of suçhca~h, p1'ovìòe thtÌn no case
shal any
deuetion be ~for any comsioni¡, i:s~ou.nU or othrexpomes ínet bY tbe
Company for Ðny undewnting of tht iasuiior Qtbet'l1iSé in teon~tion therewîth¡
(ii) în tht case of the i5SUan of shaies of Commn Stock for 11 consdeiiuoit
in whole or in par ether thll cash, me considimtion other th8n cash shall be ~ to
be the ftir markat vâJue thereof as deterned in good faith by the Board of Dictor öf
th~ Coinpany (mespec-ti veof the acounún~ treatmenithereof), wltQstdeliOD
shall be conchisìve; and
(iii) in the case of tbe issuance of &ccurities convetible into Dr exchångeable
for shares of Common Stock. th aggrgate consideratiøn rc:c:eìved thttttO( shall be
deemed. to be th~ consideraon recc1ved by the Cömpanyfor the iS$U!lce of &~
securties plus the additionl mininium çonsi~raon, it an)', tl) tie received by the
Company upon the conversion orexc.b,lIge 1herèOf (the consdion in each cøe to be
dM81'riined in the sai manner inprovìdedm elåUes (i) and (ii) of ths SubseGtiol\ (g)).
.6~
::;0...
. ~ .. - ", . - ..._ ;L, :.. .~.... .. .... .~. .
(h) POl' the puiose ot any computation under Subsections (c:) and (d)abvo) tbe
curent market price per share of Cotn Stoclc at any date shoJIbo th~ euemlnark~tprii: per
~har of CUi:.mon Stock 011 any date shåll be deedui be theavoriigeøfthe daiy closmspee$
for the 30 consecutive businø" days prior to ùie day in qUe$tion. The "closing()ricc" tor each
day ~hall bø tbelast salri ptceør in case nOõale tas plac.on such. day, tleaNei:iigeof il
closing high bid iød low a.sked price, in either case (i)æ officially quo(edbytlieN~
SmaJlCap Markèt or the ~Ð.$daq Nationa Market or such odi marke on whìChtb~coOD
StOck js then listed fortr.a.ng. or (ij) if, in the roasonible jl,dgøtof th6 Board Qf :Dirtot& of
the Corpration, r.he NasdaqSiiálCap Market or the Nas4a NatioiW MlUke isnolonp the
pnncipa. United Siates maket för 1M Coinin Stock. then iisquot~d on the prlnçipal Unite
States market for th Comnon Stock, as
detered by !he Boar of Oirec of tho
Corporation, or (iii) if, in the reasona.blejudgent of the Board of Ditetors of Ù10 coioraon,
there exists no principal United Staes inket for the Common Stock~ then as reoiily
deiennned by rheBoiii'dof Direct.is of the Coipor~tion.
(D No adJ ust:ent in the Converion
Prce shall be required unle5li sllch adjustmen
wouldreq\le an increase or decrease of at least five eenUi (SO.OS)ins\1h prce; ptOVided,
hO\Neve~, that any adjustments which by reaon of ths subson (1) ar not rea\lùed to be ma
shiÙl becamed forward and tabn intO account in any subseuent adjustmnt req.u#ed to be
mad.e hereunde. AU calculations under th Section 6 shall be m. to the nearst cent or to th
neareat one-lundrth of a shcu-e, as the case may be. Ai1YWl'S in ths Seetion6 to thecon
notwithstading, the Company shal be entitled, b\U shall not be reuìred, to nic s\.h chatÎ~
in the Conversion Pnte, in addtion to those requied by thìs Secti() 6, as it sha.1deteu, in
its sole discretion. to he advisable in order tbat any dividend ordislnbulipn inshaofCôon
Stotk, Of any subdivision. relassifcation or combination of Cornllon Stock, he:er made by
the Coinpany shaH not result in any federal Income tax liability to
the høldes of Comion Stok
or securities converble into Common StoOK.
