UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 10-Q
 
(Mark One)
 
 
þ     QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
 
For the quarterly period ended March 31, 2012
 
o    TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES 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 its 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
(Registrants telephone number, including area code)
 
Indicate by check mark whether the issuer (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act 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 þ  No o
 
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  
 
Yes þ  No 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. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
 
Large accelerated filer
o
Accelerated filer
o
Non-accelerated filer 
 (Do not check if smaller reporting company)
o
Smaller reporting company
þ
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b—2 of the Exchange Act.      Yes o No  þ
 
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date: May 8, 2012.
 
Title Of Each Class
 
Number of Shares Outstanding
Common Stock, $0.01 par value
 
166,432,351
 


 
 

 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
TABLE OF CONTENTS
 
Part 1
Financial Information.
    3  
           
Item 1. 
Financial Statements.
    3  
Item 2.
Management’s Discussion and Analysis of Financial Condition and Results of Operations.
    16  
Item 3.
Quantitative and Qualitative Disclosures About Market Risk.
    24  
Item 4.
Controls and Procedures.
    24  
           
Part II
Other Information.
    25  
           
Item 1. 
Legal Proceedings.
    25  
Item 1A.
Risk Factors.
    25  
Item 2. 
Unregistered Sales of Equity Securities and Use of Proceeds.
    35  
Item 3. 
Defaults Upon Senior Securities.
    36  
Item 4.
Mine Safety Disclosures.
    36  
Item 5. 
Other Information.
    36  
Item 6.
Exhibits.
    37  
Signatures.
    38  
Index to Exhibits.
       
 
 
2

 

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
PART 1 FINANCIAL INFORMATION
 

ITEM 1. FINANCIAL STATEMENTS.
  
Condensed Consolidated Balance Sheets

   
March 31, 2012
   
December 31, 2011
 
   
(unaudited)
       
ASSETS
           
Current assets:
           
Cash and cash equivalents
  $ 26,967     $ 3,047  
Accounts receivable, net of allowance for doubtful accounts of
               
approximately $271,000 and $245,000, respectively
    1,668,500       2,400,427  
Prepaid expenses and other current assets
    469,141       388,343  
Total current assets
    2,164,608       2,791,817  
Property and equipment, net
    839,096       831,402  
Other assets:
               
Security deposits
    437,141       437,141  
Restricted cash
    299,536       299,536  
Intangible assets, net
    136,526       165,578  
Other assets
    24,338       31,494  
Total other assets
    897,541       933,749  
TOTAL ASSETS
  $ 3,901,245     $ 4,556,968  
LIABILITIES AND STOCKHOLDERS' DEFICIT
               
Current liabilities:
               
Promissory notes payable - non-related parties
  $ 183,966     $ 103,073  
Promissory notes payable - related parties
    4,872,364       4,922,364  
Accounts payable and accrued expenses
    8,771,743       9,637,947  
Current liabilities from discontinued operations
    96,345       97,835  
Total current liabilities
    13,924,418       14,761,219  
Long-term liabilities:
               
Other long-term liabilities
    353,987       380,243  
Commitments and contingencies
               
Stockholders' deficit:
               
Preferred stock, $0.01 par value, 10,000,000 shares authorized, 5,045
               
 and 7,295 shares issued and outstanding
    50       50  
Common stock, $0.01 par value, 300,000,000 shares authorized,
               
163,881,906 and 153,711,350 shares issued and outstanding
    1,638,818       1,537,113  
Capital in excess of par value
    138,217,046       137,325,467  
Accumulated deficit
    (150,233,074 )     (149,447,124 )
Total stockholders' deficit
    (10,377,160 )     (10,584,494 )
TOTAL LIABILITIES AND STOCKHOLDERS' DEFICIT
  $ 3,901,245     $ 4,556,968  
 
See accompanying notes to the Condensed Consolidated Interim Financial Statements.
 
 
3

 
 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Condensed Consolidated Interim Statements of Operations
(Unaudited)

   
Three Months Ended March 31,
 
   
2012
   
2011
 
             
Revenues
  $ 11,534,705     $ 10,204,280  
Cost of revenues, exclusive of depreciation and amortization, shown separately below
    10,044,760       9,145,630  
Gross profit
    1,489,945       1,058,650  
Depreciation and amortization
    98,223       168,538  
Selling general and administrative expenses (including
               
$6,996 and $23,681 of stock-based compensation for
               
the three months ended March 31, 2012 and 2011, respectively
    2,044,819       2,160,753  
Advertising and marketing
    6,323       4,563  
Total operating expenses
    2,149,365       2,333,854  
Operating loss
    (659,420 )     (1,275,204 )
Other (expenses) income:
               
Interest expense, net of interest income
    (57,082 )     (48,287 )
Other
    (69,449 )     88,695  
Total other (expenses) income
    (126,531 )     40,408  
Loss from continuing operations
    (785,951 )     (1,234,796 )
Discontinued operations:
               
Income from discontinued operations
    -       8,212  
Net loss
  $ (785,951 )   $ (1,226,584 )
Loss applicable to common stockholders:
               
Loss from continuing operations
  $ (785,951 )   $ (1,234,796 )
Preferred stock dividends in arrears
    (100,349 )     (143,901 )
Net loss from continuing operations applicable
               
to common stockholders:
    (886,300 )     (1,378,697 )
Income from discontinued operations
    -       8,212  
Net loss applicable to common stockholders:
  $ (886,300 )   $ (1,370,485 )
Basic and diluted loss per common share:
               
Loss from continuing operations
  $ (0.01 )   $ (0.01 )
Loss from discontinued operations
    -       0.00  
Loss per common share
  $ (0.01 )   $ (0.01 )
Weighted average common shares outstanding:
               
Basic and diluted
    159,988,401       132,604,753  
 
See accompanying notes to the Condensed Consolidated Interim Financial Statements.
 
 
4

 
 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Condensed Consolidated Interim Statements of Cash Flows (Unaudited)

   
Three Months Ended March 31,
 
   
2012
   
2011
 
Cash flows from operating activities:
           
Net loss
  $ (785,951 )   $ (1,226,584 )
(Income) from discontinued operations
    -       (8,212 )
Adjustments to reconcile net loss to net cash used in operating activities:
               
Depreciation and amortization
    98,223       168,538  
Loss on sale of accounts receivable
    75,152       -  
Bad debt expense
    44,301       32,066  
Stock-based compensation
    6,996       23,681  
Settlement of vendor liabilities
    -       (75,000 )
Increase (decrease) in cash attributable to changes in operating assets and liabilities:
               
Accounts receivable
    532,297       430,893  
Prepaid expenses and other current assets
    (622 )     (18,745 )
Other assets
    7,156       (11,833 )
Accounts payable and accrued expenses
    (666,056 )     (341,449 )
Other long-term liabilities
    (26,255 )     (285 )
Net cash used in operating activities
    (714,759 )     (1,026,930 )
Cash flows from investing activities:
               
Purchase of property and equipment
    (53,048 )     (61,102 )
Net cash used in investing activities
    (53,048 )     (61,102 )
Cash flows from financing activities:
               
Proceeds from the sale of common stock, net
    901,290       139,154  
Proceeds from notes payable - related parties
    -       962,000  
Payments on capital lease/equipment financing obligations
    -       (1,351 )
Repayments of notes payable - non-related parties
    (108,073 )     (10,498 )
Net cash provided by financing activities
    793,217       1,089,305  
Net increase in cash and cash equivalents from continuing operations
    25,410       1,273  
Cash flows from discontinued operations:
               
Net cash used in operating activities of discontinued operations
    (1,490 )     (10,665 )
Net change in cash and cash equivalents:
    23,920       (9,392 )
Cash and cash equivalents, beginning of period
    3,047       20,370  
Cash and cash equivalents, end of period
  $ 26,967     $ 10,978  
Supplemental disclosure of cash flow information:
               
Cash paid for interest
  $ 9,583     $ 2,874  
Supplemental schedule of non-cash financing activities:
               
Conversion of notes payable - related parties to common stock
  $ 50,000     $ -  
Conversion of accounts payable - related parties to common stock
  $ 35,000     $ -  
 
See accompanying notes to the Condensed Consolidated Interim Financial Statements
 
 
5

 
 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS (UNAUDITED)
 
1.     Basis of Presentation, Consolidation, and Summary of Selected Significant Accounting Policies
 
The accompanying notes to the condensed consolidated interim financial statements should be read in conjunction with the Annual Report on Form 10-K for the fiscal year ended December 31, 2011 for Fusion Telecommunications International, Inc. and its Subsidiaries (collectively, the “Company”).  All material intercompany balances and transactions have been eliminated in consolidation.  These condensed consolidated interim financial statements have been prepared in accordance with the instructions to Form 10-Q and Article 8 of Regulation S-X of the United States Securities and Exchange Commission (the “SEC”) and therefore omit or condense certain footnotes and other information normally included in condensed consolidated interim financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”).  In the opinion of the Company’s management, all adjustments (consisting of normal recurring accruals) considered necessary for the fair presentation of the condensed consolidated interim financial statements have been made. The results of operations for an interim period are not necessarily indicative of the results for the entire year.

During the three months ended March 31, 2012 and 2011, comprehensive loss was equal to the net loss amounts presented for the respective periods in the accompanying condensed consolidated interim statements of operations.  In addition, certain prior year balances have been reclassified to conform to the current presentation.

Income taxes
 
The Company complies with accounting and reporting requirements with respect to accounting for income taxes, which require an asset and liability approach to financial accounting and reporting for income taxes.  Deferred income tax assets and liabilities are computed for differences between the financial statement and tax bases of assets and liabilities that will result in future taxable or deductible amounts, based on enacted tax laws and rates applicable to the periods in which the differences are expected to affect taxable income.  Valuation allowances are established, when necessary, to reduce deferred income tax assets to the amount expected to be realized.  In accordance with U.S. GAAP, the Company is required to determine whether a tax position of the Company is more likely than not to be sustained upon examination by the applicable taxing authority, including resolution of any related appeals or litigation processes, based on the technical merits of the position.  The tax benefit to be recognized is measured as the largest amount of benefit that is greater than fifty percent likely of being realized upon ultimate settlement. Derecognition of a tax benefit previously recognized could result in the Company recording a tax liability that would reduce net assets.  The Company is subject to income tax examinations by major taxing authorities for all tax years since 2009 and may be subject to review and adjustment at a later date based on factors including, but not limited to, on-going analyses of and changes to tax laws, regulations and interpretations thereof. During the three month periods ended March 31, 2012, the Company recognized no adjustments for uncertain tax positions.

