Cincinnati Bell'"
221 E. Fourth St.
P.O. Box 2301
Cincinnati, Ohio 45201-2301
December 21,2010
Ms. Sandra Squire, Director
Executive Secretary Division
West Virginia Public Service Commission
201 Brooks Street
Charleston, West Virginia 25323
RE:
Cincinnati Bell Any Distance Inc. Application for a Certificate of
Convenience and Necessity to Provide Facilities-Based and Resold Local
Exchange Telecommunications Services Throughout the State of West
Virginia
Dear Secretary:
Please find enclosed the original and twelve (12) copies of the above-referenced
Application of Cincinnati Bell Any Distance Inc. Also enclosed is a check for
$300.00 to cover the application filing fee.
Any questions you may have pertaining to this filing may be directed to Scott
Ringo at 5 13 608-7715 or by email at scott.rinrzo@,cinbell.com. Thank you.
Sincerely,
Kathy Campbell
Cincinnati Bell Any Distance Inc.
Enclosures
BEFORE THE
PUBLIC SERVICE COMMISSION
OF THE STATE OF VIRGINIA
Application of Cincinnati Bell Any Distance Inc.
For a Certificate of Convenience and Necessity
To Provide Facilities Based and Resold Local
Exchange Telecommunications Services
Throughout the State of West Virginia
)
)
1
Docket No.:
)
1
Pursuant to the provisions of West Virginia Code $24-1- 11, Cincinnati Bell Any Distance
Inc. (“CBAD”) respectfully requests that it be granted a Certificate of Convenience and
Necessity to provide facilities-based and resold local exchange telecommunications
services in the State of West Virginia. Further to this request, CBAD hereby provides the
following information:
1. Applicant Name, Address and Telephone Number
Cincinnati Bell Any Distance Inc.
221 East Fourth Street Room 700
Cincinnati, Ohio 45201
Telephone: 800 571-6601
Company Contact
Contact Person regarding th
Kathy Campbell
Regulatory Specialist
Cincinnati Bell Any Distance Inc.
221 East Fourth Street Room 1280
Cincinnati, Ohio 45201
Telephone: 513 397-1296
Email: Kathy.Campbell~cinbell.com
D. Scott Ringo Jr.
Regulatory Compliance Manager
Law Offices of Thomas W. Bosse
533 Centre View Blvd.
Crestview Hills, Ky. 410 17
Telephone: 859 344-9500
Email: [email protected]
2. Exhibits
The following Exhibits are attached to this Application:
1.
Exhibit A - Articles and Certificate of Incorporation
..
11.
Exhibit B - Certificate of Authority to Transact Business in West
Virginia
iii.
Exhibit C - Financial Data
iv.
Exhibit D - biographies of Senior Executive Team
3. CBAD’s Business Structure, Including State of Incorporation, Date of
Incorporation and Certificate of Incorporation
CBAD is an Ohio corporation. CBAD has been a provider of long distance services
nationally since 2004, and previously under a number of various other entities as far back
as 1987. Cincinnati Bell Long Distance (CBLD) was the original company formed to
provide long distance services in the 1980s. CBLD expanded its operation s to include
local exchange services in the late 1990s on a regional basis around its home base of
Cincinnati, Ohio. In 1999, the parent company, Cincinnati Bell Inc. acquired another
national and international provider of long distance services known as IXC. Cincinnati
Bell Inc. changed its name to Broadwing Telecommunications Inc. and withdrew
CBLD’s national and regional certificates to provide long distance and local services.
The long distance facilities-based fiber network and customer base was sold by
Cincinnati Bell Inc. in 2003. CBAD was formed in late 2003 and certifications were
sought on a national basis shortly thereafter, concluding in 2004.
CBAD sought certification and began providing local exchange services in Indiana in
2007. In 2008, CBAD acquired eGix Inc., a long distance and local exchanges services
provider certified in eight states but only offering service primarily in Indiana with a very
small customer base in Illinois. CBAD began expanding its Indiana base of customers in
2008 and started pursuing certifications in a number of states on a regional and near
national basis in 2009. CBAD currently has long distance customers in all the
continental United States and local service customers in a number of states but primarily
in Illinois, Indiana, Kentucky and Ohio.
CBAD is a subsidiary of Cincinnati Bell Inc., a holding company with a number of other
telecommunications based companies providing service on a regional basis. Cincinnati
Bell Telephone Co. LLC (CBT) is an incumbent local exchange services provider in
Southwest Ohio, Northern Kentucky and Southeast Indiana and has been providing local
services for over 130 years. Cincinnati Bell Wireless LLC is a provider of PCS wireless
services covering the footprint of CBT’s ILEC operating area as well as an expanded
regional area since 1998. Cincinnati Bell Extended Territories LLC (CBET) is a
facilities-based local exchange services provider in the area north of CBT’s Ohio
operating territory. CBET was formed and has been operational since 2005. Cincinnati
Bell Technology Solutions LLC is a data storage/managed services company operating in
Ohio, Kentucky and Indiana since 2001. Cincinnati Bell Inc. and its affiliates have over
one hundred years of experience in providing all forms of telecommunications services
and is well positioned and staffed to provide local exchange services in the State of West
Virginia.
4. CBAD’s Certificate of Authority to Transact Business in West Virginia
A copy of CBAD’s Certificate of Authority to Transact Business in West Virgina
is attached hereto as Exhibit B.
5. List of CBAD’s Corporate Officers
The following individuals are officers of CBAD and may be contacted at the
Applicant’s headquarters located at 221 East Fourth Street, Room 1280
Cincinnati, Ohio 4520 1:
Officers:
John F. Cassidy
Gary J. Wojtaszek
Kurt A. Freyberger
Christopher J. Wilson
Brian G. Keating
Tara L. Kouhry
Kimberly H. Sheehy
David L. Heimbach
Christopher C. Elma
Scott P. Thomas
Susan D. McClarnon
Theodore W. Heckmann
President and Chief Executive Officer
Chief Financial Officer
Vice President & Controller
Vice President, General Counsel & Secretary
Vice President - Human Resources &
Administration
Senior Vice President & Chief Marketing Officer
Vice President - Finance & Treasurer
Vice President - evolve Business Solutions
Vice President - Tax and Internal Control
Director - Tax
Assistant Corporate Secretary
Managing Director - Regulatory Affairs and Asst.
Corporate Secretary
6. Location of CBAD’s Principal Office in-state, and Name and Address of
Registered Agent
West Virginia Office:
None at this time
Registered Agent:
7.
Corporation Service Corporation
209 West Washington Street
Charleston, WV 25302
List of States where CBAD Provides Service and Where Applications are
Pending
The Company currently provides interstate and international long distance
services pursuant to its Section 214 authority and provides intrastate services in
the 48 continental United States under the respective states’ authority, including
West Virginia.. CBAD is also authorized to provide local exchange services in
Ohio, Kentucky, Indiana, Illinois, Georgia, Pennsylvania, Tennessee, Michigan,
Texas, Florida, California, North Carolina, South Carolina, Missouri, Kansas,
Minnesota, New York, Virginia, Alabama, Arkansas, Louisiana, New Jersey,
Nevada, Washington, Colorado, Massachusetts, Maryland, Mississippi, New
Mexico, Wisconsin, Rhode Island and Oklahoma with applications pending in
Connecticut, Delaware and Arizona. CBAD has not been denied authority, or had
authority revoked, for any of the services for which it seeks authority in this
Application.
8. Description of Service and Proposed Facilities
CBAD proposes to offer retail business local exchange telecommunications
services, including both data and voice services. CBAD intends to provide local
service using unbundled network elements and resold services available from
Verizon-WV pursuant to interconnection agreement(s) that CBAD will file with
the Commission in accordance with 47 U.S.C. Section 252 and applicable rules.
CBAD may also enter into a commercial agreement with Verizon for network
elements that are not available through interconnection agreements. CBAD may
eventually install its own switching and/or transmission facilities.
9. Service Area
CBAD requests authority to provide service throughout West Virginia, although it
will initially offer service in areas currently serviced by Verizon.
Before offering service in any small incumbent Local Exchange Carrier exchange
area (an area served by an ILEC with less than 10,000 access lines), CBAD will
seek to negotiate an interconnection agreement. At that time the small ILEC may
assert rural telephone status under Section 25 1(f) of the Telecommunications Act.