(:) No adjustment under Subsections (b), (0), (d) or .(e) sli be tequìrc for Ì5s'WQ~S
belo.. the Conversion Price.íf eìthe1 (i) tho ç\Ucnt market price is at 1~ast300% of the
Coiwetiion Prce thn. in efft ánd (in a regisi.s.iion sniteienteovering thConve.$Ìol1 Sha
i:i in dfectand remans in effect for the 90 dayò afr $uch iSliuance O1.:øu1e 144() uìdeche
Securities Act of 1933, 8$ amded (the "Act") is avåiable for runc of al of the Conversion
Snares or the Company at the time of sueb issuance has less thim S100.000 in cash~d c8$
eq iiivalenr..
(k) Whenever the Conversion Prce is adjusted ~bGIc:inprvider1.the Company
shan ptCl:nptly caU$e ~ notice settng fort the aclusted ConveríoD Prce andadjullted numbe of
Coniiersìon Shar~ issuable u.l'0n exercise of eah sha of Series A Ptcforred Stoo andi if
requested, infonnaúon de,cdbing the ti'8p.tions giving rise. EP 6uch adjustaent&. to be ma~
te Cotnoiiwcalth imeL. witbìri 10 days after
any tequdll for such an adjustmentbY the Holder. to
lhe Holders at their last addressesappeacg in the Share Regillter, and sli caUl8a cef1ød
c.opytlleteof to be maled to ita transfer agent, if any. The Company may tew:o a fi of
ind.pendent ærûfied public accoun~ants selected by the Board ofDirectol' (who may be tJe
regular aCCQuntants employed by me Coinpany)toi: any computatiQoieuirod by th
$ecûon 6. and nc~rtiñcllte a¡~ned by gtich fì1' shall beconcluiiiÝe evideee ofihe cotteebi of
s\:t.h adju:iuuent.
.7-
: . - : -:.~ ... ... .,........... ..M....
Q) In the event that at .any ti, as a result of an adjustment maâe:pUíJluat to
Subsection (a.) above, th Holdes of the Series A Prefimed Stock therafter ::hal beco:r
entitled to receive any shtues of the Company, other than Common SttJk. therafer the JlUiribèf
of such other shares so recoivable upon converion of thcSeres: A Prfetted Støcl sha be
subject toadju5t1ent from time co time in amiuer and on term as nearlyeauivab:ititlS
prácticableto the prvisions with respect to the Common Stock conwbedm Subsetions (a) to
(g). inclusive àbove.
7. VobngRigb£§.
(a) In adcttion to any other rights providi:ô. for hetein or by law. the hOl. ofSenes
A Prf~1' StO~k shall be entitled to vote. togeter with tbehold!rs of Common Stockalone
class, an all matters as to whiçh holders orCotnn Stock shall be entitled to votei ín thesæne
nianer and wiUitie same effe;t as sQCh Common Stockholders. (nan)' aueb YOte eah share of
Series A Prf~d Stoêk shall entitle the holder theref tothenuir of vote.~ shat diat
equals the number of whole shares of Common Stock into which each such share of Series.A
Prerred StOk is then convenible.
(b) In me event tht the holdes of the Sarles A Preferred Stock are 1'Wíd fA vote as
a elass, the af:fmiative vote of hoid~i& of not less than SÖ,*ofthé øuUtading shatsofSeres A.
Preferd Stock shall be requìrcd to approve eacbiiuch matt to be voteupon and i. lly miu
15 approved by such filquiìte perdel1tage of boidet~ of SeriC5.t\ Preferrd Stock) suchinaltêt
shall bind all holders of Series A. Prefened StOCK,
(c) Each mate of the8eries A Prferrd StOk sha entitle die hQldethe:eof to oße
vote on allm.a.ti:rs to be voted Ot by the holders of the Serle! A Prfor'CStack liS a class, as set
fort above.
8. RtlSSUai. ?\o shares of Series A Preferrd Stok which havebeøoODverted to
Common Stock shlÙl be reissued by th Corpratil)ti,piovide, hQwevlo, that any suc;b&har,
upon being converted and canceled, ~hali be restore to the statUS of an authorzed but unssue
shar of piafeiedstock wil:out desìgnation as tosercs. righcs or preferences and may ~r
be issued as a shar of preferred nock not deigoati: il Seres A Prfened Stock:.
9. Mis¡;cllani:ous.
Cal There is no liinkng fund with ietiect to tl4 S/lrløs A Pr~feETed Stock.
