UNITED STATES

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 10 –K

x  ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For The Fiscal Year Ended December 31, 2008

 

o          TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND EXCHANGE ACT OF 1934

For the transition period from          to

Commission File Number 001-32421

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
(Exact Name of Registrant As Specified in Charter)

DELAWARE

58-2342021

(State or Other Jurisdiction of Incorporation or Organization)

(IRS Employer Identification No.)

420 Lexington Avenue, Suite 1718 New York, New York 10170
(Address of Principal Executive Offices) (Zip Code)

 

(212) 201-2400

(Registrant’s Telephone Number, Including Area Code)

 

 

Securities registered pursuant to Section 12(b) of the Act:

 

 

Title of Each Class

Name of Each Exchange on Which Registered

Common Stock, par value $0.01 per share

NYSE Amex

Redeemable Common Stock Purchase Warrants

NYSE Amex



Securities registered pursuant to Section 12(g) of the Act:
              None
              (Title of Class)

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes |x No  o

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  Yeso No x

Indicate by a check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes x No o

Indicate by a check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.   o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company:

 

Large accelearted filler                           o Accelerated filer                                o

Non-accelerated filler                               o
(do not check if a smaller reporting company

Smaller reporting company              x  


Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes |_| No |X|

The aggregate market value of the voting common stock held by non-affiliates of the registrant based upon the closing price of the common stock as reported by NYSE Amex on June 30, 2008 was $0.30 per share, was $7,199,924. Solely for purposes of this calculation, shares beneficially owned by directors and officers of the registrant and persons owning 5% or more of the registrant’s common stock have been excluded, in that such persons may be deemed to be affiliates of the registrant. Such exclusion should not be deemed a determination or admission by the registrant that such individuals or entities are, in fact, affiliates of the registrant.
 
The number of shares outstanding of the registrant’s common stock as of March 17, 2009, is as follows:

 

Title of Each Class

Number of Shares Outstanding

Common Stock, $0.01 par value

49,165,041



DOCUMENTS INCORPORATED BY REFERENCE
 

List hereunder the following documents if incorporated by reference and the Part of the Form 10-K into which the document is incorporated: (1) Any annual report to security holders; (2) Any proxy or information statement; and (3) Any prospectus filed pursuant to 424(b) or (c) under the Securities Act of 1933.
 

NONE

 


TABLE OF CONTENTS

PART 1     4

Item 1 Business     4
Item 1A. Risk Factors     15
Item 1B. Unresolved Staff Comments     21
Item 2. Properties     21
Item 3. Legal Proceedings     22
Item 4. Submission of Matters to a Vote of Security Holders     22

PART II     24

Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities     24
Item 6. Selected Financial Data     25
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations     25
Item 7A. Quantitative and Qualitative Disclosures about Market Risks     36
Item 8. Consolidated Financial Statements and Supplementary Data     37
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure     37
Item 9A (T). Controls and Procedure     37

PART III     38

Item 10. Directors, Executive Officers and Corporate Governance     38
Item 11. Compensation of Directors and Executives     44
Item 12. Security Ownership Of Certain Beneficial Owners And Management And Related Stockholder Matters     48
Item 13. Certain Relationships, Related Transactions, and Director Independence     51
Item 14. Principal Accounting Fees and Services     54
ITEM 15. Exhibits, Financial Statements Schedules.     55
SIGNATURES     55


PART 1

Item 1 Business

Overview

Fusion Telecommunications International, Inc. (the terms “Company,” “us,” and/or “we” and other similar terms as used herein refer collectively to the Company together with its principal operating subsidiaries) is a provider of IP-based digital voice and data communications services to carriers and corporations worldwide. Our strategy is to continue to grow our existing carrier business, while accelerating the growth of our corporate business to ensure that an increasing portion of our revenues are derived from this higher margin and more stable business segment.

The Company’s services include local, long distance, and international Voice over Internet Protocol (VoIP) services; broadband Internet access; private line circuits; virtual private network (VPN) services; audio and web conference calling; fax services and a variety of other enhanced communications services and features. The majority of our voice services utilize state-of-the-art Voice over Internet Protocol (VoIP) technology rather than traditional circuit-switched technology. This choice of technology allows us to deliver voice, data, and Internet access services over a single facility, while providing service quality and reliability comparable to that of the historical circuit-switched service providers.

In the past, we have marketed our services to corporations, consumers, and carriers. However, we have recently decided to exit the consumer business segment as part of a restructuring designed to decrease our operating costs, enhance our efficiency, and increase our focus on the more stable and profitable corporate segment. Going forward, we believe that we will increase the percentage of our total revenues that are derived from higher margin corporate business.

Our carrier services are sold to other communications carriers throughout the world, including U.S. based carriers wishing to terminate transmission of telephone services to international destinations, as well as foreign carriers wishing to terminate in the U.S. and throughout the world. We also purchase domestic and international termination services from carriers. We currently have over 200 carrier customers and vendors. Our corporate services are sold to small, medium, and large businesses, located within the United States and selected foreign countries. These predominantly IP-based services are designed to meet the communications needs of growing businesses, while maximizing the price-performance ratio. We currently serve corporate users in 19 states.

During the past several years, the migration to VoIP services has accelerated. In fact, a study by Booz Allen Hamilton predicts that the volume of VoIP traffic will exceed the volume of traditional circuit-switched traffic in 2010. At the same time, Internet access throughout the world is expanding at double-digit and even triple-digit growth rates. The carrier services market continues to expand, and today approximately 60% of all carrier traffic is carried via the Internet. Although there are widely varying estimates of the size of the total market for corporate VoIP services, consensus estimates project the market at $20 - $25 billion for 2009.

In addition to our strong position in the carrier market, we believe that Fusion is well positioned to capitalize on the rapid growth of the corporate VoIP market. We believe that the global networking infrastructure available from our carrier operations, coupled with our ability to leverage our relationships with over 200 global carriers, provide us with a significant competitive advantage in this market. And, we believe that the experience of our sales, operations, and management personnel provide the skills and relationships we need to execute our strategy and grow this important segment of our business.

Services

Historically, we have derived the majority of our revenues from the carrier business segment. Specifically, those revenues have come primarily from U.S.-based carriers requiring voice connectivity to emerging markets. As we continue to execute our strategy for this segment, we anticipate a larger number of non-U.S. based carrier customers, who will require voice connectivity to the U.S. and to foreign locations.

We are currently seeking to expand our retail revenue stream by continuing to market to small, medium, and large business customers. These corporate services are marketed via both direct sales and partner sales distribution channels. In general, the direct sales organization targets medium and large enterprise customers, while the partner sales organization targets small to medium businesses.

Until recently, we have also marketed communications services to consumers. However, as previously mentioned, we have decided to exit this business segment as part of our recent restructuring. Although we will no longer actively market consumer services, we are currently negotiating with a company that would assume the management of this business and its personnel in return for a share of the profits.

Corporate Services

Fusion offers a full suite of advanced corporate communications solutions, designed to provide significant benefits to small, medium, and large businesses with single or multiple locations worldwide. Our solutions provide all required hardware as well as the services themselves, thus providing the customer with everything needed to implement a complete service solution.

Our corporate services minimize upfront capital costs, increase the scalability and flexibility of the customer’s communications network, provide compelling features when compared to traditional analog telephone service, offer high quality, and reduce the overall cost of communications. On average, our corporate services save the customer approximately 20%. Fusion’s IP-based corporate solutions also prioritize voice traffic over data traffic to ensure that a customer always has adequate Internet bandwidth to experience premium voice quality.

Fusion’s growing suite of corporate services includes:

Hosted IP-PBX Fusion’s Hosted IP-PBX service allows a company to completely replace its legacy office telephone system with a state-of-the-art digital telephone system. Our feature-rich, “hosted” solution eliminates the need to own and operate a costly, complex telephone system – often reducing upfront capital costs by 50% –, and fully eliminate the cost of calls between corporate locations. This service is ideal for companies with multiple offices or highly mobile workforces, and for companies that are opening a new office or need to expand or replace existing telephone systems. Full integration with Microsoft Outlook® provides a simple method to place calls by clicking on an Outlook contact, while voicemails are delivered as emails with an attached voice message that can be played on any computer or handheld wireless device. All corporate service options can be configured by the user in real time using a personal user portal, eliminating the labor costs associated with the continuing reconfiguration of legacy telephone systems.

IP Connect IP Connect allows a company to retain and use its existing legacy telephone system, while relying on Fusion’s IP-based network to provide its local network access and domestic and international long distance service. IP Connect customers will save on their local, long distance, and international call charges, and gain the many advantages of true Internet telephony. They will eliminate the cost of interoffice calling, and combine their voice and data traffic onto a single broadband access facility for further cost savings – all without having to write off their existing technology investment.

IP Call Termination IP Call Termination allows a company to retain and use its existing legacy telephone systems, as well as its existing local network access, while leveraging Fusion’s global network to obtain the highest quality, lowest cost domestic and international long distance service. This is a service that would be used by major corporations with significant international calling.

Internet Access – Fusion offers reliable, secure and cost-effective broadband Internet Access to all users. Fiber optics, broadband over copper, and other technologies, allow us to provide Internet access at bandwidth levels ranging from T-1 (1.5 Mbps) to DS-3 (45 Mbps) and higher. Utilizing our ability to route both voice and data over the same facility, and using our Quality of Service (QoS) routers to always ensure adequate bandwidth for voice traffic, we also maximize the efficiency of the access purchased. Our strong relationships with carriers throughout the world let us provide Internet access on a global basis.

Conferencing Service Fusion’s conferencing service offers business customers a versatile online meeting experience. The simple-to-use, reservation-less service combines traditional audio conferencing with web access to let corporations communicate at any time with customers, suppliers, and partners anywhere. The service integrates with Microsoft Outlook®, offers recording capability, and even allows the user to publish recorded content as a podcast for further distribution.

Fusion Fax Fusion’s desktop fax solution allows companies to electronically send, receive, store, and print faxes using their existing email and Internet infrastructure. This advanced fax solution requires no application-specific hardware or software, and employs the latest in security capabilities. Additionally, each user account can be personally controlled through a secure web interface that controls user preferences, cover sheet design, and delivery report options.

Mobilink – Fusion offers customers traveling away from the office the ability to remotely access their service platform. Remote calls from landline or mobile telephones will be handled as if they originated from the user’s normal office telephone, will be charged at the discounted rates associated with Fusion’s corporate service rather than at typically much higher mobile rates, and will be billed to the customer on the same monthly invoice as the rest of the services provided to the customer.

Private Line Networks – Leveraging our relationships with carrier throughout the world, we offer corporate users a full range of private line services between both domestic and international locations. Services can be engineered to both U.S. (T-1) and international (E-1) standards, are available at all bandwidth levels, and can be provisioned using traditional fiber optic or satellite facilities as well as packet-based technologies. Services include traditional point-to-point networks, as well as Multi-Protocol Label Switching (MPLS) networks and Virtual Private Networks (VPN).

Data Center Services – Fusion offers its corporate users the opportunity to locate their communications or data equipment in its secure, co-location facility. This facility offers full environmental controls, battery and generator back-up power (AC and DC), 24x7 key-card access, round-the-clock monitoring, and a wide range of technical support services that can be provided by our on-site technical support personnel.

We combine services as necessary to create the precise communications package required by each customer. For example, we may use IP Connect service at a customer’s headquarters location that already has a significant investment in telecommunications hardware, yet utilize a Hosted IP-PBX solution at a new branch office location being established. Each customer is different, and we believe that our ability to uniquely tailor services to the customer’s requirements is a major part of what differentiates Fusion from the competition.

Our corporate services generally offer several different calling packages, designed to meet the needs of different users. Generally, base level plans offer a nominal monthly recurring charge (MRC) for the basic service. Additional charges, such as local, long distance, or international calling, are charged at per minute rates. Other packages with a higher MRC may include a specific number of minutes of local or long distance calling or even unlimited local or long distance calling. Optional features for our basic services are available for an incremental MRC appropriate for the service. Internet access services and/or private line services are charged on the basis of a fixed MRC for the service provided, and are generally based on the bandwidth utilized, and the endpoints of the circuit.

We have contracts with all of our corporate customers. Our contracts are typically for a one-year, two-year, or three-year terms, and have early cancellation penalties. As the majority of our contracts are for a three-year term, the average term of all contracts is approximately 2.7 years.

Carrier Services

Our carrier services include voice termination via both VoIP and traditional Time Division Multiplexing (TDM) or “circuit-switched” technology. This wholesale termination traffic consists of minutes of domestic and international long distance usage that must be terminated to telephone numbers in the intended destination countries. The majority of this traffic is international traffic, and we terminate carrier voice traffic to all countries worldwide using three distinct methods of termination:

Direct Termination Traffic routed via direct termination will travel directly from Fusion’s international gateway switch to the facilities of an interconnecting carrier in the destination country. We enter into “interconnection agreements” with such carriers, typically the dominant or secondary carrier in the applicable market. Our interconnection with the distant carrier is usually via VoIP, but may in some cases utilize leased fiber optic or satellite transmission facilities. Our direct termination agreements allow us to terminate voice traffic into that country and, in most cases, receive traffic from that country. The interconnection agreement provides for a “direct” relationship between Fusion and the interconnecting carrier and provides the maximum level of control over route quality and capacity.

Indirect Termination – Traffic routed via indirect termination will also travel from Fusion’s international gateway switch to the facilities of a carrier in the destination country. However, when utilizing indirect termination, we are sharing the interconnection arrangement and facilities with another carrier. We have dedicated capacity on the route, and significant control over quality and capacity, but do not bear the sole cost burden of the route or the sole responsibility of maximizing utilization of the route.

Transit Termination – Traffic routed via transit termination will travel from Fusion’s international gateway switch via another carrier’s switch and their international routes to the destination country. We often use multiple transit termination routes in order to obtain the best possible levels of quality and capacity for the termination of our carrier customers’ voice traffic.

All voice termination services utilize our proprietary least cost routing (LCR) technology and systems, to insure termination to the final destination at the lowest possible cost, thus maximizing our profit on that traffic. Using LCR technology, we will often “blend” routes to provide our customers with the optimal mix of price and quality, or to meet unique customer requirements for the termination of voice traffic to specific countries.

We also utilize the termination capacity obtained through our interconnection agreements and other methods of termination to carry retail traffic. As we continue to execute our strategy for the growth of our corporate business segment, we expect to use an increasing percentage of our termination capacity for our higher margin retail traffic.

We procure required Internet access and private line circuits from our global network of carriers. We also leverage our relationship with these carriers in order to provide the high quality, low cost Internet access, and private line services necessary to meet the international communications requirements of our corporate customers.

In addition to our carrier voice termination services, we provide co-location services to other communications service providers, enabling them to co-locate their equipment within our switching facility or lease a portion of our equipment located at that site. We also provide a variety of equipment maintenance and other technical services to our co-location customers. We frequently provide voice termination services to the carriers that co-locate with us.

All carrier voice termination services are priced on a per minute basis, based upon the destination called, the time of day, and the customer’s overall traffic volume. We have reciprocal agreements with many of our customers, and the pricing in those agreements may also reflect the pricing provided to us for our terminating traffic. Prices for Internet access or private line service provided to carriers, as well as pricing for co-location services, are based on a fixed MRC for the services provided.

We have contracts with all of our carrier customers. Our contracts with carriers typically have a one-year renewable term, with no minimum traffic volume per month, and allow the customer to terminate without penalty.

For the years ended December 31, 2008, and 2007, Qwest accounted for 34% and 40% of our total revenues, respectively.

Consumer Services

We have also historically offered a variety of IP-based consumer services. These services were typically sold internationally under the “Efonica” brand name or under brands owned by private label distributors. The services provided VoIP calling to consumers using a PC running Fusion’s proprietary softphone application and a wireless, broadband or dial-up Internet connection; a mobile telephone using a local “Mobilink” access number; or a variety of communications hardware devices, including Internet phones and regular phones with an Analog Terminal Adaptor (ATA) as we have now exited the consumer business, we are no longer actively offering these services.

Strategy

Our strategy is to continue to grow our existing carrier business, while accelerating the growth of our corporate business to ensure that an increasing portion of our revenues are derived from this higher margin business segment.

Corporate Segment

In our corporate segment, we are focusing on generating the rapid growth necessary to make the revenues and margin from this segment a more significant portion of total Company revenues and margin. Specifically, we will focus on the following strategies:

Expand the Direct Sales Effort – We will continue to expand the direct sales effort that we launched in the fourth quarter of 2008. We currently have direct sales personnel based in our New York headquarters, and are adding a direct sales component to our South Florida office. In the future, we intend to expand our direct sales effort to include other major metropolitan areas.

Focus on Direct Sales to Large Enterprises – In the current economy, large enterprises are particularly focused on saving costs wherever possible. This provides us with an excellent entry to some very large potential customers that previously may have been difficult to approach. We are leveraging this unique opportunity to meet with such customers in order to drive the sale of our high-volume international call termination services and global Internet access and private line networking services.

Increase the Number of Partners – We continue to seek new sales “partners” to assist in the indirect sale of our services to small and medium businesses. In particular, we are looking to attract partners that have an existing base of voice and/or data customers, partners with a significant direct sales effort and/or a network of sub-agents that can sell our products and services, and partners looking to add VoIP services to their existing product portfolio.

Increase Partner Productivity – We are working to increase the average productivity of our partners with additional training on our products and services, targeted promotions, and closer management and support. We are also seeking to add partners that have more direct control over the sale of services, including hospitality management companies, franchise companies, and other similar entities.

Increase Average Revenue per Account – We are seeking to increase the average revenue per account for both new and existing customers. We are focusing on the sale of add-on or enhanced services, including auto-attendant service, call center features, audio and web conferencing, and fax services. We are also working to increase the percentage of customers that order their broadband Internet connection from us.

Introduce New Products and Services – We intend to continue to attract new customers and drive increased revenue through the introduction of new products and services, as well as innovative and competitive new service packages.

Carrier Segment

In growing our carrier segment, we will focus on both the revenue growth and the margin growth of this segment. In particular, we will focus on the following:

Expand Direct Termination Agreements – We will seek to expand the number of international carriers with whom we interconnect on a direct basis. As we continue to grow our base of carrier business, such direct interconnections will provide the best possible levels of quality and capacity, and will maximize the revenue and margins attributable to the international traffic we terminate.

Increase Business with Existing Carrier Customers – We will seek to strengthen our relationships with existing major customers, and to maximize the traffic received from and sent to them. We believe expanding existing relationships is the best way to quickly increase revenue, and that expanding volume generally leads to more attractive pricing and margins.

Increase Sales to Non-Traditional Carriers – We will seek to expand our sales to non-traditional carriers, including cable television providers, Internet search engine companies, and large IP telephone companies. We believe the revenues streams from such entities will be more predictable and will offer better margins than the revenues from traditional domestic and international carriers.

Focus on Back-Office Automation – We will continue to automate functions that will allow us to reduce headcount or costs, thereby improving margins, and to respond more quickly to the needs of our carrier customers. In this area, we anticipate continued improvements in areas such as routing, code management, traffic monitoring and alarms, capacity management, provisioning, circuit testing, and billing.

Strengths

In executing our strategy, we believe that we will benefit from the following strengths:

Global Network Infrastructure – Our IP-based network, coupled with our interconnection to over 200 major carriers, provides the connectivity we need to service the global requirements of our corporate and carrier customers. Moreover, we are able to leverage our extensive carrier relationships in order to provide Internet access, private lines circuits, and other services to our corporate users worldwide.

Flexible, Reliable, and Scalable Services Platform – Our integrated IP services platform allows for the rapid introduction and deployment of new services, features, and functionality for our corporate users. Its redundant network elements and reliable off-the-shelf hardware allow for high quality and high service reliability and, the diversified architecture allows for scalability as well as additional network reliability.

Management, Directors, and Advisors – Our executive management team has over 100 years of industry experience, and all of our senior executives have experience working in major telecommunications enterprises as well as entrepreneurial ventures. Our active Board of Directors and Board of Advisors include recognized and leaders in business, government, finance, real estate, education, and law.

Balanced Strategy – We believe our strategy of balancing the traffic volumes, network efficiencies, interconnection agreements, and network infrastructure of our carrier business with the stability and higher margins of our corporate business will allow us to leverage the strengths of each business segment to further the growth of the other and thus accelerate our path to profitability.

