FIFTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 10.2
FIFTH AMENDMENT
TO
This
FIFTH AMENDMENT TO AGREEMENT AND
PLAN OF MERGER, dated as of January 25, 2018 (this
“Amendment”), is entered
into by and among Fusion Telecommunications International, Inc., a
Delaware corporation (the “Company”), Fusion BCHI
Acquisition LLC, a Delaware limited liability company
(“Merger
Sub”), and Birch Communications Holdings, Inc., a
Georgia corporation (“BCHI”). Capitalized terms
used but not otherwise defined herein shall have the meanings given
to them in the Merger Agreement.
RECITALS
A.
The Parties
previously entered into that certain Agreement and Plan of Merger,
dated as of August 26, 2017, as amended by the First Amendment to
Agreement and Plan of Merger, dated as of September 15, 2017, the
Second Amendment to Agreement and Plan of Merger, dated as of
September 29, 2017, the Third Amendment to Agreement of Plan of
Merger, executed on October 24, 2017, the Amended and Restated
Third Amendment to Agreement and Plan of Merger, dated as of
October 27, 2017, and the Fourth Amendment to Agreement and Plan of
Merger, dated January 24, 2018 (collectively, the
“Merger
Agreement”).
B.
The Parties desire
to further amend the Merger Agreement as set forth
herein.
The
Parties hereby agree as follows:
1. Subsection (i) of
the last sentence of Section 5.2 of the Merger
Agreement is hereby amended by deleting the number
“$10,000,000” and replacing it with the number
“$40,000,000”.
2. The definition of
“Fully-Diluted
Company Share Total” set forth in Section 9.15, is hereby deleted
and replaced with the following:
“Fully-Diluted Company Share
Total” means, as of immediately prior to the Effective
Time, the number of shares of Company Common Stock issued and
outstanding (excluding, for this purpose, the shares of Company
Common Stock to be issued by the Company in connection with its
acquisition of assets of Iqmax, Inc. (not to exceed 300,000 shares)
and any shares of Company Common Stock issued under the last
paragraph of Section 5.2 in connection with any capital raise
permitted thereby), plus the number of shares of Company Common
Stock issued or issuable upon the conversion of the Company
Preferred Stock and any other class or series of preferred stock of
the Company outstanding as of immediately prior to the Effective
Time, plus the number of shares of Company Common Stock issuable
upon the exercise of all In-the-Money Company Warrants (as adjusted
for stock splits and calculated using the treasury stock method).
For avoidance of doubt, any other shares of Company Common Stock
that are (a) issued after the date hereof pursuant to Section 5.2, or (b) issuable
upon the conversion of Company Preferred Stock, any other class or
series of preferred stock of the Company, or any other security or
debt instrument, in each case, issued after the date hereof
pursuant to Section
5.2, will be included in the Fully-Diluted Company Share
Total, unless otherwise agreed by the Parties.”
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3. Effect of Amendment. This
Amendment shall not constitute a waiver, amendment or modification
of any other provision of the Merger Agreement not expressly
contemplated hereby. Except as specifically modified and amended
hereby, the Merger Agreement shall remain unchanged and in full
force and effect. From and after the date hereof, each reference in
the Merger Agreement to “this Agreement”,
“hereunder”, “hereof”, “herein”
or words of similar meaning shall mean and be a reference to the
Merger Agreement as amended by this Amendment. Notwithstanding the
foregoing, references to the date of the Merger Agreement, and
references to the “date hereof”, “the date of
this Agreement” or words of similar meaning in the Merger
Agreement shall continue to refer to August 26, 2017.
4. Governing Law. This Amendment
will be governed by, and construed and enforced in accordance with,
the internal Laws of the State of Delaware, without regard to any
applicable conflict of laws principles (whether of the State of
Delaware or any other jurisdiction).
5. Jurisdiction. Section 9.8 (Jurisdiction) of
the Merger Agreement is incorporated herein by reference and made a
part hereof as if fully set forth herein.
6. Counterparts. This Amendment
may be executed in two or more counterparts, all of which will be
considered one and the same agreement and will become effective
when counterparts have been signed by each of the Parties and
delivered to the other Parties, it being understood that each Party
need not sign the same counterpart. PDF transmissions of this
Amendment shall be deemed to be the same as the delivery of an
executed original.
[Signatures
appear on following page.]
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IN WITNESS WHEREOF, the Parties have
caused this Amendment to be executed by their respective officers
thereunto duly authorized as of the date first above
written.
FUSION
TELECOMMUNICATIONS INTERNATIONAL, INC.
By:
_/s/ Xxxxx X. Xxxxxxxx,
Xx,
Name:
Xxxxx X. Xxxxxxxx, Xx.
Title:
Executive Vice President and
General
Counsel
FUSION
BCHI ACQUISITION LLC
By:
/s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
Manager
BIRCH
COMMUNICATIONS HOLDINGS, INC.
By:
/s/ Xxxxxx X. Xxxxxxxx,
Xx.
Name:
Xxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President and General Counsel
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