(b) The shares of the Senes A PIfmed Stack $haU not håveany preternCe&.l voti¡
powers or relative.. participating, optional, premptve or other speial rlght$eJtceptai ~i for
abo\ie in this Cerfièllte of DesiglUtion., Prferences and Rights ¡nd in thé Certiticl\te of
lneoiporation of the Company.
(c) The holde of the Series A Pre.fetr Stock shall be entitle to,eevea11
comnunìeations sent by the Company to the holdes of the Corron Stcik.
(d) The Series.A Preferd Stock is not redemable.
-8-
- ..
.. ...
- .
. . - . ":."-:.
... .......
.' .
~Ol&
Ool/o3/aooo iS:.\) F.i
~ v.~S 'WOP. Plim B Q:Ufcøte:. h1. bU. ç~ d'ia
a::dífiC4t~ to bo ~ by its 'Pidt. 01\ ~d day
of . Apr20, aD su~
h.~Hby af undC pialty ofpc\I th dii Cecaill.~ U( udc\- of
Plan B
ComnuDÌ:catioD&. IQ. and tht lh faets sta." at ti~md. eoil.
PI 'B coMMA'l0NS,lN.BY.~~Ri~ef£Xem1ieÔfiCC
--
and. Slöi;retuy
-9-
STATE OF DELAWAR
SEC.RTARY OF S'rATE
DIVISION OF CORPRATiCJNS
FILEp 0'1: 00 PM 04/04/2000
001 i 71205 - 31851 04
. .... ..-¡jw.,..... .. ~ ; :1
CERTIFICATE OF MERGER
OF
ADVAMEL, LLC
(. Delaware limite liabilty company)
INTO
PLAN B COMMCATIONS, INC..
(intlawar, etrporatiø.)
E,ursuant toSktoll 264(e) of tJ, Deawe GeDtra COtDPUIiOD taw
follows:
The undersign, being the Suriving constunt enty. herY sets fort as
FIRT: The iie of the Survi consttuent entity is Plan B Commuicaìorl,
Inc.) a eorporation organed under the laws oCtle State of Delawar.
SECOND: The na oftbe Non..Suriving eonstìtuent entity is Advamtel, LLC,
a lìmited liability company orgaize under the laws of the Sta of DeJa war.
mlR.; An Ageement and PlaofMerg. has bee approved. adptd.
cørtifiec exc:uted and acknowledged by each toDStnt éntity ii aoordace with SèQtion
264(c) of the Gener Cororation Law oftbe State of Delaware.
FOURTH: The executed Agement aid Plan of Merer is on fie at th
pricipal place of busines ofthe Survig constient entity, which is loted at 655
Shrewsbui Avenue, Suite 302, Shrsbur, New Jersey 01702.
FIYI: A copy of the Agren1 and Plan ofMcrgci will be fumedbydi
Survi consttuent entity, on reuest and withut cost, to any stocklder, mem ör otbS'
persn holding an irit~ in any consttuententy par to ths cefieatêofMe:er.
SlXTH: Tht the Cerficate oflnoolpraon oftbe sQrvVI constituent entyshall be ìtsCertìticate ofIncoi:raDon. .
NYI21l371.1
100471001
031 J 11200 de
,A;::. 4. 2(00 2: ..?6Pll \TtR pi:u ""4 I.! 5' F v.~. ,f¡ll ::/ 'i L A.\ 302 Î 34147 6
March, 2000.
NY 128372.12~iiOO1
031311200 dç
NO.61ng P. 3/3
IN WITNSS WHR.F. ths ceicat, isheteby execte th~~y or
fr.B coMMTlONS, :iC~ . . .
(,..1&wa CO01mon),
2
I
CERTIFICATE OF CHAKGE OF LOCATION' OF REGISTERED OFFICE
AND OF REGISTERED AGEl'T
It is hereby ccrtifiçd that:
1. The name of the corporation (hereinafter called the "Corporation") is Plan B
C.ommunications, Inc.
2. The registered offce of the Corporation within the State of Delaware is herebychanged to 9 Eat Loockermn Street, City of Dover i 9901, County of Kent.
3. The registered agent of the Corpration within the State of Delaware is hereby
changed to National Registered Agents~ Inc., the business office of which is identical with the
regìstered offce oJ lhe corpration as hereby changed.