Systems and Processes – Our focused and systematic approach to sales, provisioning, installation, and customer service, coupled with our expanding use of automated systems, will allow us to quickly and accurately grow our base of corporate and carrier customers, be fully responsive to the ongoing needs of those customers, and maintain the lowest possible operating costs for our business.

Sales and Marketing

We market our IP-based services, as well as our broad range of other communications services, to carriers and corporations. Our day-to-day sales and marketing efforts employ direct sales and partner sales, as well as referrals and strategic relationships.

Direct Sales

Our carrier services are generally sold through direct sales channels. We have carrier sales and international business development personnel based in the U.S., Europe, and Africa, and they are responsible for selling to and buying from our carrier partners. Our corporate services are also sold through direct sales channels. We have corporate sales personnel based at our New York headquarters and, in the near future, at our Ft. Lauderdale office.

Our direct sales personnel are experienced professionals, who generally come to us with 10+ years of sales and telecommunications experience. Most have worked for large established companies, as well as smaller entrepreneurial companies. Ongoing training on the Company, our products and services, telecommunications technology, and sales techniques are a part of each direct sales person’s weekly routine.

Our direct sales personnel are compensated on a combination of base salary and incentive compensation, with the latter being based directly on revenue generated. Each sales person has established objectives by month, and is held accountable for the achievement of those objectives.

Partner Sales

Our corporate services are also sold through independent agents or “partners,” who leverage their existing business relationships to sell our services. Our partners are compensated solely on a commission-based structure. We typically control the product, pricing, branding, technical support, billing, and collections. Our partners include interconnect companies, data service companies, value added resellers, network and IT consultants, and LAN/WAN integrators, as well as companies dedicated to the sale of IP-based communications services. In addition to local distribution and support, our partners sometimes assist in the installation of our services. As of December 31, 2008, we were represented by 40 partners located in 18 states.

Sales Referrals

For both our carrier and corporate services, we occasionally use referrals to gain our initial introduction to a potential customer. In such cases, we generally have a referral agreement with the applicable individual or entity, and will pay a referral fee in those instances where the introduction leads to a revenue producing account.

Strategic Relationships

We enter into agreements with strategic partners that wish to market and distribute our products and services. In some cases, an agreement may also provide us the ability to market the strategic partner’s products and services. The terms of these agreements differ by partner, but in general such agreements provide for the selling party to receive a commission based on sales volume or to participate in a revenue or profit sharing arrangement.

Marketing

We generally focus our marketing efforts on support of our direct and partner sales efforts. In particular, we focus on sales collateral, trade shows, and events for prospective customers. Our use of advertising is minimal.

Operations

We believe the manner in which we service customers after they have placed an order has a significant potential to differentiate us from our competitors. We rely on our people and automated systems to ensure that provisioning, installation, training, billing, and customer service provide the best possible experience for our valued customers.

The provisioning process turns a customer order into the necessary equipment and systems programming to properly deliver the specific services that were ordered. In the case of corporate VoIP services, this means verifying all order information; conducting a site survey of the customer’s location(s) and current equipment; building the proper customer profiles within our service platform; ordering and shipping required telephones, routers, and other equipment; and setting up the necessary customer records in our billing system. For Internet access or private line circuits, provisioning may include engineering the circuit design and ordering required transmission facilities from the local telephone company or an interexchange carrier. In each case, we coordinate the efforts of our centralized provisioning organization and our provisioning systems to ensure that the process occurs in the minimum possible time, and that everything is tested and ready to meet the customer’s scheduled installation date.

On the scheduled installation date, a Fusion installation technician (internal or contracted) is dispatched to the customer premise to complete the installation. Depending upon the actual service ordered, the technician may configure and install IP telephones, install a router or Internet access device, complete required cabling, install and test Internet service, or install and test private lines. It is our objective to complete the installation on the scheduled date, and leave the customer satisfied that everything has been properly installed and is performing as expected.

We believe that training the customer to take full advantage of the features and functionality of our corporate VoIP services is a critical component of the service delivery process. Thus, immediately after installation, we complete an in-depth training session with the customer – either in person, via web conferencing, or telephonically. During this training session, we train the customer’s employees on the use of their services and features, and train the service administrator on the technical details required for the ongoing administration of the service. We also provide the customer with manuals covering the set-up and operation of the phones, voice mail, user portals, etc.

Customer invoices for our corporate services are delivered electronically via email on a monthly basis. We do not send paper invoices. Invoices include full call detail, as well as a breakdown of charges, taxes, and other fees. Monthly service charges are billed in advance, and usage based charges are billed in arrears. Our use of package plans including local and/or long distance calling increases the percentage of total charges billed in advance as an MRC, thus simplifying billing for us and the customer and minimizing subsequent customer service issues. Invoices for our carrier customers may be rendered on a weekly, semi-monthly, or monthly basis, and are also delivered electronically via email. Upon request, we will also provide carriers with an electronic file of their call detail records (CDR) for analysis or invoice audit purposes.

Customer service representatives are available to our customers on a 24 x 7 basis. Corporate customers will initially contact our retail customer service center, where billing questions and most general service questions are quickly answered. Where technical questions or service related issues require further assistance, the customer will be transferred to our network operations center (NOC) for the necessary technical support. Our generally more sophisticated carrier customers will initially contact our NOC for assistance. The NOC continuously tracks real-time performance of our network, and has full access to the necessary data, systems, tools, and technical personnel required to solve any customer or network issues.

The Network

Fusion’s products and services are delivered over an advanced, IP-based communications network that leverages the latest technology and allows for the rapid introduction of new features and applications. Our service platforms are built on a distributed architecture that enables us to extend our products and services globally, delivering our voice and data services to customers worldwide. Our network operations center is manned 24 x 7, and employs state-of-the-art monitoring and alert systems that ensure quality of service and a proactive response to any potential customer service issues. Automated back-office and support systems accelerate service provisioning and allow customers to add or change services efficiently.

Our carrier-class network employs a digitized, packet-switched service platform capable of interfacing with all Internet protocols, as well as with TDM or circuit-switched systems, and providing the flexibility necessary to seamlessly transport our customers’ voice and data traffic throughout the world. Multi-peered Internet access is delivered through dedicated and redundant high-speed interconnections to all major Internet backbones. Advanced route optimization technology delivers enhanced reliability and performance by routing around network hotspots and avoiding downtime, packet loss, and latency.

Key network elements include Veraz softswitch and media gateways; BroadSoft retail services platform; Cisco media gateways, routers, and switches; and Nextone session border controllers. These redundant network elements are interconnected via a dedicated, fiber-based gigabit Ethernet backbone. Most network elements are based on software applications that execute entirely on off-the-shelf servers. Built for easy and rapid scalability, as well as security and reliability, Fusion’s service platforms minimize the capital expenditures associated with legacy switching infrastructures, allow for shorter installation intervals and faster customer provisioning, and expedite the deployment of new and innovative products and services.

Our centralized network elements are housed in our own carrier-grade switching facility, located in a secure carrier building that houses many other carriers and is interconnected to all major carrier buildings. This choice of location allows for cost-effective and rapid interconnection and capacity expansion to carrier customers and vendors, as well as major enterprise customers. We believe our choices of location and equipment offer an extensible platform to support our envisioned growth and allow us to embrace emerging technologies as they become available.

Our network architecture is highly distributable and allows us to deliver our carrier and corporate services to every part of the world, quickly and reliably. We are able to locate remote network gateways in decentralized locations throughout the world, yet control the services they deliver from our centralized facility. As a result, we believe we can capitalize on market opportunities that would previously have been uneconomical due to the expense of deployment and the associated marketplace risks.

Our direct interconnections with over 200 global carriers are managed through sophisticated routing systems that allow us to fully monitor performance and dynamically route customer traffic based on unique parameters that ensure the highest quality at the lowest cost. Unlike many retail service providers that rely on only a few carriers to deliver their customers’ traffic, Fusion can leverage the strength and depth of its carrier business to provide the greatest possible range of network and traffic termination options for its corporate customers.

Competition

The communications industry is highly competitive and significantly affected by regulatory changes, technology evolution, marketing strategies, and pricing decisions of the larger industry participants. In addition, companies offering Internet, voice, and data communications services are, in some circumstances, consolidating. Service providers generally compete on the basis of price, customer service, product quality, brand recognition, and breadth of services offered. Additionally, carriers may compete on the basis of technology. Recently, the ability to provide VoIP services has been a key differentiator. As technology evolves and legacy systems become an encumbrance, we expect carriers to compete on the basis of technological agility, and their ability to rapidly deliver new services.

Within our carrier services segment, we compete with many of the largest domestic communications carriers, including AT&T, Verizon, Qwest, IDT, and Global Crossing. Internationally, we compete with major entities such as British Telecom, Telstra, Tata Communications, Cable & Wireless, Telecom Italia, and NTT. We also compete with smaller internationally-focused carriers, including Primus, iBasis, Compass Global, Arbinet, and BTS.

In the broad arena of VoIP service providers, we compete with companies such as Vonage, CBeyond, 8x8, deltathree, and Skype. However, as Vonage, Skype, and deltathree focus primarily on consumers and very small business customers, we do not currently see them as major competitors. As we grow our presence in the corporate marketplace, we see our primary competitors as the business-focused VoIP service providers, like CBeyond and 8x8; service providers employing traditional technologies to sell into the enterprise marketplace, including PAETEC and XO Communications; cable television companies offering VoIP services, like Cox Communications and Cablevision; and the incumbent local telephone companies like AT&T, Verizon, and Qwest. We also believe that in the future, given relatively low barriers to entry, other companies may elect to compete in the VoIP services arena. While we believe our technology, back office systems, distribution relationships, and marketing skills provide us with a competitive advantage, many of our existing competitors have significantly greater resources, and more widely recognized brand names.

Government Regulation

Generally, in the United States, our services are subject to varying degrees of federal, state, and local regulation, including regulation by the Federal Communications Commission (FCC) and various state public utility commissions. We may also be subject to similar regulation by foreign governments and their telecommunications/regulatory agencies. While these regulatory agencies grant us the authority to operate our business, they typically exercise minimal control over our services and pricing. However, they do require the filing a various reports, compliance with public safety and consumer protection standards, and the payment of certain regulatory fees and assessments.

We cannot assure that the applicable U.S. and foreign regulatory agencies will grant us the required authority to operate, will allow us to maintain existing authority so we can continue to operate, or will refrain from taking action against us if we are found to have provided services without obtaining the necessary authority. Similarly, if our pricing, and/or terms or conditions of service, are not properly filed or updated with the applicable agencies, or if we are otherwise not fully compliant with the rules of the various regulatory agencies, regulators or other third parties could challenge our actions and we could be subject to forfeiture of our authority to provide service, or to penalties, fines, fees, or other costs. We have been delinquent in certain filing and reporting obligations in the past including, but not limited to, filings with the FCC and Universal Service Fund (USF) reports and payments. We are currently working with various federal and state regulatory agencies to complete any outstanding filings.

As an international carrier, we are subject to FCC regulation under the Communications Act. We have applied for and received the necessary authority under Section 214 of the Communications Act to operate as an international carrier. Generally, our international traffic is subject to minimal regulation by state and local jurisdictions.

The regulatory requirements associated with operating as a VoIP service provider are evolving, and have historically been less clear. For example, the VoIP Regulatory Freedom Act of 2004 exempted VoIP service from state taxes and regulations and defined VoIP services as “lightly regulated information services.” However, the bill reserved the ability for states to require VoIP service providers to provide 911 services, to require them to contribute to state universal service programs, and to require them to pay intrastate access charges to other telecom providers.

In April 2004 the FCC rendered a decision on an AT&T Petition for Declaratory Ruling. It determined that where 1+ calls were made from regular telephones, converted into an Internet protocol (IP) format, transported over the AT&T Internet backbone, and then converted back from their IP format and delivered to the called party through the local telephone network, the service was a “telecommunications service” for which terminating access charges were due to the local exchange carrier. The FCC limited its decision to the specific facts of the AT&T case where the type of service involved ordinary Customer Premise Equipment (CPE) with no enhanced functionality, and the calls originated and terminated on the public switched telephone network (PSTN).

Although the FCC determined the specific services provided by AT&T to be telecommunications services subject to interstate access charges rather than information services not subject to such charges, it did not make a determination regarding the regulatory status of phone-to-phone VoIP or its exposure to key public policy issues like USF, 911 Emergency Service, and the Communications Assistance for Law Enforcement Act (CALEA). The FCC further qualified the decision by stating that they in no way intended to preclude themselves from adopting a different approach when they ultimately resolved the pending IP-Enabled Services rulemaking proceeding or the Inter-Carrier Compensation rule making proceeding.

In June 2005, the FCC imposed 911 emergency service obligations on providers of “interconnected VoIP services.” The FCC also required interconnected VoIP service providers to register with the FCC, comply with CALEA, and to make USF contributions. He FCC defined interconnected VoIP service as service where the customer was connected to the local PSTN for both origination and termination of telephone calls. Under this definition, Fusion is a provider of interconnected VoIP service. We believe that our services are currently compliant with all applicable requirements of the FCC’s order, and that we have made and are making the required contributions to USF. However, should we at some time fail to meet the certain requirements or fail to make required contributions, we could be subject to revocation of our authority to operate or to fines or penalties.

Some states have tried to directly regulate VoIP services on an intrastate basis, but these attempts have, so far, not held up to court challenges. Many states are holding hearings to research and discuss the issues surrounding the regulation of VoIP services. Others are encouraging or even requesting VoIP service providers to subject themselves to public service commission jurisdiction and obtain certification as telephone companies. However, most have adopted a “wait and see” attitude. We are monitoring the actions of the various state regulatory agencies, and doing our best to see that we are in compliance with the applicable regulations, including any new regulations that may be passed. However, there can be no assurance that we are fully aware of all applicable requirements or that we will always be fully compliant. Should we fail at any time to be compliant with applicable state regulations, or to file require reports to state regulatory agencies, we could be subject to fines or other penalties.

While we believe VoIP services may be subject to additional federal, state, local, or international regulation in the future, it is uncertain when or how the effects of such regulation could affect us. If additional regulation does occur, it is possible that such regulatory agencies may impose surcharges, taxes or regulatory fees on VoIP service providers. The imposition of any such surcharges, taxes, or regulatory fees could increase our costs and thus reduce or eliminate any competitive advantage that we might enjoy today.

Intellectual Property and Trademarks

We have several trademarks and service marks, all of which are of material importance to us.

The following trademarks and service marks are registered with the United States Patent Trademark Office; however, they are not registered at the international level:

     •      Fusion Telecommunications International
     •      Diamond / Block Logo
     •      Diamond Logo
     •      Fusion
     •      Fusion Telecom
     •      efonica (logo)
     •      Efonica

The following trademarks and service marks are filed with the United States Patent Trademark Office and are currently in registration process:

     •      Fusion (logo)
     •      Hear the Difference
     •      Efo in
     •      Efonicall
     •      Efo out
     •      Worldwide Internet Area Code
     •      Internet Area Code
     •      Fusion Softphone
     •      Efonica Softphone
     •      Callgate
     •      Enumber
     •      Ecash
     •      Fusion Tel
     •      Enumber
     •      Estore

The following trademark applications were abandoned by the Company because the marks were no longer used in commerce.

     •      FTI
     •      Efocash
     •      Efostore
     •      Efofax
     •      Efobridge
     •      Efolink
     •      Efogate
     •      Efonicash
     •      Efonifax
     •      Efonica (softphone design)
     •      The Area Code of the Internet
     •      Efo
     •      IC (design only 2 squares)
     •      Freefonica
     •      Internet Phone Number
     •      Invite a Friend
     •      Efonica Software
     •      LL
     •      Members Area

The telecommunications and VoIP markets have been characterized by substantial litigation regarding patent and other intellectual property rights. Litigation, which could result in substantial cost to and diversion of our efforts, may be necessary to enforce trademarks issued to us or to determine the enforceability, scope and validity of the proprietary rights of others. Adverse determinations in any litigation or interference proceeding could subject us to costs related to changing names and a loss of established brand recognition. Recently, a competitor of ours, Vonage, was sued by Verizon, for a violation of a number of VoIP related patents. Verizon was awarded substantial monetary damages.

Employees

As of December 31, 2008, we had 71 full time employees and none of our employees are represented by a labor union. We consider our employee relations to be good, and we have never experienced a work stoppage.

Confidentiality Agreements

All our employees have signed confidentiality agreements, and it is our standard practice to require newly hired employees and, when appropriate, independent consultants, to execute confidentiality agreements. These agreements provide that the employee or consultant may not use or disclose confidential information except in the performance of his or her duties for the company, or in other limited circumstances. The steps taken by us may not, however, be adequate to prevent the misappropriation of our proprietary rights or technology.

Revenues and Assets by Geographic Area

During the years ended December 31, 2008 and 2007, 92.1% and 91.1%, respectively, of our revenue was derived from customers in the United States and 7.9% and 8.9%, respectively, from international customers. As of December 31, 2008 and 2007, 2.0% of our long-lived assets were located outside of the United States. For more information concerning our geographic concentration, see Note 18 of the Notes to Consolidated Financial Statements included elsewhere in this report.

Available Information

We are subject to the informational requirements of the Securities Exchange Commission and in accordance with those requirements file reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy the reports, proxy statements and other information that we file with the Commission under the informational requirements of the Securities Exchange Act at the Commission’s Public Reference Room at 450 Fifth Street N.W., Washington, DC 20549. Please call 1-800-SEC-0339 for information about the Commission’s Public Reference Room. The Commission also maintains a web site that contains reports, proxy and information statements, and other information regarding registrants that file electronically with the Commission. The address of the commission’s web site is http://www.sec.gov. Our web site is http://www.fusiontel.com. The information on our website is neither a part of nor incorporated by reference into this report. We make available through our web site, free of charge, our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q. Current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the Commission. Information contained on our web site is not a part of this report.

Item 1A. Risk Factors

The discussion in this annual report regarding our business and operations includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1996. Such statements consist of any statement other than a recitation of historical fact and can be identified by the use of forward-looking terminology such as “may,” “expect,” “anticipate,” “intend,” “estimate” or “continue” or the negative thereof or other variations thereof or comparable terminology. The reader is cautioned that all forward-looking statements are speculative, and there are certain risks and uncertainties that could cause actual events or results to differ from those referred to in such forward-looking statements. This disclosure highlights some of the important risks regarding our business. The number one risk of the Company is its ability to attract fresh and continued capital to execute its comprehensive business strategy. In addition, the risks included should not be assumed to be the only things that could affect future performance. Additional risks and uncertainties include the potential loss of contractual relationships, changes in the reimbursement rates for those services as well as uncertainty about the ability to collect the appropriate fees for services provided by us. We may also be subject to disruptions, delays in collections, or facilities closures caused by potential or actual acts of terrorism or government security concerns.

Risk Associated with Possible Delisting of our Securities from the NYSE Amex LLC

The Company has also recently received a notice from the Corporate Compliance Department of NYSE Amex LLC (the “Exchange”) indicating that the Company is no longer in compliance with certain of the Exchange’s continued listing standards, as set forth in Part 10 of the NYSE Amex LLC Company Guide (“Exchange Guide”), and, as a result, the Exchange intends to strike the Securities from the Exchange by filing a delisting application with the Securities and Exchange Commission (the “SEC”). The Company appealed the decision of the Exchange and an appeals hearing took place before a Listing Qualifications Panel of the Exchange on March 25, 2009. On March 30, 2009, the Appeals Panel notified the Company that it had been granted a sixty (60) day extension of time, during which it would be expected to demonstrate further progress toward compliance. The Appeals Panel will again review its decision following the conclusion of the extension period.

The Company’s Common Stock will continue to be listed on the Exchange pending a final decision of the Listing Qualifications Panel that heard the Company’s appeal. If the Company’s securities are delisted from the Exchange, the Company believes its Common Stock and Redeemable Warrants will be eligible to continue trading on the Over-the-Counter Bulletin Board, (the “OTCBB) However, notwithstanding listing on the OTCBB, delisting of our Securities from the Exchange may have certain adverse consequences, including but not limited to:

•     

potential decrease in the Company’s liquidity,


•    

potential decrease in amount and availability of external sources of capital,

•     

the possibility that our common stock will be considered a “penny stock” under Rule 3a55-1 of the Securities Exchange Act of 1934, which imposes stringent requirements on brokers and dealers when effecting transactions in “penny stocks,” and

•    

potential increase in cost of debt.

