AboveNet, Inc.
Exhibit
4.7
November
3, 2010
AboveNet,
Inc.
000
Xxxxxxxx Xxxxxx
Xxxxx
Xxxxxx, Xxx Xxxx 00000
Dear
Sirs:
Reference
is made to the Registration Rights Agreement, dated as of March 1, 2004, by and
among the AboveNet, Inc. (the “Company”) and the
security holders listed on Schedule I thereto (the “March 2004
Agreement”), pursuant to which the Company provided Franklin Mutual
Advisers, LLC (“FMA”) and certain
other holders of the Company’s securities certain registration
rights. In consideration of the covenants and agreements set forth in
this Resale Registration Agreement (this “Agreement”),
including the Company’s agreement, on the terms and subject to the conditions
set forth herein, to register the shares of Company common stock, par value
$0.01 per share (“Common Stock”),
requested to be registered (the “Shares”) by the
advisory clients of FMA listed on Schedule A hereto (collectively, the “Selling
Stockholders”), the parties hereto agree as follows:
SECTION
1. Registration.
(a) Request for
Registration. The Company is in receipt of the written
requests from the Selling Stockholders in the form of completed
Selling Stockholder Questionnaires, a copy of which is annexed hereto as Annex A
(a “Questionnaire”), and
the Company shall prepare and file with the Securities and Exchange Commission
(the “Commission”) a
registration statement on Form S-3ASR (the “Registration
Statement,” which term shall include any successor registration statement
on Form S-3 or Form S-3ASR and all amendments and supplements thereto), promptly
after the date of this Agreement, for an offering to be made pursuant to Rule
415 under the Securities Act of 1933, as amended (the “Securities Act”),
covering such number of Shares as requested by the Selling Stockholders in their
Questionnaires. Such Registration Statement, together with any
required post-effective amendments thereto, shall be the only registration
statement required to be filed under this Agreement. Provided that
the Company is eligible to use Form S-3 and subject to the Blackout Periods
(defined below), the Company shall use commercially reasonable efforts to keep
the Registration Statement continuously effective under the Securities Act until
the earlier of such date when (i) all Shares have been sold, (ii) any unsold
Shares may thereafter be sold pursuant to Rule 144 under the Securities Act
without any volume or method of sale restrictions, or (iii) the Common Stock is
no longer publicly traded. Upon the Company’s request from time to
time, the Selling Stockholders shall provide the Company with information
reasonably requested regarding the sale of Shares.
(b) Plan of
Distribution. The Selling Stockholders’ initial plan of
distribution for inclusion in the Registration Statement is set forth in Annex B
hereto. The Selling Stockholders agree to promptly notify the Company
of any inaccuracies or changes in such information.
(c) Waiver under March 2004
Agreement; Termination. Subject
to the other conditions set forth in this Agreement, FMA and each of the Selling
Stockholders hereby waive, on behalf of themselves and their successors and
assigns, all rights under the March 2004 Agreement. The Company may,
at any time prior to the filing of the Registration Statement with the
Commission, terminate this Agreement by delivering to FMA a written notice of
termination, and the Company shall be entitled to terminate the Registration
Statement following its filing with the Commission if the Company determines
that, due to any change in any applicable law or regulation (or any
interpretation thereof by any competent court or agency), maintaining the
Registration Statement would be materially burdensome to the
Company. In the event that the Company terminates this Agreement or
terminates the Registration Statement in accordance with the foregoing
provision, FMA’s and the Selling Stockholders’ waivers of rights under the March
2004 Agreement shall be null and void.
(d) Notification of
Distributions. No Selling Stockholder shall engage in a
“distribution” (within the meaning of Regulation M under the Securities Exchange
Act of 1934, as amended) of Shares unless such Selling Stockholder shall have
provided the Company with written notice of such distribution at least 10
business days prior to the commencement thereof.
