UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of
Report (Date of earliest event reported) January 24,
2018
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
|
(Exact name of registrant as specified in its charter)
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Delaware
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001-32421
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58-2342021
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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420 Lexington Avenue, Suite 1718, New York, NY
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10170
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(Address of principal executive offices)
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(Zip Code)
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Registrant's
telephone number, including area code:
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(212) 201-2400
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Not Applicable
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(Former name or former address, if changed since last
report)
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Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2.
below):
☐
Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under
the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of
1934 (§240.12b-2 of this chapter).
Emerging
growth company
☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act.
☐
Item 1.01
|
Entry into a Material Definitive Agreement.
|
On January 24, 2018, Fusion Telecommunications
International, Inc., a Delaware corporation
(“
Fusion
”), entered into a Fourth Amendment (the
“
Fourth
Amendment
”) to the Agreement and Plan of Merger (the
“
Merger
Agreement
”), dated August
26, 2017, by and between Fusion, Fusion BCHI Acquisition LLC
(“
BCHI
”) and Birch Communications Holdings, Inc.
(“
Birch
”).
The
Fourth Amendment further extended the date by which either Fusion
or Birch may terminate the Merger Agreement due to an inability to
secure commitments for the required financing from 120 days from
the date of the Merger Agreement to 220 days from the date thereof
(i.e., April 3, 2018). Under the Fourth Amendment, the parties also
agreed to exclude up to 300,000 shares of common stock of Fusion
(the “
Common Stock
”) to be issued in connection with the IQmax
Asset Acquisition (as defined below) from the calculation of the
number of shares to be issued to BCHI Holding, LLC at the closing
under the Merger Agreement, as consideration in connection
therewith. In addition, the Fourth Amendment also revised Exhibit D
to the Merger Agreement (which exhibit described the proposed
spin-off of the Birch consumer business required as a condition
precedent to closing) to exclude references to the Canadian
business of Birch as the parties have agreed that such assets and
customers will transfer to Fusion at closing.
On January 25,
2018
, Fusion, BCHI and Birch entered into a Fifth
Amendment (the “
Fifth
Amendment
”) to the Merger
Agreement. Under the Fifth Amendment, the parties agreed to
increase the dollar amount of cash that Fusion could raise by
issuing equity or debt securities in connection with capital
raising activities prior to the closing of the Merger from $10.0
million to $40.0 million (net proceeds) and also agreed any shares
of Common Stock issued by Fusion in such an offering in amount of
up to such $40.0 million (net proceeds) would be excluded in
determining the number of shares to be issued to BCHI
Holding, LLC
at the closing under
the Merger Agreement as consideration in connection
therewith.
On
January 26, 2018, Fusion obtained a waiver (the “
East West Waiver
”) from
the lenders under its senior secured
credit facility with East West Bank, as administrative agent, and
the other lenders parties thereto (the “
Credit
Facility
”),
that
permits Fusion to sell up to approximately $30,000,000 (net
proceeds) of Common Stock without having to use any of those
proceeds to prepay amounts outstanding under the Credit Facility.
Prior to receiving this waiver, Fusion was obligated under the
Credit Facility to use any net proceeds from any sale of its equity
securities that are in excess of $4.0 million to pay down
outstanding borrowings thereunder.
The
foregoing description of the Fourth Amendment, the Fifth Amendment,
and the East West Waiver are not complete and are qualified in
their entirety by reference to the full text of each such document,
all of which are filed hereto as Exhibits 10.1, 10.2, and 10.3, and
which are incorporated by reference herein in their
entirety.
Item 2.02.
|
Results of Operations and Financial Condition
|
In
connection with the Offering (defined below), Fusion is filing a
preliminary prospectus supplement dated January 29, 2018 that
includes current and preliminary expectations of financial results
for Fusion and Birch for the fourth quarter ended December 31,
2017. Such financial results are furnished under the heading
“Prospectus Supplement Summary – Recent Developments
– Preliminary Fourth Quarter 2017 Financial Results”
and are set forth in their entirety below.
Preliminary Fourth Quarter 2017 Financial Results
The
following information reflects our current and preliminary
expectations of financial results for Fusion and Birch for the
fourth quarter ended December 31, 2017. These numbers remain
subject to adjustment in connection with the pending audit of our
financial statement and those of Birch.
For the
fourth quarter of 2017, we estimate that our revenues overall and
attributable to our Business Services segment will be approximately
$40.2 million and $29.5 million, respectively. For the fourth
quarter of 2017, we estimate that our net loss overall will be in
the range of $3.6 million to $3.2 million, and our adjusted EBITDA
overall will be in the range of $3.9 million to $4.3 million.
Please note, however, that we have yet to calculate the extent of
our derivative warrant liability or income tax liability for 2017,
both of which could have a significant effect on our net losses,
but neither of which will have an effect on our adjusted EBITDA. A
reconciliation of net (loss) income to adjusted EBITDA for Fusion
is set forth below.
We have
been advised by Birch that it estimates that for the fourth quarter
of 2017, business segment revenue of its North America (U.S. and
Canada) nonconsumer business will be approximately $106
million. We have further been advised by Birch that it estimates
that, for the fourth quarter of 2017, net loss for this business
segment will be in the range of $2.3 million to $0.4 million, and
adjusted EBITDA for this business segment will be in the range of
$31 million to $33 million. The adjusted EBITDA for Birch consists
of gross margin (i.e., total revenue less cost of goods sold) less
selling, general and administrative expenses, restructuring
charges, transaction charges and certain onetime legal
charges. A reconciliation of net (loss) income to adjusted EBITDA
for Birch is set forth below.
Fusion Telecommunications International, Inc.
Adjusted EBITDA Unaudited Reconciliation
|
For the Three
Months Ended December 31,2017
(in
millions)
|
|
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Net
(loss) income
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$
(3.6
)
– (3.2)
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Interest expense
and other financing costs
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2.2
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Provision (benefit)
for income taxes
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-
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Depreciation and
amortization
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3.6
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EBITDA
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2.6
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Acquisition and
transaction expenses
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0.7
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Change in fair
value of derivative liability
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-
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(Gain)/Loss on
disposal of property and equipment, extinguishment of debt,
impairment
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(0.7
)
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Stock based
compensation expense
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1.7
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Adjusted
EBITDA
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$
3.9
– 4.3
|
Birch
Communications Holdings, Inc.
Adjusted EBITDA Unaudited Reconciliation
|
For the Three
Months Ended December 31,2017
(in
millions)
|
|
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Net
(loss) income
|
$
(2.3
)
– (0.4)
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Interest
expense
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12.6
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Provision for
income taxes
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0.3
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Depreciation and
amortization
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18.6
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Foreign Currency
Loss
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0.1
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Other
Income
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1.2
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EBITDA
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28.0
– 30.0
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Acquisition and
Transaction Expenses
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1.5
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Non-Recurring
Employment Related Expenses
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1.0
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Legal
Settlements
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0.5
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Adjusted
EBITDA
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$
31.0
– 33.0
|
The
Company believes that EBITDA (earnings before interest, taxes,
depreciation and amortization) is useful to investors because it is
commonly used in the cloud communications industry to evaluate
companies on the basis of operating performance and leverage.