The Company’s Common Stock is currently listed on the NYSE Amex (formerly AMEX), NYSE Amex under the symbol “FSN.” In addition, our publicly-traded Redeemable Warrants are also listed on the NYSE Amex under the symbol “FSN.WS” On December 1, 2008 the Company was advised by the NYSE Amex that trading in those warrants had been halted indefinitely due to their low market price; however, trading on the warrants has since resumed.

Risks Related to Business

We have a history of operating losses and, prior to our IPO, a working capital deficit and stockholders’ deficit. There can be no assurance that we will ever achieve profitability or have sufficient funds to execute our business strategy.

There can be no assurance that any of our business strategies will be successful or that we will ever achieve profitability. At December 31, 2008, we had a working capital deficit of approximately ($8.7) million and stockholders’ equity of approximately $(4.8) million. We have continued to sustain losses from operations and for the years ended December 31, 2008, 2007, and 2006, we have incurred a net loss applicable to common stockholders of approximately $16.2 million, $13.2 million and $13.6 million, respectively. In addition, we have not generated positive cash flow from operations for the years ended December 31, 2008, 2007, and 2006. We may not be able to generate future profits and may not be able to support our operations, or otherwise establish a return on invested capital. In addition, we may not have sufficient funds to execute our business strategy, requiring us to raise funds from capital markets, consequently, diluting our common stock.

If we are unable to manage our growth or implement our expansion strategy, we may increase our costs without maximizing our revenues.

We may not be able to expand our product offerings, our client base and markets, or implement the other features of our business strategy at the rate or to the extent presently planned. Our projected growth will place a significant strain on our administrative, operational, and financial resources and may increase our costs. If we are unable to successfully manage our future growth, establish, and continue to upgrade our operating and financial control systems, recruit and hire necessary personnel or effectively manage unexpected expansion difficulties, we may not be able to maximize revenues or profitability.

The success of our continued growth is dependent upon market developments and traffic patterns, which will lead us to make expenditures that may not result in increased revenues.

Our purchase of network equipment and software will be based in part on our expectations concerning future revenue growth and market developments. As we expand our network, we will be required to make significant capital expenditures, including the purchase of additional network equipment and software, and to add additional employees. To a lesser extent our fixed costs will also increase from the ownership and maintenance of a greater amount of network equipment including our Softswitch, gateways, routers, and other related systems. If our traffic volume were to decrease, or fail to increase to the extent expected or necessary to make efficient use of our network, our costs as a percentage of revenues would increase significantly.

We may be unable to adapt to rapid technology trends and evolving industry standards, which could lead to our products becoming obsolete.

The communications industry is subject to rapid and significant changes due to technology innovation, evolving industry standards, and frequent new service and product introductions. New services and products based on new technologies or new industry standards expose us to risks of technical or product obsolescence. We will need to use technologies effectively, continue to develop our technical expertise and enhance our existing products and services in a timely manner to compete successfully in this industry. We may not be successful in using new technologies effectively, developing new products, or enhancing existing products and services in a timely manner or that any new technologies or enhancements used by us or offered to our customers will achieve market acceptance.

Some of our services are dependent upon multiple service platforms, network elements, and back-office systems that are reliant on third party providers.

We have deployed back-office systems and services platforms that enable us to offer our customers a wide-array of services and features. Sophisticated back office information and processing systems are vital to our growth and our ability to monitor costs, bill clients, provision client orders, and achieve operating efficiencies. Some of these systems are dependent upon license agreements with third party vendors. These third party vendors may cancel or refuse to renew some of these agreements, and the cancellation or non-renewal of these agreements may harm our ability to bill and provide services efficiently.

We may be impacted by recent litigation regarding patent infringement to which we were not a party.

On March 8, 2007, a jury in the U.S. District Court for the Eastern District of Virginia ruled that Vonage Holdings had infringed on three patents held by Verizon Communications, and ordered Vonage to pay Verizon $58 million plus possible future royalties. The details of the patent infringement are not yet clear, however, the patents related in part to technologies used to connect Internet telephone use to the traditional telephone network. Vonage appealed the decision. At this point, Vonage has lost that appeal. However, it is unclear what may be the future impact, if any, to other VoIP service providers, including us. If we were restricted from using certain VoIP technologies, it could increase our cost of service or preclude us from offering certain current or future services

Breaches in our network security systems may hurt our ability to deliver services and our reputation, and result in liability.

We could lose clients and expose ourselves to liability if there are any breaches to our network security systems, which could jeopardize the security of confidential information stored in our computer systems. In the last four years we experienced two known breaches of network security, which resulted in a temporary failure of network operations. Any network failure could harm our ability to deliver certain services, our reputation and subject us to liability.

Our growth is dependent upon our ability to build new distribution relationships, and to bring on new customers, of which there can be no assurance.

Our ability to grow through quick and cost effective deployment of our VoIP services is in part dependent upon our ability to identify and contract with local entities that will assist in the distribution of our services. This will include local sales agents that sell our corporate services. If we are unable to identify or contract for such distribution relationships, we may not generate the customers or revenues currently envisioned.

Our entry into new overseas markets will rely upon our ability to obtain licenses to operate in those countries, and our ability to establish good working relationships with postal telephone and telegraph companies in order to interconnect to the telephone networks. There can be no assurance of our ability to accomplish either.

The rapid growth of our network and the growth of our international distribution capabilities are dependent upon our ability to apply for and receive licenses to operate in the foreign markets we intend to enter. They are also dependent upon our ability to establish positive working relationships with foreign postal telephone and telegraph companies, and other licensed carriers, and to negotiate and execute the agreements necessary for us to interconnect with their local networks. While we will diligently pursue these relationships, we might not be able to obtain the necessary licenses and interconnections within the time frame envisioned or not at all.

The communications services industry is highly competitive and we may be unable to compete effectively.

The communications industry, including Internet and data services, is highly competitive, rapidly evolving, and subject to constant technological change and intense marketing by providers with similar products and services. We expect that new competitors, as well as gray market operators (operators who arrange call termination in a manner that bypasses the postal telephone and telegraph company, resulting in high margins for the gray market operator and substantially lower revenues for the postal telephone and telegraph company), are likely to join existing competitors in the communications industry, including the market for VoIP, Internet and data services. Many of our current competitors are significantly larger and have substantially greater market presence as well as greater financial, technical, operational, marketing and other resources and experience than we do. In the event that such a competitor expends significant sales and marketing resources in one or several markets we may not be able to compete successfully in such markets. We believe that competition will continue to increase, placing downward pressure on prices. Such pressure could adversely affect our gross margins if we are not able to reduce our costs commensurate with such price reductions. In addition, the pace of technological change makes it impossible for us to predict whether we will face new competitors using different technologies to provide the same or similar services offered or proposed to be offered by us. If our competitors were to provide better and more cost effective services than ours, we may not be able to increase our revenues or capture any significant market share.

Industry consolidation could make it more difficult for us to compete.

Companies offering Internet, data and communications services are, in some circumstances, consolidating. We may not be able to compete successfully with businesses that have combined, or will combine, to produce companies with substantially greater financial, sales and marketing resources, larger client bases, extended networks and infrastructures and more established relationships with vendors, distributors and partners than we have. With these heightened competitive pressures, there is a risk that our revenues may not grow as expected and the value of our common stock could decline.

Our ability to provide services is often dependent on our suppliers and other service providers who may not prove to be effective.

A majority of the voice calls made by our clients are connected through other communication carriers, which provide us with transmission capacity through a variety of arrangements. Our ability to terminate voice traffic in our targeted markets is an essential component of our ongoing operations. If we do not secure or maintain operating and termination arrangements, our ability to increase services to our existing markets, and gain entry into new markets, will be limited. Therefore, our ability to maintain and expand our business is dependent, in part, upon our ability to maintain satisfactory relationships with incumbent and other licensed carriers, Internet service providers, international exchange carriers, satellite providers, fiber optic cable providers and other service providers, many of which are our competitors, and upon our ability to obtain their services on a cost effective basis, as well as the ability of such carriers to carry the traffic we route to their networks or provide network capacity. If a carrier does not carry traffic routed to it, or provide required capacity, we may be forced to route our traffic to, or buy capacity from, a different carrier on less advantageous terms, which could reduce our profit margins or degrade our network service quality. In the event network service is degraded it may result in a loss of customers. To the extent that any of these carriers raise their rates, change their pricing structure, or reduce the amount of capacity they will make available to us, our revenues and profitability may be adversely affected.

We rely on third party equipment suppliers who may not be able to provide us the equipment necessary to deliver the services that we seek to provide.

We are dependent on third party equipment suppliers for equipment, software, and hardware components, including Cisco, Nextone, Broadsoft, and Veraz. If these suppliers fail to continue product development and research and development or fail to deliver quality products or support services on a timely basis, or we are unable to develop alternative sources, if and as required, it could result in our inability to deliver the services that we currently and intend to provide.

We rely on the cooperation of postal telephone and telegraph companies who may hinder our operations in certain markets.

In some cases we will require the cooperation of the postal telephone and telegraph company or another carrier in order to provide services under a license or partnership agreement. In the event the postal telephone and telegraph company or another carrier does not cooperate, our service rollout may be delayed, or the services we offer could be negatively affected. If we acquire a license for a market and the postal telephone and telegraph company or incumbent carrier desires to negatively affect our business in the area, they may be in a position to significantly delay our ability to provide services in that market and ultimately make it not worth pursuing.

If we are unable to develop and maintain successful relationships with our joint venture partners, we could fail in an important market.

We have been in the past and may be in the future engaged in certain joint ventures where we share control or management with a joint venture partner. If we are unable to maintain a successful relationship with a joint venture partner, the joint venture’s ability to move quickly and respond to changes in market conditions or respond to financial issues can erode and reduce the potential for value creation and return on investment. Further, the joint ventures may restrict or delay our ability to make important financial decisions, such as repatriating cash to us from such joint ventures. This uncertainty with our joint ventures could result in a failure in an important market

Service interruptions due to disputes could result in a loss of revenues and harm our reputation.

Portions of our terminating network may be shut down from time to time as a result of disputes with vendors or other issues. Any future network shut downs can have a significant negative impact on revenue and cash flows, as well as hurting our reputation. In addition, there is no assurance that we will be able to quickly resolve disputes, if ever, which could result in a permanent loss of revenues.

Because we do business on an international level we are subject to an increased risk of tariffs, sanctions and other uncertainties that may hurt our revenues.

There are certain risks inherent in doing business internationally, especially in emerging markets, such as unexpected changes in regulatory requirements, the imposition of tariffs or sanctions, licenses, customs, duties, other trade barriers, political risks, currency devaluations, high inflation, corporate law requirements, and even civil unrest. Many of the economies of these emerging markets are weak and volatile. We may not be able to mitigate the effect of inflation on our operations in these countries by price increases, even over the long-term. Further, expropriation of private businesses in such jurisdictions remains a possibility, whether by outright seizure by a foreign government or by confiscatory tax or other policies. Deregulation of the communications markets in developing countries may not continue. Incumbent providers, trade unions and others may resist legislation directed toward deregulation and may resist allowing us to interconnect to their network switches. The legal systems in emerging markets frequently have insufficient experience with commercial transactions between private parties. Consequently, we may not be able to protect or enforce our rights in any emerging market countries. Governments and regulations may change resulting in availability of licenses and/or cancellations or suspensions of operating licenses, confiscation of equipment and/or rate increases. The instability of the laws and regulations applicable to our businesses and their interpretation and enforcement in these markets could materially and adversely affect our business, financial condition, or results of operations.

Regulatory treatment of VoIP outside the United States varies from country to country. Some countries are considering subjecting VoIP services to the regulations applied to traditional telephone companies and they may assert that we are required to register as a telecommunications carrier in that country or impose other regulations. In such cases, our failure to register could subject us to fines, penalties, or forfeiture. Regulatory developments such as these could have a material adverse effect on our international operations.

The success of our business depends on the acceptance of the Internet in emerging markets that may be slowed by limited bandwidth, high bandwidth costs, and other technical obstacles.

The ratio of telephone lines per population, or teledensity, in most emerging countries is low when compared to developed countries. Bandwidth, the measurement of the volume of data capable of being transported in a communications system in a given amount of time, remains very expensive in these regions, especially when compared to bandwidth costs in the United States. Prices for bandwidth capacity are generally set by the government or incumbent telephone company and remain high due to capacity constraints among other things. While this trend tends to diminish as competitors roll out new bypass services, these rollouts may be slow to occur. Further, constraints in network architecture limit Internet connection speeds on conventional dial-up telephone lines, and are significantly less than the up to 1.5 megabits per second connection speed on direct satellite link or digital subscriber lines and cable modems in the United States. These speed and cost constraints may severely limit the quality and desirability of using the Internet in emerging countries and can be an obstacle to us entering emerging markets.

Additional taxation and government regulations of the communications industry may slow our growth, resulting in decreased demand for our products and services and increased costs of doing business.

We could have to pay additional taxes because our operations are subject to various taxes. We structure our operations based on assumptions about various tax laws, U.S. and international tax treaty developments, international currency exchange, capital repatriation laws, and other relevant laws by a variety of non-U.S. jurisdictions. Taxation or other authorities might not reach the same conclusions we reach. We could suffer adverse tax and other financial consequences if our assumptions about these matters are incorrect or the relevant laws are changed or modified.

Generally, in the United States, our services are subject to varying degrees of federal, state and local regulation, including regulation by the Federal Communications Commission (FCC) and various state public utility commissions. We may also be subject to similar regulation by foreign governments and their telecommunications/regulatory agencies. While these regulatory agencies grant us the authority to operate our business, they typically exercise minimal control over our services and pricing. However, they do require the filing of various reports, compliance with public safety and consumer protection standards, and the payment of certain regulatory fees and assessments.

We cannot assure that the applicable U.S. and foreign regulatory agencies will grant us the required authority to operate, will allow us to maintain existing authority so we can continue to operate, or will refrain from taking action against us if we are found to have provided services without obtaining the necessary authority. Similarly, if our pricing, and/or terms or conditions of service, are not properly filed or updated with the applicable agencies, or if we are otherwise not fully compliant with the rules of the various regulatory agencies, regulators or other third parties could challenge our actions and we could be subject to forfeiture of our authority to provide service, or to penalties, fines, fees, or other costs. We have been delinquent in certain filing and reporting obligations in the past, including, but not limited to, filings with the FCC and Universal Service Fund (USF) reports and payments. We are currently working with various federal and state regulatory agencies to complete any outstanding filings.

In addition to new regulations being adopted, existing laws may be applied to the Internet, which could hamper our growth.

New and existing laws may cover issues that include: sales and other taxes; user privacy; pricing controls; characteristics and quality of products and services; consumer protection; cross-border commerce; copyright, trademark and patent infringement; and other claims based on the nature and content of Internet materials. This could delay growth in demand for our products and services and limit the growth of our revenue.

A large percentage of our current revenues are related to one customer and loss of that customer could negatively impact our revenues.

A large percentage of our carrier services revenue is provided by a single customer. The terms of the customer’s agreement do not bind the customer contractually to continue using our services and if our business with this customer were to significantly decrease or stop, it could have a negative impact on our revenues and cash flow.

Risks Related to Our Common Stock

Voting Control by Principal Stockholders

As of December 31, 2008, our executive officers and directors collectively control approximately 27% of our outstanding common stock and, therefore are able to significantly influence the vote on matters requiring stockholder approval, including the election of directors.

We Do Not Intend to Pay Dividends on Common Stock.

We have never declared or paid any cash dividends on our common stock. We intend to retain any future earnings to finance our operations and to expand our business and, therefore, do not expect to pay any cash dividends in the foreseeable future. Holders of our outstanding preferred stock are entitled to receive dividends prior to the payment of any dividends on our common stock. The payment of dividends is also subject to provisions of Delaware law prohibiting the payment of dividends except out of surplus and certain other limitations.

Item 1B. Unresolved Staff Comments

Not applicable to a smaller reporting company.

Item 2. Properties

We are headquartered in New York, New York and lease offices and space in a number of locations. Below is a list of our leased offices and space as of December 31, 2008.

Location

Lease Expiration

 

Annual Rent

 

Purpose

 

Approx. Sq. Ft

420 Lexington Avenue, Suite 1718
New York, New York 10170

October 2015

$

463,000

(1)

Lease of principal executive offices

 

9,000

75 Broad Street
New York, New York 10007

March 2010

$

673,000

(2)

Lease of network facilities

 

15,000

1475 W. Cypress Creek Road
Suite 204
Fort Lauderdale, Florida 33309

May 2014

$

180,000

(3)

Lease of network facilities and office space

 

13,100

Premises GO2- GO3
Building No. 9
Dubai Internet City
Dubai, United Arab Emirates

December 2009

$

63,000

 

Lease of office space

 

1,300

(1)     This lease is subject to gradual increase to $509,000 from years 2008 to 2015.

(2)     This lease is subject to gradual increase to $673,000 from years 2008 to 2010.

(3)     This lease is subject to gradual increase to $215,000 from years 2008 to 2014
 

We believe that our leased facilities are adequate to meet our current needs and that additional facilities are available to meet our development and expansion needs in existing and projected target markets.

Item 3. Legal Proceedings

On July 30, 2008, a vendor that provides management consulting and software systems services filed a complaint in the Supreme Court of the State of New York (Software Synergy, Inc., v Fusion Telecommunications International, Inc., Index No. 602223/08) seeking damages in the amount of $624,594 plus $155,787 in Prejudgment interest and costs, allegedly due to the plaintiff under terms of a Professional Services Letter Agreement and Master Software License Agreement. This complaint asserts claims for relief against the Company for Breach of Contract , failure to pay to plaintiff moneys allegedly due under the terms of a Professional Services Letter Agreement (the “PSLA”), violation of the terms of a Master Software License Agreement (the “MSLA”), and Prejudgment interests and costs. The Company vigorously refutes the charges. On September 17, 2008, the Company filed a counterclaim against the vendor alleging the plaintiff materially breached its obligations to the Company under the PSLA and MSLA and is liable to the Company for damage, including full repayment of the amounts which the Company paid to the plaintiff for its failed development effort. The Company cannot accurately predict the likelihood of a favorable or unfavorable outcome or quantify the amount or range of potential financial impact, if any. Accordingly, no adjustment has been made in our accompanying financial statements because of this claim.

The Company is involved in other claims and legal actions arising in the normal course of business. Management does not expect that the outcome of these cases will have a material effect on the Company’s financial position.

Due to the regulatory nature of the industry, the Company periodically receives and responds to various correspondence and inquiries from state and federal regulatory agencies. Management does not expect the outcome on these inquiries to have a material impact on our operations or financial condition.

Item 4. Submission of Matters to a Vote of Security Holders

At our Annual Meeting of Stockholders held on December 23, 2008,three proposals were adopted by our stockholders: (1) the election of eleven Directors to our Board of Directors to serve until the next annual meeting of stockholders, (2) the approval to file an Amendment to the Company’s Certificate of Incorporation to (a) increase the total number of shares of Common Stock which the Corporation shall have authority to issue 175,000,000, and (b) eliminate the previously authorized Class A Common Stock of the Company; and (3)  and the ratification of the re-appointment of Rothstein, Kass & Company, P.C. to act as the Company’s Independent Registered Public Accountants for the fiscal year ending December 31, 2008. Each of these proposals was approved at the meeting.

The number of shares cast for and against, as well as the number of abstentions and broker non-votes as to each of these matters (other than the election of directors), is as follows:

Election of Directors

Shares For

Shares Withheld

Broker Non-Votes

 

   

0

Marvin S. Rosen

23,750,379

18,843

0

Matthew D. Rosen

23,670,286

98,936

0

Philip D. Turits

23,749,379

19,843

0

E. Alan Brumberger

23,669,286

99,936

0

Julius Erving

23,413,856

355,366

0

Evelyn Langlieb Greer

23,670,286

98,936

0

Raymond E. Mabus

23,669,286

99,936

0

Paul C. O’Brien

23,750,379

18,843

0

Michael Del Guidice

23,669,286

99,936

0

Fred P. Hochberg

23,670,286

98,936

0

Christopher D. Brady

23,670,286

98,936

0

Proposal

Shares For

Shares Against

Abstentions

Amendment to the Certificate of Incorporation providing that (a) the total number of shares of Capital Stock which the Corporation shall have authority to issue will be 185,000,000, of which 175,000,000 shares shall be Common Stock, par value $0.01 per share, and 10,000,000 shares shall be Preferred Stock, par value $0. 01 per share and (b) the current Class A Common Stock be eliminated

223,616,984

142,523

9,715

Ratification of the appointment of Rothstein, Kass & Company, P.C. as independent public accountants for the year ending December 31, 2008.

