Filing Details
- Accession Number:
- 0001654954-17-008187
- Form Type:
- 13D Filing
- Publication Date:
- 2017-09-06 16:03:49
- Filed By:
- Rosen Marvin S
- Company:
- Fusion Connect Inc. (NASDAQ:FSNN)
- Filing Date:
- 2017-09-06
- SEC Url:
- 13D Filing
Ownership Summary
Please notice the below summary table is generated without human intervention and may contain errors. Please refer to the complete filing displayed below for exact figures.
| Name | Sole Voting Power | Shared Voting Power | Sole Dispositive Power | Shared Dispositive Power | Aggregate Amount Owned Power | Percent of Class |
|---|---|---|---|---|---|---|
| Marvin S. Rosen | 2,061,064 | 0 | 2,061,064 | 0 | 2,061,064 | 9.15% |
| Birch Communications Holdings, Inc | 0 | 2,381,937 | 0 | 0 | 2,381,937 | 10.5% |
| Matthew D. Rosen | 378,002 | 0 | 378,002 | 0 | 378,002 | 1.7% |
| Philip D. Turits | 117,516 | 0 | 117,516 | 0 | 117,516 | 0.5% |
| Michael J. Del Giudice | 65,928 | 0 | 65,928 | 0 | 65,928 | 0.3% |
| Jack Rosen | 123,885 | 0 | 123,885 | 0 | 123,885 | 0.6% |
| Larry Blum | 59,705 | 0 | 59,705 | 0 | 59,705 | 0.3% |
| Paul C. O Brien | 220,320 | 0 | 220,320 | 0 | 220,320 | 1% |
| William Rubin | 209,215 | 0 | 209,215 | 0 | 209,215 | 0.9% |
Filing
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)*
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
36113B400
(CUSIP Number)
Marvin S. Rosen
C/O Fusion Telecommunications International, Inc.
420 Lexington Avenue, Suite 1718
New York, NY 10170
(212) 201-2400
Copies to:
Dennis J. Block
Greenberg Traurig, LLP
200 Park Avenue
New York, NY 10166
(212) 801-2222
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
August
26, 2017
(Date
of Event which Requires Filing of this Statement)
If the
filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D,
and is filing this schedule because of §§240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box.
☐
Note:
Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7
for other parties to whom copies are to be sent.
* The
remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover
page.
The
information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons Marvin
S. Rosen | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds PF,
OO | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization United
States | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 2,061,064(1) | |
| 8 | Shared
voting power 0 | ||
| 9 | Sole
dispositive power 2,061,064(1) | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 2,061,064(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 9.15%(2) | ||
| 14 | Type of
reporting person IN | ||
| | | | |
(1) As of August 31, 2017, the aggregate number of shares
includes (i) 286,539 shares of Fusion
Telecommunications International, Inc.’s (the
“Issuer”)
common stock, par value $0.01 per share (the
“Common
Stock”), issuable upon
the exercise of Common Stock purchase warrants, (ii) 55,000 shares
of Common Stock issuable upon the exercise of options, (iii)
144,400 shares of Common Stock issuable upon conversion of 722
shares of Series B-2 preferred stock, (iv) 1,610 shares of Common
Stock held in a self-directed IRA, and (v) 1,372 shares of Common
Stock issuable upon conversion of 50 shares of Series A-1 preferred
stock and 25 shares of Series A-2 preferred
stock.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons Birch
Communications Holdings, Inc. | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization Georgia | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 0 | |
| 8 | Shared
voting power 2,381,937(1) | ||
| 9 | Sole
dispositive power 0 | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 2,381,937(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 10.5%(2) | ||
| 14 | Type of
reporting person CO | ||
| | | | |
(1) Birch Communications Holdings, Inc. (“Birch”)
does not own any shares of the Common Stock directly, but by virtue
of the Support Agreement (as defined below), each of the other
Reporting Persons have provided Birch an irrevocable proxy over a
certain number of their respective shares, therefore Birch may be
deemed to beneficially own these shares of Common Stock due to
Birch’s right to vote up to an aggregate of 2,381,937
shares of Common Stock with respect to the matters covered by the
Support Agreement. However, Pursuant to Rule 13d-4 of the
Securities Exchange Act of 1934, as amended, Birch disclaims any
beneficial ownership in the Common Stock.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons Matthew
D. Rosen | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds PF,
OO | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization United
States | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 378,002(1) | |
| 8 | Shared
voting power 0 | ||
| 9 | Sole
dispositive power 378,002(1) | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 378,002(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 1.7%(2) | ||
| 14 | Type of
reporting person IN | ||
| | | | |
(1) As of August 31, 2017, the aggregate number of shares