Loss per share
 
The Company complies with the accounting and disclosure requirements regarding earnings per share. Basic loss per share excludes dilution and is computed by dividing loss attributable to common stockholders by the weighted-average number of common shares outstanding during the period. Diluted loss per share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock or resulted in the issuance of common stock that then shared in the income of the Company.  The following securities were excluded in the calculation of diluted loss per share as of March 31, 2012 and 2011 because their inclusion would be antidilutive:
 
   
2012
   
2011
 
             
Warrants
    50,607,572       42,495,305  
Stock options
    6,571,886       5,564,606  
Convertible preferred stock
    7,113,840       6,723,961  
      64,293,298       54,783,872  
 
The net loss per common share calculation includes a provision for preferred stock dividends in the approximate amount of $100,000 and $144,000 for the three months ended March 31, 2012 and 2011, respectively.  As of September March 31, 2012, the Board of Directors had not declared any dividends on the Company’s preferred stock, and the Company had accumulated approximately $2,824,000 of preferred stock dividends.
 
 
6

 

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Sale of accounts receivable
 
The Company is party to an agreement, entered into in September of 2011, whereby it can sell certain of its accounts receivable at a discount in order to enhance the Company’s liquidity and cash flow.  The Company recognizes a loss on the sale of accounts receivable for the amount of the discount at the time the receivables are sold and derecognizes the applicable receivables from its consolidated balance sheet, as the Company has determined that the transfer of accounts receivable to the counterparty under this agreement meets the criteria for a sale of financial assets.  For the three months ended March 31, 2012 the Company recognized a loss on the sale of accounts receivable of approximately $75,000, and approximately $1.2 million and $1.0 million of the Company’s outstanding accounts receivable had been sold as of March 31, 2012 and December 31, respectively.

Stockbased compensation
 
The Company accounts for stock-based compensation by recognizing the fair value of the compensation cost for all stock awards over their respective service periods (generally equal to the vesting period).  This compensation cost is determined using option pricing models intended to estimate the fair value of the awards at the date of grant using the Black-Scholes option-pricing model.  An offsetting increase to stockholders' equity is recorded equal to the amount of the compensation expense charge.

Stock-based compensation expense recognized in the condensed consolidated interim statements of operations for the three months ended March 31, 2012 and 2011 includes compensation expense for stock-based payment awards granted prior to March 31, 2012 but not yet vested, based on the estimated grant date fair value.  As stock-based compensation expense recognized in the condensed consolidated statements of operations is based on awards ultimately expected to vest, it has been reduced for estimated forfeitures. When estimating forfeitures, the Company considered historical forfeiture rates as well as ongoing trends for actual option forfeiture.

The impact of stock-based compensation expense on the Company’s results of continuing operations was approximately $7,000 and $24,000 for the three months ended March 31, 2012 and 2011, respectively.  These amounts are included in selling, general, and administrative expenses in the condensed consolidated interim statements of operations.

The following table summarizes the stock option activity for the three months ended March 31, 2012:
 
   
(unaudited)
    Weighted Average Exercise Price  
Activity
 
Number of Options
     
           
Outstanding at December 31, 2011
    6,634,261     $ 0.75  
Granted
    18,500     $ 0.08  
Cancelled or expired
    (80,875 )   $ 0.12  
Outstanding at March 31, 2012
    6,571,886     $ 0.75  
Exercisable at March 31, 2012
    4,161,347     $ 1.13  
 
 
7

 

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
The Company calculated the fair value of each common stock option grant on the date of grant using the Black-Scholes option-pricing model method with the following assumptions:
 
   
(unaudited)
 
   
Three Months Ended March 31,
 
   
2012
   
2011
 
             
Dividend yield
    0.00 %     0.00 %
Stock volatility
    98.67 %     179.70 %
Average Risk-free interest rate
    0.35 %     2.46 %
Average option term (years)
    4       4  

As of March 31, 2012, there was approximately $121,000 of total unrecognized compensation cost, net of estimated forfeitures, related to stock options granted under the Company’s Stock Incentive Plans, which is expected to be recognized over a weighted-average period of 2.10 years.

Fair value of financial instruments
 
The carrying amounts of the Company’s assets and liabilities approximate the fair value presented in the accompanying Condensed Consolidated Interim Balance Sheets, due to their short-term maturities.
 
Use of estimates
 
The preparation of condensed consolidated interim financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the condensed consolidated interim financial statements and the reported amounts of revenues and expenses during the period. Actual results could be affected by the accuracy of those estimates.

Restricted cash
 
At March 31, 2012 and December 31, 2011 the Company had approximately $300,000 of cash restricted from withdrawal and held by a bank as a certificate of deposit securing a letter of credit.  This restricted cash is required as a security deposit under one of the Company’s non-cancelable operating leases for office facilities.
 
 
8

 

FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
2.     Going Concern
 
At March 31, 2012, the Company had a working capital deficit of $11.8 million and an accumulated deficit of $150.2 million.  The Company has continued to sustain losses from operations and has not generated positive cash flow from operations since inception.  Management is aware that its current cash resources are not adequate to fund its operations for the remainder of the year. During the three months ended March 31, 2012, the Company raised approximately $0.9 million, net of expenses, from the sale of the Company’s equity securities.  The Company cannot provide any assurances if and when it will be able to attain profitability.  These conditions, among others, raise substantial doubt about the Company’s ability to continue operations as a going concern.  No adjustment has been made in the condensed consolidated interim financial statements to the amounts and classification of assets and liabilities which could result should the Company be unable to continue as a going concern.

3.     Prepaid Expenses and Other Current Assets
 
Prepaid expenses and other current assets consist of the following at March 31, 2012 and December 31, 2011:

   
March 31, 2012
   
December 31, 2011
 
   
(unaudited)
       
             
Prepaid insurance
  $ 63,562     $ 47,562  
Due from purchaser of accounts receivable
    341,613       261,437  
Other prepaid expenses
        63,966       79,344  
Total
  $ 469,141     $ 388,343  

4.     Discontinued Operations
 
In order to streamline operations, reduce expenses and focus on the development of the Company’s corporate services and carrier services segments, the Company eliminated the consumer services segment and restructured its overall operations in 2009, and the Company classifies the operating results of its consumer services segment as a discontinued operation in the accompanying condensed consolidated interim financial statements.  The Company had no remaining assets related to the discontinued consumer segment at March 31, 2012 and December 31, 2011, and had liabilities from discontinued operations of approximately $96,000 and $98,000 at March 31, 2012 and December 31, 2011, respectively, which consist primarily of accounts payable and accrued expenses.   The Company had no revenues or expenses from discontinued operations in the three months ended March 31, 2012 and had income from discontinued operations of approximately $8,000 in the three months ended March 31, 2011, consisting primarily of bad debt recoveries.

5.     Intangible Assets
 
Identifiable intangible assets as of March 31, 2012 and December 31, 2011 are comprised of: 
 
 
9

 
 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
   
March 31, 2012 (unaudited)
   
December 31, 2011
 
   
Gross Carrying Amount
   
Accumulated Amortization
   
Total
   
Gross Carrying Amount
   
Accumulated Amortization
   
Total
 
                                     
Trademarks
  $ 315,745     $ (237,846 )   $ 77,899     $ 315,745     $ (211,879 )   $ 103,866  
Intellectual Property
    86,397       (27,770 )   $ 58,627       86,397       (24,685 )   $ 61,712  
Total
  $ 402,142     $ (265,616 )   $ 136,526     $ 402,142     $ (236,564 )   $ 165,578  
 
Amortization expense for the three months ended March 31, 2012 and 2011 was $29,052 and $20,333, respectively.  Estimated future aggregate amortization expense is as follows for the periods indicated:
 
Remaining nine months ending December 31,
2012
    87,155  
Year ending December 31:
2013
    12,343  
 
2014
    12,343  
 
2015
    12,343  
 
2016
    12,342  
 
6.     Accounts Payable and Accrued Expenses
 
Accounts payable and accrued expenses consist of the following at March 31, 2012 and December 31, 2011:

   
March 31,
   
December 31,
 
    2012      2011  
    ( unaudited )        
             
Trade accounts payable
  $ 7,520,301     $ 8,061,024  
Accrued expenses
    370,758       468,214  
Accrued payroll and vacation
    101,715       110,829  
Cost accrual
    16,035       2,815  
Interest payable
    420,675       376,506  
Deferred revenue
    52,747       10,044  
Other
    289,512       608,515  
    $ 8,771,743     $ 9,637,947  
 
7.     Notes Payable
 
At March 31, 2012 and December 31, 2011, components of the Company’s notes payable are comprised of the following: 
 
   
March 31,
   
December 31,
 
   
2012
   
2011
 
   
(unaudited)
       
             
Promissory notes payable - related parties
  $ 4,872,364     $ 4,922,364  
Promissory notes payable - non-related parties
    183,966       103,073  
Total promissory notes payable
    5,056,330       5,025,437  
Less:
               
Current portion of notes payable - related parties
    (4,872,364 )     (4,922,364 )
Current portion of notes payable - non-related parties
    (183,966 )     (103,073 )
Non-current portion of promissory notes payable
  $ -     $ -  
 
 
10

 
 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Promissory notes payable related parties
 
Promissory notes payable – related parties at March 31, 2012 and December 31, 2011 consist of notes payable to Marvin Rosen, the Company’s Chairman of the Board of Directors, and to an affiliate of Mr. Rosen.  These notes bear interest at rates ranging from 3% to 10% per annum.  All of the promissory notes grant the lender a subordinated security interest, pari passu with other lenders, in the Company’s accounts receivable and are payable in full upon ten days notice from the lender.  To date, the Company has not received a demand for payment.