23,669,093

90,843

9,286

PART II

Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

Market Information

Our common stock is currently listed on the NYSE Amex LLC (“Exchange”) under the symbol “FSN,” and our redeemable common stock purchase warrants are listed on the Exchange under the symbol “FSN.WS.” As described elsewhere in this report, continued listing of our securities on the Exchange is subject to the outcome of a further review by a Listing Qualifications Appeals Panel that will be re-evaluating our listing compliance documentation to be provided to the Exchange in sixty days.

Prior to February 15, 2005, there was no established trading market for our common stock and redeemable common stock warrants. The following tables list the high and low sales prices for our common stock and redeemable common stock warrants for each fiscal quarter during the two preceding fiscal years.

Common Stock

Year Ended December 31, 2008

 

High

 

Low

First Quarter

$

0.44

$

.020

Second Quarter

$

0.54

$

0.20

Third Quarter

$

0.40

$

.015

Fourth Quarter

$

0.29

$

.06

Year Ended December 31, 2007

 

High

 

Low

First Quarter

$

1.29

$.

0.55

Second Quarter

$

0.80

$

0.49

Third Quarter

$

0.98

$

0.29

Fourth Quarter

$

0.82

$

0.14

Redeemable Common Stock Purchase Warrants
 

         

Year Ended December 31, 2008

 

High

 

Low

First Quarter

$

0.01

$

0.00

Second Quarter

$

0.03

$

0.00

Third Quarter

$

0.01

$

0.00

Fourth Quarter

$

0.01

$

0.00

Year Ended December 31, 2007

 

High

 

Low

First Quarter

$

0.14

$

0.01

Second Quarter

$

0.07

$

0.02

Third Quarter

$

0.06

$

0.01

Fourth Quarter

$

0.04

$

0.01

On March 17, 2009, the last reported sale price for our Common Stock on the NYSE Amex was $0.13 per share and the last reported sale price for our Redeemable Common Stock Purchase Warrants was $0..03 per warrant. The market price for our stock and warrants is highly volatile and fluctuates in response to a wide variety of factors.

Holders

As of March 17, 2009, we had approximately 330 holders of record of our Common Stock and 59 holders of record of our Redeemable Common Stock Purchase Warrants. This does not reflect beneficial ownership by individuals or entities that hold their stock in nominee or “street” name through various brokerage firms.

Dividend Policy

We have never declared or paid any cash dividends on our common stock. We do not anticipate paying any cash dividends on our common stock in the foreseeable future. We currently intend to retain future earnings, if any, to finance our operations, and to expand our business. Any future determination to pay cash dividends will be at the discretion of our Board of Directors and will be dependent upon our financial condition, operating results, capital requirements and other factors that our Board of Directors considers appropriate.

The holders of our Series A-1, A-2, A-3 and A-4 Preferred Stock are entitled to receive cumulative dividends of 8% per annum payable in arrears, when as declared by the Company’s Board of Directors, on January 1 of each year, commencing on January 1, 2008.

Issuer Purchases of Equity Securities

There have been no purchases of equity securities by the Company required to be disclosed herein.

Recent Sales of Unregistered Securities

There have been no recent sales of unregistered securities required to be disclosed in response to this Item.

Item 6. Selected Financial Data

This item is not applicable to Smaller Reporting Companies

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion of our financial condition and results of operations should be read together with our consolidated financial statements and the related notes thereto included in another part of this Annual Report. This discussion contains certain forward-looking statements, within the meaning of the Private Securities Litigation Reform Act of 1995, that involve substantial risks and uncertainties. When used in this report the words “anticipate,” “believe,” “estimate,” “expect” and similar expressions as they relate to our management or us are intended to identify such forward-looking statements. Our actual results, performance, or achievements could differ materially from those expressed in, or implied by, these forward-looking statements. Historical operating results are not necessarily indicative of the trends in operating results for any future period.

Overview

We are an international telecommunications carrier delivering VoIP services, private network, Internet access, and other advanced services to, from, in, and between emerging markets in Asia, the Middle East, Africa, Latin America, and the Caribbean. Our corporate strategy focuses our resources on customizing VoIP services to meet the demands of international communities of interest in emerging markets around the world. We seek to gain early entry in high growth emerging markets, often in partnership with local organizations that have strong distribution channels, regulatory experience, market intelligence, the ability to deliver local loops and the capability of providing customer service support. This approach enables us to introduce our Internet protocol telecommunications services in these markets, thereby benefiting from the time-to-market advantages, expanded geographic reach, and reduced capital requirements that local partnerships afford. Additionally, we have built a carrier grade retail infrastructure to expand our VoIP service and feature options and to better support the growth of our VoIP services to consumers and corporations.

The following table summarizes our results of operations for the periods indicated:

   

Years Ended December 31,

   

2008

 

2007

 

2006

Revenues

$

50,559,371

$

55,023,860

$

47,087,064

Operating expenses:

           

Cost of revenues

 

47,253,807

 

50,797,354

 

42,463,724

Depreciation and amortization

 

1,882,959

 

1,709,040

 

1,397,094

Loss on impairment

 

5,143,231

 

4,006,664

 

867,212

Selling, general and administrative

 

12,056,007

 

12,484,485

 

14,803,062

Advertising and marketing

 

108,086

 

146,471

 

1,335,745

Total operating expenses

 

66,444,090

 

69,144,014

 

60,866,837

Operating loss

 

(15,884,719)

 

(14,120,154)

 

(13,779,773)

Other income (expense):

           

Interest income

 

10,829

 

71,950

 

318,333

Interest expense

 

(327,113)

 

(88,993)

 

(114,006)

Gain (loss) on settlements of debt

 

659,991

 

618,885

 

465,854

Gain on sale of investment in Estel

 

 

937,578

 

Loss from investment in Estel

 

 

(60,000)

 

(185,234)

Other

 

(59,049)

 

(27,536)

 

44,801

Minority interests

 

 

 

67,694

Total other income (expense)

 

284,658

 

1,451,884

 

597,442

Loss from continuing operations

 

(15,600,061)

 

(12,668,270)

 

(13,182,331)

Loss from discontinued operations

 

 

 

(168,871)

Net loss

$

(15,600,061)

$

(12,668,270)

$

(13,351,202)

The following table presents our historical operating results as a percentage of revenues for the periods indicated:

 

2008

 

2007

 

2006

 

Revenues

100.0

%

100.0

%

100.0

%

Operating expenses:

           

Cost of revenues

93.5

%

92.3

%

90.2

%

Depreciation and amortization

3.7

%

3.1

%

3.0

%

Loss on impairment

10.2

%

7.3

%

1.8

%

Selling, general and administrative

23.8

%

22.7

%

31.4

%

Advertising and marketing

0.2

%

0.3

%

2.8

%

Total operating expenses

131.4

%

125.7

%

129.2

%

Operating loss

-31.4

%

-25.7

%

-29.2

%

Other income (expense):

           

Interest income

0.0

%

0.1

%

0.7

%

Interest expense

-0.6

%

-0.2

%

-0.2

%

Gain (loss) on settlement of debt

1.3

%

1.2

%

1.0

%

Gain on sale of investment in Estel

0.0

%

1.7

%

0.0

%

Loss from investment in Estel

0.0

%

-0.1

%

-0.4

%

Other

-0.1

%

0.0

%

0.1

%

Minority interests

0.0

%

0.0

%

0.1

%

Total other income (expense)

0.6

%

2.7

%

1.3

%

Loss from continuing operations

-30.8

%

-23.0

%

-27.9

%

Loss from discontinued operations

0.0

%

0.0

%

-0.4

%

Net Loss

-30.8

%

-23.0

%

-28.3

%

Revenues

Historically, we have generated the majority of our revenues from voice traffic sold to other carriers, with a primary focus in the last several years on VoIP terminations to the emerging markets. We focus on growing our existing customer base, which is primarily U.S. based, as well as the addition of new customers, and the establishment of direct VoIP terminating arrangements with telecommunication carriers in emerging markets and around the world. Although we believe that this business continues to be of value to our strategy, ongoing competitive and pricing pressures have caused us to increase our focus on higher margin, value-added services (primarily VoIP to consumers and corporations), and market them to, or in conjunction with, distribution partners on a direct, co-branded or private label basis.

In an effort to further increase margins, expand our retail customer base, and develop more stable revenue streams, we have begun to focus significant effort and resources to build our VoIP business to consumers and corporations. While this does not yet represent a significant portion of our revenue base, we expect to continue to increase our emphasis in this area. We believe that this will complement our carrier business with a higher margin and more stable customer base.

We manage our revenues by product and customer. We manage our costs by provider (vendor). We track total revenue at the customer level because our sales force has to manage the revenue generation at the customer level, and invoices are billed to and collected at the customer level. We also have to track the same revenues by product, because different products have different billing and payment terms, and individual customers may have multiple billing and payment terms if they purchase multiple products from us.

We manage our revenue segments based on gross margin, which is net revenues less cost of revenues, rather than on net profitability, due to the fact that our infrastructure is built to support all products, rather than individual products. This applies both to the capital investments made (such as switching and transmission equipment), and to Selling, General and Administrative resources. The majority of our sales and operations personnel support all product lines within their market segment, i.e. carrier, and are not separately hired to support individual product segments. For segment reporting purposes, all expenses below cost of revenues are allocated based on percentage of utilization of resources unless the items can be specifically identified to one of the product segments.

Operating Expenses

Our operating expenses are categorized as cost of revenues, depreciation, and amortization, loss on impairment, selling, general and administrative expenses, and advertising and marketing.

Cost of revenues includes costs incurred with the operation of our leased network facilities, and the purchase of voice termination and Internet protocol services from other telecommunications carriers and Internet service providers. We continue to work to lower the variable component of the cost of revenue through the use of least cost routing, and continual negotiation of usage-based and fixed costs with domestic and international service providers.

Depreciation and amortization includes depreciation of our communications network equipment, amortization of leasehold improvements of our switch locations and administrative facilities, and the depreciation of our office equipment and fixtures. In 2006, it also includes amortization of the Efonica customer list.

Selling, general, and administrative expenses include salaries and benefits, commissions, occupancy costs, sales, professional fees and other administrative expenses.

Advertising and marketing expense includes cost for promotional materials for the marketing of our retail products and services, as well as for public relations.

Year Ended December 31, 2008 Compared with Year Ended December 31, 2007.

Revenues

Consolidated revenues were $50.6 million during the twelve months ended December 31, 2008, compared to $55.0 million during the twelve months ended December 31, 2007, a decrease of $4.4 million or 8.1%.

Revenues for Carrier Services decreased by $4.2 million or 8.0%, to $49.1 million during the twelve months ended December 31, 2008 from $53.3 million during the twelve months ended December 31, 2007. Contributing to this decrease was a decrease in the blended average rate per minute, which was partially offset by an increase in the number of minutes.

Revenues for Consumers, Corporations and Other during the twelve months ended December 31, 2008 was $1.4 million, compared to $1.6 million during the twelve months ended December 31, 2007, a decrease of $0.2 million, or 12.5%. This decrease was the result of technical difficulties from prior periods impacting the consumer products, but was partially offset by growth in number of customers and revenues for corporate products.

Cost of Revenues

Consolidated cost of revenues was $47.3 million during the twelve months ended December 31, 2008, compared to $50.8 million during the twelve months ended 2007, a decrease of $3.5 million or 7.0%.

Cost of revenues for Carrier Services was $46.2 million during the twelve months ended December 31, 2008, compared to $49.5 million during the twelve months ended December 31, 2007, a decrease of $3.3 million or 6.6%. This decrease was a result of a decrease in the blended rate per minute, partially offset by an increase in the number of minutes.

Cost of revenues for Consumers, Corporations and Other during the twelve months ended December 31, 2008 was $1.0 million, compared to $1.3 million during the twelve months ended December 31, 2007, a decrease of $245,000 thousand, or 19.4%. The decrease was attributable to a decrease in the consumer product revenues, partially offset by an increase in revenues from corporate retail accounts.

The consolidated gross margin percentage for 2008 was 6.5% compared to 7.7% for 2007, with the decrease attributed to the decrease in the rates in the Carrier segment.

Operating Expenses

Depreciation and Amortization

Depreciation and amortization increased by $0.2 million or 10.2%% to $1.9 million during the twelve months ended December 31, 2008, from $1.7 million during the twelve months ended December 31, 2007. Our depreciation expense increased as more assets were placed into service during 2008.

Loss on Impairment

Loss on impairment increased by $1.1 million or 28.4% to $5.1 million during the twelve months ended December 31, 2008 from $4.0 million during the twelve months ended December 31, 2007.

During 2008, the Company commenced its annual impairment testing on its Goodwill and Other Intangible Assets. As a result of the testing, on March 20, 2009, the Company concluded a charge for impairment is required and recorded an impairment loss of approximately $ 5.0 million as of December 31, 2008 compared with the impairment loss of approximately $4.0 million recorded as of December 31, 2007. The impairment loss as of December 31, 2007 was approximately $0.1 million. Also, as of December 31, 2008, the Company recognized approximately $0.1 million impairment of assets held for sale, associated with the joint venture in Jamaica. The impairment of $0.1 million for both 2008 and 2007, relates to the Assets held for sale in Jamaica 9$129,231 each year0.

Selling, General and Administrative

Selling, general, and administrative expenses decreased $0.4 million or 3.4% to $12.1 million for the twelve months ended December 31, 2008, from $12.5 million during the twelve months ended December 31, 2007. This decrease is primarily attributed to decreases in the areas of consulting, software and equipment maintenance, and travel and entertainment, as a result of the Company’s increased focus on cost containment.

Advertising and Marketing

Advertising and marketing expenses decreased $40,000 or 27.3% to $0.1 million during 2008, from $0.14 during 2007, due to a change in sales and marketing strategies in 2008 versus 2007.

Operating Loss

Our operating loss increased $1.8 million or 12.5% to a loss of $15.9 million during 2008, from a loss of $14.1 million during 2007. The decrease in operating loss was primarily attributable to the loss on impairment.

Other Income (Expense)

Total other income (expense) decreased by $1.2 million or 80.4% to $0.3 million during 2008, from $1.5 million during 2007. The decrease is primarily attributable to the fact that in 2007 there was $0.9 million recorded from the gain on sale of investment in the Company’s Indian subsidiary as well as a $0.2 million increase in interest expense in 2008 as a result of additional financing incurred during the period.

Net Loss

Net loss increased $2.9 million, or 23.1% for the twelve months ended December 31, 2008, compared to the twelve months ended December 31, 2007. The increase in net loss is attributable to the impairment losses and, increased interest expenses and decreased gross margin experienced in 2008.

Year Ended December 31, 2007 Compared with Year Ended December 31, 2006

Revenues

Consolidated revenues were $55.0 million for 2007 compared to $47.1 million for 2006, an increase of $7.9 million or 16.9%.

Revenues for Carrier Services increased by $9.6 million, or 22.1%, to $53.3 million during 2007, from $43.6 million during 2006. The increase in revenues was the result of an increase in voice traffic as well as an increase in rates compared to 2006.

Revenues for Consumers, Corporations and Other decreased by $1.7 million, or 49.2%, to $1.7 million during 2007, from $3.4 million during 2006. The decrease was mainly due to technical difficulties encountered in the development of our Efonica retail services platform, which held back the growth of this segment, as well as the cancellation of a government contract during late 2006, and the loss of a high speed internet access arrangement with a foreign carrier.

Cost of Revenues

Consolidated costs of revenues were $50.8 million for 2007, compared to $42.5 million for 2006, an increase of $8.3 million or 19.6%. Approximately $9.4 million of this increase was attributable to an increase in voice services to carriers. This increase was partially offset by a decrease in the cost of revenues for consumer and corporate services by $1.1 million or 45.4%, which went to $1.3 million during 2007 from $2.4 million during 2006, consistent with the revenue decrease.

Consolidated gross margin percentage decreased to 8% for 2007 from 10% for 2006. The decrease in margin was primarily attributable to the issues encountered during the year in the consumer product segment.

Operating Expenses

Depreciation and Amortization.

Depreciation and amortization increased by $0.3 or 22.3% to $1.7 million during the year ended 2007 from $1.4 million, during the year ended 2006. Our depreciation increased as more assets were acquired to support the retail platform during 2006.

Loss on Impairment

During 2007, the Company commenced its annual impairment testing on its Goodwill and Other Intangible Assets. As a result of the testing, on March 20, 2008, the Company concluded a charge for impairment is required and recorded an impairment loss of approximately $4 million as of December 31, 2007. Also, during 2006, the Company wrote off approximately $277,000 goodwill recorded in connection with our Jamaican joint venture. In addition, the Company recognized approximately $591,000 impairment on its retail infrastructure equipment.

Selling, General and Administrative

Selling, general, and administrative expenses decreased $2.3 million or 15.7% to $12.5 million during 2007, from $14.8 million during 2006. This decrease was primarily attributed to decreased salaries and benefits, and other personnel related expenses, as a result of the Company’s increased focus on cost containment.

Advertising and Marketing

Advertising and marketing decreased $1.2 million, or 89%, to $0.1 million during 2007, from $1.3 million during 2006, due to a decrease in the marketing expenses associated with the consumer product segment.

Operating Loss

Our operating loss decreased by $0.2 million or 1.7%% to a loss of $13.5 million during 2007, from a loss of $13.8 million during 2006. The improvement was primarily attributable to the increased revenues and reduced selling, general and administrative expenses..

Other Income (Expense)

Total other income increased by $0.9 million or 143% to $1.5 million during 2007, from $0.6 million during 2006. The increase is primarily attributable to $0.9 million from the gain on the sale of the investment in the Indian subsidiary, and $0.2 million from a gain on settlement of debt. The increase was partially offset by the decrease in interest income due to cash being used for operating activities.

Discontinued Operations

In 2006 Fusion incurred $0.2 million in loss from discontinued operations associated with its Turkey subsidiary.

Net Loss

The net loss decreased by $0.7 million, or 5.1% for 2007, compared to 2006.The factors noted above that impacted the net operating loss were partially reduced by the positive other income.

Liquidity and Capital Resources

Since our inception, we have incurred significant operating and net losses. In addition, we are not generating positive cash flows from operations. As of December 31, 2008, we had stockholders’ equity of approximately $(4.8) million in comparison to $6.7 million at December 31, 2007, and a working capital deficit of approximately $8.7 million in comparison to working capital deficit of $4.2 million at December 31, 2007. The proceeds have been and will continue to be used for working capital and general corporate purposes, international deployment, and to fund the development of our retail service offerings. We may seek further financing through the sale of debt or equity securities, although we have no commitments to do so.

Below is a summary of our cash flows for the periods indicated. These cash flow results are consistent with prior years in that we continued to use significant cash in connection with our operating and investing activities and had significant cash provided by financing activities.

A summary of our cash flows for the periods indicated is as follows:

 

Year Ended December 31

   

2008

 

2007

 

2006

Cash used in operating activities

$

(5,099,210)

$

(7,608,589)

$

(11,343,665)

Cash used in investing activities

 

(388,157)

 

(304,615)

 

(3,693,097)

Cash provided by financing activities

 

5,830,796

 

5,284,866

 

2,989,413

Increase (decrease) in cash and cash equivalents

 

343,429

 

(2,628,338)

 

(12,047,349)

Cash and cash equivalents, beginning of period

 

114,817

 

2,743,155

 

14,790,504

Cash and cash equivalents, end of period

$

458,246

$

114,817

$

2,743,155

Source of Liquidity

As of December 31, 2008, we had cash and cash equivalents of approximately $0.5 million. In addition, as of December 31, 2008, we had approximately $0.4 million of cash restricted from withdrawal and held by banks as certificates of deposits securing letters of credit.