includes (i) 216,334 shares of Common
Stock issuable upon the exercise of options, (ii) 24,591 shares of
Common Stock issuable upon the exercise of Common Stock purchase
warrants, (iii) 76 shares of Series B-2 preferred stock convertible
into 15,200 shares of Common Stock, and (iv) 50 shares of Series
A-1 and 5 shares of Series A-2 preferred stock convertible into a
total of 820 shares of Common Stock.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons Philip
D. Turits | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds PF,
OO | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization United
States | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 117,516(1) | |
| 8 | Shared
voting power 0 | ||
| 9 | Sole
dispositive power 117,516(1) | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 117,516(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 0.5%(2) | ||
| 14 | Type of
reporting person IN | ||
| | | | |
(1) As of August 31, 2017, the aggregate number of shares
includes (i) 29 shares of Common Stock
owned by his wife, (ii) 1,450 shares of Common Stock issuable upon
the exercise of Common Stock purchase warrants, (iii) 24,550 shares
of Common Stock issuable upon the exercise of options, (iv) 5
shares of Series B-2 preferred stock convertible into 1,000 shares
of Common Stock, (v) 25 shares of Series A-1 and 30 shares of
Series A-2 preferred stock convertible into a total of 1,167 shares
of Common Stock.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons Michael
J. Del Giudice | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds PF,
OO | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization United
States | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 65,928(1) | |
| 8 | Shared
voting power 0 | ||
| 9 | Sole
dispositive power 65,928(1) | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 65,928
(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 0.3%(2) | ||
| 14 | Type of
reporting person IN | ||
| | | | |
(1) As of August 31, 2017, the aggregate number of shares
includes (i) 5,020 shares of Common
Stock issuable upon the exercise of options, (ii) 3,984 shares of
Common Stock issuable upon the exercise of Common Stock purchase
warrants, of which 3,664 shares are held in the name of Catskill
Investor Group, LLC, (iii) 11,381 shares of Common Stock held in
the name of Catskill Investor Group, LLC, (iv) 5 shares of Series
B-2 preferred stock convertible into 1,000 shares of Common Stock,
and (v) 200 shares of Series A-1 and 75 shares of Series A-2
preferred stock owned by Catskill Investor Group, LLC, that are
convertible into a total of 4,799 shares of Common
Stock.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons Jack
Rosen | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds PF,
OO | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization United
States | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 123,885(1) | |
| 8 | Shared
voting power 0 | ||
| 9 | Sole
dispositive power 123,885(1) | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 123,885(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 0.6%(2) | ||
| 14 | Type of
reporting person IN | ||
| | | | |
(1) As of August 31, 2017, the aggregate number of shares
includes (i) 20,539 shares of Common
Stock issuable upon the exercise of Common Stock purchase warrants
held in the name of Rosen Partners, LLC, and 9,600 held in the name
Rosen-Kaiyuan, LLC, of which Jack Rosen is the managing member,
(ii) 53,868 shares of Common Stock held by Rosen Partners, LLC and
13,691 shares of Common Stock held by Rosen-Kaiyuan, LLC, (iii)
4,170 shares of Common Stock issuable upon the exercise of options,
(iv) 150 shares of Series B-2 preferred stock convertible into
30,000 shares of Common Stock held in the name of Rosen-Kaiyuan,
LLC, and (v) 200 shares of Series A-1 and 50 shares of Series A-2
preferred stock convertible into a total of 4,112 shares of Common
Stock.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons Larry
Blum | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds PF,
OO | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization United
States | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 59,705(1) | |
| 8 | Shared
voting power 0 | ||
| 9 | Sole
dispositive power 59,705(1) | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 59,705(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 0.3%(2) | ||
| 14 | Type of
reporting person IN | ||
| | | | |
(1) As of August 31, 2017, the aggregate number of shares
includes (i) 42,536 shares of Common
Stock held in trusts for which his wife serves as trustee, (ii)
6,399 shares of Common Stock issuable upon the exercise of Common
Stock purchase warrants held in trusts for which his wife serves as
trustee, (iii) 4,170 shares of Common Stock issuable upon the
exercise of options, and (iv) 33 shares of Series B-2 preferred
stock convertible into 6,600 shares of Common Stock held in trusts
for which his wife serves as trustee.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons Paul C.