SECTION
2. Additional
Registration Procedures. If any Shares are to be registered
pursuant to Section 1 hereof, the Company shall:
(a) prior
to the filing described above in Section 1(a), furnish to FMA drafts of the
Registration Statement and any future amendments or supplements thereto and any
prospectus forming a part thereof and such other documents as FMA may reasonably
request, which documents may be reviewed by counsel representing the Selling
Stockholders;
(b) notify
FMA when any post-effective amendment or supplement or any prospectus forming a
part of the Registration Statement has been filed with the
Commission;
(c) provide
FMA with copies of all written communications between the Company and the
Commission relating to the Registration Statement;
(d) use
its commercially reasonable efforts to cause all of the Shares to be listed on
the New York Stock Exchange;
(e) furnish
to the Selling Stockholders such number of copies of the prospectus included in
the Registration Statement and such other documents the Selling Stockholders may
reasonably request in order to facilitate the disposition of the Shares;
and
(f) at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, notify the Selling Stockholders promptly upon the Company’s
becoming aware that the prospectus included in the Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly prepare and file with the Commission (subject to the Company’s
rights under Section 3 below), such amendments or supplements to any
Registration Statement as may be necessary to correct any such statements or
omission.
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SECTION
3. Blackout
Periods. The Company shall have the right to (a) delay the
filing or effectiveness of the Registration Statement required pursuant to
Section 1 hereof or (b) suspend the availability of the Registration Statement
required pursuant to Section 1 hereof and the related prospectus during such
period as shall be reasonably necessary (each, a “Blackout Period”) in
the event of (i) the issuance by the Commission of a stop order with respect to
the Registration Statement or the initiation of proceedings with respect to the
Registration Statement under the Securities Act, (ii) the occurrence
of any event or the existence of any fact as a result of which (A) the
Registration Statement shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) the prospectus shall contain
any untrue statement of a material fact or omit to statement any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(iii) the occurrence or existence of any pending material financing,
acquisition, corporate reorganization, divestiture or other material transaction
(which may include purchases by the Company of shares of its Common Stock
pursuant to a stock repurchase program or otherwise), including without
limitation any such event that may (A) interfere with or affect the negotiation
or completion of any material transaction that is being contemplated by the
Company (whether or not a final decision has been made to undertake such
transaction at the time the right to suspend is exercised) or (B) involve
initial or continuing disclosure obligations that may not be in the best
interest of the Company or its stockholders, that, in the reasonable discretion
of the Company, makes it appropriate to delay the filing or effectiveness or
suspend the availability of any Registration Statement and the related
prospectus. The Company shall promptly give the Selling Stockholders
notice of such determination.
Upon
notice by the Company to the Selling Stockholders of any such determination,
each Selling Stockholder shall keep the fact of any such notice strictly
confidential, and during any Blackout Period, promptly halt any offer, sale,
trading or transfer by it of any Shares pursuant to the Registration Statement
for the duration of the Blackout Period set forth in such notice (or until such
Blackout Period shall be earlier terminated in writing by the Company) and
promptly halt any use, publication, dissemination or distribution of any
prospectus or prospectus supplement covering any Shares for the duration of the
Blackout Period and, if so directed by the Company, shall deliver to the Company
any copies then in its possession of any such prospectus or prospectus
supplement.
Notwithstanding
anything in this Section 3 to the contrary, in no event shall any Blackout
Period extend for more than one hundred eighty (180) days, and in no event shall
there be Blackout Period(s) covering more than one hundred eighty (180) days in
any twelve (12) month period. If the occurrence of a Blackout Period
causes the effectiveness of the Registration Statement to lapse, and any Shares
remain unsold (and cannot be sold thereafter without any volume or method of
sale restrictions), the Company shall use its commercially reasonable efforts to
cause, as expeditiously as possible following the end of the Blackout Period, a
Registration Statement covering the unsold Shares to become
effective. So long as the Company uses commercially reasonable
efforts to cause any Blackout Period to end as promptly as possible, the
previous sentence shall be the exclusive remedy for any breach of any provision
of this Section 3.