From our inception through December 31, 2008, we financed our operations from cash provided from financing activities. These activities provided net proceeds of approximately $23.3 million from our IPO, and the private placement of approximately $63.5 million of equity securities, $1.6 million from the exercise of stock options and warrants, and $25.6 million from the issuance of notes. In addition, since inception we have financed the acquisition of $8.2 million of fixed assets through capital leases.

Our long-term liquidity is dependent on our ability to attain future profitable operations. We cannot predict if and when we will be able to attain future profitability.

Uses of Liquidity

Our short-term and long-term liquidity needs arise primarily from interest and principal payments related to our capital lease obligations, capital expenditures, working capital requirements as may be needed to support the growth of our business, and any additional funds that may be required for business expansion opportunities.

Our cash capital expenditures were approximately, $0.4 million during 2008, $1.0 million during 2007 and $3.3 million in 2006. We expect our cash capital expenditures to be approximately $0.6 million for the year ending December 31, 2009. The 2009 estimated capital expenditures primarily consist of the continued customization of our retail infrastructure, purchase of additional software for expanded product offerings, and international deployment.

Cash used in operations was approximately $5.1 million during 2008, $7.6 million during 2007, and $11.3 million during 2006. The cash used in our operations has historically been a function of our net losses, gains on forgiveness of debt, and changes in working capital as a result of the timing of receipts and disbursements. Our net cash used in operating activities decreased significantly during 2008, primarily due to the continued focus on general expense reduction. As we continue to increase our corporate retail product focus and continue to build that revenue base, we expect our net cash used in operating activities to improve during future periods.

In some situations, we may be required to guarantee payment or performance under agreements, and in these circumstances we would need to secure letters of credit or bonds to do so.

Debt Service Requirements

At December 31, 2008 we had approximately $3.4 million of current and long-term debt. This balance relates to notes payable and our capital leases. Of this amount the portion of debt that is collateralized by a security interest in accounts receivable is $3,172,992.

Capital Instruments

In December 2006, the Company completed the first phase of a private placement for the purpose of raising working capital to fund the Company’s operations. The private placement provided for the issuance of a maximum of 10,000 shares of the Company’s newly designated Preferred Stock, Series A-1 at $1,000 per share. The total number of shares of Preferred Stock Series A-1 issued in this private placement was 3,875 shares, for which net proceeds of approximately $3.8 million were received. In addition, the Company issued five year warrants to purchase 1,160,204 shares of common stock exercisable at $1.67 per share. The terms of the Series A-1 Preferred Stock will pay dividends at 8% and are convertible into Fusion’s common stock at a fixed conversion price of $1.67 per share.

During the second quarter ended June 30, 2007, the Company completed the second phase and over-allotment of the private placement. During the second phase, the Company issued 3,375 shares of Preferred Stock, Series A-2 for net proceeds of approximately $3.375 million. In addition, the Company issued five year warrants to purchase 2,033,151 shares of common stock exercisable at $0.83 per share. The Company received an additional $0.745 million towards the over-allotment and issued 700 shares of Preferred Stock, Series A-3 and 45 shares of Preferred Stock, Series A-4 and five year Warrants to purchase 421,687 and 28,482 shares of common stock at a fixed exercise price of $0.83.and $0.79, respectively.

In November 2007, the Company commenced a private placement for the purpose of raising working capital for the Company’s operations. The private placement provided for the sale of up to $7 million of the Company’s common stock. The Company issued 2,936,321 shares of common stock for which proceeds of approximately $1.46 million were received, net of expenses of approximately $16,000. In addition, the Company issued five year warrants to purchase 1,468,161 shares of common stock exercisable at 120% of the closing price of the Company’s common stock the day before closing.

Summary of Contractual Obligations

As of December 31, 2008

   

Less Than 1 Year

 

1 – 3 Years

 

3 – 5 Years

 

More Than 5 Years

 

Total

Contractual obligations:

                   

Debt maturing within one year

$

2,362,992

$

960,000

$

$

$

3,322,992

Capital leases

 

122,960

 

 

 

 

122,960

Operating leases

 

1,379,248

 

1,485,339

 

1,375,867

 

1,031,103

 

5,271,557

Minimum purchase commitments

 

13,536

 

 

 

 

13,536

Total contractual cash obligations

$

3,878,736

$

2,445,339

$

1,375,867

$

1,031,103

$

8,731,045

Critical Accounting Policies and Estimates

We have identified the policies and significant estimation processes below as critical to our business operations and the understanding of our results of operations. The listing is not intended to be a comprehensive list. In many cases, the accounting treatment of a particular transaction is specifically dictated by accounting principles generally accepted in the United States, with no need for management’s judgment in their application. In other cases, management is required to exercise judgment in the application of accounting principles with respect to particular transactions. The impact and any associated risks related to these policies on our business operations is discussed throughout “Management’s Discussion and Analysis of Financial Condition and Results of Operations” where such policies affect reported and expected financial results. For a detailed discussion on the application of these and other accounting policies, see Note 2 in the Notes to Consolidated Financial Statements for the Year Ended December 31, 2008, included in this Annual Report on Form 10K. Our preparation of our consolidated financial statements requires us to make estimates and assumptions that affect the reported amount of assets and liabilities, disclosure of contingent assets and liabilities at the date of our consolidated financial statements, and the reported amounts of revenue and expenses during the reporting periods. Management bases its estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances. There can be no assurance that actual results will not differ from those estimates and such differences could be significant.

Revenue Recognition

Our revenue is primarily derived from fees charged to terminate voice services over our network, retail sales to consumers and corporations through our Efonica brand, and from monthly recurring charges associated with Internet and private line services.

Variable revenue is earned based on the number of minutes during a call and is recognized upon completion of a call, adjusted for allowance for doubtful accounts receivable and billing adjustments. Revenue for each customer is calculated from information received through our network switches. Customized software has been designed to track the information from the switch and analyze the call detail records against stored detailed information about revenue rates. This software provides us the ability to do a timely and accurate analysis of revenue earned in a period. Consequently, the recorded amounts are generally accurate and the recorded amounts are unlikely to be revised in the future.

Fixed revenue is earned from monthly recurring services provided to the customer that are fixed and recurring in nature, and are contracted for over a specified period of time. The initial start of revenue recognition is after the provisioning, testing and acceptance of the service by the customer. The charges continue to bill until the expiration of the contract, or until cancellation of the service by the customer.

Additionally, the majority of our VoIP services to consumers and corporations are prepaid. The revenue received from the prepayments that is related to VoIP termination services in the current month is booked to the current month’s revenue, and the remainder of the prepayments is booked to deferred revenue, until usage occurs.

Accounts Receivable

Accounts receivable are recorded net of an allowance for doubtful accounts. On a periodic basis, we evaluate our accounts receivable and record an allowance for doubtful accounts, based on our history of past write-offs and collections and current credit conditions. Specific customer accounts are written off as uncollectible if the probability of a future loss has been established and payments are not expected to be received.

Cost of Revenues and Cost of Revenues Accrual

Cost of revenues is comprised primarily of costs incurred from other domestic and international communications carriers to originate, transport, and terminate calls. The majority of our cost of revenue is variable, based upon the number of minutes of use, with transmission and termination costs being the most significant expense. Call activity is tracked and analyzed with customized software that analyzes the traffic flowing through our network switches. Each period the activity is analyzed and an accrual is recorded for minutes not invoiced. This cost accrual is calculated using minutes from the system and the variable cost of revenue based upon predetermined contractual rates.

In addition to the variable cost of revenue, there are also fixed expenses. One category of fixed expenses are those associated with the network backbone connectivity to our switch facilities. These would consist of hubbing charges at our New York switch facility that allow other carriers to send traffic to our switch, satellite or cable charges to connect to our international network, or Internet connectivity charges to connect customers or vendors to Fusion’s switch via the public Internet, a portion of which are variable costs. The other category of fixed expenses is associated with charges that are dedicated point-to-point connections to specific customers (both private line and Internet access).

Intangible Assets and Goodwill Impairment Testing

Absent any circumstances that warrant testing at another time, we test for goodwill and non-amortizing intangible asset impairment as part of our year-end closing process. Impairment losses are recorded when indicators of impairment are present based primarily upon estimated future cash flows.

Income Taxes

We account for income taxes in accordance with the provisions of SFAS No. 109, “Accounting for Income Taxes” (“SFAS 109”). SFAS 109 requires companies to recognize deferred tax liabilities and assets for the expected future income tax consequences of events that have been recognized in our consolidated financial statements. Deferred tax liabilities and assets are determined based on the temporary differences between the consolidated financial statements carrying amounts and the tax bases of assets and liabilities, using enacted tax rates in the years in which the temporary differences are expected to reverse. In assessing the likelihood of utilization of existing deferred tax assets and recording a full valuation allowance, we have considered historical results of operations and the current operating environment.

Recently Issued Accounting Pronouncements

In April 2008, the FASB issued Staff Position (FSP) No. FAS 142-3, “Determination of the Useful Life of Intangible Assets” The FSP amends the factors an entity should consider in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset under FASB Statement No. 142, Goodwill and Other Intangible Assets. The new guidance applies to (1) intangible assets that are acquired individually or with a group of other assets and (2) both intangible assets acquired in business combinations and asset acquisitions. This FSP is effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those fiscal years. Early adoption is prohibited. The company is evaluating the impact of this guidance in its consolidated financial statements.

In June 2008, the FASB issued FSP EITF 03–6–1, “Determining Whether Instruments Granted in Share–Based Payment Transactions Are Participating Securities,” to clarify that all outstanding unvested share–based payment awards that contain no forfeitable rights to dividends or dividend equivalents, whether paid or unpaid, are participating securities. An entity must include participating securities in its calculation of basic and diluted earnings per share (EPS) pursuant to the two–class method, as described in FASB Statement 128, Earnings per Share. FSP EITF 03–6–1 is effective for fiscal years beginning after December 15, 2008 and interim periods within those fiscal years. The Company is evaluating the impact that the adoption of FSP EITF 03–6–1, if any, will have on its consolidated financial statements.

In October 2008, the FASB issued FSP SFAS No. 157–3, “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active” (“FSP 157–3”), to clarify the application of the provisions of SFAS 157 in an inactive market and how an entity would determine fair value in an inactive market. FSP 157–3 was effective upon issuance and applies to Financial Assets within the scope of accounting pronouncements that require or permit fair value measurements in accordance with SFAS No. 157. The Company does not expect the adoption of FSP No. 157–3 to have a material impact on its Consolidated Financial Statements.

Inflation

We do not believe inflation has a significant effect on our operations at this time.

Off Balance Sheet Arrangements

Under SEC regulations, we are required to disclose our off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to investors. An off-balance sheet arrangement means a transaction, agreement or contractual arrangement to which any entity that is not consolidated with us is a party, under which we have:

Any obligation under certain guarantee contracts;

Any retained or contingent interest in assets transferred to an unconsolidated entity or similar arrangement that serves as credit, liquidity or market risk support to that entity for such assets;

Any obligation under a contract that would be accounted for as a derivative instrument, except that it is both indexed to our stock and classified in stockholder’s equity in our statement of financial position; and

Any obligation arising out of a material variable interest held by us in an unconsolidated entity that provides financing, liquidity, market risk or credit risk support to us, or engages in leasing, hedging or research and development services with us.

As of December 31, 2008, the Company has no off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material to investors.

Forward Looking Statements

Certain statements contained herein may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Because such statements include risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to, risks associated with the integration of businesses following an acquisition, concentration of revenue from one source, competitors with broader product lines and greater resources, emergence into new markets, the termination of any of the Company’s significant contracts or partnerships, the Company’s inability to maintain working capital requirements to fund future operations or the Company’s inability to attract and retain highly qualified management, technical and sales personnel.

Item 7A. Quantitative and Qualitative Disclosures about Market Risks

We are exposed to certain market risks that are inherent in our financial instruments. These instruments arise from transactions in the normal course of business.

As of December 31, 2008, the majority of our cash balances were held primarily in the form of a short-term highly liquid investment grade money market fund in a major financial institution. Due to the short-term nature of our investments, we believe that we are not subject to any material interest or market rate risks.

At December 31, 2008, all of our outstanding debt had fixed interest rates. As such, we are not subject to interest rate risk on any of our debt. As such, we currently believe that our interest rate risk is very low.

We currently do not conduct any significant amount of business in currencies other than the United States dollar. The reporting and functional currency for our Dubai international subsidiary is the United States dollar. Our other international subsidiaries currently do not have any significant operations that would provide foreign currency risk. However, in the future, we likely will conduct a larger percentage of our business in other foreign currencies that could have an adverse impact on our future results of operations.

Item 8. Consolidated Financial Statements and Supplementary Data

Our Consolidated Financial Statements required by this Item are included in Item 15 of this report on pages F-1 through F-30.

Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

None.

Item 9A (T). Controls and Procedure

Evaluation of Disclosure Controls and Procedures

Fusion maintains “disclosure controls and procedures,” as such term is defined in Rule 13a-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”). In designing and evaluating its disclosure controls and procedures, management recognized that disclosure controls and procedures, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the disclosure controls and procedures are met. Additionally, in designing disclosure controls and procedures, management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible disclosure controls and procedures. The design of any disclosure controls and procedures also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Based on their evaluation as of the end of the period covered by this Annual Report on Form 10-K, the Chief Executive Officer and Chief Financial Officer have concluded that Fusion’s disclosure controls and procedures were effective.

Management’s Report on Internal Control over Financial Reporting

Management is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) of the Exchange Act. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Management assessed the effectiveness of Fusion’s internal control over financial reporting as of December 31, 2008. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in Internal Control-Integrated Framework. Based on the assessment using those criteria, management concluded that the internal control over financial reporting was effective as of December 31, 2008. This annual report does not include an attestation report of the Company’s registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s registered public accounting firm pursuant to temporary rules of the Securities and Exchange Commission that permit the Company to provide only management’s report in this annual report.

Changes in Internal Control over Financial Reporting

There was no change in the internal control over financial reporting that occurred during the quarter ended December 31, 2008 that has materially affected, or is reasonably likely to materially affect, the internal control over financial reporting.

PART III

Item 10. Directors, Executive Officers and Corporate Governance

The members of the Company’s Board of Directors and Executive Officers, together with their respective ages and certain biographical information are set forth below:

Name

Age

Position

Marvin S. Rosen

68

Chairman of the Board

Philip D. Turits

75

Secretary , Treasurer and Director

Matthew D. Rosen

37

Chief Executive Officer and Director

E. Alan Brumberger

68

Director

Julius Erving

58

Director

Evelyn Langlieb Greer

57

Director

Raymond E. Mabus

59

Director

Paul C. O’Brien

69

Director

Michael J. Del Giudice

65

Director

Fred P. Hochberg

56

Director

Christopher D. Brady

52

Director

Gordon Hutchins, Jr.

59

President and Chief Operations Officer

Barbara Hughes

55

Chief Financial Officer

Jan Sarro

54

Executive Vice President – Global Sales and Marketing

Charles Whiting

54

Senior Vice President – Technical Operations

BOARD OF DIRECTORS AND EXECUTIVE OFFICERS

MARVIN S. ROSEN, 68, CHAIRMAN OF THE BOARD

Mr. Rosen co-founded the Company in 1997. He has served as the Chairman of our Board of Directors since November 2004, Chairman of our Executive Committee since September 1999, Vice Chairman of the Board of Directors from December 1998 to November 2004 and has been a member of our Board since March 1998. He served as our Chief Executive Officer from April 2000 until March 2006. Since November 1983, Mr. Rosen has been a stockholder of, and currently serves as “Of Counsel” to, the national law firm of Greenberg Traurig, P.A. where he also served on the Executive Committee until June 2000. Mr. Rosen was Finance Chairman for the Democratic National Committee from September 1995 until January 1997. Currently, he serves on the Board of Directors of the Robert F. Kennedy Memorial and Terremark Worldwide, Inc. and previously was Budget and Finance Chairman for the Summit of the Americas and Chairman of the Florida Housing Finance Agency. Mr. Rosen is also a managing partner with Diamond Edge Capital Partners, L.L.C. Mr. Rosen’s son, Matthew, is our current Chief Executive Officer, and serves on our Board of Directors.

PHILIP D. TURITS, 75, SECRETARY, TREASURER, AND DIRECTOR

Mr. Turits co-founded the Company in 1997 and has served as a Director since September 1997, Secretary since October 1997, Treasurer since March 1998, and Vice Chairman from March 1998 to December 1998. From September 1991 to February 1996, Mr. Turits served as Treasurer and Chief Operating Officer for Larry Stuart, Ltd., a consumer products company and prior to 1991; he served as President and Chief Executive Officer of Continental Chemical Company. Mr. Turits is also a Sr. Director for West End Financial Services, a principal stockholder and creditor of the Company. Mr. Turits is also a Sr. Director of West End Financial Management.

MATTHEW D. ROSEN, 37, CHIEF EXECUTIVE OFFICER AND DIRECTOR

Mr. Rosen has served as a Director since May 2005 and has been our Chief Executive Officer since March of 2006. He served as President, from March 2006 until March 2008 and Chief Operating Officer from August 2003 to March 2006, Executive Vice President and Chief Operating Officer between February 2002 and August 2003, Executive Vice President and President of Global Operations between November 2000 and January 2002 and as President of US Operations between March 2000 and November 2000. From 1998 to 2000, he held various management positions including President of the Northwest and New England Operations for Expanets, a $1.3 billion integrated network communications service provider. From 1996 to 1998 he was Corporate Director of Operations for Oxford Health Plans, a $4 billion health care company, where he worked on developing and executing turnaround strategies. Prior to his role as Corporate Director of Operations, Mr. Rosen held an executive position in a start-up healthcare technology subsidiary of Oxford where he played an integral part in developing strategy and building its sales, finance and operations departments. Prior to Oxford, Mr. Rosen was an investment banker in Merrill Lynch’s corporate finance department. Mr. Rosen is the son of our Chairman of the Board, Marvin Rosen.

E. ALAN BRUMBERGER, 68, DIRECTOR

Mr. Brumberger has served as a Director since March 1998. Currently, Mr. Brumberger is the Chief Executive Officer with Diamond Edge Capital Partners, L.L.C. He formerly was a partner in Andersen & Co. and its predecessor firms, from 1997 to 2004. From 1995 through 1997, he was a Managing Director of the Taylor Companies and from 1994 through 1995, a Managing Director of Brenner Securities, Inc. From 1983 through 1990, Mr. Brumberger was a Managing Director of Drexel Burnham Lambert and a member of the Underwriting and Commitment Committees. Prior to that, he was a Managing Director of Shearson American Express and a partner at Loeb, Rhoades & Co., a predecessor of Shearson American Express. Mr. Brumberger served for three years as President and Chief Executive Officer of Shearson American Express International Limited, the firm’s international investment banking business in London.

JULIUS ERVING, 58, DIRECTOR

Mr. Erving has served as a Director since June 2003. Mr. Erving is President of the Erving Group. Mr. Erving was employed by the National Broadcasting Company between December 1994 and June 1997, and by the National Basketball Association between 1987 and September 1997. Mr. Erving is a Trustee of the Basketball Hall of Fame.

EVELYN LANGLIEB GREER, 58, DIRECTOR

Ms. Greer has served as a Director since January 1999. Ms. Greer is the President of Greer Properties, Inc., a Florida-based real estate development company founded in 1976. She is also a partner in the law firm of Hogan, Greer & Shapiro, and P.A. Ms. Greer has been a Director of City National Bank of Florida, N.A. since 2000, a member of the Board of Trustees of Barnard College since 1994 and is Vice Chair of the Columbia Law School Board of Visitors. Since 1996, Ms. Greer has served as the elected Mayor of the Village of Pinecrest, Florida.

RAYMOND E. MABUS, 59, DIRECTOR

Mr. Mabus has served as a Director since January 1999. Currently he manages a family timber business and serves on the Board of Directors of EnerSys, Hines Horticulture, and other public, private, and non-profit charitable Boards. He was Chairman of the Board of Directors of Foamex International from February 2004 until April 2007 and served as CEO from June 2006 until April 2007. From 1998 to 2002, he served as the President of Frontline Global Resources and since 1996; he has served as of Counsel to the law firm of Baker, Donelson, Bearman, and Caldwell. From 1994 to 1996, he was the United States Ambassador to Saudi Arabia and from 1988 to 1992; he was the Governor of Mississippi.

