Ninth Amendment, dated as of April 27, 2018, to Agreement and Plan of Merger by and among Fusion Telecommunications International, Inc., Fusion BCHI Acquisition LLC and Birch Communications Holdings, Inc

EX-10.2 3 fsnn_ex102.htm NINTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER Blueprint
  Exhibit 10.2
 
NINTH AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
 
This NINTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of April 27, 2018 (this “Amendment”), is entered into by and among Fusion Telecommunications International, Inc., a Delaware corporation (the “Company”), Fusion BCHI Acquisition LLC, a Delaware limited liability company (“Merger Sub”), and Birch Communications Holdings, Inc., a Georgia corporation (“BCHI”). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Merger Agreement.
 
RECITALS
 
A.            The Parties previously entered into that certain Agreement and Plan of Merger, dated as of August 26, 2017, as amended by the First Amendment to Agreement and Plan of Merger, dated as of September 15, 2017, the Second Amendment to Agreement and Plan of Merger, dated as of September 29, 2017, the Third Amendment to Agreement of Plan of Merger, executed on October 24, 2017, the Amended and Restated Third Amendment to Agreement and Plan of Merger, dated as of October 27, 2017, the Fourth Amendment to Agreement and Plan of Merger, dated January 24, 2018, the Fifth Amendment to Agreement and Plan of Merger, dated as of January 25, 2018, the Sixth Amendment to Agreement and Plan of Merger, dated as of March 12, 2018, the Seventh Amendment to Agreement and Plan of Merger, dated as of April 3, 2018, and the Eighth Amendment to Agreement and Plan of Merger, dated as of April 26, 2018 (collectively, the “Merger Agreement”).
 
B.            The Parties desire to further amend the Merger Agreement as set forth herein.
 
The Parties hereby agree as follows:
 
1. The date of “May 10, 2018” in Section 8.1(b)(i) of the Merger Agreement is hereby deleted and replaced with “May 30, 2018”.
 
2. The phrase “the date of April 30, 2018 in Section 8.1(b)(iv) of the Merger Agreement is hereby deleted and replaced with “May 15, 2018”.
 
3. The date of “April 30, 2018” in the definition of “Outside Date” in Section 9.15 of the Merger Agreement is hereby deleted and replaced with “May 15, 2018”.
 
4.            Effect of Amendment. This Amendment shall not constitute a waiver, amendment or modification of any other provision of the Merger Agreement not expressly contemplated hereby. Except as specifically modified and amended hereby, the Merger Agreement shall remain unchanged and in full force and effect. From and after the date hereof, each reference in the Merger Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar meaning shall mean and be a reference to the Merger Agreement as amended by this Amendment. Notwithstanding the foregoing, references to the date of the Merger Agreement, and references to the “date hereof”, “the date of this Agreement” or words of similar meaning in the Merger Agreement shall continue to refer to August 26, 2017.
 
 
 
 
5. Governing Law. This Amendment will be governed by, and construed and enforced in accordance with, the internal Laws of the State of Delaware, without regard to any applicable conflict of laws principles (whether of the State of Delaware or any other jurisdiction).
 
6. Jurisdiction. Section 9.8 (Jurisdiction) of the Merger Agreement is incorporated herein by reference and made a part hereof as if fully set forth herein.
 
7. Counterparts. This Amendment may be executed in two or more counterparts, all of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that each Party need not sign the same counterpart. PDF transmissions of this Amendment shall be deemed to be the same as the delivery of an executed original.
 
 
 
[Signatures appear on following page.]
 
 
 
 
 
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first above written.
 
 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
 
 
By: /s/ 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