The Commission may then determine whether the assertion is correct, and if so,
whether and under what terms and conditions interconnection would be provided.
10. Demonstration of Financial Qualifications
CBAD has access to the financial and capital necessary to conduct its
telecommunications operation as specified in the Application. The Company is
financially qualified to provide resold exchange telecommunications services
within the State. In support of its Application, CBAD submits it Balance Sheet as
of December 3 1,2009 and its Income Statement from January through December
2009, attached hereto as Exhibit C. Since CBAD is a subsidiary of Cincinnati
Bell Inc. (CBI) and a13 reporting is done at the holding company level, attached is
a link to CBI’s 2009 Annual Report and 10-K and 10-Q filings. This information
is offered to demonstrate CBAD’s financial ability to provide the proposed
service.
11. Demonstration of Managerial Qualifications
CBAD’s technical and managerial personnel are well qualified to provide the
services proposed in this Application. Attached as Exhibit D are brief biographies
of CBAD’s senior management team.
12. Demonstration of Technical Qualifications
CBAD has extensive expertise, as demonstrated in the biographies attached as
Exhibit D.
13. Customer Service
CBAD understand the importance of effective customer service for local
exchange customers and has extensive experience in providing such service to
customers it serves in other states. CBAD’s toll free customer service telephone
number is available with live response during the hours of 8am EST to 5pm EST,
Monday through Friday. The Company’s toll free number for customer inquiries,
complaints and repair is (877) 290-2777. Calls made outside of the normal
working hours will have the ability to leave a voicemail message for a return
phone call during normal working hours. Customer’s can also open, view and
escalate trouble tickets at care.anydistance.com. Customers may also contact the
company in writing at the headquarters address listed below.
The contact for resolution of customer complaints with the Commission is:
Kathy Campbell
Regulatory Specialist
Cincinnati Bell Any Distance Inc.
221 East Fourth Street, Room 1280
Cincinnati, Ohio 45201
Telephone: 513 397-1296
Fax:
513 421-1367
Kathy.Campbell(ii%cinbell.com
Email:
14. Universal Service
CBAD will comply with any state universal service funding requirements that are
applicable to CBAD and that are promulgated by the Commission.
15. Compliance
CBAD will comply with state and federal laws and regulations governing the
provision of competing local exchange telecommunications services.
16. Regulatory Treatment, Quality of Service, and Billing Standards.
CBAD will be a competitive provider of local exchange telecommunications
services. As such, CBAD requests that it be subject to the same regulatory
treatment afforded by the Commission to other CLECs.
17. Tariff - Request for Temporary Waiver
CBAD requests a waiver of the requirement to file tariffs with this application.
CBAD understands that it cannot begin to offer service until it has filed proposed
tariffs showing the rates, terms and conditions of the regulated
telecommunications services that it proposes to provide. CBAD further
understands it must file its proposed tariff at least thirty (30) days prior to the date
that CBAD intends to begin providing its services. CBAD will comply with these
requirements.
18. Public Interest Consideration
The granting of CBAD’s Application to provide facilities-based and resold local
exchange telecommunications services is in the public interest and serve the
public convenience and necessity. The United States Congress, in enacting the
Federal Telecommunications Act of 1996, determined that it is in the public
interest to promote competition in the provision of telecommunications services,
including local exchange services. Competition in other telecommunications
markets such as long distance and customer premises equipment has demonstrated
the benefits that competition can bring to consumers. Consumers are now
enjoying increased service options, lower prices, higher quality, and greater
reliability. This is true now not just with the competitive entrants but from the
responses of the incumbent LECs to competition, too.
CBAD’s proposed services will provide multiple public benefits by increasing the
competitive choices available to customers in West Virginia. Enhanced
competition in telecommunications services will serve to stimulate economic
development in West Virginia. Increased competition will also create incentives
for all telecommunications services providers to offer lower prices, offer more
innovative services, and provide more responsive customer service.
Conclusion
Wherefore, CBAD Inc. believes that it has demonstrated that it possesses the financial,
technical, and managerial resources necessary to provide telecommunications services in
the State of West Virginia. CBAD hereby requests that the Commission grant its
Application for a Certificate of Convenience and Necessity to provide facilities-based
and resold local exchange telecommunications services in the State of West Virginia and
grant such other relief as it deems necessary and appropriate.
Respectfully submitted,
Cincinnati Bell Any Distance Inc.
Theodore W. Heckmann
Assistant Corporate Secretary and
Managing Director Regulatory Affairs
December 2 1,2010
VERIFICATION
State of West Virginia
Public Service Commission
Charleston
State of Ohio
County of Hamilton, ss.
I, Theodore W. Heckmann, being first duly sworn on oath, deposes and states that he is
Assistant Corporate Secretary of Cincinnati Bell Any Distance Inc., the corporation
named in the foregoing Application and knows of the contents thereof and that the same
are true to the best of his knowledge, information and belief.
Theodore W. Heckmann
Assistant Corporate Secretary
Taken, sworn to and subscribed before me this
a / Sf
day of December, 2010.
*
Notary Public in knd for said County
My commission expires on the
day of
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Exhibit A
Articles and Certificate of Incorporation
PAGE
1
I, HARRIET SMITH WINDSOR, SECRJITARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE A N D C O W C T
COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:
"CINCINNATI BELL ANY DISTANCE I N C . " , B OHIO CORPORATION,
WITH AND INTO "BTI INC." UNDER THE NAME OF "CINCINNATI BELL
ANY DlSTANCE INC.", A CORPORATION ORGANIZED AND EXISTING UNDER
TaE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS
OFFICE THE TWENTY-SEVENTH DAY OF JUNE, A.D. 2003, AT 1:41
O'CLOCK P.M.
A FILED COPY OF TBIS CERTIFICATE HAS BEEN F O R W m E D TO THE
NEW CASTLE COUNTY RECORLlER OF DEEDS.
&d-%d
Harriet Smith Windsor, Secretary of State
2145225
030427080
8100M
AUTHENTICATION: 2501118
DATE: 06-27-03
S t a t e of D e l a w a r e
Secretary o f State
D i v i s i o n of Corporations
Delivered 01 :52 PM 06/27/2003
FILED 02 :41 PN 06/2 7/2003
SRV 030427080 - 2145225 F I L E
U
Pursuant to Title 8, Seciion 252(c) of thc Delaware Generel C o r p o ~ e t hLaw, the
undcrsiyned corporalion executed thc follawing Certificate ofhlerger:
Thc Y l m and Agrecment of Mcrger has been approved, adopted, certified,
SECOND:
execiikd and ncknowledgcd by cach ofBTI and C B M .
TISTRD: The name of llic surviving corporation shall be changed to Cincinnati Bell h i y
Distunce lnc., IDclawrrre corporation.
FOURTH:
'rhc Ceriificate of Incorporalion o f BTf shall be the Certificate of
Incaimporulion o f the suwiving coqmntion.
FIFTH:
u41boui par value.
The authorized capite1 slock of CBhD consists
of 850
common shares
The mcrger or CBAD will1 atid inlo B'll i s to be effective upon filing of
STXTII:
this Ccnificatc with lhc Deluware Secretary of Stntc.
SEVENTH: The cxecuted Plan and Agreanent of Merger is on lilc at 201 East Fourth
Strrel, Cincinnati, Ohio 45202, the placc ofbubiincss o f the auntivitig corporation.
A copy of {lie Plan and hgreemcnt Of Mergcr will bc furnished by the
ElGHlb:
surviving corporation on tecjuest, witbou\. cost, to ally stockholders of the constituent
corpora! ions.
IN WITNESS WHEREOF, BTT Jnc. has caused this Cenificale to be signcd by Kcvin W.
Mooney, its CliiefExccutive OffiCer, \his 23rd day of Junc 2003.
lITl TNC.
P&CE
I
3, HARRXET SMLTH WINDSOR, SECReTARY OF STATE 08 THE STATE OF
DELAWATE, DO HEREBY CERTIFY THE ATTACHED I S A TRUE AND C O W C T
COPY OF
COFW3CTED CERTLFJCATE OF AMENDMENT OF "BTJ: INC.
FILED
IN T3fS OFFICE ON THE TWENEY-FOURTH DAY OF JUNE, A.D. 2003, AT
12:14 O'CLOCK
P.M.