During the three months ended March 31, 2012, Mr. Rosen converted $50,000 of previously issued promissory notes into 370,371 shares of the Company’s common stock and five-year warrants to purchase 111,112 shares of common stock.  The warrants are exercisable at approximately 112% of the average closing price of the Company’s common stock for the five trading days prior to the conversion.  As of March 31, 2012, the Company had an aggregate principal amount of outstanding demand notes payable to Mr. Rosen and his affiliates in the amount of $4,872,364.

Promissory notes payable non-related parties
 
On September 19, 2011, the Company received an advance of approximately $208,000 from the purchaser of its accounts receivable in connection with the agreement for the sale of certain of the Company’s accounts receivable.  At December 31, 2011, the outstanding balance on this advance was $103,073, which was paid in full during the three months ended March 31, 2012.  The Company’s accounts receivable continue to be secured by a first priority lien in favor of the purchaser.

On October 27, 2011, the landlord over premises leased by the Company exercised its right under the lease to draw down the full amount of a letter of credit in the amount of $428,391 that the Company had posted as security under the terms of the lease.  The letter of credit was issued for the benefit of the Company by a third party lending institution and the Company had partially collateralized the letter of credit in the approximate amount of $240,000 by depositing this amount in a money market account with the lending institution.  As a result of the drawdown of the letter of credit, the Company is required to pay the issuer of the letter of credit the difference between the full amount of the letter of credit and the amount of the collateral, which difference is approximately $188,000 and is reflected in Accounts payable and accrued expenses as of December 31, 2011.

On April 6, 2012, the Company and the lending institution entered into a forbearance and settlement agreement which, among other things, set forth payment terms for the outstanding amount due to the lender.  Under the terms of the forbearance and settlement agreement, which provides for interest on the outstanding amount at the rate of 5.25% per annum, the lender agreed to forbear from exercising its rights and remedies under the letter of credit agreement until July 27, 2013, and the Company is required to make principal payments in the amount of $5,000 per month plus accrued interest from March 27, 2012 through August 27, 2012, $50,000 plus accrued interest on each of September 27, 2012, December 27, 2012 and March 27, 2013 and approximately $8,000 June 27, 2013.  In the event the Company fails to comply with the forbearance and settlement agreement, as and when required thereunder, the lender may enforce the rights and remedies provided to it under the provisions of the original letter of credit agreement, and may enforce a confession of judgment for the entire amount due under the forbearance and settlement agreement, plus a $2,500 forbearance fee and payment of the lender’s partial attorney fees, which are payable on July 27, 2013.  The forbearance and settlement agreement also contains covenants limiting the Company’s ability to, among other things and with certain exceptions, incur additional debt, grant additional security interests and/or grant confessions of judgment to third parties.  As of March 31, 2012, the outstanding balance due under the forbearance agreement was $183,966 and is reflected in Promissory notes payable – non-related parties in the Company’s consolidated balance sheet.  
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
8.     Equity Transactions
 
From time to time during the first three months of 2012, the Company entered into subscription agreements with 20 accredited investors, under which the Company issued an aggregate of 8,767,828 shares of common stock and five-year warrants to purchase 2,741,468 shares of the Company’s common stock for aggregate consideration of $0.9 million.  The warrants are exercisable at approximately 112% of the average closing price of the Company’s common stock for the five trading days prior to closing.

During 2011, the Company reclassified $80,000 from escrow payable to paid in capital for equity consideration received prior to 2011 but for which shares had not been issued.  These shares were issued during the first three months of 2012 upon the approval of the Company’s Board of Directors, whereby the Company issued a total of 587,912 shares of common stock and warrants to purchase 117,583 shares of common stock.

During the first three months of 2012, two of the Company’s executive officers converted an aggregate of $35,000 owed to them by the Company into 444,445 shares of common stock and five-year warrants to purchase 133,335 shares of common stock.  The warrants are exercisable at approximately 112% of the average closing price of the Company’s common stock for the five trading days prior to the conversion.

As of March 31, 2012, the Company is authorized to issue 300,000,000 shares of common stock, and there were 163,881,906 shares of common stock issued and outstanding.

9.     Recently Adopted and Issued Accounting Pronouncements
 
During the three months ended March 31, 2012 and 2011, there were no new accounting pronouncements adopted by the Company that had a material impact on the Company’s consolidated financial statements.  Management does not believe there are any recently issued, but not yet effective, accounting pronouncements, if currently adopted, that would have a material effect on the Company’s consolidated financial statements.
 
10.   Commitments and Contingencies
 
Legal Matters
 
On February 16, 2012, a landlord over premises leased by the Company commenced a proceeding in the New York City Civil Court, County of New York (Index No. 56186/12), in which the landlord sought to recover against the Company certain unpaid rent and related charges due under a lease agreement between the landlord and the Company, and to evict the Company from the premises.   By Stipulation dated April 19, 2012, the landlord and the Company agreed that the landlord would be entitled to a judgment in the amount of $222,510 and a warrant of eviction, but that the landlord would not enforce the judgment or execute the warrant as long as the Company complied with the Stipulation.  To date, the Company has complied with all of its payment obligations under the Stipulation and the accompanying consolidated financial statements fully reflect the amounts owed to the landlord by the Company as of the date of the financial statements.

The Company is from time to time involved in claims and legal actions arising in the ordinary course of business. Management does not expect that the outcome of any such claims or actions will have a material effect on the Company’s operations or financial condition. In addition, due to the regulatory nature of the telecommunications industry, the Company periodically receives and responds to various inquiries from state and federal regulatory agencies. Management does not expect the outcome of any such regulatory inquiries to have a material impact on the Company’s operations or financial condition.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Other Matters
 
On January 30, 2012, the Company entered into purchase agreements to acquire the business currently operated by Network Billing Systems, LLC and Interconnect Systems Group II LLC (collectively, “NBS”).  NBS currently provides voice (including VoIP) and data telecommunications services, as well as a wide variety of managed and cloud-based telecommunications services, to small and medium sized companies.  

The aggregate purchase price for the NBS acquisition transaction is $20 million, consisting of $17.75 million in cash, $1.0 million to be evidenced by a 24-month promissory note payable to the sellers and $1.25 million in shares of restricted common stock of the Company.  Consummation of the transaction contemplated by the purchase agreements is subject to the satisfaction of certain conditions precedent, including, but not limited to, satisfactory completion of the Company’s due diligence on the acquired business, completion of an audit of the financial books and records of the acquired business, receipt of certain regulatory approvals, the Company’s receipt of sufficient funding to pay the cash portion of the purchase price and provide for reasonable post-acquisition working capital requirements, negotiation and execution of mutually acceptable executive employment and non-compete agreements with the principal operating officer of NBS, and other customary conditions of closing.  While the agreements contemplate that closing of the acquisition of NBS would take place during the second quarter of 2012, the conditions precedent to closing are such that there can be no assurance that the acquisition will be completed in that time or at all.

11.   Segment Information
 
The Company complies with the accounting and reporting requirements on Disclosures about Segments of an Enterprise and Related Information. The guidance requires disclosures of segment information on the basis that is used internally for evaluating segment performance and for determining the allocation of resources to the operating segments.

The Company has two reportable segments that it operates and manages corporate services and carrier services. These segments are organized by the products and services that are sold and the customers that are served. The Company measures and evaluates its reportable segments based on revenues and gross profit margins.  The Company’s executive, administrative and support costs are allocated to the Company’s operating segments and are included in segment income.  The Company’s segments and their principal activities consist of the following:
 
Carrier Services
 
Carrier Services includes the termination of carrier traffic utilizing VoIP technology as well as traditional TDM (circuit switched) technology.  VoIP permits a less costly and more rapid interconnection between the Company and international telecommunications carriers, and generally provides better profit margins for the Company than does TDM technology.  The Company currently interconnects with over 270 carrier customers and vendors, and is working to expand its interconnection relationships, particularly with carriers in emerging markets.

Corporate Services
 
The Company provides a wide variety of communications services to small and medium-sized businesses, as well as enterprise customers, including basic voice and data communications services, broadband Internet access, private line services, audio and web conferencing services, e-fax services, and a variety of other value-added services. These customers are sold through both the Company’s direct sales force and its partner sales program, which utilizes the efforts of independent third-party distributors to sell the Company’s products and services.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Unaudited operating segment information for the three months ended March 31, 2012 and 2011 is summarized as follows:

Three Months Ended March 31, 2012

   
Carrier
Services
   
Corporate Services
and Other
   
Corporate and Unallocated
   
Consolidated
 
                         
 Revenues
  $ 10,959,715     $ 574,990     $ -     $ 11,534,705  
 Cost of revenues (exclusive of
                               
 depreciation and amortization)
    9,686,470       358,290       -       10,044,760  
 Depreciation and amortization
    87,784       10,439       -       98,223  
 Selling, general and administrative expenses
    1,202,270       842,549       -       2,044,819  
 Advertising and marketing
    -       6,323       -       6,323  
 Other expenses
    103,593       22,938       -       126,531  
 Loss from continuing operations
  $ (120,402 )   $ (665,549 )   $ -     $ (785,951 )
                                 
 Captial expenditures
  $ 51,100     $ 1,170     $ 778     $ 53,048  
 Total assets
  $ 2,022,239     $ 1,434,372     $ 444,634     $ 3,901,245  
 
Three Months Ended March 31, 2011
 
   
Carrier
Services
   
Corporate Services
and Other
   
Corporate and Unallocated
   
Consolidated
 
                         
 Revenues
  $ 9,684,193     $ 520,087     $ -     $ 10,204,280  
 Cost of revenues (exclusive of
                               
 depreciation and amortization)
    8,818,075       327,555               9,145,630  
 Depreciation and amortization
    168,524       14               168,538  
 Selling, general and administrative expenses
    1,195,606       965,147               2,160,753  
 Advertising and marketing
    58       4,505               4,563  
 Other (income) expenses
    (13,880 )     (26,528 )             (40,408 )
 Loss from continuing operations
  $ (484,190 )   $ (750,606 )   $ -     $ (1,234,796 )
                                 
 Capital expenditures
  $ 60,270     $ 832     $ -     $ 61,102  
 Total assets
  $ 2,604,228     $ 1,735,323     $ 88,104     $ 4,427,655  

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
12.   Other Income and Expenses
 
Other income (expenses) for the three months ended March 31, 2012 and 2011 consists of the following:

   
2012
   
2011
 
             
Settlement or extinguishment of vendor liabilities
  $ -     $ 75,000  
Loss on sale of accounts receivable
    (75,152 )     -  
Other
    5,703       13,695  
Total operating expenses
    (69,449 )     88,695  
 
In September 2008, the Company entered into a settlement agreement with a vendor providing, in part, that the Company issue common stock in the amount of $75,000 to the vendor in settlement of a debt. However, due to a failure by the vendor to perform its obligations under the settlement agreement, the Company never actually issued the shares, resulting in a transfer from equity to escrow payable in 2010 in the amount of $75,000, and an adjustment to the number of shares issued and outstanding.  On February 10, 2011, the Company executed a settlement agreement with the vendor which released the Company of all liability with respect to this matter.  As a result, the Company reduced its escrow payable amount and recorded other income of $75,000 in the first three months of 2011.