PAUL C. O’BRIEN, 69, DIRECTOR

Mr. O’Brien has served as a Director since August 1998. Since January 1995, Mr. O’Brien has served as the President of the O’Brien Group, Inc., a consulting and investment firm. From February 1988 until December 1994, he was the President and Chairman of New England Telephone, (a subsidiary of NYNEX), a Telecommunications company. Mr. O'Brien also serves on the Board of Directors for Sonexis and Extream TV. He is also on the Advisory Board of Sovereign Bank.

MICHAEL J. DEL GIUDICE, 65, DIRECTOR

Mr. Del Giudice has served as a Director since November 2004. He is a Senior Managing Director of Millennium Credit Markets LLC and Senior Managing Director of MCM Securities LLC, both of which he co-founded in 1996. Mr. Del Giudice also serves as Chairman of Rockland Capital Energy Investments LLC, founded in April 2003. Mr. Del Giudice is a Member of the Board of Directors of Consolidated Edison Company of New York, Inc., and is currently Chairman of the Audit Committee and Lead Director of its Governance and Nominating Committee. He is also a Member of the Board of Directors of Barnes & Noble, Inc., and a Member of the Board of Trustees of the New York Racing Association. He also serves as Chairman of the Governor’s Committee on Scholastic Achievement. Mr. Del Giudice was a General Partner and Managing Director at Lazard Freres & Co. LLC from 1985 to 1995. From 1983 to 1985, Mr. Del Giudice was Chief of Staff to New York Governor Mario M. Cuomo. He served from 1979 to 1981 as Deputy Chief of Staff to Governor Hugh L. Carey and from 1975 to 1979 as Chief of Staff to the Speaker of the Assembly.

FRED P. HOCHBERG, 56, DIRECTOR

Mr. Hochberg has served as a Director since November 2004. Mr. Hochberg has been the The Dean of Milano The New School for Management and Urban Policy since January 2004. Milano is a graduate school that trains leaders for the nonprofit, public, and private sectors with a faculty who blends theory with hands-on practice, and progressive thinking with social commitment. Dean Hochberg has more than 30 years of experience in business, government, and philanthropy. From 1998 through 2001, he served as deputy then acting administrator of the Small Business Administration (SBA). Prior to joining the Clinton administration, he was President and Chief Operating Officer of the Lillian Vernon Corporation, where he led the transformation of a small family mail order company into a publicly traded direct marketing corporation, one of the great success stories of American entrepreneurship. Dean Hochberg is dedicated to community service and philanthropic involvement in civil rights, education, and the arts. He currently sits on the Boards of Directors of the Citizens Budget Commission, FINCA International Micro Finance, Seedco, and the Howard Gilman Foundation, and is an appointed representative to the NYS Financial Control Board. He is a frequent contributor to the op-ed pages of major newspapers around the country and appears in print, as well as on television and radio as a commentator on a wide spectrum of public policy issues.

CHRISTOPHER D. BRADY, 53, DIRECTOR

Mr. Brady has served as a Director since December 2008. Mr. Brady is the founding partner and Chairman of the Chart Group since 1994. With over 25 years experience in private equity, corporate finance and capital markets, Mr. Brady focuses on identifying and building portfolio companies through his extensive industry relationships and perspective. Prior to Chart, Mr. Brady was a partner with The Lodestone Group, a merger advisory and investment firm acquired by Societe Generale. He spent eleven years in the Corporate Finance and Capital Markets Departments of Lehman Brothers and Dillon Read. Mr. Brady is a Director of Templeton Emerging Markets Investment Trust PLC, Bitrage, Seamobile, U.S. Helicopter and several Chart investments and affiliates. He received a B.A. from Middlebury College and a M.B.A. from Columbia University Graduate School of Business.

GORDON HUTCHINS, JR., 59, PRESIDENT AND CHIEF OPERATING OFFICER

Mr. Hutchins has served as President and Chief Operating Officer since March 2008. Mr. Hutchins served as our Executive Vice President — Operations from December 2005 to March 2008. Prior to his employment with Fusion, Mr. Hutchins served as President and Chief Executive Officer of SwissFone, Inc., a $100 million telecommunications carrier. Prior to SwissFone, Mr. Hutchins was President and Chief Executive Officer of STAR Telecommunications, Inc., an $800 million international telecommunications carrier, where he was hired to lead the company’s restructuring following the filing of its bankruptcy petition. Mr. Hutchins has also served since 1989 as President and CEO of GH Associates, Inc., a management-consulting firm that he founded. In this capacity, he has consulted to over 100 small and large telecommunications companies throughout the world, and has held ten interim CEO/COO roles with client companies. As an entrepreneur, Mr. Hutchins also founded Telecom One, Inc., a nationwide long distance carrier that he sold to Broadwing Communications Inc., and TCO Network Services, Inc., a local wireless services carrier purchased by Winstar Communications, Inc. During his early career, Mr. Hutchins served as President and CEO of LDX NET, Inc., a fiber optic network company, and held positions with MCI, McDonnell Douglas Corporation, and AT&T.

BARBARA HUGHES, 55, CHIEF FINANCIAL OFFICER

Ms. Hughes has served as our Chief Financial Officer since May 2006. Ms. Hughes served as our Vice President of Finance from June of 2003 to May 2006, Vice President of Operations Finance between December of 2000 and June of 2003, and Finance Director from December 1999 until December of 2000. From 1996 to 1999, Ms. Hughes held various financial management positions within the international telecommunications industry including Director of Finance for TresCom International and Primus Telecommunications. Ms. Hughes also held several management positions at Federal Express Corporation in both U.S. Domestic and International Finance from 1980 to 1996, including Finance Director for the Latin American Division.

JAN SARRO, 54, EXECUTIVE VICE PRESIDENT - GLOBAL SALES AND MARKETING

Ms. Sarro has served as Executive Vice President — Global Sales and Marketing since March 2008. Ms. Sarro served as the Executive Vice President of Carrier Services from April 2005 to March 2008, and as Vice President of Sales and Marketing since March 2002. Prior to joining us, Ms. Sarro was the President of the Americas for Viatel, Inc., a global, facilities-based communications carrier and has over 20 years of experience in developing telecommunications solutions for international businesses and carriers worldwide. At Viatel, Ms. Sarro grew annual carrier revenues from $20 million to $160 million in under two years, and built a $140 million sales organization to market Internet access, corporate networks, and international voice services to multinational corporations in the United States and Latin America. Ms. Sarro has also held senior executive marketing and sales management positions at Argo Communications, the international record carriers, FTC Communications and TRT Communications, and WorldCom.

CHARLES WHITING, 55, SENIOR VICE PRESIDENT—TECHNICAL OPERATIONS

Mr. Whiting has served as Senior Vice President, Operations, Engineering, and Information Systems since January 2006. Mr. Whiting joined Fusion in August 2002, as Director, Network Planning, and Design. From October 2002 to July 2003, he served as Director of Engineering. From July 2003 to December 2004, he served as Vice President, Engineering. From December 2004 to December 2005, he served as Vice President, Engineering and IT. Mr. Whiting has been involved in the Telecommunications Industry for over 25 years. Prior to joining Fusion, Mr. Whiting was Technical Services Vice President at NetSpeak Corporation, a leading-edge developer of software products for VoIP service providers. At Qwest Communications, he led the Advanced Services Engineering team that designed and implemented Qwest’s first production VoIP network. Mr. Whiting was Senior Consulting Systems Analyst at the Online Computer Library Center, Inc. specializing in Software Development Methods, Quality Assurance, and Quality Control. He was the primary UNIX and C Language instructor/developer at the AT&T Bell System Training Center in Dublin Ohio.

BOARD OF DIRECTORS AND COMMITTEES OF THE BOARD

Board of Directors

Pursuant to our Bylaws, a resolution of the Board of Directors provides that the number of members of our Board shall be not less than seven (7) and not more than seventeen (17). There are currently eleven (11) Directors on the Board, due to the recent resignation of one Director who had other business priorities. The Company desires to maintain eleven (11) positions on the Board, and is submitting eleven names for election. At each annual Meeting of Stockholders, Directors will be elected to hold office for a term of one year until their respective successors are elected and qualified. All of the Officers identified above under Executive Officers serve at the discretion of our Board.

Board independence

The Company applies the standards of The NYSE Amex LLC, the Stock exchange upon which the Company’s Common Stock is listed, for determining the independence of the members of its Board of Directors and Board committees. The Board has determined that the following members of its Board of Directors are independent within the meaning of Section 121A of the NYSE Amex LLC Company Guide:

E. Alan Brumberger
Julius Erving
Evelyn Langlieb Greer
Raymond E. Mabus
Paul C. O'Brien
Michael J. Del Giudice
Fred P. Hochberg

COMMITTEES OF THE BOARD

The Board has established Compensation and Nominating Committee, a Strategic and Investment Banking Committee, and an Audit Committee to devote attention to specific subjects and to assist the Board in the discharge of its responsibilities. The functions of these committees and their current members are set forth below:

Compensation and Nominating Committee

Our Compensation and Nominating Committee’s (the “Compensation Committee”) main functions are (i) to review and recommend to our Board of Directors, compensation and equity plans, policies and programs and approve Executive Officer compensation, and (ii) to review and recommend to our Board of Directors the nominees for election as Directors of the Company and to review related Board of Directors development issues including succession planning and evaluation. The members of our Compensation and Nominating Committee are Michael Del Giudice – Chairman, Raymond E. Mabus, and Fred P. Hochberg, each of whom is a non-employee member of our Board of Directors. Our Board of Directors has determined that each of the Directors serving on our Compensation and Nominating Committee is independent within the existing standards of the NYSE Amex LLC. The charter of our Compensation and Nominating Committee is available on our web site www.fusiontel.com. Other than as may be required by the applicable law, the Compensation and Nominating Committee has not established any procedures for the recommendation or selection of Director Nominees by our Stockholders.

Strategic and Investment Banking Committee

The members of our Strategic and Investment Banking Committee are Marvin S. Rosen – Chairman, Michael Del Giudice, and Philip D. Turits. Our Strategic and Investment Banking Committee evaluates and recommends investment strategies with investment banks and brokerage houses and assists in the evaluation of possible acquisitions and mergers.

Audit Committee

Our Audit Committee’s main function is to oversee our accounting and financial reporting processes, internal systems of control, independent accountant relationships, the audits of our financial statements, and our compliance with the Sarbanes-Oxley Act of 2002. This Committee’s responsibilities include, among other things:

•     annually reviewing and reassessing the adequacy of the Committee’s formal charter;
•    reviewing our annual audited financial statements with our management and our independent accountants and the adequacy of our internal accounting controls;
•    reviewing analyses prepared by our management and independent accountants concerning significant financial reporting issues and judgments made in connection with the preparation of our financial statements;
•     reviewing the independence of the independent accountants;
•    reviewing our auditing and accounting principles and practices with the independent accountants and reviewing major changes to our auditing and accounting principles and practices as suggested by the independent accountant or our management;
•    selecting and recommending the appointment of the independent accountant to the Board of Directors, which firm is ultimately accountable to the Audit Committee and the Board of Directors; and
•     approving professional services provided by the independent accountant, including the range of audit and non-audit fees.

The members of our 2008 Audit Committee are Paul C. O'Brien – Chairman, Raymond E. Mabus, and Michael Del Giudice, each of whom is a non-employee member of our Board of Directors. Michael Del Giudice is our Audit Committee Financial Expert as currently defined under SEC Rules. Our Board has determined that each of the Directors serving on our Audit Committee is independent within the meaning of the Rules of the SEC and the listing standards of the NYSE Amex LLC.

Our Audit Committee’s Charter is available on our web site www.fusiontel.com, within the Investors Corp Governance section.

CODE OF CONDUCT AND ETHICS

On November 1, 2004, we adopted a Corporate Code of Conduct and Ethics applicable to all employees and Directors of the Company, including our Principal Executive Officer and Principal Financial and Accounting Officer. A copy of our Code of Ethics is available on our web site at www.fusiontel.com under the Corporate Governance within the sub-section “Investors” tab. Disclosure regarding any amendments to or waivers from, provisions of the Code of Conduct and Ethics that apply to our Directors, Principal Executive, and Financial Officer will be publicly disclosed in accordance with the applicable rules of The Securities and Exchange Commission and the NYSE Amex LLC.

SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE

Section 16 (a) of the Securities Exchange Act of 1934 requires disclosure from every person who is directly or indirectly the beneficial owners of more than ten (10) percent of any class of any equity security (other than an exempted security) which is registered pursuant to Section 12, or is a Director or an Officer of the issuer of such security, by filing the statements required by this subsection with the Commission (and, if such security is registered on a national securities exchange, also with the exchange).

As of the fiscal year ended December 31, 2008, based solely upon our review of filings with the Commission and supporting documents provided by our registered transfer agent reports we believe that all applicable reporting persons have complied with the applicable Section 16(a) reporting requirements, except that Rachel L. Mellon and Angela Arabov did not timely file a Form 3 with the SEC.

Item 11. Compensation of Directors and Executives

EXECUTIVE OFFICERS SUMMARY COMPENSATION TABLE

The following table summarizes all compensation recorded by us in each of the last two completed fiscal years for our principal executive officer, each other executive officer serving as such whose annual compensation exceeded $100,000 and up to two additional individuals for whom disclosure would have been made in this table but for the fact that the individual was not serving as an executive officer at December 31, 2008. The value attributable to any option awards is computed in accordance with FAS 123R.

Name And Principal Position

Year

 

Salary (1)

 

Bonus (1)

 

Option Awards (2)

 

All Other Compensation (3)

 

Total

Matthew D. Rosen
    Chief Executive Officer

2008

$

350,000

$

--

$

288,269

$

3,157

$

641,426

2007

$

350,000

$

--

$

187,711

$

3,157

$

540,868

Gordon Hutchins, Jr.
    President & Chief Operating Officer (4)

2008

$

220,000

 

--

$

113,626

$

387

$

334,013

2007

$

220,000

$

--

$

67,500

$

387

$

287,887

Barbara Hughes
    Chief Financial Officer

2008

$

175,000

 

--

$

33,988

$

387

$

209,375

2007

$

175,000

$

--

$

24,826

$

387

$

200,213

(1)     Included in this column are amounts earned, though not necessarily received, during the corresponding fiscal year.

(2)     Reflects the dollar amount recognized for financial statement reporting purposes for the fiscal year ended December 31, 2008, in accordance with SFAS No. 123R, of awards pursuant to the Company’s 1998 Stock Option Plan and may include amounts from awards granted both in and prior to 2008. Assumptions used in the calculation of these amounts are included in Notes 2 and 14. Pursuant to SEC rules, the amounts shown exclude the impact of estimated forfeitures related to service-based vesting conditions.

(3)     Represents life insurance.

(4)     Subsequent to fiscal year end December 31, 2007 when Mr. Hutchins was promoted to President and Chief Operating Officer.

EMPLOYMENT AGREEMENTS, TERMINATION OF EMPLOYMENT AND CHANGE-IN-CONTROL ARRANGEMENT

We currently have an employment agreement in place with Mr. Matthew Rosen, our Chief Executive Officer. Mr. Rosen's employment agreement was initiated on November 11, 2004, and amended on March 16, 2006 to extend the term until September 30, 2008, provided that the term shall extend for an additional one year unless terminated by either side on 90 days notice. As of this date, this agreement has not been terminated by either party and will automatically be extended until September 30, 2009. The agreement provides for an annual salary of not less than $350,000, with a minimum annual bonus equal to 25% of his annual salary. In the event that we achieve a positive EBITDA for two successive quarters, he will be paid a one-time bonus equal to 50% of his annual salary then in effect. In the event that the employment is terminated without cause, including by change of control, the agreement provides that Mr. Rosen will receive unpaid base salary accrued through the effective date of the termination plus any pro-rata bonus and a lump sum of 200% of his base salary and 200% of his highest annual bonus for the three years preceding his termination. If that had occurred on December 31, 2006, the amount due to Mr. Rosen would have been $975,000. The agreement also provides for a one year non-compete provision. In the event of a sale of the company for an amount in excess of $100 million, Mr. Rosen would receive a bonus equal to 2% of proceeds between $100 million and $200 million, 3% of proceeds between $200 million and $300 million, 4% of proceeds between $300 million and $400 million, and 5% of proceeds over $400 million. Mr. Rosen has voluntarily waived his bonus opportunity since December of 2006, pending improvement in the Company's financial position.

Mr. Gordon Hutchins Jr. serves as President and Chief Operating Officer of the Company. Mr. Hutchins does not have a written employment agreement with the Company. His promotion to President and Chief Operating Officer on March 26, 2008 provides for an increase in his annual salary from $220,000 to $250,000, and he will retain a targeted bonus opportunity equal to 25% of annual salary, based on achievement of corporate performance metrics. Mr. Hutchins Jr. has voluntarily waived his increase in his annual salary since March 2008, pending improvement in the Company’s financial position.

Ms. Barbara Hughes serves as the Chief Financial Officer of the Company. Ms Hughes does not have a written employment agreement with the Company. Her annual salary is $175,000 and she has a targeted bonus opportunity equal to 25% annual salary based on achievement of corporate performance metrics.

The Compensation of each officer is determined by negotiations between the Compensation Committee and those executive officers that are subject to approval by the Compensation Committee and the Board of Directors.

2008 DIRECTOR COMPENSATION

Our Directors do not receive cash compensation for their services on our Board or Board committees; however, we reimburse our Directors for out-of-pocket expenses associated with their attendance at Board of Directors’ Meetings.

DIRECTOR COMPENSATION

The following table provides information relating to compensation paid to our directors for the 2008 fiscal year.

Name

 

Fees Earned Or Paid In Cash ($)

 

Stock Awards ($)

 

Option Awards (1) ($)

 

Non-Equity Incentive Plan Compensation

 

Change In Pension Value And Nonqualified Deferred Compensation Earnings

 

All Other Compensation (3)

 

Total (3)

Marvin S. Rosen

$

$

$

1,687 (2)

$

$

$

--

   

E. Alan Brumberger

$

$

$

1,687(2)

$

$

$

   

Michael J. Del Giudice

$

$

$

1,687 (2)

$

$

$

   

Julius Erving

$

$

$

1,687 (2)

$

$

$

   

Evelyn Langlieb Greer

$

$

$

1,687 (2)

$

$

$

   

Fred Hochberg

$

$

$

1,687 (2)

$

$

$

   

Raymond E. Mabus

$

$

$

1,687 (2)

$

$

$

   

Dennis Mehiel

$

$

$

1,687 (2)

$

$

$

   

Paul C. O'Brien

$

$

$

1,687 (2)

$

$

$

   

Philip D. Turits

$

$

$

1,687 (2)

$

$

$

   

Christopher D. Brady

$

--

$

--

$

--

$

--

$

--

$

--

 

--

(1) Reflects the dollar amount recognized for financial statement reporting purposes for the fiscal year ended December 31, 2008, in accordance with SFAS No. 123R, of awards pursuant to the Company’s 1998 Stock Option Plan and may include amounts from awards granted both in and prior to 2008.

(2) Each active Director, as of March 26, 2008, with the exception of Christopher D. Brady, who joined the Board in December of 2008, was granted options to purchase 20,000 shares of our Common Stock, under our 1998 Stock Option Plan. These options have an exercise price per share of $0.31. The grant date fair value computed in accordance with SFAS No. 123R for 20,000 options granted to each Director amounted to $1,687.

(3) The table does not include reimbursement for out of pocket expenses associated with their attendance at the Board of Directors’ Meetings.

(5) The aggregate number of options held by each Director at the end of December 31, 2008 was 20,000, except for Christopher D. Brady, who had not been granted options as of the end of December 31, 2008.

STOCK OPTION PLANS

Our Board of Directors adopted the 1998 Stock Option Plan in May 1998, re-approved the Plan in November 1999, and in February 2000, our Stockholders approved the Plan. In July 2007, the numbers of shares of Common Stock available for issuance under our Plan were increased from 4,000,000 to 7,000,000.