A FILED COPY OF
TBIS CERTIFICATE HAS BEEN FORWARDED TO THE
NEW CASTLE COUNPY RXCORDER OF REEDS.
&-L
%L+ih*h-J
Harriet Smith Wlndsor, Secretary of Stare
2145225
0 3 0 4 15323
8101
AUTHENTICATION: 2493461
DATE: 06-25-03
I
I, The nmc o f the corporntion is B"7 INC.
1-
FROM K L G s P W I O
P
l WLTS
'S
WHEREOF, the Corporation has caused t)ris Conmted
Cextifioate af h c n d m m t to be: executed hy its duly authndzedomccf on this 24th day of
Jrme, 2003.
BII WC.
Titla: Asslmt seoratary
RLI: 1-2615 P B 6 I
-2-
PAGE
1
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWRRE, DO HEREBY CERTIFY THE ATTACHED IS A ?RUE AND CORRECT
COPY OF TEE CERTIFICATE OF AMENDMENT OF "BROADWING
TELECOMMUNICATIONS SNC. I t , CHANGING ITS NAME FROM "BROADWING
TELECOMMUNICATIONS INC.'I TO "BTI XNC, I'
FILED IN THIS OFFICE ON
THE SECOND DAY OF JUNE, A . D . 2003, AT 1:55 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE
NEW CASTLE COUNTY RIECORDER OF DEEDS.
&
d
h
W
Harriet Smith Windsor, Secretary of State
2145225
030361729
8100
AUTHENTICATION: 2 4 5 2 2 6 8
DATE: 06-04-03
L
S t a t e o f Delaware
Secretary of S t a t e
D i v i s i o n of Corpora_tions
Delivered 02:08 PM 06/02/2003
F I L E D 01:55 PM 06/02/2003
SRV 030361729 - 21452225 F I L E
Blrst: That at a meeting of the Board of Directors O€
I
BROADWING TELECOMMUNICCATZQNS 5NC.
rasoludons were duiy adopted setting forth a pmpowd amendmentof the Cerlificltc
of Incorporation of wid corporation, d c c l d n g said mendincnt to be advisable md
caltiny a meeting of the stockholders of said corporation for consideration thereof.
The resolution setting forth the proposed mendmmnt is 8s follows:
Resnlvod, that the Certificate of Incorpomtionof this eorporaclon be mended by
" so that, DS amendcd, said M c l e
changing the Article thcreof numbered "_
shU bc and rcad as fotlows:
18
*
BTJ; I N C ,
Second: That lhcresfbr, pursuant to resolution of its Board of Dirccturs, B special
meeting of the stockholders of said corporation was duly called and held, upon mtiw
in accordance with Section 222 of tho Gcncrd Corporation b w of Ihe State o f
Oelawnro st which meeting the newssary number Of 5harcti as required by statute were
voted in favor ofthe mendmetit.
Third: That said amenhmt WLS duly adoptcd in * C C O T ~ C Cwith the provisions of
Section 242 of the General Copomtion Law of the SWc of De?laware.
e
Fourth: That lhrs capital of said corporation shall nor be rcduccd under or by reason
of said mendmcnt.
BY:
.,
AMY COLLINS, ASST. CURP. SEC.
(Type or Print)
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
F I L E D 03:45 PM 10/22/2001
010530696
-
2145225
CERTIFICATE OF AMENDMENT
TO TlAE
CERTIFICA‘8E OF INCORPORATION
OF
BROADWINE TldLECOMh.fWCATIONS INC.
Broadwhg TelecommunicaticWi Jnc., a corporation duly organized and existing
under the General Corporation Law of the State of Delaware (the “Corporation”), does
hereby certify that:
1.
Jeffrey C. Smikh is the duly elected and acting Secretary of the
Corporation.
Article II1.A. of the Certificate of Incorporation of the Corporation
is amended to mad in full as follows;
2.
Article 111
A. Classes of $tock. T h e Corporation is authorized
to issue two classes of stock to be designated,
respectively, “Common Stock” and “Class 1
Prefmed Stock.” The total number of shares of
stock which the Corporation is authorized to issue is
100,100 share? consisting of 100 (one hundred)
shares of Co$mnon Stock with a par value of
$0.0001 ptw share, and One Hundred Thousand
(100,000)sharBs of Class 1 Preferred Stock, with a
par value of $0.0001 per share. Upon the
effectiveness p f this Certificate of Incorporation,
each 18,000,QOQ shares of the Corporation’s
Common Stodk then issued and outstanding shall
automatically, without any action on the part of .the
Corporstion of. my persm, be converted into o n e
hundred sha$es of Common Stock of the
Corporation.
This Certificatp of Arneiidment to the Certificate of Incorporation
3.
has been duly approved by the Board ofDirectors of the Corporation.
This Certificate of Amendment to the Certificate of Incorporation
4.
has been duly approved by the holdeYs of all of the outstanding shares o f Common Stock
of the Corporation, $0.0001 per vaue per share, and Class I Preferred Stock of the
Corporation, $0.0001 per value per &are, of the Corporation by written consent in lieu of
a meeting in accordance with the apglicable provisions of Section 228 a n d Section 242 of
the General Corporation Law of the state of Delaware.
IN WITNESS WHEREOF, &e
executed by its duly authorized officer, on this
2001
BROADwING TELECOMMUMCATIONSINC.
By:
C%i&fAdministrative Officer,
General Counsel and Secretary
1
State of Delaware
PAGE
I
Office o f t h e Secreta y of State
I, EDWARD J. -EL,
SECRETARY OF STATE OF THE STATE OF
DELAWARF,, DO HEREBY CERTIFY THE ATTACHED fS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF AMENDMENT+ -OF "ECLlPSE
TELECOWYCATIOl&3,
INC. U ,
TELECOMMUNICATIONS, I N C .
TNC.",
FILED
I*
CHANGING ITS NAME FROM "ECLIPSE
.I
TO "BROADWXNG TELECOMMUNJCATfONS
IN THIS OFFICE ON THE TWELFTH DAB OF NOVEKBER,
A.D.
1999, AT 10 O'CLOCK A.M.
A FILED COPY
Ok
TBXS CERTXFICATE HAS BEEN FORWARDED TO TRE
N E W CASTLE COUNTY N C O R D E R OF DEEDS.
2145225
8100
991482562
AUTHENTICATION:
DATE:
0078394
11-12-99
CERTlFICATE OF AMENDMENT
OF
CERTIFlCATE OF 3NCOFU’ORATION
OF
ECLIPSE TELECOMMUNICATIONS, INC.
Eclipse Telecommunications, Inc., a corporation duly organized and existing
under the General Corporation Law of the State of Delaware ( h e ”Corporation“), does hereby
certify:
1.
That Jeffrey C. Smith, is the duly elected and acting Secretary of Eclipse
Telecommunications, 1nc., a Del aware corporation (the “Corporation”).
2.
That Article I of the Certificate of Incorporation of the Corporation is
amended to read in full as follows:
”ARTICLE I: The name of the corporation shall be “Broadwing
Tel ecommunjcations 1nc .” (the “Corporati on”).”
3.
That this Certificate of Amendment of Certificate of Incorporation has
been duly approved by the Board of Directors of the Corporation.
4.
That this Certificate of Amendment of Certificate of Incorporation has
been duly approved by the holder of all of the outstanding shares of common stock, $0,000001
par value per share, and Class I Preferred Stock, $ O . O O O O ~ l par value per share, of the
Corporation by wrirten consent in lieu of a meeting in accordance with the applicable provisions
of Section 228 and Section 242 ofthe General Corporation Law ofthe State of Delaware,
IN WITNESS WHEREOF,
the Corporation has caused this Certificate to be
executed by its duly authorized officer, on this 12th day of November, 1999.
ECLIPSE TELECOMMUNICATIONS, INC,
- .*
. .,.. .---.
C h i d A’dmjnistratjve Officer,
General Counsel and Secretary
PAGE
State of Delaware
1
Oflice of the Secretary of S t a t e
I, EDWARD J. FREEL, SECRETARY O F STATE OF THE STATE OF'
-..._
DELAWARE, DO HEREBY CERTIFY THAT THE SAID "NETWOEUK LONG
FILED A CERTIFICATE OF ~ R G E R , CHANGING ITS
DISTANCE, I N C . " ,
NAME TO "ECLIPSE TELECOMMUNICATIONS, I N C .