Adjusted EBITDA provides an adjusted view of EBITDA that takes into
account certain significant nonrecurring transactions, if
any, such as impairment losses and expenses associated with pending
acquisitions, which vary significantly between periods and are not
recurring in nature, as well as certain recurring noncash
charges such as changes in fair value of the Company’s
derivative liabilities and stockbased compensation. The
Company also believes that Adjusted EBITDA provides investors with
a measure of the Company’s operational and financial progress
that corresponds with the measurements used by management as a
basis for allocating resources and making other operating
decisions. Although the Company uses Adjusted EBITDA as one of
several financial measures to assess its operating performance, its
use is limited as it excludes certain significant operating
expenses. EBITDA and Adjusted EBITDA are not intended to represent
cash flows for the periods presented, nor have they been presented
as an alternative to operating income or as an indicator of
operating performance and should not be considered in isolation or
as a substitute for measures of performance prepared in accordance
with accounting principles generally accepted in the United States
of America (“GAAP”). In accordance with SEC Regulation
G, the nonGAAP measurements in this presentation have been
reconciled to the nearest GAAP measurement.
Note Regarding Preliminary Results
. The
preliminary financial results presented above are subject to the
completion of our and Birch’s financial closing procedures,
which have not yet been completed. Our and Birch’s actual
results for the fourth quarter will not be available until after
this offering is completed and may differ materially from these
estimates. Therefore, you should not place undue reliance upon
these preliminary financial results. For instance, during the
course of the preparation of the respective financial statements
and related notes, additional items that would require material
adjustments to be made to the preliminary estimated financial
results presented above may be identified. The preliminary
financial data included in this prospectus supplement relating to
Fusion has been prepared by and is the responsibility of our
management, and the preliminary financial data included in this
prospectus supplement relating to Birch was provided to us by
Birch’s management. Neither EisnerAmper LLP, Fusion’s
independent registered public accounting firm, nor McNair,
McLemore, Middlebrooks & Co., LLC, Birch’s independent
public accounting firm, has audited, reviewed, compiled or
performed any procedures with respect to the preliminary financial
data set forth above. Accordingly, neither EisnerAmper LLP nor
McNair, McLemore, Middlebrooks & Co., LLC expresses an opinion
or any other form of assurance with respect to these financial
figures. The preliminary estimated financial results were not
prepared with the view to complying with published guidelines of
the SEC or the guidelines established by the American Institute of
Certified Public Accountants for preparation and presentation of
preliminary estimated results of operations.
On
January 29, 2018, Fusion issued a press release announcing the
launch of its underwritten public offering of Common Stock (the
“Offering”). A copy of the press release is attached
hereto as Exhibit 99.1 and is incorporated herein by
reference.
The
press release shall not constitute an offer to sell or the
solicitation of an offer to buy any of the securities described
herein, nor shall there be any sale of these securities in any
state or jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such state or jurisdiction.
On January 8, 2018, Fusion obtained the consent
(the “
East West
Consent
”) from the
lenders under the Credit Facility that permitted Fusion to acquire
substantially all of the assets of IQMax, Inc. on January 25, 2018
(the “
IQMax Asset
Acquisition
”), for total
consideration of $1 million, payable in Common
Stock.
On January 8, 2018, Fusion obtained the consent
(the “
Praesidian
Consent
”) from the
lenders under our loan facility with Praesidian Capital Opportunity
Fund III, L.P., Praesidian Capital Opportunity Fund III-A, LP and
United Insurance Company of America that permitted Fusion to
consummate the IQMax Asset Acquisition on January 25,
2018.
The
foregoing description of the East West Consent and the Praesidian
Consent are not complete and are qualified in their entirety by
reference to the full text of each such document, all of which are
filed hereto as Exhibits 99.2 and 99.3, respectively, and which are
incorporated by reference herein in their entirety.
Item 9.01
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Financial Statements and Exhibits.
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(d)
Exhibits
.
EXHIBIT INDEX
Exhibit No.
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Description of Exhibit
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Fourth Amendment dated as of January 24, 2018 to Agreement and Plan
of Merger by and among Fusion Telecommunications International,
Inc., Fusion BCHI Acquisition LLC and Birch Communications
Holdings, Inc.
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|
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Fifth Amendment dated as of January 25, 2018 to Agreement and Plan
of Merger by and among Fusion Telecommunications International,
Inc., Fusion BCHI Acquisition LLC and Birch Communications
Holdings, Inc.
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|
|
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|
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Waiver dated January 26, 2018 to Credit Agreement, dated as of
November 14, 2016, as amended, by and among Fusion NBS Acquisition
Corp., Fusion Telecommunications International, Inc., Network
Billing Systems, L.L.C., Fusion BVX LLC, Pingtone Communications,
Inc., Fidelity Telecom, LLC, Fidelity Access Networks, Inc.,
Fidelity Access Networks, LLC, Fidelity Connect LLC, Fidelity Voice
Services, LLC, Apptix, Inc., Fusion BCHI Acquisition LLC, East West
Bank, as Administrative Agent, Swingline Lender, an Issuing Bank
and a Lender and each other Lender from time to time party to the
Credit Agreement.
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|
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Press Release dated January 29, 2018.
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Consent
dated January 8, 2018 to Credit Agreement, dated as of November 14,
2016, as amended, by and among Fusion NBS Acquisition Corp., Fusion
Telecommunications International, Inc., Network Billing Systems,
L.L.C., Fusion BVX LLC, Pingtone Communications, Inc., Fidelity
Telecom, LLC, Fidelity Access Networks, Inc., Fidelity Access
Networks, LLC, Fidelity Connect LLC, Fidelity Voice Services, LLC,
Apptix, Inc., Fusion BCHI Acquisition LLC, East West Bank, as
Administrative Agent, Swingline Lender, an Issuing Bank and a
Lender and each other Lender from time to time party to the Credit
Agreement.
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|
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Consent
dated January 8, 2018 to Fifth Amended and Restated Securities
Purchase Agreement and Security Agreement, dated as of November 14,
2016, as amended, by and among Fusion NBS Acquisition Corp., Fusion
Telecommunications International, Inc., Network Billing Systems,
L.L.C., Fusion BVX LLC, Pingtone Communications, Inc., Fidelity
Telecom, LLC, Fidelity Access Networks, Inc., Fidelity Access
Networks, LLC, Fidelity Connect LLC, Fidelity Voice Services, LLC,
Apptix, Inc., Fusion BCHI Acquisition LLC, Praesidian Capital
Opportunity Fund III, LP, Praesidian Capital Opportunity Fund
III-A, LP, and United Insurance Company of America.
|
SIGNATURE
Pursuant to the
requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report on Form 8-K to be signed
on its behalf by the undersigned thereunto duly
authorized.
|
FUSION TELECOMMUNICATIONS
INTERNATIONAL, INC.
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|
|
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By: /s/
James P. Prenetta,
Jr.
|
|
James P. Prenetta, Jr.
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January 29, 2018
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EVP and General Counsel
|
FOURTH
AMENDMENT
TO
AGREEMENT
AND PLAN OF MERGER
This
FOURTH AMENDMENT TO AGREEMENT AND
PLAN OF MERGER
, dated as of January 24, 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, and the Amended and Restated
Third Amendment to Agreement and Plan of Merger, dated as of
October 27, 2017 (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.
Exhibit A
to the Merger
Agreement is hereby deleted and replaced with the
Exhibit A
attached
hereto.
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, prior to the Effective Time, a reverse
split of all outstanding shares of Company Common Stock at a ratio
of up to 5:1, with 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 the appropriate number of shares of Company Common Stock
held by such holder (the “
Reverse
Split
”).”
3.
The phrase
“120 days after the date hereof” in
Section 8.1(b)(iv)
of the
Merger Agreement is hereby deleted and replaced with “220
days after the date hereof”.
