Exhibit 10.2
BURNHAM HILL PARTNERS
LLC
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590 MADISON
AVENUE
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TEL
212-980-2200
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NEW YORK,
NEW YORK 10022
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FAX
212-980-9466
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May 26, 2009
Mr. Jon A.
DeLuca
President and Chief Executive Officer
FiberNet Telecom Group, Inc.
220 West 42nd Street
New York, New York 10036
Dear Mr. DeLuca:
This letter agreement dated
May 26, 2009 (the “Agreement”) is entered into by
and between FiberNet Telecom Group, Inc, a Delaware corporation,
having a place of business at 220 West 42 nd Street, New York, NY 10036
(“FiberNet”) and Burnham Hill Partners LLC, a
registered broker dealer, having a place of business at 590 Madison
Ave., 5 th
Floor, New York, NY 10022
(“BHP”).
FiberNet and BHP hereby agree to as
follows:
1. Services.
BHP shall provide advisory and
investment banking services on a non-exclusive basis with respect
to the proposed Agreement and Plan of Merger (the
“Merger”) by and among FiberNet, Zayo Group, LLC
(“Zayo”) and a wholly-owned subsidiary of Zayo. BHP
shall perform or cause to be performed such of the following
financial advisory and investment banking services as FiberNet
reasonably and specifically requests:
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(a)
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BHP will
familiarize itself to the extent it deems appropriate and feasible
with the business, operations, financial condition and prospects of
FiberNet;
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(b)
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BHP will assist
FiberNet in identifying and evaluating candidates for a potential
transaction alternative to the Merger and familiarize itself to the
extent it deems appropriate and feasible with the business,
operations, financial condition and prospects of each such
alternative acquiror (any such alternative transaction, a
“Transaction”);
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(c)
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BHP will advise
and assist FiberNet in considering the desirability of effecting a
Transaction, and, if FiberNet believes such a Transaction to be
desirable, in developing and implementing a general strategy for
accomplishing a Transaction;
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(d)
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BHP will advise
and assist FiberNet in the course of its negotiation of a
Transaction and will participate in such negotiations as requested;
and
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(e)
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BHP will assist
senior management of FiberNet in analyzing strategic
alternatives.
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Notwithstanding anything contained
herein to the contrary, this Agreement does not constitute any
commitment by FiberNet to consummate the Merger or any other
strategic or financial transaction, and FiberNet will determine in
its sole and absolute discretion whether or not (and on what terms)
to consummate any such strategic or financial
transaction.
2. Term.
This engagement shall have a term of
twelve (12) months from the date hereof (the
“Term”), which may be extended upon mutual written
agreement of the parties. Either party may, upon ten (10) days
written notice to the other party, terminate this Agreement,
provided however, that upon any such expiration or termination, BHP
will continue to be entitled to its full fees provided for in
Section 3, in the event that at any time prior to the
expiration of twelve (12) months after such expiration or
termination (the “Tail Period”), FiberNet completes the
Merger or a Transaction. In the event of expiration or termination,
provisions of Sections 2, 3, 4, 6, 8, 9 and 10 shall survive such
termination.
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3. Fees and Expenses.
In connection with BHP’s
engagement hereunder, FiberNet shall compensate and reimburse BHP
as set forth below:
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(a)
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Immediately
upon the consummation of the Merger or any such other Transaction,
as applicable, FiberNet shall pay BHP by wire transfer a cash fee
equal to $400,000 for its services provided hereunder.
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(b)
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Periodic
reimbursement of reasonable out-of-pocket expenses (which amount
shall not exceed $1,000 in the aggregate without prior written
approval of FiberNet) incurred in connection with this Agreement
provided that FiberNet is invoiced with appropriate
receipts.
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4. Confidential
Information.
In connection with this Agreement,
FiberNet will furnish BHP with all information concerning FiberNet,
which BHP reasonably deems appropriate and will provide BHP with
access to its officers, directors, employees, accountants, counsel
and other representatives (collectively, the
“Representatives”), it being understood that BHP will
rely solely upon such information supplied by FiberNet and its
Representatives without assuming any responsibility for the
independent investigation or verification thereof. All non-public
information concerning FiberNet that is given to BHP will be used
solely in the course of the performance of our services hereunder
and will be treated confidentially by BHP for so long as it remains
non-public. Except as otherwise required by law, BHP will not
disclose any information to any third party without the consent of
FiberNet.
In the event that FiberNet enters
into negotiations with a counterparty regarding a possible
Transaction, FiberNet will request such counterparty to furnish BHP
with such information that BHP reasonably requests in connection
with the performance of its services provided hereunder. BHP will
rely solely upon such information supplied by such counterparty
without assuming any responsibility for the independent
investigation or verification thereof. All non-public information
concerning such counterparty that is given to BHP will be used
solely in the course of the performance of our services hereunder
and will be treated confidentially by BHP for so long as it remains
non-public.
No advice or opinion rendered by
BHP, whether formal or informal, may be disclosed, in whole or in
part, or summarized, excerpted from or otherwise referred to
without our prior written consent. In addition, BHP may not be
otherwise referred to without its prior written consent.
BHP is not providing a fairness
opinion pursuant to its engagement hereunder.
5. Reliance on
Others.
FiberNet confirms that it will rely
on its own counsel, accountants and other similar expert advisors
for legal, accounting, tax and other similar advice.
6. Indemnity.
Since BHP will be acting on behalf
of FiberNet in connection with its engagement hereunder, FiberNet
has entered into a separate letter agreement (the
“Indemnification Agreement”), dated the date hereof,
providing for the indemnification by FiberNet of BHP and certain
related persons and entities.
7. Notices.
Notice given pursuant to any of the
provisions of this Agreement shall be given in writing and shall be
sent by overnight courier or personally delivered (a) if to
FiberNet, to FiberNet’s Chief Executive Officer at the
address first listed above; and (b) if to BHP, to its offices
at 590 Madison Avenue, 5th floor, New York, NY 10022, Attention:
Michael Liss, Senior Managing Director.
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8. Entire Agreement; Modification; and
Governing Law.
The letter agreement shall remain in
full force and effect as to BHP and FiberNet. Our engagement is for
the limited purposes set forth under this Agreement, and
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