13.   Related Party Transactions
 
In addition to the equity transactions discussed in notes 7 and 8, the Company’s Desk Space Use and Occupancy Agreement that was entered into on March 29, 2011 with an entity affiliated with Mr. Rosen continues to be in effect on a month to month basis.  Under the terms of the agreement, this affiliate utilizes a portion of the Company’s leased office space in New York City for a fee of $9,000 per month.  As of March 31, 2012, the Company had received $36,000 of advance payments in connection with this agreement, which is reflected in accounts payable and accrued expenses in the Company’s consolidated balance sheet.  The Company believes that the fee it is receiving under this agreement is comparable to what it would receive had the agreement been entered into with an unrelated third party.

14.   Subsequent Events
 
From April 1, 2012 through May 1, 2012, the Company entered into additional subscription agreements with 11 accredited investors, whereby the Company issued an aggregate of 1,809,531 shares of common stock and five-year warrants to purchase 542,864 shares of the Company’s common stock for aggregate consideration of $240,000.  The warrants are exercisable at prices ranging from 112% to 125% of the average closing price of the Company’s common stock for the five trading days prior to closing.

On April 16, 2012, Mr. Rosen converted $75,000 of previously issued promissory notes into 555,556 shares of common stock and five-year warrants to purchase 166,667 shares of common stock.  The warrants are exercisable at approximately 112% of the average closing price of the Company’s common stock for the five trading days prior to the conversion.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES

ITEM 2.  MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
  
The following discussion should be read in conjunction with the information contained in our unaudited consolidated financial statements and the notes thereto appearing elsewhere herein and in conjunction with the Management’s Discussion and Analysis set forth in our fiscal 2011 Annual Report on Form 10-K.
 
OVERVIEW
 
Our Business
 
We are an international telecommunications carrier delivering value-added communications solutions to businesses and carriers in the United States and throughout the world.  We offer services that include voice and data communications using Voice over Internet Protocol (“VoIP”), private network services, broadband Internet access, cloud services and other advanced services.  The Company's Corporate Services business segment focuses on small, medium, and large corporations headquartered in the United States, but with the ability to serve their global communications needs and to provide service virtually anywhere in the world. The Company's Carrier Services business segment focuses on carriers across the globe, with a particular focus on providing services to and from emerging markets in Asia, the Middle East, Africa, Latin America, and the Caribbean.  Historically, we have generated the majority of our revenues from voice traffic sold to other carriers, with a strong focus in recent years on VoIP termination to emerging markets.  We have focused on growing our existing customer base, which was primarily U.S.-based, through the addition of new international customers.  We have also focused on expanding the Company’s vendor base through the addition of direct VoIP terminating arrangements to new countries and emerging markets.
 
 Although we believe that the Carrier Services business segment continues to be of significant value to our long term strategy, ongoing competitive and pricing pressures have caused us to increase our focus on the higher margin Corporate Services business segment and to expand our efforts to market to small and mid-sized corporations, as well as larger enterprises, using both our direct and partner distribution channels.  While our Corporate Services business segment is still a relatively small portion of our revenue base, we continue to increase our emphasis on this segment in order to increase the percentage of the Company’s total revenues contributed by the Corporate Services business segment. We believe that this will complement the Company’s carrier business segment by providing higher margins and a more stable customer base.
 
 On January 30, 2012, we entered into purchase agreements to acquire the business currently operated by Network Billing Systems, LLC and Interconnect Systems Group II LLC (collectively, “NBS”).  NBS currently provides voice (including VoIP) and data telecommunications services, as well as a wide variety of managed and cloud-based telecommunications services, to small and medium sized companies.  For the year ended December 31, 2011, NBS had unaudited revenues of approximately $26.8 million and unaudited net income of approximately $3.0 million.  NBS has approximately 5,000 customers.

The aggregate purchase price for the NBS acquisition transaction is $20 million, consisting of $17.75 million in cash, $1.0 million to be evidenced by a 24-month promissory note payable to the sellers and $1.25 million in shares of restricted common stock of the Company.  Consummation of the transaction contemplated by the purchase agreements is subject to the satisfaction of certain conditions precedent, including, but not limited to, satisfactory completion of our due diligence on the business being acquired, completion of an audit of the financial books and records of NBS, receipt of certain regulatory approvals, our receipt of sufficient funding to pay the cash portion of the purchase price and provide for reasonable post-acquisition working capital requirements, negotiation and execution of mutually acceptable executive employment and non-compete agreements with Jon Kaufman, the principal operating officer of NBS, and other customary conditions of closing.  While the purchase agreements contemplate that closing of the acquisition of NBS would take place during the second quarter of 2012, the conditions precedent to closing are such that there can be no assurance that the acquisition will be completed in that time or at all.

We manage our business segments based on gross profit and margin, which represents net revenue less the cost of revenue, and on net profitability.  Although our infrastructure is largely built to support all business segments and products, many of the infrastructure costs, selling, general and administrative expenses (“SG&A”) and capital expenditures can be specifically associated with one of our two business segments.  The majority of our operations, engineering, information systems and support personnel are assigned to either the corporate services or carrier services business segment for segment reporting purposes, while a relatively small number of personnel are allocated to the segments as appropriate.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Our Performance
 
Revenues for the three months ended March 31, 2012 were $11.5 million, an increase of $1.3 million, or 13.0%, compared to the three months ended March 31, 2011.  Our operating loss for the first quarter of 2012 was $0.7 million, compared to $1.3 million in the first quarter of 2011.  The improvement was mainly due to the increase in revenues and corresponding increase in gross profit.  Net loss attributable to common stockholders was $0.9 million for the three months ended March 31, 2012, compared to $1.4 million in the same period of a year ago.

Our Outlook
 
Our ability to grow our business, fully implement our business plan and achieve profitability is dependent upon our ability to raise significant amounts of additional capital.  In addition to the cash portion of the purchase price of the pending NBS transaction, we require additional capital to support our Carrier Services business, specifically for capital expenditures required to expand our voice termination capacity, to implement a new automated system for the administration of routing and rates and for the working capital necessary to optimize the terms under which we buy from our vendors and sell to our customers.  We believe that if we are able to obtain the necessary capital to fund our Carrier Services business and complete the acquisition of NBS, we will be able to compete effectively in both of our business segments.
 
Results of Operations

The following table summarizes our results of operations for the periods indicated:
 
   
Three Months Ended March 31,
 
   
2012
   
2011
 
             
Revenues
  $ 11,534,705       100.0 %   $ 10,204,280       100.0 %
Cost of revenues, exclusive of depreciation and amortization
    10,044,760       87.1 %     9,145,630       89.6 %
Gross profit
    1,489,945               1,058,650          
Operating expenses:
                               
Depreciation and amortization
    98,223       0.9 %     168,538       1.7 %
Selling general and administrative
    2,044,819       17.7 %     2,160,753       21.2 %
Advertising and marketing
    6,323       0.1 %     4,563       0.0 %
Total operating expenses
    2,149,365       18.6 %     2,333,854       22.9 %
Operating loss
    (659,420 )     -5.7 %     (1,275,204 )     -12.5 %
Interest expense, net
    (57,082 )     -0.5 %     (48,287 )     -0.5 %
Other (expenses) income
    (69,449 )     -0.6 %     88,695       0.9 %
Total other (expenses) income
    (126,531 )     -1.1 %     40,408       0.4 %
Loss from continuing operations
  $ (785,951 )     -6.8 %   $ (1,234,796 )     -12.1 %

Three Months Ended March 31, 2012 Compared with Three Months Ended March 31, 2011

Revenues
 
Consolidated revenues were $11.5 million during the three months ended March 31, 2012, compared to $10.2 million during the three months ended March 31, 2011, an increase of $1.3 million or 13.0%.  Revenues for the carrier services segment were $11.0 million during the three months ended March 31, 2012, compared to $9.7 million during the three months ended March 31, 2011, an increase of $1.3 million or 13.2%.  During the first quarter of 2012 we experienced a 100% increase in minutes transmitted over our network, the effect of which was largely offset by a 43% decrease in the blended rate per minute of the traffic terminated.  Revenues for the corporate services segment increased by $55,000, or 10.6%, to approximately $0.6 million during the three months ended March 31, 2012.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Cost of Revenues and Gross Margin
 
Consolidated cost of revenues was $10.0 million during the three months ended March 31, 2012, compared to $9.1 million during the three months ended March 31, 2011, an increase of $0.9 million, or 9.8%.  Consolidated gross margin for the first quarter of 2012 was 12.9%, compared to 10.4% for the first quarter of 2011.  The increase is mainly due to the higher margin realized in the carrier services segment in 2012.