4.
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)
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 the avoidance of
doubt, any 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.”
5.
Section 2 of Exhibit D
to the
Merger Agreement is hereby deleted and replaced with the
following:
“2.
Assets
. Prior to
the Distribution Time, BCHI and the BCHI Subsidiaries will transfer
to a newly created Subsidiary of BCHI or to Tempo Telecom, LLC or
another current subsidiary of BCHI approved by the Company (such
company being hereinafter referred to as “
Spinco
”) (i) all customer
contracts and accounts relating thereto with respect to the then
existing consumer business of BCHI and the BCHI Subsidiaries and
all customer contracts and accounts relating thereto with respect
to their single-line business services business located in the
United States (collectively, the “
Consumer/SMB Business
Customers
”), (ii) any assets that are used solely to
support the Consumer/SMB Business Customers in the United States,
and (iii) any other assets that are reasonably agreed by the
Parties as necessary to support the services provided to the
Consumer/SMB Business Customers. The services currently provided by
BCHI and the BCHI Subsidiaries to the Consumer/SMB Business
Customers include landline local voice services, associated long
distance voice services, associated ancillary services such as
adjunct-to-basic services that are intended to facilitate
completion of calls through utilization of basic telephone service
facilities including, but not limited to, call waiting, speed
dialing, caller ID, call blocking, call forwarding, and voicemail,
and associated carrier access services; the Tempo consumer wireless
voice and data services (collectively, the “
Consumer/SMB Business
”).
For avoidance of doubt, the patents set forth on Annex 1 to this
Exhibit D will not be transferred to Spinco but Spinco will have a
perpetual, royalty free license to use such patents in the United
States.x
The
parties hereto agree that
Annex 2
to Exhibit D (the
“
Existing
Annex
”) will be amended (as amended, the
“
Revised
Annex
”) to remove the Canadian assets and include, as
agreed by the parties, certain additional assets based on customer
metrics (category and RPUs) identified by the parties. The Revised
Annex will be completed using the methodologies set forth in the
Existing Annex. The parties agree to cooperate to finalize the
Revised Annex no later than Tuesday, February 6, 2018, and attach
same to this Amendment as Exhibit B.”
6.
Consent to IQmax, Inc. Asset
Acquisition
. BCHI hereby provides its consent to the
acquisition of substantially all of the assets of Iqmax, Inc. by
Network Billing Systems LLC, an indirect wholly-owned subsidiary of
the Corporation.
7.
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.
8.
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).
9.
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.
10.
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/ James P. Prenetta,
Jr,
Name:
James P. Prenetta, Jr.
Title:
Executive Vice President and
General Counsel
FUSION
BCHI ACQUISITION LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
Manager
BIRCH
COMMUNICATIONS HOLDINGS, INC.
By:
/s/ Gordon P. Williams,
Jr.
Name:
Gordon P. Williams, Jr.
Title: Senior Vice President and General Counsel
|
Exhibit A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
FUSION CONNECT, INC.
FUSION CONNECT, INC.
(the
“
Corporation
”), a
corporation organized and existing under the laws of the State of
Delaware, hereby certifies as follows:
FIRST
: The original Certificate of
Incorporation of the Corporation was filed with the Secretary of
State of Delaware on September 17, 1997.
SECOND
: This Amended and Restated
Certificate of Incorporation was duly adopted by the Board of
Directors of the Corporation pursuant to Section 245 of the General
Corporation Law of the State of Delaware.
THIRD
: The Certificate of Incorporation
of the Corporation shall be amended and restated in full as
follows:
ARTICLE
I
The
name of the Corporation is Fusion Connect, Inc. (the
“
Corporation
”).
ARTICLE
II
The
address of the Corporation’s registered office in the State
of Delaware is 2711 Centerville Road, Suite 400, County of New
Castle, City of Wilmington 19808. The name of the
Corporation’s registered agent at such address is Corporation
Service Corporation.
ARTICLE
III
The
purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as amended (the
“
DGCL
”).
ARTICLE
IV
Section 4.1
Authorized Capital Stock
. The
Corporation is authorized to issue two classes of capital stock,
designated Common Stock and Preferred Stock. The total number of
shares of capital stock that the Corporation is authorized to issue
is 160,000,000 shares, consisting of 150,000,000 shares of Common
Stock, par value $0.01 per share, and 10,000,000 shares of
Preferred Stock, par value $0.01 per share.
Section 4.2
Preferred Stock
. The Preferred
Stock may be issued in one or more series. The Board of Directors
of the Corporation (the “
Board
”) is hereby
authorized to issue the shares of Preferred Stock in such series
and to fix from time to time before issuance the number of shares
to be included in any such series and the designation, powers,
preferences and relative participating, optional or other rights,
if any, and the qualifications, limitations or restrictions
thereof. The authority of the Board with respect to each such
series will include, without limiting the generality of the
foregoing, the determination of any or all of the
following:
the
number of shares of any series and the designation to distinguish
the shares of such series from the shares of all other
series;
the
voting powers, if any, and whether such voting powers are full or
limited in such series;
the
redemption provisions, if any, applicable to such series, including
the redemption price or prices to be paid;
whether
dividends, if any, will be cumulative or noncumulative, the
dividend rate of such series, and the dates and preferences of
dividends on such series;
the
rights of such series upon the voluntary or involuntary dissolution
of, or upon any distribution of the assets of, the
Corporation;
the
provisions, if any, pursuant to which the shares of such series are
convertible into, or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or
classes of stock, or any other security, of the Corporation or any
other corporation or other entity, and the rates or other
determinants of conversion or exchange applicable
thereto;
the
right, if any, to subscribe for or to purchase any securities of
the Corporation or any other corporation or other
entity;
the
provisions, if any, of a sinking fund applicable to such series;
and
any
other relative, participating, optional, or other special powers,
preferences or rights and qualifications, limitations, or
restrictions thereof;
all as
may be determined from time to time by the Board and stated or
expressed in the resolution or resolutions providing for the
issuance of such Preferred Stock (collectively, a
“
Preferred Stock
Designation
”).
The
provisions of that certain
Certificate of Rights and Preferences of
Series A-1 Cumulative Convertible Preferred Stock of Fusion
Telecommunications International, Inc.
, as filed with the
Secretary of State of the State of Delaware on December 15, 2006,
as modified by that certain
Certificate Reducing
the Number of Authorized Shares of Series A-1
Cumulative Convertible Preferred Stock
filed with the
Secretary of State of the State of Delaware on September 7, 2007,
and as amended by that certain
Amendment to Certificate of Rights and
Preferences of Series A-1 Cumulative Convertible Preferred Stock of
Fusion Telecommunications International, Inc.
filed with the
Secretary of State of Delaware on March 28, 2014, are attached
hereto as
Annex A
and
incorporated herein by reference.
The
provisions of that certain
Certificate of Rights and Preferences of
Series A-2 Cumulative Convertible Preferred Stock of Fusion
Telecommunications International, Inc.
, as filed with the
Secretary of State of the State of Delaware on May 9, 2007, as
modified by that certain
Certificate Reducing
the Number of Authorized Shares of Series A-2
Cumulative Convertible Preferred Stock
filed with the
Secretary of State of the State of Delaware on September 7, 2007,
and as amended by that certain
Amendment to Certificate of Rights and
Preferences of Series A-2 Cumulative Convertible Preferred Stock of
Fusion Telecommunications International, Inc.
filed with the
Secretary of State of Delaware on March 28, 2014, are attached
hereto as
Annex B
and
incorporated herein by reference.