Subsequently, in March 2009, the Board adopted the 2009 Stock Option Plan. The 2009 Stock Option Plan , is valid for a term of 10 years from the dated of approval by the Board of Directors, and the number of shares that were approved for issuance under the Plan are 7,000,000. The options granted under the Plan may be either incentive stock options or non-statutory options. Following the adoption of the 2009 Plan, all future options will be issued under the 2009 Stock Option Plan. Except as set forth above, both Plans are identical as described below. The 2009 Stock Option will be submitted to the Company Stockholders for approval at the next Annual Meeting of Stockholders.

The purposes of the Plan are: (i) to enable us to attract and retain qualified and competent employees and to enable such persons to participate in our long-term success and growth by giving them an equity interest in the Company; (ii) to enable us to use grants of Stock options in lieu of all or part of cash fees for Directors who are not Officers or employees, thereby aligning the Directors' interests with that of the Stockholders; and (iii) to provide consultants and advisors with options, thereby increasing their proprietary interest in us. Employees and Directors are eligible to be granted awards under the Plan. Consultants and advisors to Fusion are eligible to be granted awards under the Plan if their services are of a continuing nature or otherwise contribute to our long-term success and growth.

The Plan is administered by our Compensation and Nominating Committee of the Board of Directors. The Committee may adopt, alter, or repeal any administrative rules, guidelines, and practices for carrying out the purposes of the Plan, and its determination, interpretation, and construction of any provision of the Plan are final and conclusive. The Committee has the right to determine, among other things, the persons to whom awards are granted, the terms and conditions of any awards granted, the number of shares of Common Stock covered by the awards, and the exercise prices and other terms thereof.

Stock option awards are granted to new employees when they are hired based upon the employee's position and salary level. Additionally, on an annual basis, the Company aims to award option grants to executive management as well as the general employee base to reward past performance and provide incentive and motivation to achieve the plans of the Company. The Compensation Committee has an annual Meeting to review executive and upper level management performance for the past year, and to determine what amount of option grants they will consider recommending to the Board for approval for executive management, and what amount they will authorize as a block of grants to be issued to the remaining employee base. Also, throughout the year, the Chief Executive Officer may issue individual options for extraordinary performance or for an employee's promotion. Any awards for employees at salary levels of greater than $150,000 and/or options of greater than $100,000 in value require submission to the Committee for review and for their recommendation to the Board of Directors for approval.

The exercise price, term, and exercise period of each Stock option is fixed by the Committee at the time of grant. No Incentive Stock option shall have an exercise price that is less than 100% of the fair market value of the Common Stock on the date of the grant. In addition, no Stock option shall be (i) exercisable more than 10 years after the date such incentive Stock option is granted, or (ii) be granted more than 10 years after the Plan is adopted by the Board.

Most options held by employees vest over four years. Options held by Executive Officers vest over three (3) years, and options held by the Board of Directors vest over six (6) months or two (2) years. In certain cases, we have agreed to extend the duration of options granted to non-employee Directors.

Item 12. Security Ownership Of Certain Beneficial Owners And Management And Related Stockholder Matters

The following table presents information regarding the beneficial ownership of our Common Stock as of the date of this report, by:

•     each person who beneficially owns more than 5% of our Common Stock
•     each of our Directors, Director nominees and Named Executive Officers (within the meaning of Item 402(a)(3) of Regulation S-K) individually; and
•     all Executive Officers and Directors as a group.

Beneficial ownership is determined under the rules of the SEC. These rules deem Common Stock subject to options currently exercisable, or exercisable within sixty (60) days, to be outstanding for purposes of computing the percentage ownership of the person holding the options or of a group of which the person is a member, but these rules do not deem the Stock to be outstanding for purposes of computing the percentage ownership of any other person or group. To our knowledge, the persons named in the table, and the notes thereto, have sole voting and sole investment control with regard to all shares beneficially owned.

Name And Address (**) Of Beneficial Owners

 

Number Of Shares Beneficially Owned

Percentage Of Common Stock

E. Alan Brumberger

(1)

672,681

1.4%

Julius Erving

(2)

77,411

*

Michael Del Giudice

(3)

722,025

1.5%

Evelyn Langlieb Greer

(4)

233,442

*

Fred Hochberg

(5)

273,379

*

Barbara Hughes

(6)

173,748

*

Gordon Hutchins, Jr.

(7)

353,449

*

Raymond E. Mabus

(8)

53,983

*

Dennis Mehiel

(9)

963,378

2.0%

Paul C. O’Brien

(10)

175,536

*

Marvin S. Rosen

(11)

4,981,698

9.9%

Matthew D. Rosen

(12)

1,210,529

2.4%

Jan Sarro

(13)

195,622

*

Philip D. Turits

(14)

4,497,322

9.0%

Charles Whiting

(15)

104,735

*

All Directors and Executive Officers as a group

 

14,688,938

27.1%

Rachel L. Mellon

(16)

4,539,397

8.8%

Morris M. Ostin

(17)

2,702,729

5.2%

Angela Arabov

(18)

4,289,218

8.5%

West End Special Opportunity Fund II LP

(19)

4,914,180

9.8%

* Less than 1% of outstanding shares.

** Unless otherwise indicated all addresses are c/o Fusion Telecommunications International, Inc. 420 Lexington Avenue, Suite 1718, New York, NY 10170.

(1) Includes (i) 10,715 shares of Common Stock held by Trusts for which his Wife serves as Trustee, (ii) 18,037 shares of Common Stock issuable upon the exercise of Convertible Preferred Stock Series A-1 and A-2, (iii) 20,000 shares of Common Stock issuable upon the exercise of options, and (iv) 131,281 shares of Common Stock issuable upon exercise of Redeemable Common Stock Purchase Warrants.

(2) Includes (i) 20,000 shares of Common Stock issuable upon the exercise of options, (ii) 29,940 shares of Common Stock issuable upon the exercise of Convertible Preferred Stock Series A-1, and (iii) 14,971 Redeemable Common Stock Purchase Warrants.

(3) Includes (i) 20,000 shares of Common Stock issuable upon the exercise of options, (ii) 205,330 Redeemable Common Stock Purchase Warrants of which 197,430 are held in the name of Catskill Investor Group, LLC, and (iii) 230,872 shares of Common Stock issuable upon the exercise of Convertible Preferred Stock Series A-1 held in the name of Catskill Investor Group, LLC.

(4) Includes (i) 101,715 shares of Common Stock held by a trust for which she serves as trustee, (ii) 105,739 Redeemable Common Stock Purchase Warrants, (iii) 20,000 shares of Common Stock issuable upon the exercise of options, and (iv) 5,988 shares of Common Stock issuable upon the exercise of Convertible Preferred Stock Series A-1.

(5) Includes (i) 20,000 shares of Common Stock issuable upon the exercise of options, (ii) 91,675 Redeemable Common Stock Purchase Warrants, and (iii) 60,061 shares of Common Stock issuable upon exercise of Convertible Preferred Stock Series A-1 and A-2.

(6) Represents 173,748 shares of Common Stock issuable upon the exercise of options.

(7) Includes (i) 308,267 shares of Common Stock issuable upon the exercise of options, (ii) 30,121 shares of Common Stock issuable upon the exercise of Preferred Stock Series A-2, and (iii) 15,061 Redeemable Common Stock Warrants.

(8) Includes (i) 20,000 shares of Common Stock issuable upon the exercise of options, (ii) 5,998 shares of Common Stock issuable upon exercise of Convertible Preferred Series A-1, and (iii) 2,995 Redeemable Common Stock Purchase Warrants.

(9) Includes (i)20,000 shares of Common Stock issuable upon the exercise of options, (ii) 45,000 shares of Common Stock held by Four M Capital for which Mr. Mehiel has Beneficial Ownership, (iii) 129,841 Redeemable Common Stock Purchase Warrants, and (iv) 59,880 shares of Common Stock issuable upon conversion of Preferred Stock Series A-1.

(10) Includes (i) 20,000 shares of Common Stock issuable upon the exercise of options, (ii) 59,880 shares of Common Stock issuable upon conversion of Preferred Stock Series A-1, and (iii) 29,941 Redeemable Purchase Stock Warrants.

(11) Includes (i) 946,734 Redeemable Common Stock Purchase Warrants, (ii) 20,000 shares of Common Stock issuable upon the exercise of options, and (iii) 60,061 shares of Common Stock issuable upon exercise of Convertible Stock Series A-1 and A-2, and (iv) 80,500 shares of Common Stock held by Delaware Trust Custodian IRA of Mr. Rosen.

(12) Includes (i) 1,092,548shares of Common Stock issuable upon the exercise of options, (ii) 35,965 shares of Common Stock issuable upon exercise of Convertible Preferred Stock Series A-1 and A-2, and (iii) 17,984 Redeemable Common Stock Warrants.

(13) Includes (i) 177,548 shares of Common Stock issuable upon the exercise of options, (ii) 12,049 shares of Common Stock issuable upon exercise of Convertible Preferred Stock A-2, held by her husband, and (iii) 6,025 Redeemable Common Stock Purchase Warrants, held by her Husband.

(14) Includes (i) 10,715 shares of Common Stock held by a trust for which he serves as Trustee, (ii) 769,886 Redeemable Common Stock Purchase Warrants, (iii) 20,000 shares of Common Stock issuable upon the exercise of options, (iv) 51,117 shares of Common Stock issuable upon exercise of Convertible Preferred Stock A-1 and A-2, and (v) 4,286 shares of Common Stock held by his Wife. Mr. Turits has granted certain individuals options to purchase an aggregate of 21,429 shares of his Common Stock.

(15) Represents 104,735 shares of Common Stock issuable upon the exercise of options.

(16) Includes (i) 1,886,793 shares of Common Stock held by Conrock Holdings, LLC (“Conrock”) for which Rachel L. Mellon is the sole member, (ii) 260,926 shares of Common Stock held by Rachel L. Mellon, (iii) 92,858 Redeemable Common Stock Warrants held by Rachel L. Mellon, (iv) 1,395,205 Redeemable Common Stock Warrants held by Conrock for which Rachel L. Mellon is the sole member, and (v) 903,615 shares of Common Stock issuable upon exercise of Convertible Preferred Stock Series A-2 held by Conrock, for which Rachel L. Mellon. The address provided by the named Stockholder is c/o Starr & Co., LLC, 850 Third Avenue, 15th Floor, New York, New York 10022. Ms. Mellon has sole voting and dispositive power with respect to the shares beneficially owned by Conrock described above.

(17) Includes (i) 898,204 shares of Common Stock issuable upon exercise of Convertible Preferred Stock Series A–1, held by the Morris M. Ostin 2008 Annuity Trust FT and (ii) 449,102 shares of Redeemable Common Stock Purchase Warrants held by the Morris M. Ostin 2008 Annuity Trust FT, and (iii) 903,615 shares of Common Stock issuable upon exercise of Convertible Preferred Stock Series A–2, held by Ostin Revocable Trust and (iv) 451,808 shares of Redeemable Common Stock Purchase Warrants held by Ostin Revocable Trust. The address provided by the named Stockholder is c/o Irell & Manella LLP, 1800 Avenue of the Stars, Suite 900, and Los Angeles, CA 90067. Morris M. Ostin is the Grantor and the acting initial trustee of the Morris M. Ostin 2008 Annuity Trust FT. Morris M. Ostin and Rachel E. Ostin are both Grantors and Trustees of the Ostin Revocable Trust.

(18) Includes (i) 1,470,589 shares of Common Stocks held by Challenger III, LLC (“Challenger”), which is wholly–owned and controlled by Angela Arabov, (ii), 735,295 shares of Redeemable Common Stock Purchase Warrants held by Angela Arabov, (iii) 1,388,889 shares of Common Stock, and (iv) 694,445 Redeemable Purchase Stock Warrants held by Challenger, which is wholly–owned and controlled by Angela Arabov. The address provided by the named Stockholder is c/o Starr & Co., LLC, 850 Third Avenue, 15th Floor, New York, New York 10022. Ms. Arabov has sole voting and dispositive power with respect to the shares beneficially owned by Challenger described above.

(19) Includes (i) 3,716,860 shares of Common Stock and (ii) 1,197,320 Redeemable Common Stock Purchase Warrants. The address provided by the named Stockholder is 77 East 55th Street, New York, NY 10022.

Equity Compensation Plans

The following table provides certain aggregate information with respect to all of our equity compensation plans in effect for Year Ended December 31, 2008:

Plan Category

Number Of Securities To Be Issued Upon Exercise Of Outstanding Options, Warrants And Rights

 

Weighted Average Exercise Price Of Outstanding Options, Warrants And Rights

 

Number Of Securities Remaining Available For Future Issuance

Equity compensation plans approved by security holders

4,096,609

$

1.70

 

2,903,391

Total

4,096,609

$

1.70

 

2,903,391

Item 13. Certain Relationships, Related Transactions, and Director Independence

Officer and Director Loans to Company

On April 17, 2008, the Company borrowed an aggregate amount of $300,000 from two of its Directors, Philip Turits, and Marvin Rosen, as evidenced by two promissory notes. Both notes provide repayment of the principal sum together with all interest accrued from the date of execution of the Note at the rate of ten (10%) per annum upon the unpaid balance until maturity. The maturity date of these notes was May 17, 2008. These notes provide that (a) it shall constitute an event of default if the Maker shall fail to make any payment when due as set forth therein, and (b) in the event of default, the Maker will have ten (10) days to cure after written notice is received. The Company did not pay the notes on the maturity date; however, the note holders have not made a demand for payment on the Company. These notes also grant the lenders a collateralized security interest from the Company’s accounts receivable. The proceeds will be for general working capital purposes.

On May 19, 2008, the Company borrowed an aggregate amount of $50,000 from two of its Directors, Philip Turits, and Marvin Rosen, as evidenced by two promissory notes. Both notes provide for repayment of the principal sum together with all interest accrued from the date of execution of the Note at the rate of ten (10%) per annum upon the unpaid balance until maturity. The maturity date of these notes was June 30, 2008. These notes provide that (a) it shall constitute an event of default if the Maker shall fail to make any payment when due as set forth therein, and (b) in the event of default, the Maker will have ten (10) days to cure after written notice is received. The Company did not pay the notes on the maturity date; however, the note holders have not made a demand for payment on the Company. These notes also grant the lenders a collateralized security interest from the Company’s accounts receivable. The proceeds will be for general working capital purposes.

On September 18, 2008, the Company borrowed $25,000 from a Director, Philip Turits, as evidenced by a promissory note. The note provides for repayment of the principal sum together with all interest accrued from the date of execution of the Note at the rate of ten (10%) per annum upon the unpaid balance until maturity. The maturity date of this note was November 17, 2008. This note provides that (a) it shall constitute an event of default if the Maker shall fail to make any payment when due as set forth therein, and (b) in the event of default, the Maker will have ten (10) days to cure after written notice is received. The Company did not pay the note on the maturity date; however, the note holder has not made a demand for payment on the Company. This note also grants the lender a collateralized security interest from the Company’s accounts receivable. The proceeds will be for general working capital purposes.

On October 3, 2008, the Company borrowed an aggregate amount of $50,000 from two of its Directors, Philip Turits, and Marvin Rosen, as evidenced by two (2) promissory notes. Both notes provide for repayment of the principal sum together with all interest accrued from the date of execution of the Note at the rate of ten (10%) per annum upon the unpaid balance until maturity. The maturity date of these notes was December 2, 2008. These notes provide that (a) it shall constitute an event of default if the Maker shall fail to make any payment when due as set forth therein, and (b) in the event of default, the Maker will have ten (10) days to cure after written notice is received. The Company did not pay the notes on the maturity date; however, the note holders have not made a demand for payment on the Company. These notes also grant the lenders a collateralized security interest from the Company’s accounts receivable. The proceeds will be for general working capital purposes.

On October 10, 2008, the Company borrowed an aggregate amount of $85,000 from two of its Directors, Philip Turits, and Marvin Rosen, as evidenced by two (2) promissory notes. Both notes provide for repayment of the principal sum together with all interest accrued from the date of execution of the Note at the rate of ten (10%) per annum upon the unpaid balance until maturity. The maturity date of these notes was October 15, 2008. These notes provide that (a) it shall constitute an event of default if the Maker shall fail to make any payment when due as set forth therein, and (b) in the event of default, the Maker will have ten (10) days to cure after written notice is received. The Company did not pay the notes on the maturity date; however, the note holders have not made a demand for payment on the Company. These notes also grant the lenders a collateralized security interest from the Company’s accounts receivable. The proceeds will be for general working capital purposes.

On October 22, 2008 the Company borrowed $150,000 from an entity that is a shareholder of the Company. The loan is evidenced by a promissory note (which was last amended and restated on December 31, 2008) providing for repayment of the principal sum together with all interest accrued from the date of execution at the rate of ten (10%) per annum until December 31, 2008 and twelve (12%) per annum thereafter, upon the unpaid balance until maturity. The maturity date of this note is March 31, 2009. In the event that the note is not repaid by the maturity date, the note will automatically convert to a demand note, and the principal sum and all accrued interest will be payable in full upon ten days notice from the lender. The note also grants the lender a collateralized security interest in the Company’s account(s) receivable. The proceeds are being used for general working capital purposes.

On November 17, 2008 the Company borrowed $560,000 from an entity that is a shareholder of the Company. The loan is evidenced by a promissory note providing for repayment of the principal sum together with all interest accrued from the date of execution at the rate of twelve (12%) per annum upon the unpaid balance until maturity. The maturity date of this note is January 5, 2010. In the event that the note is not repaid by the maturity date, the note will automatically convert to a demand note, and the principal sum and all accrued interest will be payable in full upon ten days notice from the lender. The note also grants the lender a collateralized security interest in the Company’s account(s) receivable. The proceeds are being used for general working capital purposes.

On December 12, 2008, December 22, 2008 and December 24, 2008, the Company borrowed an aggregate amount of $400,000 from an entity that is a shareholder of the Company. The loans are evidenced by three (3) promissory notes providing for repayment of the principal sum together with all interest accrued from the date of execution at the rate of twelve (12%) per annum upon the unpaid balance until maturity. The maturity date of these notes is February 12, 2010, February 22, 2010 and February 24, 2010 respectively. In the event that the note is not repaid by the maturity date, the note will automatically convert to a demand note, and the principal sum and all accrued interest will be payable in full upon ten days notice from the lender. The note also grants the lender a collateralized security interest in the Company’s account(s) receivable. The proceeds are being used for general working capital purposes.

On December 31, 2008, the Company and a lender agreed to amend a promissory note (the “Amended Note”) originally issued October 22, 2008 (previously amended and restated on October 31, 2008) evidencing $150,000 borrowed from the lender. Under the Amended Note (i) interest on the outstanding principal balance from October 22, 2008 through December 31, 2008 shall be paid at the rate of 10% per annum, and (ii) interest on the outstanding principal balance thereafter until the date of maturity shall be paid at the rate of 12% per annum, and (iii) the maturity date of this Amendment is March 31, 2009. The Amended Note provides that in the event that the note is not repaid by the maturity date, the note will automatically convert to a demand note, and the principal sum and all accrued interest will be payable in full upon ten (10) days notice from the lender. The Amended Note also grants the lender a collateralized security interest, pari passu with other lenders, in the Company’s account(s) receivable. The proceeds are being used for general working capital purposes.

Other Transactions

We have an informal verbal agreement with Mr. John H. Sununu, the Chairman of our Advisory Board, pursuant to which Mr. Sununu will be compensated for any international business relationships, which Mr. Sununu assists us in developing. The amount, form and terms of any such compensation will depend on the business relationship developed and will be negotiated at the time any such relationship is developed.

During the year ending December 31, 2007, the Company received $120,000 from the members of its Board of Directors and Officers of the Company associated with the private placement for Preferred Stock A-2. The names and amounts are as follows:

Name

 

Amount

E. Alan Brumberger (Director)

$

10,000

 

Marvin S. Rosen (Director)

 

25,000

 

Philip D. Turits (Director)

 

30,000

 

Fred P. Hochberg (Director)

 

25,000

 

Matthew D. Rosen (Officer and Director)

 

5,000

 

Gordon Hutchins, Jr. (Officer)

 

25,000

 

Total

$

120,000

 

During the year ending December 31, 2007, the Company received $50,000 from Marvin S. Rosen and $50,000 from Philip D. Turits associated with the private placement for the Company’s Common Stock.