JUNE, A.D.
1998, AT 4:30 O'CLOCK
",
THE THIRD DAY OF
P.M.
AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID
CORPORATION IS DULY INCORPORATED UNDER THE LAWS OF THE STATE OF
DELAWARE AND I S I N GOOD STANDING AND H A S A LEGAL CORPORATE
EXISTENCE NOT HAVING BEEN CANCELLED OR DISSOLVED SO FAR AS THE
RECORDS OF THIS OFFICE SHOW AND IS DULY AUTHORIZED TO TRANSACT
BUSINESS.
f 4 4
Erlzonuii' J. Freel, Secretn y of State
AUTHENTICATION:
2145225
8320
9189279
'
DATE:
9 8 1 3.68327
07-10-98
State of Delaware
PAGE
1
Qflice of the Secretary of State
I, EDWARD 5 . FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED 1s A TRKE AND CORRECT
COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:
"PISCES ACQUISITION C O W .
I',
A DELAWARE C O W O W T I O N ,
WITH AND INTO "NETWORX LONG DISTANCE, I N C .
OF "ECLIPSE TELECOMMUNICATIONS, I N C .
I' I
"
UNDER THE NAME
A CORPORATION ORGANIZED
A N D EXISTING UNDER TEE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND F I L E D IN T H I S OFFICE THE THIRD DAY OF JUNE, A.D.
1998, AT 4:30 O'CLOCK P.M.
A FILED COPY OF
THIS CERTIFICATE HAS BEEN FORWARDED TO THE
KENT COUNTY RECORDER OF DEEDS.
Lf&d
-E d w a r d J. Free!, Secretary of State
2145225
8100M
961214027
AUTHENTICATION:
DATE:
9118019
06-03-98
.
..
..
FROM RICHARDS, FINGER g: LAYTON # I
*(YvTD]
. 6. 3' 98 1 7 : 05/ST. 1 7 : O4/NO. 4861004394 r' 2
'.,c
CERTWKATE OF MBRGER
OF
PISCES ACQuIslTlaN COKP.
INTO
PIITWORK LONG DlSTANCE, INC.
flJnder Section 251 of the General Corporation Law of
Stow of Delaware)
&the
The undersigned corporation organized and exislbg under and by virtue of the General
Corporation Law of the State of Delaware hereby certities that:
The name and state of incorporation of each Of
constituent corporations are;
(a)
Network h n g D h n c e , Inc.,a Dehware corporation ("Network");and
@)
Pisccs Acquisition Curp., a Delaware corporation ("Acquisition").
An agreement and plan of merger (the "Merger AgTeernent") h& been approved,
adopted, certifiedd?execuled and acknowledged by Nerwnrk and Acquisition in
accordance with the requirements of Section 251 of the General Corporalion Law
of the State of Delaware.
Tbe name of the surviving corporation is Nerwork Long Dislance, hc.,which
shall be renamed as Eclipse Telecommunications, Inc.
The Certificate of hoorporation of Network shall be the CefiifiwE of
Incorporation of the swviving corporatjon, except h t , as set forth in the Merge
Agreement, Article I of the Certificate of hcorporalion of the surviving
corporation shall be mended to read as f d l o W S : "TTfle name of the corporation is
Eclipse Telecommunications, Inc.
The executed Merger Agreement is ox1 file a t the principal place of business of
Network at 11817 Cmoa BouIevard, Suite 600, Newport News,Virginia 23606.
A copy of the Merger Agreement will be furaishcd by Network or? request and
without cost fo any smckholdar of any cousrituent corporation.
This M a e of Merger shall be effmive ai 5 : W g.m. FAvtern Dayfight T h e on
June 3, 1998.
KCZ. 80229.1
S T A T E OF R E L A N A m
SECRETARY OF STATE
D T V I S I O N OF CORPORATIONS
FILED 0 4 : 3 1 ) PM 06/03/1998
981214027 - 2834884
M O M RICHARDS, FlNCXR & LAYTON
PI
Name: Timothy A. Banon
Thk:
Ktlm229.1
hesiderrt
State
of Delaware
Office of the Secretay of State
PACE
1
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACBED IS A TRUE AND CORIiECT
COPY OF TEE CERTIFICATE OF AMENDMENT OF "HAFWONEY STREET
CAPITAL, INC,", CHANGING ITS N A M E FROM "HPLRMONEY STREET CAPITAL,
INC."
TO "NETWOm LONG DISTANCE, INC.", FILED IN T3IS OFFICE ON
TEE TWENTY-FIFTH DAY OF NOVEMBER, A . D . 1991, AT 9 O'CLOCK A.M.
2145225
981189818
8100
PAGE
5
..
u
- --.. ..JEFFREY D , LEWI5, ACTING SECRETm'I OF STATE QF THE STATE
OF DELAWARE
KEREBY CERTIFY TKE ATTACHED 15 A TRW AND C O W C T
COPY OF 'I'm*C:ERTI F t CATE .OF AMENDMENT OF "WRMQNEY STREET CAP I TAL,
t N C . " FILED IN THI 5 OFFICE ON THE TWENTY-FIFTH DAY OF NOVEMBER,
A . D . 1991, AT 9 O'CLOCK A , M ,
I,
*
*
a
a
*
a
*
a
u
ACTING
*
SECRETARYOF STATE
AUTHENTICATION:
913305195
DATE:
& 3 3 0 4 ~ 3 ~
01/09/1992
STATE OF DELAWARE
'SECRETARY OF STATE
DIVISION OF. CORPDRATlONS
PfLED,09:00 AM 11/25/1991
913305195
2145225
-
CERTIFICATB OF AMENDMENT TO THE
CEWIFICATE OF INCORWRATION OF
HARNONEY STREET CAPITAL,
rNc.
CHANGING ITS HAME TO
NETWORK M N G DISTANCE, fHC.
M O N E Y STREET CAPITAL, T H C . ,
a
Corporation organized and
existing under and by virtue of The General Corporation L a w of the
S t a t e of
Delaware, DOE5 HEREBY CERTIFY:
FIRST:
C a p i t a l , Inc
That the name of t h e Carporation is Hamoney Street
.
The original C e r t i f i c a t e O f Incorporation was filed
SECOND:
in t h e o f f i c e of the Secretary a € State of t h e
S t a t e of
Delaware on
December 3 , 1987.
THIRD:
That t h e Board of Directors and Shareholders of said
corporation have adopted a resolution proposing and declaring
advisable the following amendment t o the C e r t i f i c a t e of s a i d
corporation in'accordance with the provisions of Section 2 4 2 of t h e
General Corporation Law of Delaware:
That Article I of t h e C e r t i f i c a t e of
Tncorporation of t h e Corporation be amended in its
entirety to read a s follows:
RESOLVED:
n&JEu=2
!i?aJ$
The name of the Corporation shall be:
Distance, ~ n c ,
Network Long
IN WITNESS WHEREOF, t h e undersigned officers, for and on
behalf
of the corposation, have signed this Certificate of
Amendment to the Certificate
of
Incorporation, aa their free and
IC
voluntary a c t and deed on behalf of the Corporatian, and the facts
stated herein are true, this
/q*
1991.
day of v
/
b
!
&
m
&
L
HARMONEY STREET CAPITAL, INC.
AITWT:
Narc I. Beckex, Secretary
Hibhael M. Ross, President
COUNTY OF
I, the undersigned, a Notary Public, hereby certify t h a t on
the
day of
, 1 9 9 5 , personally appeared before
me, Michael M. Rc??%?k%
f. Bccker, who being by me first duly
sworn, declared that they are the persons who signed t h e foregoing
document fox and on behalf of this corporation as President and
Secretary thereof, respectively, that it vas their free and
voluntary a c t and deed, and that the statements therein contained
are true.
WITNESS ~y hand and official s e a l .
Hy Commission expires
D,/94?+
1
S t a t e of Delaware
I
U
Ofice of the Secretary of State
PAGE
1
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF INCORPORATION OF "BARMONEY STREET
CAPITAL, INC.", FILED IN THIS OFFICE ON TEE TElRD DAY OF
DECEMBER, A . D . 1987, AT 3 O'CLOCK P.M.