The
provisions of that certain
Certificate of Rights and Preferences of
Series A-4 Cumulative Convertible Preferred Stock of Fusion
Telecommunications International, Inc.
, as filed with the
Secretary of State of the State of Delaware on September 11, 2007,
as amended by that certain
Amendment to Certificate of Rights and
Preferences of Series A-4 Convertible Preferred Stock of Fusion
Telecommunications International, Inc.
filed with the
Secretary of State of Delaware on March 28, 2014, are attached
hereto as
Annex C
and
incorporated herein by reference.
The
provisions of that certain
Certificate of Designations of Preferences,
Rights and Limitations of Series B-2 Senior Cumulative Convertible
Preferred Stock
, as filed with the Secretary of State of the
State of Delaware on December 27, 2013, is attached hereto as
Annex
D
and incorporated herein by reference.
Section 4.3
Common Stock
. Subject to the
rights of the holders of any series of Preferred Stock, the holders
of Common Stock will be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders for each share of
Common Stock held of record by such holder as of the record date
for such meeting.
ARTICLE
V
The
Board may make, amend, and repeal the Bylaws of the Corporation;
provided, that nothing herein will limit the power of the
stockholders of the Corporation to make, amend and repeal Bylaws.
Any Bylaw made by the Board under the powers conferred hereby may
be amended or repealed by the Board (except as specified in any
such Bylaw so made or amended) or by the stockholders in the manner
provided in the Bylaws of the Corporation. The Corporation may in
its Bylaws confer powers upon the Board in addition to the
foregoing and in addition to the powers and authorities expressly
conferred upon the Board by applicable law.
Subject
to the rights of the holders of any series of Preferred
Stock:
(a)
any action required
or permitted to be taken by the stockholders of the Corporation may
be taken at a duly called annual or special meeting of stockholders
of the Corporation or without a meeting by means of any consent in
writing of such stockholders; and
(b)
special meetings of
stockholders of the Corporation may be called only (i) by the
Chairman of the Board (the “
Chairman
”), (ii) by
the Chief Executive Officer of the Corporation (the
“
Chief Executive
Officer
”), or (iii) by the Secretary of the
Corporation (the “
Secretary
”) acting at the
request of the Chairman, the Chief Executive Officer, a majority of
the total number of Directors that the Corporation would have if
there were no vacancies on the Board (the “
Whole Board
”), or
stockholders of the Corporation holding at least a majority of
voting power of the outstanding Voting Stock. For the purposes of
this Amended and Restated Certificate of Incorporation,
“
Voting
Stock
” means stock of the Corporation of any class or
series entitled to vote generally in the election of
Directors.
At any
annual meeting or special meeting of stockholders of the
Corporation, only such business will be conducted or considered as
has been brought before such meeting in the manner provided in the
Bylaws of the Corporation.
ARTICLE
VI
Section 6.1
Number, Election, and Terms of
Directors
. Subject to the rights, if any, of the holders of
any series of Preferred Stock to elect additional Directors under
circumstances specified in a Preferred Stock Designation, the
number of the Directors of the Corporation will not be less than
one nor more than nine and will be fixed from time to time by, or
in the manner provided in, the Bylaws of the Corporation. Subject
to adjustment per the Bylaws, the number of Directors as of the
date of this Amended and Restated Certificate of Incorporation is
fixed at nine. At each annual meeting of the stockholders of the
Corporation, the successors to the Directors whose term expires at
that meeting will be elected by plurality vote of all votes cast at
such meeting to hold office for a term expiring at the annual
meeting of stockholders held in the year following the year of
their election and until their successors are elected and
qualified. Election of Directors of the Corporation need not be by
written ballot unless requested by the presiding officer or by the
holders of a majority of the Voting Stock present in person or
represented by proxy at a meeting of the stockholders at which
Directors are to be elected. If authorized by the Board, such
requirement of a written ballot shall be satisfied by a ballot
submitted by electronic transmission, provided that any such
electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic
transmission was authorized by the stockholder or proxy
holder.
Section 6.2
Newly Created Directorships and
Vacancies
. Subject to the rights, if any, of the holders of
any series of Preferred Stock to elect additional Directors under
circumstances specified in a Preferred Stock Designation, newly
created directorships resulting from any increase in the number of
Directors and any vacancies on the Board resulting from death,
resignation, disqualification, removal, or other cause will be
filled solely by the affirmative vote of a majority of the
remaining Directors then in office, even though less than a quorum
of the Board, or by a sole remaining Director. Any Director elected
in accordance with the preceding sentence will hold office for the
remainder of the full term of the Director whose seat is being
filled and until such Director’s successor has been elected
and qualified. No decrease in the number of Directors constituting
the Board may shorten the term of any incumbent
Director.
To the
full extent permitted by the DGCL and any other applicable law
currently or hereafter in effect, no Director of the Corporation
will be personally liable to the Corporation or its stockholders
for or with respect to any breach of fiduciary duty or other act or
omission as a Director of the Corporation. No repeal or
modification of this Article VI will adversely affect the
protection of any Director of the Corporation provided hereby in
relation to any breach of fiduciary duty or other act or omission
as a Director of the Corporation occurring prior to the
effectiveness of such repeal or modification.
ARTICLE
VII
Section 7.1
Right to Indemnification
. Each
person who was or is made a party or is threatened to be made a
party to or is otherwise subject to or involved in any claim,
demand, action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “
Proceeding
”), by reason
of the fact that he or she is or was a director or an officer of
the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
Corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit
plan (an “
Indemnitee
”), whether the
basis of such Proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be
indemnified by the Corporation to the fullest extent permitted or
required by the DGCL and any other applicable law, as the same
exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys’
fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith (“
Indemnifiable Losses
”);
provided, however, that, except as provided in Section 7.4 of this
Article VII with respect to Proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such
Indemnitee pursuant to this Section 7.1 in connection with a
Proceeding (or part thereof) initiated by such Indemnitee only if
such Proceeding (or part thereof) was authorized by the
Board.
Section 7.2
Right to Advancement of
Expenses.
The right to indemnification conferred in Section
7.1 of this Article VII shall include the right to advancement by
the Corporation of any and all expenses (including, without
limitation, attorneys’ fees and expenses) incurred in
defending any such Proceeding in advance of its final disposition
(an “
Advancement of
Expenses
”); provided, however, that, if the DGCL so
requires, an Advancement of Expenses incurred by an Indemnitee in
his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such Indemnitee,
including without limitation service to an employee benefit plan)
shall be made pursuant to this Section 7.2 only upon delivery to
the Corporation of an undertaking (an “
Undertaking
”), by or on
behalf of such Indemnitee, to repay, without interest, all amounts
so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (a
“
Final
Adjudication
”) that such Indemnitee is not entitled to
be indemnified for such expenses under this Section 7.2. An
Indemnitee’s right to an Advancement of Expenses pursuant to
this Section 7.2 is not subject to the satisfaction of any standard
of conduct and is not conditioned upon any prior determination that
Indemnitee is entitled to indemnification under Section 7.1 of
this Article VII with respect to the related Proceeding or the
absence of any prior determination to the contrary.
Section 7.3
Contract Rights
. The rights to
indemnification and to the Advancement of Expenses conferred in
Sections 7.1 and 7.2 of this Article VII shall be contract rights
and such rights shall continue as to an Indemnitee who has ceased
to be a director, officer, employee or agent and shall inure to the
benefit of the Indemnitee’s heirs, executors and
administrators.