Gross margin for the carrier services segment was 11.6% in the first quarter of 2012, compared to 8.9% in the first quarter of 2011, as the 13% increase in revenue was accompanied by a 10% increase in cost of revenues, with the blended cost per minute of traffic terminated decreasing by 45.7% as compared to the first quarter of 2011.  Due to the variability and inherent uncertainties in the wholesale carrier market, we cannot predict whether this margin improvement and changes in rates will continue through the remainder of 2012.  Gross margin for the corporate services segment during the first quarter of 2012 was 37.7%, compared with 37.0% during the same period of a year ago.

Depreciation and Amortization
 
Depreciation and amortization decreased to $0.1 million during the three months ended March 31, 2012, from $0.2 million during the three months ended March 31, 2011, as more assets became fully depreciated during the period than were placed into service.

SG&A
 
SG&A decreased by $0.1 million during the first quarter of 2012 compared to the first quarter of 2011.  The decrease was primarily due to a reduction in our accruals for certain state and local taxes.  Excluding this adjustment, our SG&A would have been essentially unchanged for the quarter, as reductions in employee compensation and facilities costs were largely offset by higher agent commissions resulting from the increase in corporate services revenue and increased professional fees associated with the pending NBS transaction.

Operating Loss
 
Our operating loss of $0.7 million for the three months ended March 31, 2012 represents a decrease of $0.6 million, or 48.3%, from the three months ended March 31, 2011.  The decrease in operating loss was primarily attributable to the higher gross profit generated during 2012 resulting from the revenue and gross margin improvements and, to a lesser extent, decreases in SG&A and depreciation expense.

Interest Expense
 
Interest expense, net of interest income, was $57,000 for the three months ended March 31, 2012, an increase of 18.2% over the same period of a year ago, mainly due to higher related party indebtedness during 2012.

Other (Expense) Income
 
Total other expenses, net of other income, was $69,000 for the first three months of 2012, compared to other income of $89,000 in the first three months of 2011.  The change was mainly due to $75,000 of income realized through the extinguishment of a vendor liability in 2011 with no comparable amount in 2012, and a loss on sale of accounts receivable of approximately $75,000 in the first quarter of 2012 with no comparable amount in 2011, as our accounts receivable financing arrangement commenced in September of 2011.  Over the past three to six months we have significantly increased our use of this arrangement to address our short term liquidity challenges, and we expect to continue to do so in the near future until such time as we can arrange one or more financings that will yield significant cash proceeds to us.

Net Loss
 
Net loss decreased during the first quarter of 2012 to $0.8 million, from $1.2 million in the first quarter of 2011, due to the reduced operating loss discussed above, partially offset by the increase in other expenses, net of other income.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Liquidity and Capital Resources
 
Since our inception, we have incurred significant operating and net losses.  In addition, we have yet to generate positive cash flow from operations.  As of March 31, 2012, we had a stockholders’ deficit of $10.4 million, as compared to $10.6 million at December 31, 2011, and a working capital deficit of $11.8 million, as compared to $12.0 million at December 31, 2011.  We currently do not have sufficient cash or other financial resources to fund our operations and meet our obligations for the next twelve months, to fund the cash portion of the purchase price of the proposed NBS acquisition or to provide post-acquisition working capital.

On September 12, 2011, we entered into a purchase and sale agreement with Prestige Capital Corporation (“Prestige”), whereby we may sell certain of our accounts receivable to Prestige, at a discount in order to improve our liquidity and cash flow.  Since the fourth quarter of fiscal 2011 through the date of this report, we have been utilizing this agreement to assist us with our short term liquidity needs and we expect to continue to do so until such time as we can complete a significant equity raise.  Under the terms of the purchase and sale agreement, Prestige pays a percentage of the face amount of the receivables at the time of sale, and the remainder, net of the discount, is paid to us within three business days after Prestige receives payment on the receivables, which generally have 30 day terms.

Prestige also provided the Company with a one-time advance of $208,000 at the time we entered into this agreement.  The outstanding balance on this advance was approximately $103,000 at December 31, 2011, and this balance was paid in full as of March 31, 2012.  The Prestige agreement was originally set to expire in June of 2012 however we and Prestige have agreed to extend this arrangement on a month to month basis.  For as long as the agreement is in effect, Prestige will continue to have a first priority lien on our accounts receivable.

We have historically relied upon loans from non-related and related parties, including Marvin Rosen, the Chairman of the Board of Directors, and the sale of our equity securities to fund our operations.  More recently, we have been relying on the sale of our accounts receivable, including unbilled receivables, under the Prestige agreement, as well as the sale of our equity securities, and less so on borrowings from related and unrelated parties to fund our operations.  From January 1, 2012 through the date of this report, we raised approximately $1.1 million from the sale of our securities through private placement financings, and as of March 31, 2012, approximately $1.2 million of our outstanding accounts receivable had been sold to Prestige.   We expect to continue to rely on additional sales of our accounts receivable and equity securities to support our operations and meet the Company’s financial obligations until such time as we can consummate one or more financings to provide us with significant cash proceeds.  There are no current commitments for such funds and there can be no assurances that such funds will be available to the Company as needed.  In addition, a substantial portion of our outstanding indebtedness is payable upon ten days notice from the related- party lender.  Although we have yet to receive any demand notices for this indebtedness, there are no assurances that we will not receive any such notices in the future, and we currently do not have the financial resources to repay these loans should we receive a demand for payment.

On January 30, 2012 we entered into agreements to acquire NBS.  The cash portion of the purchase price is $17.75 million.  In conjunction with our efforts to obtain debt financing for a substantial portion of this amount, we are seeking to consummate a significant sale of our equity securities which will (i) finance the remaining amount of the cash portion of the purchase price; (ii) provide for necessary post-acquisition working capital requirements for the acquired business; and (iii) provide the necessary funds for capital expenditures and working capital requirements of our existing business, including the implementation of our long term business plan.  Although we have executed a letter of intent with two private funds for a senior debt investment of $15 million which would finance a substantial portion of the cash purchase price, this letter of intent is subject to a number of preconditions.  As a result, no assurances can be given that funds will be available on terms that are acceptable to us, or at all.

On October 27, 2011, the landlord over premises leased by the Company exercised its right under the lease to draw down the full amount of a letter of credit in the amount of $428,391 that we had posted as security under the terms of the lease.  The letter of credit was issued for our benefit by a third party lending institution and we had partially collateralized the letter of credit in the approximate amount of $240,000 by depositing this amount in a money market account with the lending institution.  As a result of the drawdown of the letter of credit, we were required to pay the issuer of the letter of credit the difference between the full amount of the letter of credit and the amount of the collateral, which difference is approximately $188,000.  While our failure to make this payment constitutes an event of default under the terms of the letter of credit, we did not receive a default notice from the lending institution and the Company and TD Bank, N.A., the successor entity to the issuer of the original letter of credit (“TD Bank”), entered into a forbearance agreement on April 6, 2012 setting forth payment terms for the outstanding amount.  Under the terms of the forbearance agreement, which provides for interest on the outstanding amount at the rate of 5.25% per annum, we will be required to make principal payments to TD Bank in the amount of $5,000 per month from March 27, 2012 through August 27, 2012, $50,000 on each of September 27, 2012, December 27, 2012 and March 27, 2013 and approximately $8,000 June 27, 2013.  To date, the Company has complied with all of its payment obligations under the forbearance agreement.     
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
On February 16, 2012, a landlord over these same premises commenced a proceeding in the New York City Civil Court in which the landlord sought to recover against the Company certain unpaid rent and related charges due under a lease agreement between the landlord and the Company.  By Stipulation dated April 19, 2012, the landlord and the Company agreed that the landlord would be entitled to a judgment in the amount of approximately $223,000 and a warrant of eviction, but that the landlord would not enforce the judgment or execute the warrant as long as the Company complied with the Stipulation.  The stipulation required a payment of $45,000 on April 15, 2012, and requires payments in the amount of $45,000 on each of May 15, June 15 and July 15, 2012, and a payment of $43,000 on August 15, 2012.  To date, the Company has complied with all of its payment obligations under the Stipulation.

In the event that we are unable to secure the necessary funding to meet our working capital requirements and payment obligations, either through the sale of our securities or through other financing arrangements, we may be required to downsize, reduce our workforce, sell assets or possibly curtail or even cease operations.

A summary of the Company’s cash flows for the periods indicated is as follows:
 
   
Three Months Ended March 31,
 
   
2012
   
2011
 
 Cash from continuing operations:
           
 Cash used in operating activities
  $ (714,759 )   $ (1,026,930 )
 Cash used in investing activities
    (53,048 )     (61,102 )
 Cash provided by financing activities
    793,217       1,089,305  
 Increase (decrease) in cash and cash equivalents from continuing operations
    25,410       1,273  
 Cash from discontinued operations
    (1,490 )     (10,665 )
 Net increase (decrease) in cash and cash equivalents
    23,920       (9,392 )
 Cash and cash equivalents, beginning of period
    3,047       20,370  
 Cash and cash equivalents, end of period
  $ 26,967     $ 10,978  
 
Cash used in operating activities was $0.7 million during the first quarter of 2012, compared to $1.0 million in the first quarter of 2011.  The decrease is mainly due to improved operating results, partially offset by larger decreases in accounts payable and accrued expenses.

Cash used in investing activities was $53,000 in the first quarter of 2012 compared to $61,000 in the first quarter of 2011, and consisted entirely of capital expenditures.  We expect our cash capital expenditures to be approximately $300,000 for the remainder of 2012, primarily for additional infrastructure development for the carrier services business segment.

Cash provided by financing activities was $0.8 million in the first quarter of 2012, compared to $1.1 million in the first quarter of 2011.  During 2012, we raised $0.9 million from the sale of our common stock, compared to $0.1 million in 2011.  In 2011 we raised $1.0 million in new borrowings, with no comparable amount in 2012.

Sources of Liquidity
 
As of March 31, 2012, we had cash and cash equivalents of approximately $27,000 and accounts receivable of approximately $1.7 million.  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.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Uses of Liquidity
 
Our short-term and long-term liquidity needs arise primarily from working capital requirements to support the growth and day-to-day operations of our business, principal and interest payments related to our financing obligations, capital expenditures and any additional funds that may be required for business expansion opportunities.  In some situations, we may be required to guarantee payment or performance under agreements, and in these circumstances we may be required to secure letters of credit or bonds to do so. These instruments may further limit unrestricted cash and cash equivalents, and may place a further strain on our liquidity.