/?&4
Edionrrf J. Fwel, S r c w f n r y of S h f e
2145225
981189818
8100
R€CEIV"d F O R RECORD
W.CO STATE DOCUMENT FEE PAID
A
........ - ..
. . . . . . . . .'
(
I
I
.
I
u ?.M EN TICATION:
DATE:
. . . . .
. :.
. ..
'
...
*
. . . . . ..
..
I.
,
-
CERTIFICATE OF INCORPORATION
FILED
OF
HARMONBYSTREET C A P I T A L , I N C .
T h a t the undFrsigned
KNOW ALL M E N BY THESE PRESENTS:
incorporator being a n a t u r a l person of the a g e o € eighteen y e a r e
or more and d e s i r i n g to form a body c o r p o r a t e under t h e l a w s of
ttw S t a t e o f k l a w a r e d o c s hereby s i q n , v e r i f y and deliver i n
d u p l i c a t e t o t h e Secretary of S t a t e of t h e S t a t e of Delaware, the
L ' r a r t i f i c a t e of Incorporation:
ARTICLE I
NAME
-
The name o f t h e Corporation shall. be : Harmoney S t r e e t
Capital, Inc.
ARTICLE 11
PERiOD OF DURATION
The Corporation s h a l l exlst i n perpetuity, from and a f t e r
t h e datta of f i l i n g t h e CertiEicate of Incorporation with t h e
S v c r e t a r y of S t a t e of Delaware unless dissolved according to lau.
ARTICLE I I I
PURPOSES AND POWERS
1.
P u r p o s e s . Except as res:-icted
by the Certificate of
I n c a r l ~ u r a t i o n , the Corporation is o r g a n i z e d € o r the purpose of
transacting all l a w f u l business €or which c o r p o r a t i o n s may be
incorporated p u r s u a n t t a the Getreral C o r p o r a t i z n L a w of Delaware.
2 . General Powers. Except a s restricted by the Certificate
of Incorporation, t h e Corporation shall have an may e x e r c i s e all
powers and r i g h t s which a c o r p o r a t i o n m a y exercise l e g a l l y
p u r s u a n t to the GengraJ Corporation L a w o f Delaware.
3 . Issuance of Shares. The board of directors of t h e 3
Corporation may d i v i d e and issue any class of stock of the
Corporation i n s e r i e s pursuant t o a r e s o l u t i o n p r o p e r l y filed
with t h e S e c r e t a r y of S t a t e of t h e S t a t e o f Delaware.
ARTICLE f V
CAPITAL STOCK
The a g g r e g a t e number of s h a r e s which this C o r p o r a t i o n shall
h a v e authority to issue is One Hundred Million ( 1 0 0 , 0 0 0 , 0 0 0 )
shares of $ 0 . 0 0 0 1 par value each, which shares s h a l l be
d e s i g n a t e d "Common Stock"; and T w e n t y F i t e M i l l i o n ( 2 5 , 0 O O , 000)
shares of $ . 0 1 par v a l u e each, which shares s h a l l be designated
" P r e f e r r e d S t o c k " and which may be i s s u e d in one Of more s e r i e s
-*
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..
... P.,!S.
.1
,
.:?
I
.
.
*
1
.
'
a t t h e d i s c r e t i o n O L t h e b a r d o f D i r e c t o r s . I n estaol ishing a
series t h e Board of D i r e c t o r s s h a l l g i v e t o it a distinctive
d e s i q n a t l o n so a s to d i s t i n g u i s h i t from t h e sharos'of a l l other
series and classes, s h a l l f i x t h e number o f s h a r e s i n such
series, and t h e p r e f e r e n c e s , r i g h t s and restrictions t h e r e o f .
fill shares of a n y cine series s h a l l be a l i k e in e v e r y p a r t i c u l a r
e x c e p t as o t h e r w i s e provided by t h i s C e r t i E i c a t e of I n c o r p o r a t i o n
o r t h e General C o r p o r a t i o n Law of Delaware.
,
1.
Dividends.
Dividends i n c a s h , p r o p e r t y o r s h a r e s a h a l l
be paid upon the Prelerred Stock f o r a n y year on a cumulative o r
n o n c u m u l a t i v e basis a s d e t e r m i n e d b y a r e s o l u t i o n o f t h e Board of
D i r e c t o r s p r i o r t o the i s s u a n c e o f such Preferred P'-ock, to the
extent e a r n e d s u r p l u s f o r each s u c h year is available, Ln a n
amount a s d e t e r m i n e d by a r e s o l u t i o n of t h e Board of D i r e c t o r s .
Such Preferred S t o c k dividends s h a l l b e p a i d pro rata t o h o l d e r s
a f Preferred Stock in any amount not less than no; mor5 than the
r a t e a s d e t e r m i n e d by a r e s o l u t i o n of t h e Doard of Directors
p r i o r to t h e issuance oC such P r e f e r r e d S t o c k . No o t h e r
d i v i d c n d s shall be paid on t h e P r e f e r r e d Stock.
D i v i d e n d s i n c a s h , property o r s h a r e s of t h e C o r p o r a t i o n may
be p a i d upon t h e Common S t o c k , a s and when d e c l a r e d by t h e Board
o f Directors, o u t o f f u n d s a f t h e Corporation to the extent and
in t h e manner p e r m i t t e d by law, e x c e p t t h a t no Common S t o c k
d i v i d e n d s h a l l be paid f o r any y e a r u n l e s s t h e h o l d e r s of
P r e f e r r e d Stock, i f a n y , shall receive t h e m a x i m u m allowable
P r e f e r r e d Stock d i v i d e n d for such y e a r .
2 , D i s t r i b u t i o n i n Liquidation.
Upon a n y liquidation,
dissolution o r w i n d i n g up of t h e Corporation, and a f t e r Paying o r
a d e q u a t e l y providing f o r the payment o f a l l i t s o b l i g a t i o n s , t h e
remainder of t h e a s s e t s of the C o r p o r a t i o n shall be d i s t r i b u t e d ,
e i t h e r tn cash o r in kind, first p r o r a t a t o t h e h o l d e r s of t h e
Prelcrred Stock u n t i l a n amount t o be d e t e r m i n e d by a r e s o l u t i o n
o f t h e Board of D i r e c t o r s prior t o issuance of s u c h P r e f e r r e d
S t o c k , has been distributed per share, and, t h e n , the remainder
pro r a t a t o the holders of the Common Stock.
3 , Redemption, me Preferred S t o c k may be redeemed in
whole o r in p a r t a s d e t e r m i n e d by a resolution of t h e Board OSC -*
Directors prior to t h e issuance of s u c h P r e f e r r e d Stock, upon
prior n o t i c e to t h e h o l d e r s of record of t h e Z r e f e r r e d Stock,
published, mailed and g i v e n i n such manner and form and on such
o t h e r terms and conditions a s may be prescribed by the B y l a w s o r
by r e s o l u t i o n G € t h e Board of Directors, b y payment i n cash o r
C o m m o n Stock for c-ach s h a r e of t h e P r e f e r r e d Stock LO b e
redeemed, as determined by a r e s o l u t i o n of t h e Board of D i r e c t o r s
p r i o r t o t h e issuance of s u c h Preferred S t o c k . Common Stack used
t o redeem P r e f e r r e d Stock s h a l l be v a l u e d as d e t e r m i n e d by a
resolution of t h e Board of Directors p r i o r t o t h e i s s u a n c e of
such P r e f e r r e d Stock. Common S t o c k used t o redeem Preferred
-2-
Stock s h a l l be v a l u e d a s d e t e r m i n e d by a resolution. o f t h e Board
t h e i s s u a n c e O C such P r e f e r r e d Stock, Any
r i g h t s t o or arising from fractional shares s h a l l be t r e a t e d as
r i g h t s t o o r a r i s i n g from one share. No such p u r c h a s e 3 t
r e t i r e m e n t shall be made i f t h e c a p i t a l of the C o r p o r a t i o n would
be impaired t h e r e b y .
of Directors prior to
I f l e s s than all the outstanding s h a r e s a r e Lo b e redeemed,
s u c h redemption may be made by l o t or pro r a t a as m a y be
prescribed by r e s o l u t i o n of t h e Board of Directors; p r o v i d e d ,
however, t h a t t h e Board oE D i r e c t o r s may alternatively invite
f r o m shareholders offers t o the Corporation of Preferred S t o c k a t
lcss t h a n an amount t o be determined by a r e s o l u t i o n of t h e Board
o f Uirectors prior to issuance o f such Preferred Stock, and when
s u c h o f f e r s a r e i n v i t e d , t h e Boatd of Directors shall t h e n be
r e q u i r e d to buy a t t h e lowest p r i c e o r prices o f f e r e d , up to t h e
amount t o be p u r c h a s e d .