Section 7.4
Right of Indemnitee to Bring
Suit
. If a claim under Section 7.1 or Section 7.2 of this
Article VIII is not paid in full by the Corporation within 60
calendar days after a written claim has been received by the
Corporation, except in the case of a claim for an Advancement of
Expenses, in which case the applicable period shall be
20 calendar days, the Indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or
in a suit brought by the Corporation to recover an Advancement of
Expenses pursuant to the terms of an Undertaking, the Indemnitee
shall be entitled to the fullest extent permitted or required by
the DGCL, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader reimbursements
of prosecution or defense expenses than such law permitted the
Corporation to provide prior to such amendment), to be paid also
the expense of prosecuting or defending such suit. In (i) any suit
brought by the Indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the Indemnitee to enforce a
right to an Advancement of Expenses) it shall be a defense that,
and (ii) any suit brought by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking,
the Corporation shall be entitled to recover such expenses, without
interest, upon a Final Adjudication that, the Indemnitee has not
met any applicable standard for indemnification set forth in the
DGCL. Neither the failure of the Corporation (including its Board
of Directors or a committee thereof, its stockholders or
independent legal counsel) to have made a determination prior to
the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee
has met the applicable standard of conduct set forth in the DGCL,
nor an actual determination by the Corporation (including its Board
of Directors or a committee thereof, its stockholders or
independent legal counsel) that the Indemnitee has not met such
applicable standard of conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of conduct or, in
the case of such a suit brought by the Indemnitee, be a defense to
such suit. In any suit brought by an Indemnitee to enforce a right
to indemnification or to an Advancement of Expenses hereunder, or
brought by the Corporation to recover an Advancement of Expenses
hereunder pursuant to the terms of an Undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified, or
to such Advancement of Expenses, shall be on the
Corporation.
Section 7.5
Non-Exclusivity of Rights
. The
rights to indemnification and to the Advancement of Expenses
conferred in this Article VII shall not be exclusive of any other
right which any person may have or hereafter acquire under any
statute, the Corporation’s Certificate of Incorporation,
By-laws, agreement, vote of stockholders or disinterested directors
or otherwise. Nothing contained in this Article VII shall limit or
otherwise affect any such other right or the Corporation’s
power to confer any such other right.
Section 7.6
Insurance
. The Corporation may
maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General
Corporation Law.
Section 7.7
No Duplication of Payments
. The
Corporation shall not be liable under this Article VII to make
any payment to an Indemnitee in respect of any Indemnifiable Losses
to the extent that the Indemnitee has otherwise actually received
payment (net of any expenses incurred in connection therewith and
any repayment by the Indemnitee made with respect thereto) under
any insurance policy or from any other source in respect of such
Indemnifiable Losses.
ARTICLE
VIII
From
time to time any of the provisions of this certificate of
incorporation may be amended, altered, or repealed and other
provisions authorized by the laws of the State of Delaware at the
time in force may be added or inserted in the manner and at the
time prescribed by said laws, and all rights at any time conferred
upon the stockholders of the Corporation by this Amended and
Restated Certificate of Incorporation are granted subject to the
provisions of this Article VIII.
[remainder of this
page intentionally left blank]
IN WITNESS WHEREOF
, the undersigned has
executed this Amended and Restated Certificate of Incorporation
this __ day of __________, 2018.
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FUSION
CONNECT, INC.
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By:
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Title
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FIFTH AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
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.”
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.]
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/ James P. Prenetta,
Jr,
Name:
James P. Prenetta, Jr.
Title:
Executive Vice President and
General
Counsel
FUSION
BCHI ACQUISITION LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
Manager
BIRCH
COMMUNICATIONS HOLDINGS, INC.
By:
/s/ Gordon P. Williams,
Jr.
Name:
Gordon P. Williams, Jr.
Title: Senior Vice President and General Counsel
January
26, 2018
Fusion
NBS Acquisition Corp.
c/o
Fusion Telecommunications International, Inc.
420
Lexington Avenue, Suite 1718
New
York, New York 10170
Attn:
James P. Prenetta, Jr., Executive Vice President and General
Counsel
Re:
Consent
Ladies
and Gentlemen:
Reference is hereby
made to that certain Credit Agreement, dated as of November 14,
2016, as amended by that certain Consents and Amendments to Loan
Documents, dated as of July 20, 2017 (as so amended, and as the
same may be further amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the
“
Credit
Agreement
”), by and among Fusion NBS Acquisition
Corp., a Delaware corporation (“
Borrower
”), Fusion
Telecommunications International, Inc., a Delaware corporation
(“
Fusion
”),
Network Billing Systems, L.L.C., a New Jersey limited liability
company (“
NBS
”), Fusion BVX LLC, a Delaware
limited liability company (“
BVX
”), Pingtone Communications,
Inc., a Delaware corporation (“
Pingtone
”), Fidelity Telecom,
LLC, an Ohio limited liability company (“
FTL
”), Fidelity Access Networks,
Inc., an Ohio corporation (“
FANI
”), Fidelity Access Networks,
LLC, an Ohio limited liability company (“
FANL
”), Fidelity Connect LLC, an
Ohio limited liability company (“
FCL
”), Fidelity Voice Services,
LLC, an Ohio limited liability company (“
FVS
”), Apptix, Inc., a Florida
corporation (“
Apptix
”) and Fusion BCHI
Acquisition LLC, a Delaware limited liability company
(“
BCHI
”; each
of Fusion, NBS, BVX, Pingtone, FTL, FANI, FANL, FCL, FVS, Apptix
and BCHI are individually, a “
Guarantor
” and collectively, the
“
Guarantors
”),
East West Bank, as Administrative Agent, Swingline Lender, an
Issuing Bank and a Lender and each other Lender from time to time
party to the Credit Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned such terms in
the Credit Agreement.
Background
Borrower has
informed Administrative Agent that Fusion intends to issue Equity
Securities on or about February 2, 2018 (the “
Equity Issuance
”), and in
connection with such Equity Issuance, the Loan Parties shall
receive approximately $30,000,000 in net proceeds therefrom (the
“
Equity Issuance
Proceeds
”).
Consent
Pursuant to the
terms of
Section
2.14(d)
of the Credit Agreement, upon the receipt by any
Loan Party or any of its Subsidiaries of cash proceeds from the
issuance of any Equity Securities in excess of $4,000,000, Borrower
is required to prepay (or cash collateralize) the Obligations with
such cash proceeds. As a result of the Equity Issuance and the
receipt by the Loan Parties of the Equity Issuance Proceeds, the
Borrower is required to prepay the Obligations with such Equity
Issuance Proceeds in excess of $4,000,000. In connection with the
Equity Issuance, Borrower has requested that Administrative Agent
and the Requisite Lenders consent to the Loan Parties’
retention of all Equity Issuance Proceeds, for use by the Loan
Parties on Capital Expenditures and for other general corporate
purposes (the “
Specified
Request
”). In reliance on the representations,
warranties and covenants provided herein and made by Borrower to
Administrative Agent in connection with the request for such
consent, Administrative Agent and the Requisite Lenders hereby
consent to the Specified Request.