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SECTION
4. Indemnification.
(a) Indemnification by the
Company. The Company shall indemnify, defend and hold harmless
the Selling Stockholders, each other Person (as defined below), if any, who
controls such Selling Stockholders within the meaning of Section 15 of the
Securities Act, and their respective directors, officers, agents, partners,
managers, members, employees and representatives (collectively, “Indemnitees”) from and against any
losses, claims, damages or liabilities, joint or several, to which such
Indemnitee may become subject under the Securities Act, any other statute, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which the Shares were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances in which they were made not
misleading, and the Company shall reimburse each such Indemnitee for any legal
or any other expenses reasonably incurred by it in connection with investigating
or defending any such loss, claim, liability, action or proceeding; provided, that the
Company shall not be liable in any such case to any Indemnitee to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon information furnished to
the Company in writing by or on behalf of such Indemnitee; and provided further,
that the Company shall not be liable to any Indemnitee that sells Shares to the
Person asserting such claim if a copy of the final prospectus was not sent or
given to such Person, as the same may be then supplemented or amended, at the
time of or prior to the written confirmation of the sale of Shares if such
statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Indemnitee and shall survive the transfer of the
Shares of each Indemnitee. For purposes of this Agreement, a “Person”
is any individual, firm, corporation, partnership, limited liability company,
trust, joint venture or other entity, and shall include any successor (by merger
or otherwise) and any permitted assigns of such entity.
(b) Indemnification by the Selling
Stockholder. Each Selling Stockholder that includes any Shares
in the Registration Statement shall indemnify and hold harmless the Company,
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, and their respective directors, officers, agents,
partners, managers, members, employees and representatives from and against any
losses, claims, damages or liabilities, joint or several, to which such Person
may become subject under the Securities Act, any other statute, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) or expense
arises out of or is based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which the Shares were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances in which they were made not
misleading in such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, in reliance upon
information furnished to the Company in writing by or on behalf of such Selling
Stockholder. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer, employee or controlling Person and shall survive the transfer by the
seller of the securities of the Company being registered. Notwithstanding the
foregoing, the Selling Stockholder’s liability under this Section 4(b) with
respect to any particular registration shall be limited to an amount equal to
the net proceeds received by such Selling Stockholder from the Shares sold in
such registration.
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(c) Contribution. If the indemnification
provided for in Section 4(a) or Section 4(b) above is unavailable to an
indemnified party in respect of any losses, claims, damages or liabilities
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and of the indemnified parties on the
other in connection with the statements or omissions or violations which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and of the indemnified parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified parties, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. If the allocation provided in this Section 4(c) is
not permitted by applicable law, the parties shall contribute based upon the
relevant benefits received by the Company and the Selling Stockholder from the
sale of the Shares.
The
Company and the Selling Stockholders agree that it would not be just and
equitable if contribution pursuant to this Section 4(c) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities or actions in respect thereof referred
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentations (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) Indemnification Procedures.
Any person entitled to indemnification hereunder (the “Indemnified
Party”) agrees to give prompt
written notice to the indemnifying party (the “Indemnifying
Party”) after the receipt by
the Indemnified Party of any written notice of the commencement of any action,
suit, proceeding or investigation or threat thereof made in writing for which
the Indemnified Party intends to claim indemnification or contribution pursuant
to this Agreement; provided, that, the failure to so notify the Indemnifying
Party shall not relieve the Indemnifying Party of any liability that it may have
to the Indemnified Party hereunder unless such failure is materially prejudicial
to the Indemnifying Party. If notice of commencement of any such action is given
to the Indemnifying Party as provided above, the Indemnifying Party shall be
entitled to participate in and, to the extent it may wish, to assume the defense
of such action at its own expense, with outside counsel chosen by it and
reasonably satisfactory to such Indemnified Party. The Indemnified Party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, and the fees and expenses of such counsel shall be paid by
the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same,
(ii) the Indemnifying Party fails to assume the defense of such action or (iii)
the named parties to any such action (including any impleaded parties) have been
advised by counsel that either (A) representation of such Indemnified Party and
the Indemnifying Party by the same counsel would be inappropriate under
applicable standards of professional conduct or (B) there are one or more legal
defenses available to it which are substantially different from or additional to
those available to the Indemnifying Party. No Indemnifying Party shall be liable
for any settlement entered into without its written consent, which consent shall
not be unreasonably withheld.