Debt Service Requirements
 
During the first three months of 2012, we repaid $0.1 million related to the advance made to us by Prestige in 2011.  For the remainder of 2012, we expect to make payments aggregating to $0.1 million to satisfy the obligations under the TD Bank forbearance and settlement agreement.  At March 31, 2012, we had approximately $5.1 million of current-term debt, all of which is collateralized by a subordinated security interest in our accounts receivable.
 
Capital Instruments
 
During the first three months of 2012, we entered into subscription agreements with 20 accredited investors, under which the Company issued an aggregate of 8,767,828 shares of common stock and five-year warrants to purchase 2,741,468 shares of the Company’s common stock for aggregate consideration of $0.9 million.  The warrants are exercisable at approximately 112% of the average closing price of the Company’s common stock for the five trading days prior to closing.
 
Critical Accounting Policies and Estimates
 
We have identified the policies and significant estimation processes discussed below as critical to our business operations and to the understanding of our results of operations.  In many cases, the accounting treatment of a particular transaction is dictated by specific 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.  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, 2011, included in our Annual Report on Form 10-K.  The 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.   We base our 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 usage fees charged to carriers and corporations that terminate voice traffic over our network, and from the monthly recurring fees charged to customers that purchase our corporate products and services.

Variable revenue is earned based on the length (number of minutes duration) of a call. It is recognized upon completion of the call, and is adjusted to reflect customer 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 complete 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.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Revenue earned from monthly services provided to our corporate services customers 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.  The majority of the Company’s monthly recurring charges for corporate services are billed in advance. To the extent that any cash received is related to a future period, it is recorded as deferred revenue until the service is provided or the usage occurs.

Accounts Receivable
 
Accounts receivable is recorded net of an allowance for doubtful accounts. On a periodic basis, we evaluate our accounts receivable and adjust the 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, collection efforts have been exhausted and payment is 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 voice calls for the Company’s carrier and corporate customers. The majority of the Company’s cost of revenues is thus variable, based upon the number of minutes actually used by the Company’s customers and the destinations they are calling.  Cost of revenues also includes the monthly recurring cost of certain platform services purchased from other service providers, as well as the monthly recurring costs of broadband Internet access and/or private line services purchased from other carriers to meet the needs of the Company’s customers.

Call activity is tracked and analyzed with customized software that analyzes the traffic flowing through the Company’s network switches.  During each period, the call activity is analyzed and an accrual is recorded for the revenues associated with minutes not yet 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, we incur fixed expenses associated with the facilities comprising our network backbone and the connectivity between our switch facilities and the network backbone. These expenses generally include hubbing charges at our New York switching facility that allow other carriers to send traffic to our switch, as well as satellite and/or fiber optic cable charges to connect to international destinations.  Our fixed expenses also include monthly recurring charges associated with certain platform services purchased from other service providers and the monthly recurring costs associated with broadband Internet access and/or private line services purchased from other carriers to meet the needs of our corporate customers.

Impairment of Long-Lived Assets
 
We periodically review long-lived assets, including intangible assets, for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be fully recoverable. If an impairment indicator is present, we evaluate recoverability by a comparison of the carrying amount of the asset to future undiscounted net cash flows expected to be generated by the asset. If the asset is impaired, the impairment recognized is measured by the amount by which the carrying amount exceeds the estimated fair value of the asset. We did not record any impairment of long-lived assets in the first three months of 2012 and 2011.

Income Taxes
 
We account for income taxes in accordance with U.S. GAAP, which requires the recognition of deferred tax liabilities and assets for the expected future income tax consequences of events that have been recognized in our financial statements. Deferred tax liabilities and assets are determined based on the temporary differences between the condensed consolidated interim financial statement 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.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Recently Issued Accounting Pronouncements
 
During the three months ended March 31, 2012 and 2011, there were no new accounting pronouncements adopted by the Company that had a material impact on the Company’s consolidated financial statements.  Management does not believe there are any recently issued, but not yet effective, accounting pronouncements, if currently adopted, that would have a material effect on the Company’s consolidated financial statements.
 
Inflation
 
We do not believe inflation has a significant effect on the Company’s operations at this time.
 
Off Balance Sheet Arrangements
 
Under SEC regulations, we are required to disclose the Company’s off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our 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 the Company’s stock and classified in stockholder’s equity in the Company’s statement of financial position
 
 
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 March 31, 2012, we have no off-balance sheet arrangements that have, or are reasonably likely to have, a current or future effect on the Company’s financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to investors.
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Forward Looking Statements
 
Certain statements and the discussion contained herein regarding the Company’s business and operations may include “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 the Company’s business. The number one risk of the Company is its ability to attract fresh and continued capital to execute its comprehensive business strategy. There may be additional 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,  and the other factors identified by us from time to time in the Company’s filings with the SEC. However, the risks included should not be assumed to be the only things that could affect future performance. We may, among other things, also be subject to service disruptions, delays in collections, or facilities closures caused by potential or actual acts of terrorism or government security concerns.

All forward-looking statements included in this document are made as of the date hereof, based on information available to us as of the date thereof, and we assume no obligation to update any forward-looking statements.
 
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
 
Disclosure under this section is not required for a smaller reporting company.

ITEM 4. CONTROLS AND PROCEDURES.
 
We maintain disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) promulgated under the Securities Exchange Act of 1934, (the “Exchange Act”) that are designed to ensure that information required to be disclosed in Exchange Act reports is recorded, processed, summarized, and reported within the time periods specified in the rules and forms of the SEC and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. Any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives.
 
Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of March 31, 2012.  Based upon that evaluation and subject to the foregoing, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective to accomplish their objectives.

Our Chief Executive Officer and Chief Financial Officer do not expect that our disclosure controls or our internal controls will prevent all error and all fraud. The design of a control system must reflect the fact that there are resource constraints and the benefit of controls must be considered relative to their cost. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that we have detected all of our control issues and all instances of fraud, if any. The design of any system of controls also is based partly on certain assumptions about the likelihood of future events and there can be no assurance that any design will succeed in achieving our stated goals under all potential future conditions.

There have been no changes in our internal control over financial reporting that occurred during our fiscal quarter ended March 31, 2012 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
PART II OTHER INFORMATION
 
ITEM 1. LEGAL PROCEEDINGS.
 
On February 16, 2012, a landlord over premises leased by the Company commenced a proceeding in the New York City Civil Court, County of New York (Index No. 56186/12), in which the landlord sought to recover against the Company certain unpaid rent and related charges due under a lease agreement between the landlord and the Company, and to evict the Company from the premises.   By Stipulation dated April 19, 2012, the landlord and the Company agreed that the landlord would be entitled to a judgment in the amount of $222,510 and a warrant of eviction, but that the landlord would not enforce the judgment or execute the warrant as long as the Company complied with the Stipulation.  To date, the Company has complied with all of its payment obligations under the Stipulation and the accompanying consolidated financial statements fully reflect the amounts owed to the landlord by the Company as of the date of the financial statements.
 
ITEM 1A. RISK FACTORS.
 
An investment in our Securities involves a high degree of risk. You should carefully consider the risks described below before you decide to invest in our Securities. If any of the following events actually occur, our business could be seriously harmed. In such case, the value of your investment may decline and you may lose all or part of your investment. You should not invest in our Securities unless you can afford the loss of your entire investment.
 
Risks Related to Our Business
 
We have a history of operating losses, 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.

At March 31, 2012, we had nominal cash on hand, a working capital deficit of approximately $11.8 million and a stockholders’ deficit of approximately $10.4 million.  Although we have reduced our losses, we continue to sustain losses from operations and for the three months ended March 31, 2012 and 2011, we incurred net losses applicable to common stockholders of approximately $0.9 million and $1.4 million, respectively.  In addition, we did not generate positive cash flow from operations for the years ended December 31, 2011 and 2010 or the three months ended March 31, 2012 and 2011.  We may not be able to generate profits in the future 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 the capital markets or other sources, resulting in dilution of our common stock.

These losses, among other things, have had and will continue to have an adverse effect on our working capital, total assets and stockholders’ deficit.  In light of our recurring losses, accumulated deficit and cash flow difficulties, the report of our independent registered public accounting firm on our financial statements for the fiscal year ended December 31, 2011 contained an explanatory paragraph raising substantial doubt about our ability to continue as a going concern.  Our financial statements do not include any adjustments that may be necessary in the event we are unable to continue as a going concern.

Our carrier services revenue performance is subject to both internal and external influences, which have negatively impacted our revenues and may continue to do so in the future.

During 2011 and 2010, the Company's carrier services revenue was negatively impacted not only by seasonal and economic market fluctuations, but also by a general decline in the overall market for international communications as a result of current economic conditions.  We were also adversely affected by limits on our ability to provide extended payment terms to larger customers.  We anticipate that these revenue growth constraints will be eased as the general economic conditions and the Company’s financial condition improve, but there is no assurance that we will be successful in our efforts to increase revenues and margin contribution in this business segment.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Our business is capital intensive, and we do not currently generate sufficient revenues to offset our operating expenses.  If we are unable to obtain additional funding as and when required, we may have to significantly curtail or possibly terminate our operations.

We will require substantial future capital in order to continue to fund our operating expenses and to otherwise execute our business plan.  If we are unable to obtain additional financing or generate sales revenue sufficient to sustain our operations, we could be forced to significantly curtail or suspend our operations, including laying-off employees, selling assets and other measures.  Additional capital may not be available to us when needed on terms that are acceptable to us, or at all.

We have historically funded our working capital requirements through the sale of our equity securities.  The sale of equity securities to fund operations is dilutive to the equity ownership of our existing stockholders.  Unless we are able to substantially increase our revenues to fund our operating expenses, we will in all likelihood be required to continue to fund operations through additional sales of our equity securities.  In addition, limited cash resources may restrict our ability to sell those carrier services that require us to purchase termination capacity on shorter payment terms than the terms under which we are able sell to our customers. This could limit our ability to grow our revenues and/or margins, or limit our ability to achieve our revenue and/or margin targets.

