NINTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 10.2
NINTH AMENDMENT
TO
This
NINTH AMENDMENT TO AGREEMENT AND PLAN OF
MERGER, dated as of April 27, 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, the Fourth Amendment to Agreement and Plan of
Merger, dated January 24, 2018, the Fifth Amendment to Agreement
and Plan of Merger, dated as of January 25, 2018, the Sixth
Amendment to Agreement and Plan of Merger, dated as of March 12,
2018, the Seventh Amendment to Agreement and Plan of Merger, dated
as of April 3, 2018, and the Eighth Amendment to Agreement and Plan
of Merger, dated as of April 26, 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. The
date of “May 10, 2018” in Section 8.1(b)(i) of the
Merger Agreement is hereby deleted and replaced with “May 30,
2018”.
2. The
phrase “the date of April 30, 2018 in Section 8.1(b)(iv) of
the Merger Agreement is hereby deleted and replaced with “May
15, 2018”.
3. The
date of “April 30, 2018” in the definition of
“Outside Date” in Section 9.15 of the Merger Agreement
is hereby deleted and replaced with “May 15,
2018”.
4. 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.
5. 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).
6. 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.
7. 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