4, The Corporation has authorized the ch.anges hereinbefore set forth by
resolutìon of its Board of Dite:ctörs.
Signed on A 7í ç,,2002
--
Jack Dayan, C 0
STATE OF DELAWAR
SECRETARY OF STATE
DIVISION OF CORPRATIONSFILED 09: 00 AM 08/12/2002
020513998 - 3185104
STATE OF DELAWAR
SECRETARY OF STATE
DIVISION OF CORPRATIONSFILED 11 :30 AM 10/11/2002
020632000 - 3185104
:B AiEJ A' DSTAT£
CERTD'CATE OJINCORPOJtTIO~
OF
PLA B COMMUNCATIONS, INC.
(UttdoSeoons 242 an 245 orth Geera Coron La)
I'1a :s Commureaotu$I'.(bii caed th IlCoi.oraod~), ~d at e)ti
'I an lly 'V of ih ~ CoipOn Law or tbeSte of Oelawe. does hetêò)"
cer as :flloWl:
1. Th9Fi Am and ReCei of Iiiporon réat,ingr an amends th Cet of Jiian Th Fi Axetd&llcll\ûtatod
Ceiøaof J:tportion wa duy adopæd put t9 the Corpraon's ~et pl. of
re¡azatol1 (the ''Pla''), the CorOlOD is eallA _ COo1'ii'sauthoi and
out dl of eani itk: âìd ao~ 11 sha of oapiti it with eu
oaieellatoi at attntion effec as of it" 6eve da øf the Pla, iu atdh anresta the Cctcac of lhÇørporOD oftb. Co01OD, an de1lni4 .~ an
resten ad~äb1é:b ~e with the te and colloJi (1£.1'-.
2. The dat oftiOfthe COratln's origi Ceficat ofInco~oii
is Febrw29. 2000.
3. The Coorøils Cecate of Incool1 herby Di amen and
reste to read mit et as follws:
FIT: Thcname of lJe coipti is Spæl, In. (the "Corpori'').
SECOND:Th ro¡id offce or th Cororaon. is to bô locatø at is EaNort St!et. City of Do'Ver, Coun of Ke Sta of DCl~ i~901. 'lnae of it!ro¡ier aptat tbt ads is U:ite ~ Scrcet lio.
'l: The puse of the Coram: is to -.e il any 1aw ao oractivity for whch acorptioi may 'b ot'g~ U1 the t3 Corpot La of
Delawae.
FOURTH: Th total numet of shs of al "'1_" of et which the
Coon sba 'bci auried to iaa is 3,000,00. all of wbob Ih be dnlgied as
Comon StOk 'Wth a:pat 'Value of$.OOl per sh th CoiQtOhs1nøt aurioriiisue
any!l01-voti Bl.
FITH: Th e1e11 ofdictrsaeel1ot be by wtttbaJlot, uness th by.1a so prvide.
im;iaii.i
200!6110oo2
$IXnI: Nostocklde ahl brmy aotiagat the~oaor anyoßicer or di of theCotion (it theirreeotve caacities)i lUea ØU stkbldai
li perOi OWUi suh stolde sh bte en anagen wi the Corporon,reasly sa1iid to it, re th loøUg par, an ..y pem col1tho
stOôlde, if the stlde sha be th losipa, to pay to tho .prpar1fo
att&' féesll exei inbyth pre'ai pa ùi su.ac Tbs .Ale SlXlshanot çply to any el arS befo th C01oraon shllmve :fst filed a iq~
stt with re to a ela of equi se U1 t1 Seeei Act of 1933 ~tbe
Secti BXcb Act or 1934 .~ A.. As usib.1h Aré SIX th term''peroi' sh ha the inab give it iISeii 13(d. of t: BxchA. ai th _
"QOtrll iiha have thm¥Uiestvef it in Rule 12h2 wi thB:Ao.
