fsnn_1046.htm



EXHIBIT 10.46




 


AMENDMENT NO. 1 TO


MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT









THIS AMENDMENT NO. 1 TO MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT (the “Agreement”) is made as of this ___ day of June 2012 (the “Effective Date”) by and among Fusion Telecommunications International, Inc. (“Fusion”), a corporation organized under the laws of the State of Delaware; NBS Acquisition Corp. (“Newco” and together with Fusion sometimes collectively hereinafter referred to as “Purchasers”), a corporation to be formed under the laws of the State of Delaware as a wholly-owned subsidiary of Fusion; Network Billing Systems, LLC (“NBS” or the “Company”), a limited liability company organized under the laws of the State of New Jersey; Jonathan Kaufman (“Kaufman”), a resident of the State of New Jersey; and Christiana Trust as trustee of the LK Trust (“LK”), a Delaware Trust. Fusion, Newco, NBS, Kaufman and LK are sometimes hereinafter referred to individually as a “Party” or collectively as the “Parties.”







WITNESSETH:







WHEREAS, the Parties are all of the parties to that certain Membership Interest Purchase and Sale Agreement dated as of January 30, 2012 (the “Original Agreement”); and







WHEREAS, the Parties desire to amend the Original Agreement as hereinafter set forth.







NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:












1.  Defined Terms.  Defined terms, not otherwise defined herein shall have the respective meanings ascribed to them in the Original Agreement.







2.  Audit Due Date.  Section 6.8 of the Original Agreement is hereby deleted in its entirety and replaced with the following:







6.8   Audit of Books and Records


 


Closing of the Transactions shall be subject to the completion and delivery to Purchasers of an audit (the “Audit”) of the financial statements of NBS, ISG and the Business, to the extent required by and under the applicable rules and regulations of the SEC (the “Audited Financial Statements”), by an audit firm acceptable to Purchasers and their professional advisors, in their sole discretion. Sellers shall use their best efforts to reasonably cooperate with its audit firm and Purchasers in the conduct of the Audit. The Parties agree to use their best efforts to cause the Audit to be completed on or before June 30, 2012 (as may be further extended by mutual consent of the Parties, the “Audit Due Date”). Purchasers may terminate this Agreement within ten (10) business days following receipt of the Audited Financial Statements in the event that (a) the Audited Financial Statements are determined by Fusion’s auditors not to be in compliance with GAAP and/or the rules and regulations of the SEC applicable to Fusion, (b) the filing of such Audited Financial Statements with the SEC could cause Fusion to be out of compliance with its obligations under Federal securities laws and/or (c) the financial condition and results of operations reported in the Audited Financial Statements are materially and adversely different from the financial condition or results of operations reported in the Unaudited Financial Statements. The Parties’ obligations to pay the fees and expenses of the Audit are set forth in Section 10.2 below.







3.  No Other Changes. Except as set forth herein, the terms and conditions of the Original Agreement shall remain in full force and effect.







4.  Miscellaneous.  The provisions of Article 10 of the Original Agreement shall be applicable to this Agreement and are hereby incorporated by reference as if fully set forth herein.


 




  





  











  











IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.








	
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. (“FUSION”)

	
___________________________________


(“Newco”)

	 
	  	  	 
	
By: __________________________

	
By: ________________________

	 
	  	  	 
	
Title: _________________________

	
Title: _______________________

	 
	  	  	 











	
NETWORK BILLING SYSTEMS, LLC (“NBS”)

	
JONATHAN KAUFMAN (“KAUFMAN”)

	  
	 	 	 
	
By: __________________________

	
By: __________________________

	  
	  	  	  
	
Title: _________________________

	
Title: _________________________

	  
	 	 	 
	 	 	 
	
THE LK TRUST

	 	  
	  	  	  
	
By: __________________________

	  	  
	  	  	  
	
Title: _________________________

	  	  





 



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