O’Brien | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds PF,
OO | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization United
States | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 220,320(1) | |
| 8 | Shared
voting power 0 | ||
| 9 | Sole
dispositive power 220,320(1) | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 220,320(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 1%(2) | ||
| 14 | Type of
reporting person IN | ||
| | | | |
(1) As of August 31, 2017, the aggregate number of shares
includes (i) 5,020 shares of Common
Stock issuable upon the exercise of options, (ii) 3,200 shares of
Common Stock issuable upon the exercise of Common Stock purchase
warrants, (iii) 50 shares of Series B-2 preferred stock convertible
into 10,000 shares of Common Stock, and (iv) 100 shares of Series
A-1 preferred stock convertible into 1,368 shares of Common
Stock.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
| CUSIP
No. 36113B400 | |||
| 1 | Names
of reporting persons William
Rubin | ||
| 2 | Check
the appropriate box if a member of a group (a)
☐ (b)
☒ | ||
| 3 | SEC use
only | ||
| 4 | Source
of funds PF,
OO | ||
| 5 | Check
if disclosure of legal proceedings is required pursuant to Item
2(d) or 2(e) ☐ | ||
| 6 | Citizenship
or place of organization United
States | ||
| Number
of shares beneficially owned by each reporting person
with | 7 | Sole
voting power 209,215(1) | |
| 8 | Shared
voting power 0 | ||
| 9 | Sole
dispositive power 209,215(1) | ||
| 10 | Shared
dispositive power 0 | ||
| 11 | Aggregate
amount beneficially owned by each reporting person 209,215(1) | ||
| 12 | Check
if the aggregate amount in Row (11) excludes certain shares
☐ | ||
| 13 | Percent
of class represented by amount in Row (11) 0.9%(2) | ||
| 14 | Type of
reporting person IN | ||
| | | | |
(1) As of August 31, 2017, the aggregate number of shares
includes (i) 4,650 shares of Common
Stock issuable upon the exercise of options, (ii) 200 shares of
Series B-2 preferred stock convertible into 40,000 shares of Common
Stock, and (iii) 31,513 shares of Common Stock issuable upon the
exercise of Common Stock purchase warrants.
(2) Based on 22,505,365 shares reported to be outstanding as
of August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
ITEM 1. Security and Issuer
This
Amendment No. 1 (this “Amendment”) amends the
Schedule 13D originally filed by Marvin S. Rosen on September
5, 2017 (the
“Original
Schedule 13D”). This
Amendment is filed by Marvin S. Rosen, for and on behalf of himself
and Birch Communications Holdings, Inc. (“Birch”),
Matthew D. Rosen, Philip D. Turits, Michael J. Del Giudice, Jack
Rosen, Larry Blum, Paul C. O’Brien and William Rubin
(together, the “Reporting
Persons”) with respect to
the shares of common stock, par value $0.01 (the
“Common
Stock”) of Fusion
Telecommunications International, Inc. (the
“Issuer”).
The
address of the principal executive offices of the Issuer is 420
Lexington Avenue Suite 1718, New York, NY 10170.
ITEM 2. Identity and Background
Item 2
is hereby supplemented as follows:
(a)
This Schedule 13D
is filed by:
i.
Marvin S.
Rosen;
ii.
Matthew D.