We have historically relied on our officers and directors to loan us funds to sustain our operations. If such loans are not available if and when we require them in the future, we may have insufficient capital to operate. We may also be required to repay loans, including those from our affiliates, from our accounts receivable.

We have historically relied upon loans from non-related and related parties, including Marvin Rosen, the chairman of our board of directors, to fund our operations.  From January 1, 2011 through December 31, 2011, we received approximately $2.9 million in new loans from Mr. Rosen.  We expect to continue to rely on additional sales of our securities and additional borrowings to support our operations and meet the Company’s financial obligations for the remainder of 2012.  There are no current commitments for such funds and there can be no assurances that such funds will be available to the Company as needed.  In addition, a substantial portion of our outstanding indebtedness is payable upon ten days notice from the lender.  Although we have yet to receive any demand notices for this indebtedness, there are no assurances that we will not receive any such notices in the future, and we currently do not have the financial resources to repay these loans should we receive a demand for payment.

We have historically funded our cash flow requirements, in part, from the proceeds of loans evidenced by secured promissory notes.  To the extent that term notes were not repaid on their stated maturity date, they were typically converted into demand notes, which may be called in the discretion of the note holders.

As of March 31, 2012, approximately $4.9 million of indebtedness was evidenced by such demand notes, all of which are held by Mr. Rosen.  In connection with these notes, Mr. Rosen has been granted a subordinated security interest in our accounts receivable.  If Mr. Rosen were to suddenly demand payment of all outstanding demand notes, or a substantial portion thereof, we likely would not have sufficient funds to repay those notes.  In such event, he could assert rights against us in legal proceedings, and could seek to collect on the notes by enforcing his security interest in our accounts receivable.  This could adversely affect the availability of the funds required to continue operation of our business.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
If we are unable to manage our growth or implement our expansion strategy, we may increase our costs without increasing our revenues.

We may not be able to expand our product offerings, 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, 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 achieve profitability.

The success of our growth is dependent upon market developments and traffic patterns, which may lead us to make expenditures that do 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.  Our fixed costs will also increase from the ownership and maintenance of a greater amount of network equipment including our switching systems, 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, and we cannot assure you 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, invoice customers, 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 invoice customers and provide services efficiently.

We may be impacted by 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 six patents held by Verizon Communications, and ordered Vonage to pay Verizon $58 million plus a future royalty payment equal to 5.5% of Vonage’s customer sales.  The patents related in part to technologies used to connect Internet telephone use to the traditional telephone network.  Vonage appealed the decision, but terminated its appeals options in November 2007, when it agreed to pay Verizon approximately $120 million in settlement.  The future impact, if any, of this litigation, or of similar litigation that might be initiated by other companies against VoIP service providers, including us, is unclear.  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.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Breaches in our network security systems may hurt our ability to deliver services and our reputation and result in liability.

We could lose clients or expose ourselves to liability if there are any breaches to our network security systems that jeopardize or result in the loss of confidential information stored in our computer systems.  Since our inception, we have experienced only two known breaches of network security, which resulted in a temporary failure of certain network operations, but neither breach resulted in any loss of confidential customer information or in any material financial loss.  However, a future network security breach could harm our ability to deliver certain services, damage our reputation or subject us to liability.

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

Our ability to grow through efficient 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 partners that sell our corporate services.  If we are unable to identify or contract for such distribution relationships, or if the efforts of third party sales agents are not successful, we may not generate the customers or revenues currently envisioned and our results of operations will be adversely impacted.

We are dependent upon our ability to obtain the necessary regulatory approvals and licenses to enter new domestic and international markets in which such approvals are required. Such approvals may or may not occur as planned and may or may not be delayed.

Our entry into new domestic and international markets may in certain cases rely upon our ability to obtain licenses or other approvals to operate in those markets, our ability to establish good working relationships with the relevant telecommunications regulatory authorities in that jurisdiction or our ability to interconnect to the local telephone networks in that market.  If we are not able to obtain necessary licenses or approvals, our ability to enter into new markets may be delayed or prevented.

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

The communications industry, including the provisioning of voice services, Internet services 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 carrier competitors, as well as “gray market” operators (operators who arrange call termination in a manner that bypasses the authorized local telephone company, resulting in high margins for them and substantially lower revenues for the legitimate providers), may have an impact on the market.  In addition, many of our current carrier and corporate competitors are significantly larger and have substantially greater market presence; greater financial, technical, operational and marketing resources; and more experience. In the event that such a competitor expends significant sales and marketing resources in one or several markets where we compete with them, we may not be able to compete successfully in those markets.  We also 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 the price reductions of our competitors.  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.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Industry consolidation could make it more difficult for us to compete.

Companies offering voice, 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, technical, sales and marketing resources, or with larger client bases, more extended networks or more established relationships with vendors, distributors and partners.  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 other domestic carriers, Internet service providers, international 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.  In addition, if a carrier with whom we interconnect does not carry the traffic routed to it, or does not provide the 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 with whom we interconnect 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 of supply if and as required, it could result in an inability to deliver the services that we currently provide or intend to provide, and our financial condition and results of operations may be adversely affected.

We rely on the cooperation of other international carriers and/or postal telephone and telegraph companies (“PTTs”), who may not always cooperate with us in our attempts to serve a specific country or market.

In some cases, the growth of our carrier services business requires the cooperation of other international carriers and/or the incumbent PTT in order to provide services to or from specific countries or markets. In the event the PTT, or another in-country international carrier, does not cooperate with us or support us in our efforts to serve that country, our ability to provide service to or from that country may be delayed, or the costs to provide service might increase due to our being forced to use another more expensive carrier.  If we are unable to develop and maintain successful relationships with other international carriers and PTTs, our ability to service an important market could be prevented or adversely affected.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Service interruptions due to disputes or other conditions over which we have no or little control 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 circumstances including disputes with vendors, acts of war, terrorism, acts of God or other issues, many of which are beyond our control. 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 or disruptions, 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 civil unrest. Many of the economies of these emerging markets we seek to enter 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.  Also, deregulation of the communications markets in developing countries may or may not continue.  Incumbent service providers, trade unions and others may resist legislation directed toward deregulation and may resist allowing us to interconnect to their networks.  The legal systems in emerging markets also frequently have insufficient experience with commercial transactions between private parties, therefore we may not be able to protect or enforce our rights in some emerging market countries. Governments and regulations may change, thus impacting the availability of new licenses or the cancellation or suspension of existing operating licenses. The instability of the laws and regulations applicable to our businesses, as well as their interpretation and enforcement, could materially impact our business in those countries and adversely affect our financial condition or results of operations.

The 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 more onerous regulations.  In such cases, our failure to register could subject us to fines, penalties or forfeiture of our right to do business in that country.  Regulatory developments such as these could have a material adverse effect on our international operations.

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

As a result of changes in regulatory policy, we could be forced to pay additional taxes on the products and services we provide.  We structure our operations and our pricing based on assumptions about various domestic and international tax laws, tax treaties and other relevant laws.  Taxation authorities or other regulatory authorities might not reach the same conclusions about taxation that we have reached in formulating our assumptions. 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.

In the U.S., our products and services are subject to varying degrees of federal, state and local regulation, including regulation by the Federal Communications Commission (the “FCC”) and various state public utility commissions.  We may also be subject to similar regulation by foreign governments and their telecommunications and/or 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.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
We cannot assure you 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 and 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 reports and payments.  We are currently working with various federal and state regulatory agencies to complete any outstanding filings and resolve outstanding payment issues.

In addition to new regulations being adopted, existing laws may be applied to the Internet, which could hinder 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.  Changes to existing regulations or the adoption of new regulations 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 a small group of customers and loss of any of those customers could negatively impact our revenues.

A large percentage of our carrier services revenues are provided by a limited number of customers.  Specifically, our five largest customers accounted for approximately 47% and 53% of our revenues for the years ended December 31, 2011 and December 31, 2010, respectively.  The terms of our customer agreements do not bind the customer contractually to continue using our services and if our business with these customers were to significantly decrease or cease altogether, it could have a negative impact on our revenues and cash flow.

Risks Related to our Common Stock

Although our shares are widely dispersed, two voting blocs may influence the outcome of matters submitted to a vote of our stockholders; and the interests of these voting blocs may differ from other stockholders.

West End Special Opportunity Fund II, LP (“West End”) currently beneficially owns approximately 19.9 million shares, or 12.2%, of our outstanding common stock, and is the second largest single voting bloc in the Company. Additionally, our directors and executive officers as a group currently beneficially own approximately 49.6 million shares, or 27.9% of our common stock.  As a result, while neither West End nor our directors and officers as a group have sufficient voting power to control the outcome of matters submitted to a vote of our stockholders, the extent of their ownership enables both groups to influence the outcome of these matters, including the election of directors and extraordinary corporation transactions including business combinations. The interests of the holders of these voting blocs may differ from those of other stockholders.

We are unlikely to pay cash dividends on our common stock in the foreseeable future.

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 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.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
Our common stock is subject to price volatility unrelated to our operations.

The market price of our common stock could fluctuate substantially due to a variety of factors, including market perception of our ability to achieve our planned growth, quarterly operating results of other companies in the same industry, trading volume in our common stock, changes in general conditions in the economy and the financial markets or other developments affecting our competitors or us.  In addition, the stock market is subject to extreme price and volume fluctuations.  This volatility has had a significant effect on the market price of securities issued by many companies for reasons unrelated to their operating performance and could have the same effect on our common stock.

In addition, the market price of our common stock may fluctuate significantly in response to a number of other factors, many of which are beyond our control, including but not limited to the following:

 
Ability to obtain securities analyst coverage
 
 
Changes in securities analysts’ recommendations or estimates of our financial performance
 
 
Changes in the market valuations of companies similar to us
 
 
Announcements by us or our competitors of significant contracts, new offerings, acquisitions, commercial relationships, joint ventures, or capital commitments
 
 
Failure to meet analysts’ expectations regarding financial performance
 
Furthermore, in the past, companies that have experienced volatility in the market price of their stock have been subject to securities class action litigation.  A securities class action lawsuit against us, regardless of its merit, could result in substantial costs and divert the attention of our management from other business concerns, which in turn could harm our business.

