AMENDED AND RESTATED THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit
10.1.3
AMENDED
AND RESTATED THIRD AMENDMENT
TO
This
AMENDED AND RESTATED THIRD AMENDMENT TO AGREEMENT AND PLAN OF
MERGER, dated as of October 27, 2017 (this “Restatement”), 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”). This Restatement
supersedes the Third Amendment to Agreement of Plan of Merger
executed by the Company, Merger Sub BCHI on October 24, 2017 (the
“Original Third Amendment”). 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 and the Original Third Amendment (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. Section 6.1(a) of the Merger
Agreement is hereby deleted in its entirety and replaced with the
following:
“a.
The Parties will
use their respective reasonable best efforts to (i) take, or cause
to be taken, all appropriate action and do, or cause to be done,
all things necessary, proper or advisable under applicable Law,
including Antitrust Laws, or otherwise to consummate and make
effective the Transactions as promptly as practicable,
(ii) obtain from any Governmental Entity any consents,
licenses, permits, waivers, approvals, authorizations or Orders,
including the FCC Approval and State Approvals, required to be
obtained by a Party, or any of their respective Subsidiaries, or to
avoid any Action by any Governmental Entity (including those in
connection with the Antitrust Laws), in connection with the
authorization, execution and delivery of this Agreement and the
consummation of the Transactions and (iii) (A) by no later than
October 31, 2017, make all necessary filings, and thereafter make
any other required submissions, with respect to this Agreement
required under the HSR Act, (B) by no later than October 31, 2017,
make all necessary filings, and thereafter make any other required
submissions, with respect to this Agreement required in order to
obtain the FCC Approval, (C) (i) by no later than November 15,
2017, make all necessary filings with respect to this Agreement
required in order to obtain the State Approvals, and (ii) by no
later than November 30, 2017 make all other required submissions
with all remaining State PSCs, and (D) by no later than November
30, 2017, make any other necessary filings, and thereafter make any
other required submissions, with respect to this Agreement required
under any other applicable Law. The Company and BCHI will furnish
to each other all information required for any application or other
filing under the rules and regulations of any applicable Law in
connection with the Transactions.”
2. Section 6.7 of the Merger
Agreement is hereby amended by deleting the second sentence thereof
and replacing it with the following:
“To the
extent necessary to comply with NASDAQ listing requirements, the
Company shall submit to the holders of Company Common Stock at the
Stockholders’ Meeting a proposal to approve and adopt an
amendment to the Company Certificate of Incorporation to authorize
the Company Board to effect a reverse split of all outstanding
shares of Company Common Stock in the range of 3:1 and 5:1, such
ratio to be determined by the Company Board after consultation with
BCHI, such that each holder of shares of Company Common Stock shall
receive one share of Company Common Stock for every three to five
shares (as determined applicable) of Company Common Stock held by
such holder (the “Reverse Split”),
effective prior to the Effective Time.”
3. The phrase
“60 days after the date hereof” in Section 8.1(b)(iv) of the
Merger Agreement is hereby deleted and replaced with “120
days after the date hereof”.
4. The reference to
20% in the proviso at the end of the definition of “Superior
Proposal” set forth in Section 9.15, is hereby deleted
and replaced with “15%”.
5. Effect of Restatement. This
Restatement 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 Restatement. 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.
6. Governing Law. This Restatement
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).
7. 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.
8. Counterparts. This Restatement
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
Restatement 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 Restatement 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 Third Amendment to Agreement and Plan of
Merger]