Rosen;
iii.
Philip D.
Turits;
iv.
Michael J. Del
Giudice;
v.
Jack
Rosen;
vi.
Larry
Blum;
vii.
Paul C.
O’Brien;
viii.
William Rubin;
and
ix.
Birch
Communications Holdings, Inc.
(the
individuals named in clauses “i” through
“viii” are each referred to as the “Individual” and
collectively as, the “Individuals”).
(b) The
address of the business office of the Individuals is C/O
Fusion Telecommunications International, Inc., 420 Lexington
Avenue, Suite 1718, New York, NY 10170. The address of the business
office of Birch is 320 Interstate
North Parkway SE, Atlanta, GA 30339.
(c) The
principal occupations of each Reporting Person is incorporated
herein by reference to Annex A.
(d) The
Reporting Persons, and to Birch’s knowledge, the individuals
listed in Annex
B, have not, during the last
five years, been convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors).
(e) The
Reporting Persons, and to Birch’s knowledge, the individuals
listed in Annex B,
have not, during the last five years, been party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such
laws.
(f) Each
Individual is a citizen of the United States.
ITEM
4. Purpose of Transaction.
Item 4
is hereby supplemented as follows:
As
previously disclosed, the Issuer entered
into an Agreement and Plan of Merger (the
“Merger
Agreement”) with Birch and Fusion BCHI Acquisition
LLC, a Delaware limited liability company and a wholly owned
subsidiary of the Issuer (“Merger Sub”). Pursuant to
the Merger Agreement, among other things, Birch will be merged with
and into Merger Sub (the “Merger”) with Merger Sub
being the surviving entity of the Merger, as a direct, wholly-owned
subsidiary of the Issuer.
Following
the effective date of the Merger (the “Effective Date”), (i)
Marvin S. Rosen will resign as Chairman of the Issuer’s Board
of Directors and (ii) Matthew D. Rosen will remain Chief Executive
Officer of the Issuer and will serve as the Chairman of the
Issuer’s Board of Directors, both on a post-Merger
basis.
Concurrent with the execution of the Merger Agreement, the
Reporting Persons entered into a support agreement, dated as of
August 26, 2017 (the “Support
Agreement”), pursuant to
which the Reporting Persons have agreed, among other things,
subject to the terms and conditions of the Support Agreement, to
grant Birch an irrevocable proxy to vote each of the
Individuals’ shares of Common Stock in favor of the approval
of the Merger at the meeting of
the Issuer’s stockholders, and to take certain
actions in furtherance of the other transactions contemplated
thereby. The Support Agreement
does not convey to Birch any direct or indirect ownership interest
in the Individuals’ shares of Common Stock, and all rights,
ownership and economic benefits of, and relating to, each
Individual’s shares remain vested in and belong to such
Individual.
Pursuant to the Support Agreement, Birch’s irrevocable proxy
grants it the right to vote an aggregate of 2,381,937 shares
of Common Stock comprised of: (i) 1,768,415 shares
of Common Stock beneficially owned by Marvin S. Rosen; (ii) 137,075
shares of Common Stock beneficially owned by Matthew D. Rosen;
(iii) 91,216 shares of Common Stock beneficially owned by Philip D.
Turits; (iv) 64,220 shares of Common Stock beneficially owned by
Michael J. Del Giudice; (v) 104,448 shares of Common Stock
beneficially owned by Jack Rosen; (vi) 49,251 shares of Common
Stock beneficially owned by Larry Blum; (vi) 103,452 shares of
Common Stock beneficially owned by Paul C. O’Brien; and (vii)
63,860 shares of Common Stock beneficially owned by William
Rubin.