SEV: Th Bo otDl I1 hae pavdthassator vo
of the stokhld to ma, a1. aJ ohe, ad tb or I'èpti By-La of the
Cooraoii
mGK: Tl Cooraon sh iiienfy sn advaroe øxn to th fuøst
e1t pertt bySeotioi145 of the Ge Collon Law ofDe1a. as ametd:&
tÎ to ti, ea per who is or was. a dfr or offce of th Cotp01on a. the heirs,exet8 an adstrators ofsll a pem
NI: WMver a oonimie 01 ~tÌ$ prosed bet theCoipraon an its credito or an olas of thanOI betwee the CoOD ai il$
stolder or my ola of' them iu ço\lof eqUitMle jurdictn with the Sti of
Dela, ma.y, on çplioaon in &\ suar way of th Corporaoti or of any cr or
stocø1dc thf or 01 theapliCloi 0'1 an reeiver or relvlWB apolited for the
Coipraon un tho provisions of Section Z910f tile 8 of the Delaw Coe or oa thapicatoi oftts ii dØsolution ot of an rever or revm apoiid fót th ~o.
\U th prvi of Section 219 of TitleSof th Delawa Code Ota ~étS of'thcrto or ç_ Qr c:toø, auor of th stoclold er a olas of stockhlder of th
Cooi~ as the oase nmy be, to be stned in suo ma:er as th~ Sldco11 di. Ifa~ority innwer reeitlg th.four in val of th oætors or e1l of ti:lØ$,anor of th atockol_ or ola of irlde of the Co as th cae may be, ag
to åD çopre or ~eit aD to aureor of th Cotpaton al ac;o11qu of su"h oor; or ~ the sa co~ or ~_ .d the
la. :mrsaizon sh, if øatioi by tho cour to whch the .sad apcaon bQ be=. ~
be bindù on al tlcr or clas of ettøl'. áfôlot on.al the ~lde 01 o1ac or
stckolde, oft'Coiptâot as th ca maybei si al on th Corporatimi
TBNT: The pe.on ~ of di of the Cototoi ÍI he.by-iiatd to th.tù Ð:t pGt~ by 5cçon i 02)(7) or tl 0e Cooron Law of
thcSta o:tDetaar II th same tny be amen an S1letted.
Bæv: ~ CotpraOD. re tbé righ to 1ler al, c1 or
re ai piviOl ooitad in thi Ceoate oflíorraoi in th inuow or he
pied by law. suec to the te and condition of th Pla and at ri an poer
coii he on stooldeJ dìtoriian oftCeiEè suec to ths reseed power.
N'8111.
ioM7iooo:lO/i_..2
IN wrS WBOF, aaiPlau B CoiU1cat. Ii..ha eaUSedth
Corca to be signed by it Pid.as o1tb glbday of Ocber, 200.
~-
NYUaoQP71~loroSfili 3
State..of DelawareSearetary of StateD.iv.ision of Corporations
Delivered 01: 11 PM 05/08/2003FILED 01: 11 PM 05/08/2003
SRV 030299377 - 3185104 FILE
CERTl:FICATE OF CBAEQPREIS'f OFFICE
AND/OR ltGIS'nUÐ A$N
OF
SPBCOtE INC,
It I$ liy Cl tb=
i. Th l1ot ib çoCl (h.i caUed t1 "ce") jsSpe iø.
~. Th ~ed OØcc of the co wi th ~ ti.. DeIaWI is
.by chlo NatCl ~ A¡ ia, 9 EuLoerm
Stree Sitt lB. Dove, DE l~l, coof~
3. Th re aa of 1h coon wi th St of DelaWII is
~by ei!' to NlIoi Rc¡i ... .Jn __ bu$Ì ofce of\Vch isidw. wi th reg dee ottb c; as beydJ.
4. Th çofX ba ~ tho ditl hèøinefØt _ for byrc8iuton of it Bo.otDi.
04kd: M..y'2. ~OO3.
&~-
SPECTROTEL, INC.
D/B/A ONETOUCH COMMICATIONS D/B/A TOUCH BASE COMMICATIONS
Exhibit B
Certificate of Authority to Transact Business within the State of Idaho
State olldaho
I ¡
CERTIFICATE OF AUTHORITY
OF
SPECTROTEL, INC.
File Number C 191590
I, BEN YSURSA, Secretary of State of the State of Idaho, hereby certify that an
Application for Certificate of Authority, duly executed pursuant to the provisIons of the
Idaho BusIness Corporation Act, has been received iri this office and is found to
conform to law.
ACCORDI NGL Y and by virtue of the authority vested in me by law, i issue this
Certificate of Authority to transabt business in this State and.attäch hereto a duplicate of
the application for such certificate.