Director Independence

The Company applies the standards of NYSE Amex LLC (the “Exchange”), the stock exchange upon which the Company's Common Stock is listed, for determining the independence of the members of its Board of Directors and Board committees. Based upon its application of those standards, the Board of Directors has determined that the following members of our Board of Directors (and committee members, as applicable) are independent:

E. Alan Brumberger
Julius Erving
Evelyn Langlieb Greer
Raymond E. Mabus
Dennis Mehiel
Paul C. O'Brien
Michael J. DelGiudice
Fred P. Hochberg


Item 14. Principal Accounting Fees and Services

The aggregate fees billed to the Company for the years ended December 31, 2008 and 2007, by our principal accounting firm Rothstein, Kass & Company, P.C. are as follows:

Audit Related Fees: The aggregate fees billed for professional services rendered by Rothstein, Kass & Company, P.C. for the years ended December 31, 2008 and 2007, were approximately $187,500 and $205,000, respectively. These professional services included fees associated with the audit of our annual financial statements and reviews of our 2008 quarterly financial statements and certain 2007 quarterly financial statements. Audit fees in both years also include fees associated with the review of our SEC registration statements.

Tax Related Fees:   There were no fees for tax-related services for the years ended December 31, 2008 and 2007. The Company obtains tax related services from an accounting firm other than Rothstein, Kass & Company, P.C.

All Other Fees:   There were no fees for other services that were not included in the three categories above during the years ended December 31, 2008 and 2007.

POLICY ON AUDIT COMMITTEE PRE-APPROVAL OF AUDIT AND PERMISSIBLE NON-AUDIT SERVICES OF INDEPENDENT ACCOUNTANTS

Consistent with SEC policies regarding auditor independence, the Audit Committee has responsibility for appointing, setting compensation and overseeing the work of the independent accountant. In recognition of this responsibility, the Audit Committee has established a policy to pre-approve all audit and permissible non-audit services provided by the independent accountant.

Prior to engagement of the independent accounting firm for the next year's audit, management will submit an aggregate of services expected to be rendered during that year for each of three categories of services to the Audit Committee for approval.

1. Audit services include audit work performed in the preparation of financial statements, as well as work that generally only the independent accountant can reasonably be expected to provide, including comfort letters, statutory audits, and attest services and consultation regarding financial accounting and/or reporting standards.

2. Audit-Related services are for assurance and related services that are traditionally performed by the independent accountant, including due diligence related to mergers and acquisitions, employee benefit plan audits, and special procedures required to meet certain regulatory requirements.

3. Other Fees are those associated with services not captured in the other categories. The Company generally does not request such services from the independent accountant.

Prior to engagement, the Audit Committee pre-approves these services by category of service. The fees are budgeted and the Audit Committee requires the independent accountant and management to report actual fees versus the budget periodically throughout the year by category of service. During the year, circumstances may arise when it may become necessary to engage the independent accounting firm for additional services not contemplated in the original pre-approval. In those instances, the Audit Committee requires specific pre-approval before engaging the independent accountant.

The Audit Committee may delegate pre-approval authority to one or more of its members. The member to whom such authority is delegated must report, for informational purposes only, any pre-approval decisions to the Audit Committee at its next scheduled meeting.

 

PART IV

Item 15. Exhibits, Financial Statement Schedules.

(a)(1) Financial Statements.

The Consolidated Financial Statements filed as part of this Annual Report on Form 10-K are identified in the Index to Consolidated Financial Statements on page F-1 hereto.

(a)(2) Financial Statement Schedules.

Schedule II — Valuation and Qualifying Accounts is included on page F-26 hereto. All other financial statement schedules have been omitted because the information required to be set forth therein is not applicable or is shown on the financial statements or notes thereto.

(a)(3) Exhibits.

The following exhibits are filed herewith or are incorporated by reference to exhibits previously filed with the Securities and Exchange Commission.

Exhibit
No.

Description

 3.1   

Certificate of Incorporation, as amended(*)

 3.1(a)

Certificate of Designation of Series C Convertible Redeemable Preferred Stock(*)

 3.1(b)

Certificate of Designation of the Rights and Preferences of the Series A-2 Preferred Stock (6)

 3.1(c)

Certificate of Designation of the Rights and Preferences of the Series A-3 & 4 Preferred Stock (9)

 3.1(d)

Form of Subscription Agreement (7)

 3.2   

Bylaws(*)

10.1   

1998 Stock Option Plan(*)

10.2   

Employment Agreement between registrant and Matthew Rosen(*)

10.2.1 

Amended and Restated Employment Agreement between registrant and Matthew Rosen (3)

10.3   

Master Service Agreement between registrant and Terremark Worldwide, Inc., dated May 29, 2003(*)

10.5   

Joint Venture Agreement between registrant and Karamco, Inc., dated December 12, 2002(*)

10.6   

Agreement between Fusion registrant and Communications Ventures PVT. LTD, dated May 13, 2004(*)

10.7   

Form of Warrant to Purchase Common Stock(*)

10.8   

Lease Agreement between registrant and SLG Graybar Sublease, LLC for the 420 Lexington Avenue, New York, NY office(*)

10.8.1  

Lease Modification Agreement dated November 1, 2005, between registrant and SLG Graybar Sublease, LLC for the 420 Lexington Avenue, New York, NY office (8)

10.8.2  

Lease Modification Agreement dated November 1, 2005, between registrant and SLG Graybar Sublease, LLC for the 420 Lexington Avenue, New York, NY office (8)

10.8.3  

Lease Agreement dated November 1, 2005, between registrant and SLG Graybar Sublease, LLC for the 420 Lexington Avenue, New York, NY office (8)

10.9    

Lease Agreement between registrant and 67 Broad Street LLC for the 75 Broad Street, New York, NY office(*)

10.10   

Lease Agreement between registrant and Fort Lauderdale Crown Center, Inc. for the Fort Lauderdale, Florida office, as amended(*)

10.10.11

Amendment dated February 10, 2006, to Lease Agreement between registrant and Fort Lauderdale Crown Center, Inc., for the Fort Lauderdale, Florida office, as amended (8)

10.11   

Lease Agreement between Efonica FZ- LLC and Dubai Internet City for Dubai offices (8)

10.13   

Shareholders Joint Venture Agreement between registrant and Communications Ventures Index Pvt. Ltd., dated March 11, 2000(*)

10.19   

Warrant to Purchase Common Stock issued by registrant to Marvin Rosen, dated July 31, 2002(*)

10.28   

Non-Competition Agreement between registrant and Marvin Rosen(*)

10.29   

Stock Purchase Agreement between registrant, Convergent Technologies, Ltd. And the stockholders listed on Schedule 1 Attached thereto, dated December 16, 2004, as amended and restated, dated January 11, 2005(*)

10.30   

Employment Agreement between registrant and Roger Karam(*)

10.31.1 

Stock Purchase Agreement between registrant, Efonica FZ-LLC and Karamco, Inc., dated January 11, 2005 and the amendment thereto(*)

10.31.2 

Amendment to Stock Purchase Agreement between registrant, Efonica FZ-LLC and Karamco, Inc., dated March 24, 2006 (8)

10.32   

Carrier Service Agreement for International Terminating Traffic between the registrant and Qwest Communications Corporation, dated May 17, 2000(*)

10.33   

Carrier Service Agreement between registrant and Telco Group, Inc. dated April 3, 2001, as amended(*)

10.34   

Colocation License Agreement between the registrant and Telco Group, dated January 28, 2002.(*)

10.35   

International VoIP Agreement, dated April 25, 2002, as amended(*)

10.36.1 

Stock Purchase Agreement dated March 8, 2005 between FUSION TURKEY, L.L.C., LDTS UZAK MESAFE TELEKOMÜNIKASYON VE .ILETIS,IM HIZMETLERI SAN.TIC.A.S. and Bayram Ali BAYRAMOGLU; Mecit BAYRAMOGLU Mehmet; Musa BAYSAN; Yahya BAYRAMOGLU and Özlem BAYSAN. (1)

10.37   

Lease Agreement dated April 28, 2005, between Convergent Technologies Limited and Oceanic Digital Jamaica Limited (**)

10.38   

Promissory Note issued by iFreedom Communications International Holdings, Limited; iFreedom Communications Corporation; iFreedom Communications (Malaysia) Sdn. Bhd.; iFreedom Communications, Inc.; iFreedom Communications Hong Kong Limited and iFreedom UK, Ltd., jointly and severally, to Registrant. (8)

10.39   

Form of Subscription Agreement (5)

10.40   

Form of Warrant (5)

10.41   

Certificate of Designation of the Rights and Preferences of the Series A-1 Preferred Stock (5)

14      

Code of Ethics of Registrant (8)

21.1    

List of Subsidiaries (8)

31.1    

Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (4)

31.2    

Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (4)

32.1    

Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (4)

32.2    

Certification of the Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (4)

     *      Originally filed with our Registration Statement no. 33-120412 and incorporated herein by reference.

     **      Originally filed with our Registration Statement no. 33-120206 and incorporated herein by reference.

     (1)      Filed as Exhibit to our Current Report on Form 8-K filed on March 14, 2005 and incorporated herein by reference.

     (2)      Filed as Exhibit to or Annual Report on Form 10-K filed March 31, 2005 and incorporated herein by reference.

     (3)      Filed as Exhibit to our Current Report on Form 8-K filed on March 17, 2006, and incorporated herein by reference.

     (4)      Filed herewith.

     (5)      Filed as Exhibit to our Current Report on Form 8-K filed on December 15, 2006, and incorporated herein by reference.

     (6)      Filed as Exhibit to our Current Report on Form 8-K filed on May 9, 2007, and incorporated herein by reference.

     (7)      Filed as Exhibit to our Current Report on Form 8-K filed on November 23, 2007 and 8K/A on Novermber 27, 2007, and incorporated herein by reference.

     (8)      Filed as Exhibit to our Current Report on Form 10-K filed on March 31, 2006, and incorporated herein by reference.

     (9)      Identical to Certificate of Rights and Preferences of Series A-2 Preferred Strock filed as exhibit on Form 8-K on May 9, 2007.

11


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.

 

Date: March 31, 2009

 

By: /s/ MATTHEW D. ROSEN
Matthew D. Rosen
Chief Executive Officer

 

Date: March 31, 2009

 

By:/s/ BARBARA HUGHES
 Barbara Hughes
Chief Financial Officer

INDEX TO EXHIBITS

Exhibit No.

Description

31.1

Certification of the Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 and Rule 13a–14(a)/15d–14(a).

31.2

Certification of the Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 and Rule 13a–14(a)/15d–14(a).

32.1

Section 1350 Certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

12


13


FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES

Consolidated Financial Statements

Table of Contents

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM     2
consolidated balance sheets     3
consolidated statements of operations     4
consolidated statements of changes in stockholders’ equity (deficit)     5
consolidated statements of cash flow     6
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS     8

1. Nature of Operations     8
2. Summary of Significant Accounting Policies     8
3. Going Concern and Liquidity     12
4. Joint Ventures, Acquisitions, and Divestitures     12
5. Goodwill and Identifiable Intangible Assets     12
6. Prepaid Expenses and Other Current Assets     13
7. Property and Equipment     13
8. Restricted Cash     13
9. Accounts Payable and Accrued Expenses     14
10. Long-Term Debt and Capital Lease/Equipment Financing Obligations     15
11. Income Taxes and Tax Valuation Allowance     16
12. Commitments and Contingencies     18
13. Equity Transactions     19
14. Settlements of Debt     21
15. Profit Sharing Plan     22
16. Related Party Transactions     22
Concentrations of Credit Risk     23
18. Segment Information     23
19. Subsequent Events     25
20. Selected Quarterly Results (Unaudited)     25

SCHEDULE II     27

VALUATION AND QUALIFYING ACCOUNTS     27

F-1


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of Fusion Telecommunications International, Inc.

We have audited the accompanying consolidated balance sheets of Fusion Telecommunications International, Inc. and Subsidiaries (collectively, the “Company”) as of December 31, 2008 and 2007, and the related consolidated statements of operations, stockholders’ equity (deficit), and cash flows for each of the years in the three-year period ended December 31, 2008. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Fusion Telecommunications International, Inc. and Subsidiaries as of December 31, 2008 and 2007, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2008, in conformity with accounting principles generally accepted in the United States of America.

The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 3 to the consolidated financial statements, the Company has had negative working capital balances, incurred negative cash flows from operations and net losses since inception, and has limited capital to fund future operations that raises a substantial doubt about their ability to continue as a going concern. Management’s plans in regard to this matter are also described in Note 3 . The consolidated financial statements do not include any adjustment that might result from this uncertainty.

Our audits were conducted for the purpose of expressing an opinion on the basic consolidated financial statements taken as a whole. The accompanying supplementary information is presented for purpose of additional analysis and is not a required part of the basic consolidated financial statements. Such information has been subjected to the auditing procedures applied in the audits of the basic consolidated financial statements and, in our opinion, is fairly stated, in all material respects, in relation to the basic consolidated financial statements taken as a whole.

/s/ ROTHSTEIN, KASS & COMPANY, P.C.
Roseland, New Jersey
March 31, 2009

F-2


FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

   

December 31,

ASSETS

 

2008

 

2007

Current assets:

       

Cash and cash equivalents

$

458,246

$

114,817

Accounts receivable, net of allowance for doubtful accounts of approximately $659,000 and $830,000 in 2008 and 2007, respectively

 

3,330,908

 

5,545,408

Prepaid expenses and other current assets

 

329,968

 

481,556

Assets held for sale

 

--

 

129,231

Total current assets

 

4,119,122

 

6,271,012

Property and equipment, net

 

3,941,528

 

5,425,846

Other assets:

       

Security deposits

 

51,760

 

66,638

Restricted cash

 

416,566

 

416,566

Goodwill

 

--

 

964,557

Intangible assets, net

 

810,908

 

4,892,215

Other assets

 

123,440

 

91,455

Total other assets

 

1,402,674

 

6,431,431

TOTAL ASSETS

$

9,463,324

$

18,128,289

LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)

       

Current liabilities:

       

Long-term debt, current portion – non-related parties

$

1,375,000

$

150,000

Long-term debt, current portion – related parties

 

987,992

 

416,567

Capital lease/equipment financing obligations, current portion

 

122,960

 

233,759

Accounts payable and accrued expenses

 

10,283,207

 

9,663,325

Current liabilities from discontinued operations

 

13,313

 

15,829

Total current liabilities

 

12,782,472

 

10,479,480

Long-term liabilities:

       

Long-term debt, net of current portion - non-related parties

 

960,000

 

--

Long-term debt, net of current portion- related parties

 

--

 

283,433

Capital lease/equipment financing obligations, net of portion

 

--

 

10,922

Other long-term liabilities

 

485,431

 

659,271

Total long-term liabilities

 

1,445,431

 

953,626

Commitments and contingencies

       

Stockholders’ equity (deficit):

       

Preferred stock, $0.01 par value, 10,000,000 shares authorized, 7,995 shares issued and outstanding in 2008 and 2007, respectively

 

80

 

80

Common stock, $0.01 par value, 105,000,000 shares authorized, 45,750,003 and 29,907,786 shares issued and outstanding in 2008 and 2007, respectively

 

457,500

 

299,078

Capital in excess of par value

 

124,384,568

 

120,402,691

Accumulated deficit

 

(129,606,727)

 

(114,006,666)

Total stockholders’ equity (deficit)

 

(4,764,579)

 

6,695,183

TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)

$

9,463,324

$

18,128,289

See accompanying notes to the consolidated financial statements.

F-3


CONSOLIDATED STATEMENTS OF OPERATIONS

   

Years Ended December 31,

   

2008

 

2007

 

2006

Revenues

$

50,559,371

$

55,023,860

$

47,087,064

Operating expenses:

           

Cost of revenues, exclusive of depreciation and amortization, shown separately below

 

47,253,807

 

50,797,354

 

42,463,724

Depreciation and amortization

 

1,882,959

 

1,709,040

 

1,397,094

Loss on impairment of goodwill and other long-lived assets

 

5,143,231

 

4,006,664

 

867,212

Selling, general and administrative expenses
(includes approximately $617,000 and $544,000 non-cash compensation for 2008 and 2007, respectively)

 

12,056,007

 

12,484,485

 

14,803,062

Advertising and marketing

 

108,086

 

146,471

 

1,335,745

Total operating expenses

 

66,444,090

 

69,144,014

 

60,866,837

Operating loss

 

(15,884,719)

 

(14,120,154)

 

(13,779,773)

Other income (expenses):

           

Interest income

 

10,829

 

71,950

 

318,333

Interest expense

 

(327,113)

 

(88,993)

 

(114,006)

Gain on settlements of debt

 

659,991

 

618,885

 

465,854

Gain on sale of investment in Estel

 

 

937,578

 

Loss from investment in Estel

 

 

(60,000)

 

(185,234)

Other

 

(59,049)

 

(27,536)

 

44,801

Minority interests

 

 

 

67,694

Total other income (expenses)

 

284,658

 

1,451,884

 

597,442

Income (loss) from continuing operations

 

(15,600,061)

 

(12,668,270)

 

(13,182,331)

Discontinued operations:

           

Income (loss) from discontinued operations

 

 

 

(168,871)

Net loss

$

(15,600,061)

$

(12,668,270)

$

(13,351,202)

Losses applicable to Common Stockholders:

           

Loss from continuing operations

$

(15,600,061)

$

(12,668,270)

$

(13,182,331)

Preferred stock dividends in arrears

 

(641,352)

 

(572,087)

 

Net loss applicable to Common Stockholders from continuing operations:

 

(16,241,413)

 

(13,240,357)

 

(13,182,331)

Income (loss) from discontinued operations

 

 

 

(168,871)

Net loss applicable to Common Stockholders

$

(16,241,413)

$

(13,240,357)

$

(13,351,202)

Basic and diluted net loss per common share:

           

Loss from continuing operations

$

(0.44)

$

(0.48)

$

(0.49)

Income (loss) from discontinued operations

 

 

 

(0.01)

Net loss applicable to Common Stockholders

$

(0.44)

$

(0.48)

$

(0.50)

Weighted average common shares outstanding

           

Basic and diluted

 

37,274,411

 

27,314,196

 

26,737,083

See accompanying notes to the consolidated financial statements.

F-4


CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY (DEFICIT)

   

Preferred Stock

 

Common Stock

 

Common Stock Class A

 

Capital In Excess Of Par Value

 

Accumulated Deficit

 

Stockholders’ Equity (Deficit)

Balances, January 1, 2006

$

$

104,394

$

157,400

$

105,447,041

$

(87,987,194)

$

17,721,641

Proceeds from sale of Preferred Stock, Series A-1, net of

 

39

 

 

 

3,807,757

 

 

3,807,796

investment expenses

 

 

 

 

 

 

 

 

 

 

 

 

Conversion of Class A Common Stock to Common Stock

 

 

157,400

 

(157,400)

 

 

 

--

Exercise of warrants

 

  

 

143

 

  

 

357

 

  

 

500

Non-cash compensation expense – stock options

 

 

 

 

720,350

 

 

720,350

Non-cash compensation expense – stock issued for consulting services

 

 

375

 

 

99,000

 

 

99,375

 

Release of Efonica shares from escrow

 

 

6,756

 

 

4,350,742

 

 

4,357,498

Common stock issued to

 

 

522

 

 

89,478

 

 

90,000

Xtreme VoIP Corp.

   

Net loss

 

 

 

 

 

(13,351,202)

 

(13,351,202)

Balances, December 31, 2006

 

39

 

269,590

 

--

 

114,514,725

 

(101,338,396)

 

13,445,958

Proceeds from sale of Preferred Stock, Series A-2, A-3 and A-4, net of investment expenses

 

41

 

 

 

4,085,608

 

 

4,085,649

Proceeds from sale of

 

—  

 

29,363

 

—  

 

1,429,917

 

—  

 

1,459,280

Common Stock, net of

   

investment expenses

   

Difference payment related to purchase of minority interest in Efonica joint venture

 

—  

 

—  

 

—  

 

(171,852)

 

—  

 

(171,852)

Non-cash compensation

 

—  

 

—  

 

—  

 

511,293

 

—  

 

511,293

expense – stock options

   

Non-cash compensation

 

—  

 

125

 

—  

 

33,000

 

—  

 

33,125

expense – stock issued for consulting services

   

Net loss

 

—  

 

—  

 

—  

 

—  

 

(12,668,270)