Our common stock may become subject to the “penny stock” rules of the SEC, which will make transactions in our shares cumbersome and may reduce the value of an investment in our shares.

For so long as the trading price of our common stock is less than $5.00 per share, our common stock may be considered a "penny stock," and in such event trading in our common stock would be subject to the requirements of Rule 15g-9 under the Securities Exchange Act of 1934.  Under this rule, broker/dealers who recommend low-priced securities to persons other than established customers and accredited investors must satisfy special sales practice requirements.  The broker/dealer must make an individualized written suitability determination for the purchaser and receive the purchaser's written consent prior to the transaction.

SEC regulations also require additional disclosure in connection with any trades involving a "penny stock," including the delivery, prior to any penny stock transaction, of a disclosure schedule explaining the penny stock market and its associated risks.  These requirements severely limit the liquidity of securities in the secondary market because few broker or dealers are likely to undertake these compliance activities.  In addition to the applicability of the penny stock rules, other risks associated with trading in penny stocks could also be price fluctuations and the lack of a liquid market.

To date, we have not been considered a “penny stock” due to an exemption from Rule 15g-9 for companies with average annual audited revenues for the prior three years of in excess of $6,000,000 per year.  However, should the exclusions from the definition of a “penny stock” change, or should our annual revenues fall dramatically, we may become subject to rules applicable to “penny stocks” and the market for our shares may be adversely affected.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
The elimination of monetary liability against our directors, officers and employees under our certificate of incorporation and the existence of indemnification rights in favor of our directors, officers and employees may result in substantial expenditures by our Company and may discourage lawsuits against our directors, officers and employees.

Our certificate of incorporation contains provisions which eliminate the liability of our directors for monetary damages to our Company and stockholders to the maximum extent permitted under Delaware corporate law.  Our by-laws also require us to indemnify our directors to the maximum extent permitted by Delaware corporate law.  We may also have contractual indemnification obligations under our agreements with our directors, officers and employees.  The foregoing indemnification obligations could result in our Company incurring substantial expenditures to cover the cost of settlement or damage awards against directors, officers and employees, which we may be unable to recoup.  These provisions and resultant costs may also discourage our Company from bringing a lawsuit against directors, officers and employees for breaches of their fiduciary duties, and may similarly discourage the filing of derivative litigation by our stockholders against our directors, officers and employees even though such actions, if successful, might otherwise benefit our Company and stockholders.

Our use of equity to fund operations is dilutive to stockholders and, depending upon the market price for our shares at the time of issuance, we may be required to issue shares at depressed prices.

Historically, we have funded our working capital requirements through the sale of our equity.  The use of our equity to fund operations is dilutive to the equity ownership of our securities by our existing stockholders.  Unless we are able to generate substantial revenues to fund our operating expenses, we will, in all likelihood, be required to continue to fund operations through the sale of our equity.  Moreover, the dilutive effect on our stockholders of the issuance of new equity shares is directly impacted by the market price for our shares at the time of issuance.  If we are required to issue shares at a time when the market price for our shares is depressed, we will issue more shares than if the market price was higher, and the dilutive effect on our stockholders will be greater.
 
The issuance of our common stock upon the exercise of options or warrants or the conversion of outstanding convertible securities may cause significant dilution to our stockholders and may have an adverse impact on the market price of our common stock.

As of the date of this report, there were 166,246,993 shares of our common stock outstanding.  The issuance of our shares upon the exercise or conversion of securities we have outstanding will increase the number of our publicly traded shares, which could depress the market price of our common stock.  As of March 31, 2012, unexercised options to purchase 6,571,886 shares of our common stock, unexercised warrants to purchase 50,607,572 shares of our common stock and outstanding preferred stock, including accumulated dividends, convertible into 7,113,840 shares of common stock were outstanding.
 
The perceived risk of dilution may cause our stockholders to sell their shares, which would contribute to a downward movement in the stock price of our common stock.  Moreover, the perceived risk of dilution and the resulting downward pressure on our stock price could encourage investors to engage in short sales of our common stock. By increasing the number of shares offered for sale, material amounts of short selling could further contribute to progressive price declines in our common stock.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
We could use preferred stock to fund operations or resist takeovers, and the issuance of preferred stock may cause additional dilution.

Our certificate of incorporation authorizes the issuance of up to 10,000,000 shares of preferred stock, of which 5,045 shares of Series A-1, A-2 and A-4 Preferred Stock are currently issued and outstanding.  Our certificate of incorporation gives our board of directors the authority to issue preferred stock without the approval of our common stockholders.  We may issue additional shares of preferred stock to raise money to finance our operations.  We may authorize the issuance of the preferred stock in one or more series. In addition, we may set the terms of preferred stock, including:

 
Dividend and liquidation preferences
 
 
Voting rights
 
 
Conversion privileges
 
 
Redemption terms
 
 
Other privileges and rights of the shares of each authorized series
 
The issuance of large blocks of preferred stock could possibly have a dilutive effect to our existing stockholders.  It can also negatively impact our existing stockholders’ liquidation preferences.  In addition, while we include preferred stock in our capitalization to improve our financial flexibility, we could possibly issue our preferred stock to friendly third parties to preserve control by present management.  This could occur if we become subject to a hostile takeover that could ultimately benefit our stockholders and us.

RISKS RELATED TO OUR PROPOSED ACQUISITION OF NBS

Consummation of our proposed acquisition of NBS is subject to the satisfaction of numerous conditions precedent and may not be consummated.

Consummation of our proposed acquisition of NBS is subject to the satisfaction of numerous conditions precedent, including but not limited to, satisfactory completion of our due diligence and completion of an audit of the financial books and records of the business to be acquired, receipt of certain regulatory approvals, our receipt of sufficient funding to pay the cash portion of the purchase price and provide for reasonable post-acquisition working capital requirements, negotiation and execution of mutually acceptable executive employment and non-compete agreements with Jon Kaufman, the principal operating officer of NBS, and other customary conditions of closing.  There is no assurance that the conditions precedent to closing will be satisfied or waived, or that the proposed acquisition of NBS will be consummated.

 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
We may be unable to secure the funding necessary to consummate our proposed acquisition of NBS.

Among the conditions precedent to consummation of our acquisition of NBS is our ability to secure the necessary funding.  While we are engaged in discussion with several potential sources of a combination of debt and equity financing, there is no assurance that we can obtain the necessary financing on acceptable terms, or at all.
Consummation of our acquisition of NBS does not provide assurance that the operations of NBS will be accretive to our earnings or otherwise improve our results of operations.

Acquisitions, such as our proposed acquisition of NBS, involve the integration of previously separate businesses into a common enterprise in which it is envisioned that synergistic operations and economies of scale will create accretive earnings and improved results of operations.  However, realization of these envisioned results are subject to numerous risks and uncertainties including but not limited to:

·  
Diversion of management time and attention from daily operations;
 
·  
Difficulties integrating the acquired business, technologies and personnel into our business;
 
·  
Potential loss of key employees, key contractual relationships or key customers of the acquired business; and
 
·  
Assumption of the liabilities and exposure to unforeseen liabilities of the acquired business
 
Even if our proposed acquisition of NBS is consummated, there is no assurance that the acquisition will be accretive to our earnings or otherwise improve our results of operations.
 
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS.
 
During the first three months of 2012, the Company entered into subscription agreements with 20 accredited investors, under which the Company issued an aggregate of 8,767,828 shares of common stock and five-year warrants to purchase 2,741,468 shares of the Company’s common stock.  The warrants are exercisable at approximately 112% of the average closing price of the Company’s common stock for the five trading days prior to closing.  The net proceeds of $0.9 million were used for general working capital purposes.  The securities were sold by the Company’s officers and directors and no commissions or other remuneration were paid in connection with these transactions.  These transactions were exempt from registration under Section 4(2) of the Securities Act of 1933, as amended, and Rule 506 of Regulation D thereunder.
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
 
None
 
ITEM 4. MINE SAFETY DISCLOSURES.
 
Not applicable
 
ITEM 5. OTHER INFORMATION.
  
None
 
 
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FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
ITEM 6. EXHIBITS.
 
EXHIBIT NO.
 
DESCRIPTION
 
Certification of the Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
Certification of the Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
 
Certification of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
Certification of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
10.44
 
Forbearance and Settlement Agreement dated March 26, 2012 between registrant and TD Bank, N.A.
101.INS*
 
XBRL Instance Document
101.SCH*
 
XBRL Taxonomy Extension Schema Document
101.CAL*
 
XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF*
 
XBRL Taxonomy Extension Definition Linkbase Document
101.LAB*
 
XBRL Taxonomy Extension Label Linkbase Document
101.PRE*
 
XBRL Taxonomy Extension Presentation Linkbase Document
_________
*  Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, except as expressly set forth by specific reference in such filing, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.

 
37

 
 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
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.  
       
May 14, 2012
By:
/s/ MATTHEW D. ROSEN  
    Matthew D. Rosen  
    Chief Executive Officer  
       
May 14, 2012   /s/ GORDON HUTCHINS, JR.  
    Gordon Hutchins, Jr.  
    President, Chief Operating Officer and Acting Chief Financial Officer  
 
 
38

 
 
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC. AND SUBSIDIARIES
 
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.
31.2
 
Certification of the Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1
 
Certification of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2
 
Certification of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
10.44
 
Forbearance and Settlement Agreement dated March 26, 2012 between registrant and TD Bank, N.A.
101.INS*
 
XBRL Instance Document
101.SCH*
 
XBRL Taxonomy Extension Schema Document
101.CAL*
 
XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF*
 
XBRL Taxonomy Extension Definition Linkbase Document
101.LAB*
 
XBRL Taxonomy Extension Label Linkbase Document
101.PRE*
 
XBRL Taxonomy Extension Presentation Linkbase Document
__________
* Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, as amended, except as expressly set forth by specific reference in such filing, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under those sections.
 
 
39