Blueprint





Exhibit 10.1







 


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:


 




 

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“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.]


 




 

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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









 


 


 




 

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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.

 


 




 

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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”).

 




 

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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.

 




 

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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.

 




 

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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.

 




 

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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.

 




 

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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.

 

 


 

 


 

 


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page intentionally left blank]

 




 

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IN WITNESS WHEREOF, the undersigned has
executed this Amended and Restated Certificate of Incorporation
this __ day of __________, 2018.

 


	

 

	
FUSION
CONNECT, INC.

	

 


	

 

	

 

	

 

	

 


	
 

	
By:  

	
 

	

 


	

 

	

 

	
Name 

	

 


	

 

	

 

	

Title 

	

 






 




 


 


 


 


 




 

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