From and a f t e r the date f i x e d in any s u c h notice as t h e date
o f redemption {unless d e f a u l t s h a l l be made by t h e Corporation in
a payment of t h e redemption price), a l l d i v i d e n d s on t h e
Preferred S t o c k t h e r e b y c a l l e d € o r r e d e m p t i o n shall cease t o
a c c r u e and a l l r i g h t s o l the h o l d e r s thereof a s s t o c k h o l d e r s of
t h e C o r p o r a t i o n , e x c e p t the tsght to receive the redemption
pr i c e , s h a l l cease and t e r m i n a t e
Any p u r c h a s e by the Corporation of t h e s h a r e s of its
Preferred S t o c k shall not be made a t p r i c e s in e x c e s s of s a i d
redemption price.
4.
V o t i n q R i g h t s ; C u m u l a t i v e Voting.
s h a r e of Common S t o c k s h a l l be e n t i t l e d t o
Each outstanding
one vote and e a c h
€ractional s h a r e of Common Stock shall be entitled to a
corresponding fractional vote on e a c h m a t t e r submitted t o a v o t e
o f shareholders. A majority o f the s h a r e s of Common S t o m
e n t i t l e d t o v o t e , r e p r e s e n t e d i n p e r s o n o r by p r o x y , s h a l l
c o n s t i t u t e A quorum a t a meeting of s h a r e h o l d e r s .
Except a s
o t h e r w i s e p r o v i d e d by this Certificate of I n c o t p a r a t i o n or t h e
G e n e r a l Corporation'h?
of Delaware, i f a quorum is p r e s e n t ,
a f r l r m a t i v e vote of a majority o € t h e shares r e p r e s e n t e d a t
meeting and entitled to v o t e on the s u b j e c t matter shall be t h e
a c t of t h e s h a r e h o l d e r s . When, with r e s p e c t t o a n y action t o be
t a k e n by s h a r e h o l d e r s of this Corporation, the laws o € Delaware
require the v o t e o € concurrence of the holders of two-thirds o €
t h e o u t s t a n d i n g s h a r e s , o € t h e shares e n t i t l e d t o v o t e t h e r e o n ,
o r o f sny c l a s s o r s e r i e s , such a c t i o n may b e t a k e n by t h e vote
o r c o n c u r r e n c e of a majority of such shares or class o r s e r i e s
t h e r e o f , Cumulative votSng shall not be allowed in t h e e l e c t i o n
o f d i r e c t o r s of th15 Corporation.
--
€Ke
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Shares of Preferred S t o c k s h a l l only be entitled'to s u c h
v o t e a5 is determined by t h e Board of D i r e c t o r s , p r i o r to the
iss-rance of s u c h stock, except A S required by law, i n which case
each s h a r e of P r e l e r r e d S t o c k s h a l l b e e n t i t l e d t o one v o t e ,
5. D e n i a l of Preemptive Rights. No h o l d e r of a n y s h a r e s of
the Cormration. w h e t h e r now or h e r e a f t e r a u t h o r i z e d , s b a l l have
any prehmptive o r p r e f e r e n t i a l right t o a c q u i r e any s h a r e s o r
securities O L the C o r p o r a t i o n , including shares o r s e c u r i t i e s
h e i d i n t h e treasury of t h e C o r p o r a t i o n .
6. Conversion R i g h t s . Holders o f s h a r e s of P r e f e r r e d S t o c k
may be g r a n t e d t h e r i g h t t o c o n v e r t such Preferred S t o c k to
Common Stock of the C o r p o r a t i o n on s u c h terms a s may be
determined by t h e B o a r d of Directors p r i o r t o i s s u a n c e of such
Preferred Stock.
ARTICLE V
TRANSACTIOPS WITH INTERESTED Uf RECTOhS
No c o n t r a c t o r o t h e r transaction b e t w e e n the C o r p o r a t i o n and
one o r more of i t s directors or any o t h e r corporation, f i r m ,
association, or entity in w h i c h o n e of m o r e of Its d . x e c t o t - s a r e
d i r e c t o r s or officers o r are financially i n t e r e s t e d shall be
either void o r v o i d a b l e solely because of s u c h relationship o r
interest or s o l e l y because such directors a r e p r e s e n t a t the
meeting of t h e board of d i r e c t o r s or a committee thereof which
authorizes, a p p r o v e s , or ratilies s u c h contract or transaction or
s o l e l y because their v o t e s a r e counted for such p u r p o s e i f :
( a ) The f a c t of such relationship or interest i s
disclosed or known t o t h c board o f d i r e c t o r s o r committee which
a u t h o r i z e s , approves, o r ratifies the c o n t r a c t o r t r a n s a c t i o n by
a vote o r c o n s e n t s u f f i c i e n t for t h e purpose without counting the
v o t e s or consents of such interested d i r e c t o r s : or
( b ) The fact of such relationship or i n t e r e s t is
d i s c l o s e d or known t o t h e shareholders e n t i t l e d t o vote and t h e y
authorize, approve/ OF r a t i f y s u c h contract or transaction by
v o t e or w r i t t e n c o n s e n t ; or
' .A
m
. :( c ) The contract o r transaction is l a i r and reasonable
to t h e c o r p o r a t i o n ,
Common or interested directors may be counted in d e t e r m i n i n g
t h e presence of a quoriim at a m e e t i n g o f the board oL directors
or a committee t h e r e o f which authorizes, approves, or r a t i f i e s
such c o n t r a c t or transaction.
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ARTICLE VI
COKPOHATE OPPOHTUNlTY
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*
The officers, directors and o t h e r m e m b e r s gf management of
t h i s Corporation s h a l l be subject t o t h e doctrine O P "corporate
opportunities" o n l y insofar as k t a p p l i e s to hiisincss
o p p o r t u n i t i e s i n w h i c h t h i s Corporation has e x p r e s ; an interr!st
a s dE:errnined from time t o time by t h i s Corporation's board of
directors a s evidenced by r e s o l u t i o n s appearinq the Corporation's
m i n u t e s . Once such a r e a s Of Interest a r e deljneated, a l l such
business opportunities within 5 : ~ hareas of interest which come
t o t h e attention o f t h e o l f i c e r s , d i r e c t o r s , and a t n e r members of
management of t h i s Corporation s h a l l be d i s c l o s e d promptly to
t h i s Corporation and made available to i t . The board of
directors may r e j e c t any business opportunity presented to i t and
thereafter any o f f i c e r , director or o t h e r member OF management
may a v a i l himself of s u c h o p p o r t u n i t y . U n t i l such time a s t h i s
Corporation, t h r o u g h its board of directors, nits desiqnated an
a r e e of interest, t h e o f € i c c r s , d i r e c t o r s and other mcmbara of
rnanagtment of t h i s Corpsratlon s h a l l be free t o engage i n such
area8 of interest on t h e i r own and t h i s doctrine s h a l l n o t L i t n i t
t h e r i g h t s u f a n y o f f i c e r , director or o t h e r member o t management
o f this Corporation t o continue a busincss e x i s t i n y p r i o r t o t h e
time t h a t such a r e a o f interest is desisnated b y the C o r p o r a t i o n .
T h i s p r o v i s i o n s h a l l not be construed t o r e l c a s c a n y employoe o f
t h i s Corporation ( o t h e r tharc an a f f i c e r , d i r e c t o r or member o f
m a n a g e m e n t ) from a n y d u t i e s which he may have to t h i s
Co r po r a t i o n ,
-.Name
pddrcss
3 5 West G 4 t i i Street
New York, New Y o r k 10023
Micrbartl J. Bergner
2732 Whitney P l a c e
Leon L. Nowatsky
A p a r t m e n t 3 09
M e t a i r e L A 70002
Miriam E . Mcibaurn 4
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NAHE
7 9 Androus
K e n n e r , L A 70065
j
ua.*
ARTICLE VIX
AND ADDRESS OF REGISTERED ACEIIT
Its registered o f f i c e and place of a u s i n e ~ sin t h e S t a t e of Delaware
is t o be located a t 410 South S t a t e Street i n t h e City of D L J ~ T , County of
Kent. The Registered Agent in charge t h e r e o f 1 5 : XI. CORPORATE SERVICES. 1NC.
