EXHIBIT 10.31(a)
AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO THE STOCK PURCHASE AGREEMENT dated as of May 12, 2005
(this "AMENDMENT"), is entered into by and between KARAMCO, INC. ("KARAMCO"),
EFONICA, FZ-LLC ("EFONICA OR COMPANY") AND FUSION TELECOMMUNICATIONS
INTERNATIONAL, INC. ("FUSION").
R E C I T A L S:
A. Fusion, Efonica and Karamco have entered into that certain Stock
Purchase Agreement dated January 11, 2005, as amended on February 9, 2005, (the
"AGREEMENT"), pursuant to which Fusion purchased all of Karamco's shares of
Efonica, FZ-LLC (the "Company").
B. At the present time, Fusion, Efonica and Karamco request, and all are
agreeable to amend the Agreement, subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Fusion, Efonica and Karamco hereby agree as follows:
A G R E E M E N T S:
1. RECITALS. The foregoing Recitals are hereby made a part of this
Amendment.
2. DEFINITIONS. Capitalized words and phrases used herein without
definition shall have the respective meanings ascribed to such words
and phrases in the Agreement.
(a) AMENDMENT TO AGREEMENT. Section 1.2(C)(iv) of the Agreement is hereby
amended in its entirety to read as follows:
"(iv) (a) Registration. Buyer shall use its reasonable efforts to
cause 150,000 shares of the Base Shares to be registered (the "Registered
Shares") within 60 days of the Buyer's initial public offering, unless said
date is extended with Karamco's consent. The date the Registered Shares are
effectively registered shall be defined as the "Registration Date."
Following registration, Karamco may sell up to an aggregate of $1 million
in Registered Shares in transactions (including block transactions) that
may take place in the over-the-counter market or an exchange including
ordinary broker transactions, privately negotiated transaction or through
sales to one or more dealers for resale as principals (1/2 of the
Registered Shares on the Registration Date and the remaining 1/2 on May 15,
2005). In the event Buyer is unable to cause the Registered Shares to be
registered as set forth above, Buyer shall purchase the Registered Shares
from Karamco (in the amount Karamco would have been otherwise able to sell
as set forth above) at the higher of the IPO price or the average 5 day bid
price prior to the date Buyer notifies Karamco that it is unable to cause
the registered Shares to be registered. In the event that Karamco's
aggregate gross proceeds of a sale of the Registered Shares as set forth in
this Section 1.2C(iv)(a), in the aggregate, and within 65 days following
the effective date of the Registration Statement, does not equal $967,500
(150,000 x the IPO price of $6.45), the Buyer shall pay Karamco the
difference between the aggregate gross proceeds of Karamco's sale of the
Registered Shares and $967,5000 (the "Difference Payment"). On April 25,
2005, Fusion made a payment of $150,000 to Karamco and on the date hereof,
will make an additional payment of $175,000 which payments ($325,000 in the
aggregate) shall be deducted from the Difference Payment owed. In the event
that the Difference Payment owed, pursuant to this Section 1.2(C)(iv)(a) of
the Agreement, is less than $325,000, Karamco shall immediately reimburse
Fusion for such excess. The Company retains the right to advance additional
funds in its sole discretion.
(b) Karamco's Obligation to reimburse Fusion for any excess shall be
secured by 50,387 shares (the "Escrowed Shares") of Fusion's common stock owned
by Karamco. Upon execution of this Agreement, Karamco will deliver the Escrowed
Shares to the Escrow Agent until such excess is repaid or it is determined that
no repayment is due based on the formula in section 1.2(C)(iv) (a) of the
Agreement."
3. REPRESENTATIONS AND WARRANTIES. To induce Karamco to enter into this
Amendment, Fusion hereby certifies, represents and warrants to Karamco that:
3.1 AUTHORIZATION. It is duly authorized to execute and deliver this
Amendment and is and will continue to perform its obligations under the
Agreement, as amended hereby.
3.2 NO CONFLICTS. The execution and delivery of this Amendment and
the performance by Fusion of its obligations under the Agreement, as amended
hereby, do not and will not conflict with any provision of law or of the
articles of incorporation or bylaws/articles of organization or operating
agreement, as applicable, of Fusion or of any agreement binding upon Fusion.
3.3 VALIDITY AND BINDING EFFECT. The Agreement, as amended hereby,
is a legal, valid and binding obligation of Fusion, enforceable against Fusion
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity limiting
the availability of equitable remedies.
4. GENERAL.
4.1 GOVERNING LAW; SEVERABILITY. This Amendment shall be construed
in accordance with and governed by the laws of the State of New York. Wherever
possible each provision of the Agreement and this Amendment shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of the Agreement and this Amendment shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of the Agreement and this Amendment.
4.2 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
Fusion, Efonica and Karamco and their respective successors and assigns.
4.3 CONTINUING FORCE AND EFFECT OF THE AGREEMENT. Except as
specifically modified or amended by the terms of this Amendment, all other terms
and provisions of the Agreement are incorporated by reference herein, and in all
respects, shall continue in full force and effect. Fusion, by execution of this
Amendment, hereby reaffirms, assumes and binds itself to all of the obligations,
duties, rights, covenants, terms and conditions that are contained in the
Agreement
4.4 EXPENSES. Fusion shall pay all costs and expenses in connection
with the preparation of this Amendment.
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4.5 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Stock Purchase Agreement as of the date first above written.
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By:
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Name:
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Title:
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KARAMCO, INC.
By:
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Name:
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Title:
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EFONICA, FZ-LLC
By:
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Name:
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Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
the Stock Purchase Agreement as of the date first above written.
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By:
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Name:
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Title:
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KARAMCO, INC.
By:
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Name:
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Title:
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EFONICA, FZ-LLC
By:
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Name:
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Title:
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