Dated: June 30, 2011
~~
SECRETARY OF STATE
BY,~~
CERTIFICATE OF
ASSUMED BUSINESS NAME
Pursuant to Section 53-504, Idaho Code, the undersigned
submits for filing a certificate Of Assumed Business Name.
Please lyQe or Qrint legibly.
Instructions are included on back of aQQlication.
Fll!DSFi
i J JUt -I' FeCrlVeAli 8:42
1. The assumed business name which the undersigned use(s) in the transaction of
business is:
OneTouch Communications
2. The true name(s) and business address(es) of the entity or individual(s) doing
business under the assumed business name:
Name
Spectrotel, Inc.
C. ¡ElISt/iJ
Complete Address
3535 State Highway 66, Suite 7
Neptune, NJ 07753
3. The general type of business transacted under the assumed business name is:
o Retail Trade 0 Transportation iand Public Utilities
o Wholesale Trade 0 Construction
o Services 0 Agriculture
o Manufacturing D Mining
D Finance, Insurance, and Real Estate
Submit Certificate of
Assumed Business
Name and $25.00 fee to:
4. The name and address to which future
correspondence should be addressed:
Phylls Miler
2600 Maitland Center Parkway #300
Maitland, FL 32751
5. Name and address for this acknowledgment
copy is (if other than # 4 above):
Secretary of State
450 Nårth 4th Street
PO Box 83720
Boise ID 83720-0080
208 334-2301
Signature: ~~
Printed Name: Ross Artale
CapacitylTitle: Chief Operating Offcer
Signature:
Printed Name:
CapacitylTitle:
Secretary of State use only
IDAHO SECRETARY OF STATE07/01/2011 QS:øø
CK: 10051'3 CT:204338 BH: 1288879
1 E! 25.88 = 25.00 ASSUI' NAME D 2
abn.pmdRev.0712010 D 14ò07S
CERTIFICATE OF
ASSUMED BUSINESS NAME
Pursuant to Section 53-504, Idaho Code, the undersigned
submits for filing a certificate of Assumed Business Name.
Please type or print legibly,
Instructions are included on bac.kof application.
FILED EFFECTiVe
//Jl(j..J i
.. - AN 8
--r ST;Li¡- ID!!~.iO
'!I j.
1. The assumed business name which the undersigned users) in the transaction of
business is:
Touch Base Cornrnunications
2. The true name(s) and businessaddress(~s) of the entity orindividual(s) doing
business under the assumed business name:
Name
Spectrotel, Inc.
C-laL5lfô
Complete Address
3535 State Highway 66. Suite 7
Neptune, NJ 07753
3. The general type of business transacted under the assumed business name is:
D Retail Trade D Transportation and Public Utilities
D Wholesale Trade 0 Construction
o Services 0 Agriculture
D Manufacturing 0 Mining
o Finance, Insurance, and Real Estate
Submit Certificate of
Assumed Business
Name and $25~OO fee to:
4. The name and address to which future
correspondence should be addressed:
Phyllis Miler
2600 Maitland Center Parkway #300
Maitland, FL 32751
5. Name and address for this acknowledgment
copy is (if other than # 4 above):
Secretary of State
450 North 4th Street
PO Box 83720
Boise ID 83720~0080
208 334-2301
H~¡
Signature: £~
Printed Name: Ross Artale
Capacitymtle: Chief Operating Offcer
Signature:
Printed Name:
Capacityrritle:
Secretary of State use øoly
IDAHO SECRETARY OF STATE07/ßl/2 :I. 05:00
CK: 100517 01: 38 BH: 1288880
1 ~ 25..00. = 25. ASSUtlNAI' ø 2
D¡lIilt)~o
SPECTROTEL, INC.
D/B/A ONETOUCH COMMUICATIONS D/B/A TOUCH BASE COMMICATIONS
Exhibit C
Offcers and Directors
SPECTROTEL, INC.
D/B/A ONETOUCH COMMUNCATIONS D/B/A TOUCH BASE COMMCATIONS
Offcers and Directors
All officers and directors can be reached at the Company's headquarters location: 3535 State Highway
66, Suite 7, Neptune, NJ 07753.