General
Except
for the consent expressly provided by this letter agreement, the
terms and provisions of the Credit Agreement and the other Loan
Documents are hereby ratified and confirmed and shall continue in
full force and effect. The consent provided and agreed to herein is
to be effective only upon receipt by Administrative Agent of an
execution counterpart of this letter agreement signed by Borrower
and each Guarantor. By agreeing to this letter agreement as
acknowledged below, Borrower hereby certifies and warrants to
Administrative Agent and the Requisite Lenders that each of its
representations and warranties contained in the Loan Documents to
which it is a party are true and correct in all material respects
(other than any representations or
warranties qualified pursuant to their terms by materiality
qualifiers, which representations and warranties shall be true and
correct in all respects as written)
as of the effective date
of this letter agreement, including that no Default or Event of
Default exists, with the same effect as though made on such
effective date (after giving effect to the consent contained in
this letter agreement and except to the extent any such
representation or warranty is expressly stated to have been made as
of a specific date, in which case such representation or warranty
shall be true and correct as of such specified date). The
effectiveness of the consent provided herein is conditioned upon
the correctness in all material respects of all representations and
warranties made by Borrower herein. The consent contained herein
shall not constitute a course of dealing between Borrower and
Administrative Agent and, except as expressly provided herein,
shall not constitute a waiver, extension or forbearance of any
Default or Event of Default, now or hereafter arising, or an
amendment of any provision of the Credit Agreement or the other
Loan Documents. Borrower agrees to pay to Administrative Agent, on
demand, in immediately available funds, all out-of-pocket costs and
expenses incurred by Administrative Agent, including, without
limitation, the reasonable fees and expenses of counsel retained by
Administrative Agent, in connection with the negotiation,
preparation, execution and delivery of this letter agreement and
all other instruments and documents contemplated hereby. This
letter agreement shall be governed by, construed and enforced in
accordance with all provisions of the Credit Agreement and may be
executed in multiple counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
instrument. Delivery of an executed counterpart signature of this
letter agreement by email transmission of a “
pdf
” or similar copy shall be
equally effective as delivery of an original counterpart of this
letter agreement. Any party delivering an executed counterpart
signature page to this letter agreement by e-mail transmission
shall also deliver an executed counterpart of this letter agreement
but the failure to deliver an original executed counterpart shall
not affect the validity, enforceability or binding effect of this
letter agreement.
Reaffirmation
By its
execution hereof, each Grantor hereby consents and agrees to the
terms and provisions of this letter agreement and consents and
agrees that each of the Security Documents remain in full force and
effect and continue to be the legal, valid and binding obligation
of each such Grantor, enforceable against each such Grantor in
accordance with the terms thereof.
[Signatures
follow on the next page.]
Please
evidence your acknowledgment and agreement to the foregoing by
executing this letter agreement in the place indicated
below.
EAST WEST BANK
,
as
Administrative Agent
Name:
Richard Vian
Title:
Senior Vice President
OPUS BANK
,
as
Lender
Name:
Maria Ding
Acknowledged
and agreed to:
FUSION NBS ACQUISITION CORP.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
NETWORK BILLING SYSTEMS, L.L.C.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
Executive Vice President
FUSION BVX LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President
PINGTONE COMMUNICATIONS, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY CONNECT LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY VOICE SERVICES, LLC
By
: /s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY TELECOM, LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
APPTIX, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FUSION BCHI ACQUISITION LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
Manager
Fusion Announces Proposed Public Offering of Common
Stock
NEW
YORK, NY -- January 29, 2018 -- Fusion (NASDAQ: FSNN), a
leading provider of cloud services, announced today that it intends
to offer and sell approximately $30.0 million of shares of its
common stock in an underwritten registered public offering. In
addition, Fusion expects to grant the underwriters a 45-day option
to purchase up to an additional 15% of the shares of its common
stock sold in the offering to cover over-allotments, if any. All
shares of common stock to be sold in the proposed offering will be
offered by Fusion. The proposed offering is subject to market and
other conditions, and there can be no assurance as to whether or
when the offering may be completed, or as to the actual size or
terms of the offering.
Pursuant
to an amendment to Fusion’s Agreement and Plan of Merger with
Birch Communications Holdings, Inc., dated January 25, 2018, any
shares sold in this offering, if completed, will not be counted as
issued and outstanding for purposes of calculating the number of
shares of Fusion common stock to be issued as consideration to the
Birch shareholders in connection with the closing of the merger. As
a result, on a post-closing basis, the dilutive effect of this
offering will be shared pro rata by current Fusion and Birch
shareholders with current Fusion shareholders bearing approximately
25% of the dilution and current Birch shareholders bearing
approximately 75% of the dilution from this offering.
Craig-Hallum
Capital Group LLC is acting as the sole book-running manager and B.
Riley FBR, Inc. is acting as a co-manager for the proposed
offering.
The
proposed offering is being made pursuant to a shelf registration
statement on Form S-3 (File No. 333-222127) that was declared
effective by the U.S. Securities and Exchange Commission (the
“SEC”) on January 17, 2018. A preliminary prospectus
supplement and accompanying prospectus relating to and describing
the terms of the proposed offering have been filed with the SEC and
may be obtained by visiting the SEC’s website at www.sec.gov
or by contacting Craig-Hallum Capital Group LLC, 222 South Ninth
Street, Suite 350, Minneapolis, MN 55402, by telephone at
612-334-6300 or by email at prospectus@chlm.com; or B. Riley FBR,
Inc., 11100 Santa Monica Blvd., Suite 800, Los Angeles, CA 90025,
by telephone at 888-295-0155 or by email at
capitalmarkets@brileyco.com. The final terms of the proposed
offering will be disclosed in a final prospectus supplement to be
filed with the SEC.
This
press release shall not constitute an offer to sell or the
solicitation of an offer to buy any securities in this offering.
Nor shall there be any sale of these securities in any state or
jurisdiction in which such offering, solicitation or sale would be
unlawful prior to the registration or qualification under the
securities laws of any such state or jurisdiction.
About Fusion
Fusion,
a leading provider of integrated cloud solutions to small, medium
and large businesses, is the industry's single source for the
cloud. Fusion's advanced, proprietary cloud service platform
enables the integration of leading edge solutions in the cloud,
including cloud communications, contact center, cloud connectivity
and cloud computing. Fusion's innovative, yet proven cloud
solutions lower our customers' cost of ownership, and deliver new
levels of security, flexibility, scalability and speed of
deployment. For more information, please visit
www.fusionconnect.com
.
Forward Looking Statements
Statements
in this press release that are not purely historical facts,
including statements regarding Fusion’s beliefs,
expectations, intentions or strategies for the future, may be
“forward-looking statements” under the Private
Securities Litigation Reform Act of 1995. Such statements consist
of any statement other than a recitation of historical fact and may
sometimes be identified by the use of forward-looking terminology
such as “may”, “expect”,
“anticipate”, “intend”,
“estimate” or “continue” or the negative
thereof or other variations thereof or comparable terminology. The
reader is cautioned that all forward-looking statements are
speculative, and there are certain risks and uncertainties that
could cause actual events or results to differ from those referred
to in such forward-looking statements. Important risks regarding
the Company’s business include the Company’s ability to
raise the capital necessary to fund its acquisition of Birch
Communications Holdings, Inc., its ability to obtain the required
approvals necessary to close that transaction, and its ability to
integrate that business following the closing; the Company’s
ability to comply with covenants included in its senior debt
agreements; competitors with broader product lines and greater
resources; emergence into new markets; natural disasters, acts of
war, terrorism or other events beyond the Company’s control;
and other factors identified by Fusion from time to time in its
filings with the SEC, which are available through
http://www.sec.gov. However, the reader is cautioned that
Fusion’s future performance could also be affected by risks
and uncertainties not enumerated above.