Additionally, pursuant to the Support Agreement, during the period
of August 26, 2017 until the earlier of (i) the termination of the
Support Agreement in accordance with the terms therein, (ii) the
termination of the Merger Agreement in accordance with the terms
therein, (iii) the Effective Date, (iv) with regard to any
Individual, the entry by the Issuer, without prior written consent
of the Individual, into any amendment or modification of the Merger
Agreement which results in (A) a change which is materially adverse
to the Individual or (B) the extension of the outside date of the
Merger Agreement (i.e., April 2, 2018 or a later date (but no later
than April 30, 2018, if an extension is necessary to obtain certain
regulatory and governmental approvals)), or (v) the mutual written
agreements of the Reporting Persons to terminate the Support
Agreement, each of the Reporting Persons has agreed to vote its
Common Stock, or cause its Common Stock to be voted (x) for
approval of the Merger Agreement and any transactions contemplated
thereby (including the Merger) and (y) against: (A) any Alternative
Proposal (as defined in the Merger Agreement), (B) any action that
would reasonably be expected to result in (1) a breach of or
failure to perform any representation, warranty, covenant or
agreement of the Issuer under the Merger Agreement or (2) any of
the conditions set forth in Article VII of the Merger Agreement not
being satisfied, or (C) any action that would prevent or materially
delay or would reasonably be expected to prevent or materially
delay, consummation of the Merger.
The
foregoing descriptions of the Merger Agreement and the Support
Agreement do not purport to be complete and is subject to, and
qualified in its entirety by, the full text of the Merger Agreement
and Support Agreement. The full text of the Merger Agreement is
attached as Exhibit 10.1.1 to the Issuer’s Current Report on
Form 8-K filed on August 30, 2017, as subsequently amended and
supplemented, and the full text of the Support Agreement is filed
as Exhibit 22 to the Original Schedule 13D, as subsequently amended
and supplemented. Both of these exhibits are incorporated herein by
reference.
ITEM 5. Interest in Securities of the Issuer.
Item 5 is hereby supplemented as follows:
(a)-(b) The beneficial ownership
percentage of the Reporting Persons is calculated based upon
22,505,365 shares of Common Stock reported to be outstanding as of
August 7, 2017, as reported on Form 10-Q filed by the Issuer on
August 14, 2017.
(1)
Marvin
S. Rosen
a.
Amount beneficially owned: 2,061,064 Common
Stock
b.
Percent of class:
9.15%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 2,061,064
ii.
Shared power to
vote or to direct the vote: 0
iii.Sole power to dispose or to direct the
disposition of: 2,061,064
iv.Shared power to dispose or to direct the
disposition of: 0
(2)
Birch
Communications Holdings, Inc.
a.
Amount beneficially owned: 2,381,937 Common
Stock
b.
Percent of class:
10.5%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 0
ii.
Shared power to
vote or to direct the vote: 2,381,937
iii.Sole power to dispose or to direct the
disposition of: 0
iv.Shared power to dispose or to direct the
disposition of: 0
(3)
Matthew
D. Rosen
a.
Amount beneficially owned: 378,002 Common
Stock
b.
Percent of class:
1.7%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 378,002
ii.
Shared power to
vote or to direct the vote: 0
iii.Sole power to dispose or to direct the
disposition of: 378,002
iv.Shared power to dispose or to direct the
disposition of: 0
(4)
Philip
D. Turits
a.
Amount beneficially owned: 117,516 Common
Stock
b.
Percent of class:
0.5%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 117,516
ii.
Shared power to
vote or to direct the vote: 0
iii.Sole power to dispose or to direct the
disposition of: 117,516
iv.Shared power to dispose or to direct the
disposition of: 0
(5)
Michael
J. Del Giudice
a.
Amount beneficially owned: 65,928 Common
Stock
b.
Percent of class:
0.3%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 65,928
ii.
Shared power to
vote or to direct the vote: 0
iii.Sole power to dispose or to direct the
disposition of: 65,928
iv.Shared power to dispose or to direct the
disposition of: 0
(6)
Jack
Rosen
a.
Amount beneficially owned: 123,885 Common
Stock
b.
Percent of class:
0.6%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 123,885
ii.
Shared power to
vote or to direct the vote: 0
iii.Sole power to dispose or to direct the
disposition of: 123,885
iv.Shared power to dispose or to direct the
disposition of: 0
(7)
Larry
Blum
a.
Amount beneficially owned: 59,705 Common
Stock
b.
Percent of class:
0.3%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 59,705
ii.