Offcers:
Jack Dayan
Edward Kazar
Ross Artale
Chief Executive Officer
Chief Financial Offcer
Chief Operating Offcer
Directors:
Jack Dayan
Edward Kazar
Secretary
Treasurer
SPECTROTEL, INC.
D/B/A ONETOUCH COMMUICATIONS D/B/A TOUCH BASE COMMICATIONS
Exhibit D
Stockholders
Jack Dayan holds 100% ofthe Company stock.
SPECTROTEL, INC.
D/B/A ONETOUCH COMMUNICATIONS D/B/A TOUCH BASE COMMCATIONS
ExhibitE
Financial Statements
The Company is submitting its financial statements separately with a request for confidential treatment.
SPECTROTEL, INC.
D/B/A ONETOUCH COMMUNICATIONS D/B/A TOUCH BASE COMMCATIONS
Exhibit F
Profies of Senior Management Key Personnel
Speetrotel Management Profies
Spectrotel's management team is experienced, with a successful track record of building and managing fast-growing
communications companies. Jack Dayan founded Spectrotel Inc. (formerly Plan B Communications) in 1996 and
continues to provide leadership to the company as the CEO. Mr. Dayan has grown the company and has
successfully attracted a strong and experienced management team with expertise in communications and operations
and finance.
Key Team Members
Jack Dayan - CEO
Following the enactment of the Telecom Act of 1996, he moved into the telecommunications business and founded
what is now known as Spectrotel. Under his leadership, Spectrotel has grown into a multimilion dollar corporation.
Mr. Dayan also founded and operates several other enterprises including RazGate (2007), iManaged (2008), and
most recently USA Gold Corp (2009). Previously, Mr. Dayan started his career leading the Asian division of a
family enterprise in consumer electronics. He earned his bachelor of science degree in Finance from New York
University's Stem School of Business in 1992.
Ross Artale - COO
Mr. Artale brought over 16 years of telecommunications experience when he joined Spectrotel as Vice
President of Operations in 2007 and was later promoted to Chief Operating Offcer. Mr. Arale has a successful
track record of creating best in class service organizations. He began his career at Mobile Comm, a Bell South
Company and then later took management positions at two start-up companies, Geotek and Prism Communications.
In 2000, Mr. Artale moved to the role of Vice President, Customer Care for InfoHighway Communications, f/a
Eureka Broadband Corporation where over the next seven years, he was part of the management team that grew the
company from a small start up to a $100 milion corporation. At Spectrotel, he is responsible for managing and
leading all day to day operations including, sales, sales operations, customer care, provisioning and engineering,
quality assurance, regulatory, product management, and marketing.
Edward Kazar - CFO
Mr. Kazar joined Spectrotel as CFO in February 2009, and is responsible for executive management and
oversight of Spectrotel's financial operations and human resources. He brings over 30 years of experience to the
Spectrotel team and has had an extremely successful history of managing financial operations in several technology
companies having held senior positions Lucent Technologies, Avaya, Infohighway Communications, and Teliris
Telepresence. His expertise in working capital improvements and M&A events has driven revenue growth,
profitability, and successful liquidity events. He was instrumental in the successful IPO debuts of both Lucent and
Avaya. Mr. Kazar has a bachelor of science from the University of Dayton and earned an MBA from Seton Hall
University.
Mitch Wright - CIO
As Chief Information Officer since 2002, Mr. Wright's responsibilities include corporate infrastructure,
application development, biling operations, and revenue assurance. His 19 years of experience in
telecommunications and information technology include executive positions at Global Crossing, AT&T and Qwest
(formerly US West). He has been the biling committee co-chair of the OBF (Ordering and Biling Forum), a
national collective of industry experts who address access and interconnection issues as well as chair of Telecordia's
Technical Review Group, resonsible for the development of Carrier Access Billng Specifications (CABS). Mr.
Wright is currently a member of the B/OSS Live! Conference and Businessplex advisory board. He has a bachelor
of science degree in computer science from North Dakota State University.
SPECTROTEL, INC.
D/B/A ONE TOUCH COMMUNICATIONS D/B/A TOUCH BASE COMMICATIONS
Exhibit G
Proposed Service Area Map
Spectrotel seeks statewide authority to offer its services.