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A R T I C L E XXIl
1NCOKPf3RATOR
The nmt? and address of the i n c o r p o r a t o r is a s follows:
M i c h a e l J. Bergnet
3 5 West 64th S t r e e t
New York, New York 10023
I N WITNESS WHEREOF, t h e above-named i n c o r p f a t o r , €or the
purpose of forming a corporation under the Laws o € t h e State of
Delaware, d w s make, f i l e and r e c o r d this Certi€icatc of
Incorporation and certify t h a t t h e f a c t s h e r e i n s t a t e d are true
and h a v e , accordingly, s e t h i s hand and seal aL NFW York, New
York this i'f* day of November, 1987,
I
_
44.:/<Michael J. Berqner
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-
Exhibit B
Certificate of Authority to Transact Business in West Virginia
by the provisions of the West Virginia Code, Articles of Merger were received and filed
MERGING CINCINNATI BELL ANY DISTANCE INC., A NON-QUALIFIED OH ORGANIZATION WITH
AND INTO BTI, INC., A QUALIFIED DE ORGANIZATION, THE SURVIVOR, WHICH CHANGED ITS
NAME TO CINCINNATI BELL ANY DISTANCE INC.
Therefore, I hereby issue this
CERTIFICATE OF MERGER
SEPTEMBER 2,2003
Exhibit C
Financial Data
Attached are copies of CBAD’s Income statement and balance sheet as of
December 3 1,2009.
Here is a link to Cincinnati Bell Inc.’s, (CBAD’s parent company), annual
repod1Ok filing.
http ://phx.corporateir.net/Extemal.File?item=UGF~ZW5OSU~9Mz~3NDV8~2hpbG~~OtMXxUe
XBlPTM=&t= 1
Cincinnati Bell Any Distance, Inc.
Income Statement
for the year ended
December 31, 2009
Unaudited
Net Revenues*
$
Operating Expenses
Cost of Services
Selling, General and Administration
Depreciation and Amortization
51,573,576
26,444,233
5.727.345
Operating Income
14,360,251
interest Expense
Other Income
2,573,948
(291,004)
Income before Income Taxes
12,077,307
Less: Income taxes
Net Income
98,105,405
4,471,860
$
7,605,447
Cincinnati Bell Any Distance, Inc.
Balance Sheet
As of
December 31,2009
Unaudited
ASSETS:
Current Assets;
Cash and Cash Equivalents
Prepaid Expenses
Other
$
Total Current Assets
272,778
1,110,983
3,755,53I
5,139,292
Fixed Assets and Intangibles, Net
Other Non-Current Assets
16,417,712
25,867,830
-~
Total Assets
$
47,424,834
$
1,295,499
954,501
242,296
4,213,607
LlAB I LIT1E S AND SHAREOWN ERS' DEFICIT:
Current Liabilities;
Taxes Payable
Accrued Payroll
Advanced Billings
Other Accrued Liabilities
Total Current Liabilities
6,705,903
Payable to Affiliates, net
76,671,460
Total Liabilities
83,377,363
Paid-in Capital
Retained Earnings
Total Shareholder's Deficit
Total Liabilities and Shareowners' Deficit
817,914,662
(853,867,191)
(35,952,529)
$
47,424,834
Exhibit D
Biographies of Senior Executive Team
John F. Cassidy
President and Chief Executive Officer
Cincinnati Bell Inc.
John F. Cassidy is President and Chief Executive Officer of Cincinnati Bell Inc. He
reports directly to the Board of Directors. Mr. Cassidy has 20 years of
telecommunications experience.
Mr. Cassidy is responsible for developing, establishing and executing strategic and
operational plans for all Cincinnati Bell companies including Cincinnati Bell Wireless,
Cincinnati Bell Telephone, Cincinnati Bell Any Distance, Cincinnati Bell's Public Phone
operations, and Cincinnati Bell Technology Solutions.
Previously, Mr. Cassidy served as President and COO of the local Cincinnati Bell
operations and Cincinnati Bell Wireless. As President of Cincinnati Bell Wireless, he led
the nation's most successful PCS business, and later, the nation's most successful prepaid
PCS business, branded i-wireless.
Prior to joining Cincinnati Bell, Mr. Cassidy served as Vice President of Sales for Cantel,
Canada's largest cellular provider. He joined Cantel after holding the position of Vice
President of Sales and Marketing for the Ericsson Communication's mobile handset
business, where he was responsible for the brand's introduction in North America. Mr.
Cassidy was formerly Vice President of Sales and Marketing for the General Electric
cellular phone business.
After attending Cleveland State University's Management and Labor Relation program,
Mr. Cassidy served in executive-level positions in Labor Relations and Human resources
for TransOhio Savings Bank and the Cleveland Press.
Beyond his work in the telecommunications industry, Mr. Cassidy is also an active
member of the community. He serves on the boards of the Red Cross of Cincinnati, the
Boys and Girls Club Advisory Board, the Boomer Esiason Foundation and is the past
chair of the Cincinnati Chamber of Commerce's Regional Technology Initiative. Mr.
Cassidy has been honored as the Personal Communications Industry Association's (PICA)
Distinguished Corporate Citizen, the Boomer Esiason Foundation's Man of the Year and
the Cincinnati Friar's Club Man of the Year. He also has been awarded the NAACP's
Wright Overstreet Award for Education, the Cincinnati School Board's "Making A
Difference" award, and Clay Pigeon Magazine's Shooting Sportsman of the Year award
for 2003.
Gary J. Wojtaszek
Chief Financial Officer
Cincinnati Bell Inc.
Gary Wojtaszek is chief financial officer (CFO) for Cincinnati Bell Inc. He reports
directly to Jack Cassidy, president and chief executive officer of Cincinnati Bell. Mr.
Wojtaszek has one year of telecommunications experience.
As CFO, Mr. Wojtaszek is responsible for Cincinnati Bell's corporate accounting, finance,
treasury, and tax functions, as well as investor relations and corporate communications.
Mr. Wojtaszek most recently served as the senior vice president, treasurer, and chief
accounting officer for Laureate Education Incorporated in Baltimore, Md., where he was
responsible for global controller and treasurer functions.
Prior to joining Laureate Education, he was the vice president of finance and principal
accounting officer for Agere Systems, Inc., a leading manufacturer of integrated circuits
used in telecommunications and networking equipment, hard-disk drives, and other
devices. While with Agere, Mr. Wojtaszek also held the positions of assistant treasurer,
finance director and corporate controller. His past experience also includes treasury and
corporate finance assignments with Delphi Automotive Systems and General Motors.
Mr. Wojtaszek holds a bachelor's degree in economics and history from Rutgers
University and a master's degree in finance and accounting from Columbia University.
Kurt Freyberger
Vice President & Controller
Kurt Freyberger is Vice President and Controller for Cincinnati Bell Inc. As the chief
accounting officer of the company, he is responsible for all internal and external financial
reporting and reports directly to Gary J. Wojtaszek, Cincinnati Bell's Chief Financial
Officer.
Prior to joining Cincinnati Bell, Mi-. Freyberger was employed by Chiquita Brands
International, serving in various capacities including assistant corporate controller and
director of financial reporting. Prior to working at Chiquita, Mi-. Freyberger was an audit
manager with PricewaterhouseCoopers.
Mi. Freyberger is a member of the Ft. Thomas Lions Club and audit committee of Gloria
Dei Lutheran Church. He holds a bachelor's degree in accounting ji-om Western
Kentucky University.
Christopher J. Wilson
Vice President and General Counsel
Cincinnati Bell Inc.
Christopher J. Wilson is the Vice President and General Counsel for Cincinnati Bell Inc.
He was elected to his current position August 6,2003. Mr. Wilson reports directly to John
F. Cassidy, President and CEO of Cincinnati Bell Inc. Mr. Wilson has 19 years of
telecommunications experience.