Shared power to
vote or to direct the vote: 0
iii.Sole power to dispose or to direct the
disposition of: 59,705
iv.Shared power to dispose or to direct the
disposition of: 0
(8)
Paul
C. O’Brien
a.
Amount beneficially owned: 220,320 Common
Stock
b.
Percent of class:
1%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 220,320
ii.
Shared power to
vote or to direct the vote: 0
iii.Sole power to dispose or to direct the
disposition of: 220,320
iv.Shared power to dispose or to direct the
disposition of: 0
(9)
William
Rubin
a.
Amount beneficially owned: 209,215 Common
Stock
b.
Percent of class:
0.9%
c.
Number of Common
Shares as to which the person has:
i.
Sole power to vote
or direct the vote: 209,215
ii.
Shared power to
vote or to direct the vote: 0
iii.Sole power to dispose or to direct the
disposition of: 209,215
iv.Shared power to dispose or to direct the
disposition of: 0
Except as set forth above, no Reporting Person nor, to the best of
Birch’s knowledge, any of the individuals named in Annex B
hereto, beneficially own any shares of Common Stock.
The Reporting Persons disclaim beneficial ownership of any Common
Stock, pursuant to Rule 13d-4 of the Securities Exchange Act of
1934, as amended (the “Exchange
Act”). Neither the filing
of this Schedule 13D nor any of its contents shall be deemed to
constitute an admission that the Reporting Persons are the
beneficial owners of the Common Stock referred to herein for
purposes of Section 13(d) of the Exchange Act or for any other
purpose, and such beneficial ownership is expressly
disclaimed.
(c) In addition to the transactions disclosed in the Original
Schedule 13D, on June 30, 2017:
(1)
Matthew D. Rosen
received 809 shares of Common Stock as a dividend payment for his
shares of the Issuer’s Series B-2 Cumulative Convertible
Preferred Stock.
(2)
Philip D. Turits
received 53 shares of Common Stock as a dividend payment for his
shares of the Issuer’s Series B-2 Cumulative Convertible
Preferred Stock.
(3)
Michael J. Del
Giudice received 53 shares of Common Stock as a dividend payment
for his shares of the Issuer’s Series B-2 Cumulative
Convertible Preferred Stock.
(4)
Jack Rosen received
1,596 shares of Common Stock as a dividend payment for his shares
of the Issuer’s Series B-2 Cumulative Convertible Preferred
Stock.
(5)
Paul C.
O’Brien received 532 shares of Common Stock as a dividend
payment for his shares of the Issuer’s Series B-2 Cumulative
Convertible Preferred Stock.
(6)
William Rubin
received 2,128 shares of Common Stock as a dividend payment for his
shares of the Issuer’s Series B-2 Cumulative Convertible
Preferred Stock.
(d) The Reporting Persons are not entitled to the
other’s right to receive or the power to direct the receipt
of dividends from, or the proceeds from the sale of, the shares of
Common Stock subject to the Support Agreement.
(e) Not applicable.
ITEM
6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
Item 6 is hereby supplemented as follows:
The information set forth under Item 4 of this Amendment, and the
Exhibits filed with the Original Schedule 13D, are incorporated
herein by reference.
The
foregoing descriptions of the Merger Agreement and the Support
Agreement do not purport to be complete and is subject to, and
qualified in its entirety by, the full text of the Merger Agreement
and Support Agreement. The full text of the Merger Agreement is
attached as Exhibit 10.1.1 to the Form 8-K filed on August 30,
2017, as subsequently amended and supplemented, and the full text
of the Support Agreement is filed as Exhibit 22 to the Original
Schedule 13D, as subsequently amended and supplemented. Both of
these exhibits are incorporated herein by reference.
Other than as described in this Amendment, there are no contracts,
arrangements, understandings or relationships (legal or otherwise)
between the Reporting Persons and any person with respect to any
securities of the Issuer, including but not limited to, transfer or
voting of any of the securities, finder’s fees, joint
ventures, loan or option arrangements, put or calls, guarantees of
profits, division of profits or loss, or the giving or withholding
of proxies.