In the
event that there is any inconsistency between the information
contained in this press release and the information set forth in
Fusion’s Annual Report on Form 10-K or Quarterly Reports on
Form 10-Q filed with the SEC, the information contained in the
Annual Report on Form 10-K or Quarterly Reports on Form 10-Q
governs.
Fusion Contact
Brian
Coyne
212-201-2404
bcoyne@fusionconnect.com
Investor Relations
Chris
Tyson
MZ
North America
(949)
491-8235
FSNN@mzgroup.us
Fusion
NBS Acquisition Corp.
c/o
Fusion Telecommunications International, Inc.
420
Lexington Avenue, Suite 1718
New
York, New York 10170
Attn:
James P. Prenetta, Jr., Executive Vice President and General
Counsel
Re:
Consent
Ladies
and Gentlemen:
Reference is hereby
made to that certain Credit Agreement, dated as of November 14,
2016, as amended by that certain Consents and Amendments to Loan
Documents, dated as of July 20, 2017 (as so amended, and as the
same may be further amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the
“
Credit
Agreement
”), by and among Fusion NBS Acquisition
Corp., a Delaware corporation (“
Borrower
”), Fusion
Telecommunications International, Inc., a Delaware corporation
(“
Fusion
”),
Network Billing Systems, L.L.C., a New Jersey limited liability
company (“
NBS
”), Fusion BVX LLC, a Delaware
limited liability company (“
BVX
”), Pingtone Communications,
Inc., a Delaware corporation (“
Pingtone
”), Fidelity Telecom,
LLC, an Ohio limited liability company (“
FTL
”), Fidelity Access Networks,
Inc., an Ohio corporation (“
FANI
”), Fidelity Access Networks,
LLC, an Ohio limited liability company (“
FANL
”), Fidelity Connect LLC, an
Ohio limited liability company (“
FCL
”), Fidelity Voice Services,
LLC, an Ohio limited liability company (“
FVS
”), Apptix, Inc., a Florida
corporation (“
Apptix
”) and Fusion BCHI
Acquisition LLC, a Delaware limited liability company
(“
BCHI
”; each
of Fusion, NBS, BVX, Pingtone, FTL, FANI, FANL, FCL, FVS, Apptix
and BCHI are individually, a “
Guarantor
” and collectively, the
“
Guarantors
”),
East West Bank, as Administrative Agent, Swingline Lender, an
Issuing Bank and a Lender and each other Lender from time to time
party to the Credit Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned such terms in
the Credit Agreement.
Background
Borrower has
informed Administrative Agent that NBS wishes to acquire all or
substantially all of the assets (the “
Acqusition
”) of IQMax, Inc., a
Delaware corporation (“
IQMax
”) pursuant to the terms of
an asset purchase agreement and associated documentation, dated on
or about the date hereof, by and among NBS and IQMax.
Consent
Pursuant to the
terms of
Section
7.01(a)
of the Credit Agreement, no Loan Party is permitted
to acquire all or a substantial portion of the assets of any
Person, other than as permitted pursuant to Section 7.01(a) of the
Credit Agreement. As a result of the Acquisition, NBS shall acquire
all or substantially all of the assets of IQMax. In connection with
the Acquisition, Borrower has requested that Administrative Agent
and the Requisite Lenders consent to the Acquisition. In reliance
on the representations, warranties and covenants provided herein
and made by Borrower to Administrative Agent in connection with the
request for such consent, Administrative Agent and the Requisite
Lenders hereby consent to the Acquisition.
General
Except
for the consent expressly provided by this letter agreement, the
terms and provisions of the Credit Agreement and the other Loan
Documents are hereby ratified and confirmed and shall continue in
full force and effect. The consent provided and agreed to herein is
to be effective only upon receipt by Administrative Agent of an
execution counterpart of this letter agreement signed by Borrower
and each Guarantor. By agreeing to this letter agreement as
acknowledged below, Borrower hereby certifies and warrants to
Administrative Agent and the Requisite Lenders that each of its
representations and warranties contained in the Loan Documents to
which it is a party are true and correct in all material respects
(other than any representations or
warranties qualified pursuant to their terms by materiality
qualifiers, which representations and warranties shall be true and
correct in all respects as written)
as of the effective date
of this letter agreement, including that no Default or Event of
Default exists, with the same effect as though made on such
effective date (after giving effect to the consent contained in
this letter agreement and except to the extent any such
representation or warranty is expressly stated to have been made as
of a specific date, in which case such representation or warranty
shall be true and correct as of such specified date). The
effectiveness of the consent provided herein is conditioned upon
the correctness in all material respects of all representations and
warranties made by Borrower herein. The consent contained herein
shall not constitute a course of dealing between Borrower and
Administrative Agent and, except as expressly provided herein,
shall not constitute a waiver, extension or forbearance of any
Default or Event of Default, now or hereafter arising, or an
amendment of any provision of the Credit Agreement or the other
Loan Documents. Borrower agrees to pay to Administrative Agent, on
demand, in immediately available funds, all out-of-pocket costs and
expenses incurred by Administrative Agent, including, without
limitation, the reasonable fees and expenses of counsel retained by
Administrative Agent, in connection with the negotiation,
preparation, execution and delivery of this letter agreement and
all other instruments and documents contemplated hereby. This
letter agreement shall be governed by, construed and enforced in
accordance with all provisions of the Credit Agreement and may be
executed in multiple counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
instrument. Delivery of an executed counterpart signature of this
letter agreement by email transmission of a “
pdf
” or similar copy shall be
equally effective as delivery of an original counterpart of this
letter agreement. Any party delivering an executed counterpart
signature page to this letter agreement by e-mail transmission
shall also deliver an executed counterpart of this letter agreement
but the failure to deliver an original executed counterpart shall
not affect the validity, enforceability or binding effect of this
letter agreement.
Reaffirmation
By its
execution hereof, each Grantor hereby consents and agrees to the
terms and provisions of this letter agreement and consents and
agrees that each of the Security Documents remain in full force and
effect and continue to be the legal, valid and binding obligation
of each such Grantor, enforceable against each such Grantor in
accordance with the terms thereof.
[Signatures
follow on the next page.]
Please
evidence your acknowledgment and agreement to the foregoing by
executing this letter agreement in the place indicated
below.
EAST WEST BANK
,
as
Administrative Agent
Name:
David Hill
Title:
First Vice President
OPUS BANK
,
as
Lender
Name:
Maria Ding
Acknowledged
and agreed to:
FUSION NBS ACQUISITION CORP.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
NETWORK BILLING SYSTEMS, L.L.C.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
Executive Vice President
FUSION BVX LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President
PINGTONE COMMUNICATIONS, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY CONNECT LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY VOICE SERVICES, LLC
By
: /s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY TELECOM, LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
APPTIX, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FUSION BCHI ACQUISITION LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
Manager
Fusion
NBS Acquisition Corp.
c/o
Fusion Telecommunications International, Inc.