Prior to his current position Mr. Wilson served as Associate General Counsel for the
company’s Cincinnati-based operating subsidiaries from November 1998 to August 2003.
Before joining the in-house legal team at Cincinnati Bell Inc., Mr. Wilson was a partner at
Frost Brown Todd LLP.
Mr. Wilson Graduated from Thomas Moore College in 1988 with a B.A. in Economics,
and subsequently earned his law degree from the University of Notre Dame in 1991.
Brian G. Keating
Vice President Human Resources and Administration
Brian G. Keating is responsible for H R policy development and administration,
management and leadership development, employee and labor relations, health and safety
and security and corporate services. He reports directly to Jack Cassidy, President and
Chief Executive Officer of Cincinnati Bell.
Mr. Keating joined Cincinnati Bell Telephone in 1978. During his tenure he has held
many different positions including: frame technician, station installation technician, labor
relations manager, retail stores and credit card processing center director, consumer sales
and service director and labor relations director. In 2000, Mr. Keating became vice
president of human resources for Cincinnati operations and in 2003 was promoted to his
current position.
He has been active in numerous community organizations, such as the Hearing, Speech
and Deaf Center of Cincinnati, Korean Family Connections and the Cincinnati Chapter of
the American Red Cross. He has also served as a board member of Cintel Federal Credit
Union.
Mr. Keating earned a bachelor's degree in Industrial Relations and a JWis Doctor degree
fkom the University of Cincinnati. He is a member of the Ohio Bar.
Tara L. Khoury
Senior Vice President and Chief Marketing Officer
Tara Khoury is Senior Vice President and Chief Marketing Officer of Cincinnati Bell Inc.
She reports directly to Jack Cassidy, President and Chief Executive Officer of Cincinnati
Bell.
As SVP & Chief Marketing Office, Mrs. Khoury is responsible for directing all marketing
strategies, activities, and functions across the corporation.
Mrs. Khowy was most recently the senior vice president and chief global marketing
officer for Kao Brands Company in Cincinnati, where she managed worldwide marketing
activities for a portfolio of well-known premium skin and hair care product brands. She
previously held senior and strategic marketing positions with Sara Lee Corporation, The
Benchmark Group, and Procter & Gamble.
Mrs. Khoury is a graduate of the University of Wisconsin-Madison with a bachelor's
degree in economics. She currently serves as president of the executive advisory board for
the Wisconsin School of Business Center for Brand and Product Management. She is also
a member of the board of trustees for the Public Library of Cincinnati and Hamilton
County and serves on the finance and strategy committee for Mercy Health Partners.
Kim Sheehy
Vice President and Treasurer
Kim Sheehy is Vice President and Treasurer for Cincinnati Bell, Inc. Her responsibilities
include cash and balance sheet management, financing, bank and investment bank
management, risk management, and pension administration. She reports directly to Gary
Wojtaszek, Cincinnati Bell's Chief Financial Officer.
Mrs. Sheehy joined the company in 1996 as the managing director of corporate tax and
most recently served as the vice president of financial planning and analysis. Her previous
experience includes accounting and tax positions at Ernst & Young. She is is a certified
public accountant in the state of Ohio and a member of the Ohio Society of CPAs and the
American Institute of Certified Public Accountants (AICPA). She was also honored by the
Cincinnati's One Hundred Wise Women program, which helps rising women leaders in
Greater Cincinnati connect with some of the community's most accomplished women.
Mrs. Sheehy is a graduate of the University of Cincinnati receiving her bachelor's degree
in accounting.
David L. Heimbach
Vice President, evolve Business Solutions
Dave Heimbach is Vice President of evolve Business Solutions for Cincinnati Bell
responsible for a regional CLEC expansion strategy targeting small- and medium-sized
businesses. Dave also has general management responsibilities for the long distance and
Heimbach has 10 years of
wide area network businesses based in Cincinnati.
telecommunications experience,
w.
Prior to his current position, Dave held various strategy, general management and product
development roles at Cincinnati Bell. His past career experience includes various roles in
product development, sales and general management at companies in Cincinnati, Ohio and
Denver, CO.
Dave graduated from Ohio University with a BSC in Communication Systems
Management in 1999.
Christopher C. Elma
Managing Director - Tax and Internal Control
Christopher C. Elma is Managing Director - Tax and Internal Control and is responsible
for all Corporate Tax and Internal Audit matters of Cincinnati Bell Inc. and its
subsidiaries. Mr. Elma has 11 years of telecommunications experience.
Mr. Elma joined Cincinnati Bell Inc. in January 1999 as a manager in the Tax Department.
He held various positions within the department until becoming Managing Director of
Corporate Tax in January 2006. In May 2009, he assumed the additional responsibility for
Internal Controls in his position as Managing Director - Tax & Internal Control.
Prior to joining Cincinnati Bell Inc. Mr. Elma spent five years with Milacron Inc. serving
in various tax staff and supervisory positions.
Mr. Elma earned his Bachelor of Science degree in Accounting from the University of
Cincinnati in Cincinnati, Ohio.
Scott Thomas
Tax Director
Scott Thomas is a Tax Director for Cincinnati Bell, Inc. He is responsible for the
management of the corporate tax function. He reports directly to Chris Elma, Cincinnati
Bell's Managing Director - Tax and Internal Controls. Mr. Thomas has 9 years of
telecommunications experience.
Mr. Thomas joined the company in 2000 as a Senior Tax Accountant and most recently
served as a Senior Manager - Corporate Tax. His previous experience includes a tax
position at Arthur Andersen.
He is a certified public accountant in the state of Kentucky and a member of the Kentucky
Society of CPAs and the American Institute of Certified Public Accountants (AICPA).
Mr. Thomas is a graduate of the University of Kentucky receiving his bachelor's degree in
accounting.
Theodore W. Heckmann
Managing Director - Regulatory and Government Affairs
Theodore W. Heckmann is Managing Director - Regulatory and Government Affairs and
is responsible for all Federal and State government and regulatory matters. Mr.
Heckmann reports directly to Christopher J. Wilson, Vice President and General Counsel
for Cincinnati Bell Inc. Mr. Heckmann has 30 years of telecommunications experience.
Mr. Heckmann has held various Finance, Accounting and Regulatory positions within
Cincinnati Bell. He assumed his current position on July 1,2009.
Mr. Heckmann graduated fiom Bowling Green State University in Bowling Green, Ohio,
in 1980 with a B.S. in Accounting and he earned an MBA fiom Xavier University in
Cincinnati, Ohio, in 1987.
PUBLIC SERVICE COMMISSION
OF WEST VIRGINIA
CHARLESTON
Entered by the Public Service Commission of West Virginia, in the City of Charleston on this
the 22ndday of December 20 10.
CASE NO. 10-1897-T-CN
CINCINNATI BELL ANY DISTANCE, INC.
Application and fee for a certificate of convenience
and necessity to provide facilities-based and resold
local exchange telecommunications services throughout
the State of West Virginia.
NOTICE OF FILING
On December 22, 2010, Cincinnati Bell Any Distance, Inc. filed an application for a
certificate of convenience and necessity to provide facilities-based and resold local exchange
telecommunications services throughout the State of West Virginia . The application and exhibits
are available for public inspection at the Commission's offices at 20 1 Brooks Street, Charleston.
Pursuant to West Virginia Code $24-2- 1 1, IT IS ORDERED that the Applicant give notice
of the filing of said application by publishing a copy of this order once in a qualified newspaper as
provided in West Virginia Code $59-3-1 et seq, published and of general circulation in each of the
Cities of Beckley, Bluefield, Charleston, Clarksburg, Elkins, Fairmont, Huntington, Keyser,
Lewisburg, Logan, Martinsburg, Morgantown, Moundsville, Parkersburg, Point Pleasant, Weirton,
Welch, Wheeling, and Williamson, making due return to this Commission of proper certification
of publication immediately after publication. Anyone desiring to make objection to said application
must do so in writing, within 30 days after publication of this notice, to Sandra Squire, Executive
Secretary, Public Service Commission, P.O. Box 8 12, Charleston, West Virginia 25323.
IT IS FURTHER ORDERED that if no protests are received within said thirty-day period,
the Commission may waive formal hearing and grant the application based on the evidence
submitted with said application and its review thereof.
SSIjan
101897s.wpd
Public Service Commission
of West Virgmia
Charleston