SIGNATURES
After
reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true,
complete and correct.
| Dated:
September 6, 2017 | /s/ Marvin
S.
Rosen |
| | Marvin
S. Rosen |
| | |
| Dated:
September 6, 2017 | /s/ Matthew
D.
Rosen |
| | Matthew
D. Rosen |
| | |
| Dated:
September 6, 2017 | /s/ Philip
D.
Turits |
| | Philip
D. Turits |
| | |
| Dated:
September 6, 2017 | /s/ Michael
J. Del
Giudice |
| | Michael
J. Del Giudice |
| | |
| Dated:
September 6, 2017 | /s/ Jack
Rosen |
| | Jack
Rosen |
| | |
| Dated:
September 6, 2017 | /s/ Larry
Blum |
| | Larry
Blum |
| | |
| Dated:
September 6, 2017 | /s/ Paul
C.
O’Brien |
| | Paul C.
O’Brien |
| | |
| Dated:
September 6, 2017 | /s/ William
Rubin |
| | William
Rubin |
| | |
| | BIRCH
COMMUNICATIONS HOLDINGS, INC. |
| | |
| Dated:
September 6, 2017 | By: /s/
Gordon P. Williams,
Jr. |
| | Name:
Gordon P. Williams, Jr. |
| | Title:
SVP & General Counsel |
| | |
Annex A
Principal
Occupation of each Reporting Person
|
Name |
Principal Occupation |
| Marvin
S. Rosen | Shareholder
at Greenberg Traurig, LLP and Chairman of the Board of Directors of
the Issuer |
| Matthew
D. Rosen | Director
and Chief Executive Officer of the Issuer |
| Philip
D. Turits | Director,
Secretary, Treasurer of the Issuer |
| Michael
J. Del Giudice | Senior
Managing Director of Millennium Capital Markets LLC, Senior
Managing Director of MCM Securities LLC and Director of the
Issuer |
| Jack
Rosen | Chief
Executive Officer of Rosen Partners LLC and Director of the
Issuer |
| Larry
Blum | Senior
Advisor for Marcum LLP and Director of the Issuer |
| Paul C.
O’Brien | President
of the O’Brien Group and Director of the Issuer |
| William
Rubin | President
of the Rubin Group and Director of the Issuer |
| Birch
Communications Holdings, Inc. |
A corporation that delivers leading technology services in
customizable voice, internet and cloud bundles for small, mid-size
and enterprise businesses. |
Annex B
The
following is a list of the directors and executive officers of
Birch, setting forth the name, business address, present position
with Birch and present occupation or employment. All directors and
executive officers of Birch listed below are citizens of the United
States.
|
Name |
Position with Birch |
Principal Occupation (if different from position with
Birch) |
Business Address |
| Dr. R.
Kirby Godsey | Director
and Chairman of the Board of Directors | N/A | 3060
Peachtree Road, NW, Suite 1065, Atlanta, Georgia 30305 |
| Anthony
A. Tomae | President
and Chief Executive Officer | N/A | 320
Interstate North Parkway SE, Suite 300, Atlanta, Georgia
30339 |
| James
P. O’Brien | Executive
Vice President and Chief Operating Officer | N/A | 320
Interstate North Parkway SE, Suite 300, Atlanta, Georgia
30339 |
| Kevin
M. Dotts | Executive
Vice President, Chief Financial Officer | N/A | 320
Interstate North Parkway SE, Suite 300, Atlanta, Georgia
30339 |
| Gordon
P. Williams | Senior
Vice President, Secretary and General Counsel | N/A | 320
Interstate North Parkway SE, Suite 300, Atlanta, Georgia
30339 |
| Michelle
H. Ansley | Chief
Administrative Officer and VP Human Resources | N/A | 320
Interstate North Parkway SE, Suite 300, Atlanta, Georgia
30339 |
| Holcombe
T. Green, Jr. | Director | N/A | 3060
Peachtree Road, NW, Suite 1065, Atlanta, Georgia 30305 |
| Holcombe
T. Green, III | Director | Managing
Director at Lazard | 3060
Peachtree Road, NW, Suite 1065, Atlanta, Georgia 30305 |