420
Lexington Avenue, Suite 1718
New
York, New York 10170
Attn:
James P. Prenetta, Jr., Executive Vice President and General
Counsel
Ladies
and Gentlemen:
Reference is hereby
made to that certain Fifth Amended and Restated Securities Purchase
Agreement and Security Agreement, dated as of November 14, 2016, as
amended by that certain Consents and Amendments to Loan Documents,
dated as of July 20, 2017 (as so amended, and as the same may be
further amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the “
Securities Purchase Agreement
”),
by and among Fusion NBS Acquisition Corp., a Delaware corporation
(“
Borrower
”),
Fusion Telecommunications International, Inc., a Delaware
corporation (“
Fusion
”), Network Billing
Systems, L.L.C., a New Jersey limited liability company
(“
NBS
”), Fusion
BVX LLC, a Delaware limited liability company (“
BVX
”), Pingtone Communications,
Inc., a Delaware corporation (“
Pingtone
”), Fidelity Telecom,
LLC, an Ohio limited liability company (“
FTL
”), Fidelity Access Networks,
Inc., an Ohio corporation (“
FANI
”), Fidelity Access Networks,
LLC, an Ohio limited liability company (“
FANL
”), Fidelity Connect LLC, an
Ohio limited liability company (“
FCL
”), Fidelity Voice Services,
LLC, an Ohio limited liability company (“
FVS
”), Apptix, Inc., a Florida
corporation (“
Apptix
”) and Fusion BCHI
Acquisition LLC, a Delaware limited liability company
(“
BCHI
”; each
of Fusion, NBS, BVX, Pingtone, FTL, FANI, FANL, FCL, FVS, Apptix
and BCHI are individually, a “
Guarantor
” and collectively, the
“
Guarantors
”),
Praesidian Capital Opportunity Fund III, LP, a Delaware limited
partnership (“
Fund
III
”), Praesidian Capital Opportunity Fund III-A, LP,
a Delaware limited partnership (“
Fund III-A
”), United Insurance
Company of America, an Illinois corporation (“
United
”
and together with Fund III, Fund
III-A and each of their respective successors and permitted
assigns, each a “
Lender
”, and collectively, the
“Lenders
”), and
Fund III as agent for the Lenders (in such capacity, the
“
Agent
”).
Capitalized terms used herein and not otherwise defined shall have
the meaning assigned such terms in the Securities Purchase
Agreement.
Background
Borrower has
informed the Agent that NBS wishes to acquire all or substantially
all of the assets (the “
Acquisition
”) of IQMax, Inc., a
Delaware corporation (“
IQMax
”), pursuant to the terms of
an asset purchase agreement and associated documentation, dated on
or about the date hereof, by and among NBS and IQMax.
Consent
Pursuant to the
terms of
Section
7.01(a)
of the Securities Purchase Agreement, no Loan Party
is permitted to acquire all or a substantial portion of the assets
of any Person, other than as permitted pursuant to Section 7.01(a)
of the Securities Purchase Agreement. As a result of the
Acquisition, NBS shall acquire all or substantially all of the
assets of IQMax. In connection with the Acquisition, Borrower has
requested that the Agent and the Requisite Lenders consent to the
Acquisition. Borrower represents, warrants, covenants and agrees to
and with the Agent and Lenders that the consideration to be paid
for the assets to be acquired from IQMax will not include the issue
of any Indebtedness by any of the Loan Parties and is currently
anticipated to consist solely of shares of common stock of Fusion,
$0,01 par value per share, except to the extent of any Royalty Fee
(as defined in the asset purchase agreement for the Acquisition).
In reliance on the representations, warranties, covenants and
agreements provided herein and made by Borrower to the Agent in
connection with the request for such consent, the Agent and the
Requisite Lenders hereby consent to the Acquisition.
General
Except
for the consent expressly provided by this letter agreement, the
terms and provisions of the Securities Purchase Agreement and the
other Loan Documents are hereby ratified and confirmed and shall
continue in full force and effect. The consent provided and agreed
to herein is to be effective only upon receipt by the Agent of an
executed counterpart of this letter agreement signed by Borrower
and each Guarantor. By agreeing to this letter agreement as
acknowledged below, Borrower hereby certifies and warrants to the
Agent and the Requisite Lenders that each of its representations
and warranties contained in the Loan Documents to which it is a
party are true and correct in all material respects
(other than any representations or warranties
qualified pursuant to their terms by materiality qualifiers, which
representations and warranties shall be true and correct in all
respects as written)
as of the effective date of this letter
agreement, including that no Default or Event of Default exists,
with the same effect as though made on such effective date (after
giving effect to the consent contained in this letter agreement and
except to the extent any such representation or warranty is
expressly stated to have been made as of a specific date, in which
case such representation or warranty shall be true and correct as
of such specified date). The effectiveness of the consent provided
herein is conditioned upon the correctness in all material respects
of all representations and warranties made by Borrower herein. The
consent contained herein shall not constitute a course of dealing
between Borrower and the Agent and, except as expressly provided
herein, shall not constitute a waiver, extension or forbearance of
any Default or Event of Default, now or hereafter arising, or an
amendment of any provision of the Securities Purchase Agreement or
the other Loan Documents. Borrower agrees to pay to the Agent, on
demand, in immediately available funds, all out-of-pocket costs and
expenses incurred by the Agent, including, without limitation, the
reasonable fees and expenses of counsel retained by the Agent, in
connection with the negotiation, preparation, execution and
delivery of this letter agreement and all other instruments and
documents contemplated hereby. This letter agreement shall be
governed by, construed and enforced in accordance with all
provisions of the Securities Purchase Agreement and may be executed
in multiple counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
instrument. Delivery of an executed counterpart signature of this
letter agreement by email transmission of a “
pdf
” or similar copy shall be
equally effective as delivery of an original counterpart of this
letter agreement. Any party delivering an executed counterpart
signature page to this letter agreement by e-mail transmission
shall also deliver an executed counterpart of this letter agreement
but the failure to deliver an original executed counterpart shall
not affect the validity, enforceability or binding effect of this
letter agreement.
Reaffirmation
By its
execution hereof, each Grantor hereby consents and agrees to the
terms and provisions of this letter agreement and consents and
agrees that each of the Security Documents remain in full force and
effect and continue to be the legal, valid and binding obligation
of each such Grantor, enforceable against each such Grantor in
accordance with the terms thereof.
[Signatures
follow on the next page.]
Please
evidence your acknowledgment and agreement to the foregoing by
executing this letter agreement in the place indicated
below.
LENDERS
:
PRAESIDIAN
CAPITAL OPPORTUNITY
FUND III, LP
By: Praesidian
Capital Opportunity GP III, LLC,
its General
Partner
By: /s/
Jason D.
Drattell
Name: Jason
D. Drattell
Title:
Manager
PRAESIDIAN
CAPITAL OPPORTUNITY FUND III-A, LP
By:
Praesidian Capital Opportunity GP III-A, LLC,
its
General Partner
By:
/s/ Jason D.
Drattell
Name: Jason
D. Drattell
Title:
Manager
AGENT:
PRAESIDIAN
CAPITAL OPPORTUNITY
FUND
III, LP
By:
Praesidian Capital Opportunity GP III, LLC, its General
Partner
By:
/s/ Jason D.
Drattell
Name: Jason
D. Drattell
Title:
Manager
[signature page – fusion nbs acquisition corp.
consent]
Acknowledged
and agreed to:
FUSION NBS ACQUISITION CORP.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
NETWORK BILLING SYSTEMS, L.L.C.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
Executive Vice President
FUSION BVX LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President
PINGTONE COMMUNICATIONS, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
[signature page – fusion nbs acquisition corp.
consent]
FIDELITY CONNECT LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY VOICE SERVICES, LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FIDELITY TELECOM, LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
APPTIX, INC.
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
President and Chief Operating Officer
FUSION BCHI ACQUISITION LLC
By:
/s/ Gordon Hutchins,
Jr.
Name:
Gordon Hutchins, Jr.
Title:
Manager
[signature page – fusion nbs acquisition corp.
consent]