SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit
10.1.2
SECOND
AMENDMENT
TO
This
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
September 29, 2017 (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
“Merger
Agreement”).
B.
The Parties desire
to amend the Merger Agreement as set forth herein.
The
Parties hereby agree as follows:
1. Amendment. The Merger Agreement
is hereby amended as follows:
a.
the phrase
“as promptly as reasonably practicable, and in any event
within fifteen (15) Business Days after the date hereof” in
Section 6.1(a)(iii)(C) is hereby deleted and replaced with
“within seven (7) Business Days after receipt of binding
commitment letters with respect to the Financing determined by both
Parties to be sufficient from a Financing Source or Financing
Sources”.
2. Effect of Amendment. This
Amendment shall not constitute a waiver, amendment or modification
of any other provision of the Merger Agreement not expressly
referred to in Section 1 of this Amendment. 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.
3. 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).
4. 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.
5. 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.]
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
[Signature Page to Second Amendment to Agreement and Plan of
Merger]