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(e) Payments. The indemnification
required by this Section 4 shall be made by periodic payments of the amount
thereof during the course of investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
SECTION
5. Expenses. The
Selling Stockholders shall pay all fees and expenses in connection with the
Registration Statement and any sales of Shares, including, without limitation,
all registration fees, printing fees, all fees and disbursements of counsel to
the Selling Stockholders and any fees and disbursements of underwriters
including underwriting discounts, agent fees and commissions, if any; provided, however, that the
fees and disbursements of the Company’s counsel and accountants shall be paid by
the Company.
SECTION
6. Miscellaneous.
(a) Notices. Notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service or sent by facsimile as
follows:
if to the Selling
Stockholders:
c/o Franklin Mutual Advisers,
LLC
000 Xxxx X. Xxxxxxx
Xxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx
Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
if to the
Company:
AboveNet, Inc.
000
Xxxxxxxx Xxxxxx
Xxxxx
Xxxxxx, XX 00000
Attention: General
Counsel
Telephone: (000)
000-0000
Facsimile: (000) 000-0000
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with a
copy to:
Xxxxxx and Xxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxx X.
Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
All
notices and other communications given to any party in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
receipt if delivered by hand or overnight courier service or sent by facsimile
in each case delivered or sent (properly addressed) to such party as provided in
this Section 6(a) or in accordance with the latest unrevised direction from such
party given in accordance with this Section 6(a).
(b) Assignment. The
Agreement and the rights, interests and obligations hereunder shall not be
assignable or transferable by any party to this Agreement without the prior
written consent of the other parties.
(c)
No Third-Party
Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and nothing herein expressed or implied shall give or be
construed to give to any Person, other than the parties hereto, any legal or
equitable rights hereunder.
(d) Amendments and
Waivers. Except as otherwise provided herein, the provisions
of this Agreement may not be amended, modified or supplemented, and waivers or
consents to depart from the provisions hereof may not be given without the prior
written consent of all parties hereto.
(e) Entire
Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof. Any
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement.
(f) Severability. In
the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
(g) Counterparts. This
Agreement may be executed in one or more counterparts (including by facsimile or
PDF), each of which shall constitute an original but all of which when taken
together shall constitute but one agreement, and shall become effective when one
or more such counterparts have been signed by each of the parties and delivered
to the other party.
(h) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of law principles of such state.
[Remainder of page intentionally left
blank. Signature pages follow.]
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If the
foregoing is in accordance with your understanding, please sign and return to us
a counterpart hereof, and upon the acceptance hereof by you, this shall
constitute a binding agreement among the Company, FMA and each of the Selling
Stockholders.
Very
truly yours,
FRANKLIN MUTUAL ADVISERS,
LLC
By:
/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
BEACON FUND
By:
/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
GLOBAL DISCOVERY FUND
(F/K/A
MUTUAL DISCOVERY FUND)
By:
/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
EUROPEAN FUND
By:
/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
QUEST FUND
(F/K/A
MUTUAL QUALIFIED FUND)
By:
/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
SHARES FUND
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
GLOBAL DISCOVERY SECURITIES FUND
(F/K/A
MUTUAL DISCOVERY SECURITIES FUND)
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
SHARES SECURITIES FUND
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
BEACON FUND (CANADA)
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice President
Title: Vice President
FRANKLIN
MUTUAL RECOVERY FUND
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
MUTUAL
RECOVERY FUND, LTD.
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
FRANKLIN
MUTUAL BEACON FUND
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
FRANKLIN
MUTUAL SHARES FUND
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Vice
President
The
foregoing Resale Registration Agreement
is hereby
confirmed and accepted as of the
date
first written above.
ABOVENET,
INC.
By:
/s/ Xxxxxx Xxxxxx
Name: Xxxxxx
Xxxxxx
Title: Senior
Vice President and General Counsel
ANNEX
A
FORM
OF SELLING STOCKHOLDER QUESTIONNAIRE
AboveNet,
Inc.
Selling
Stockholder Questionnaire
The
undersigned beneficial owner (the “Selling Stockholder”)
of common stock (the “Common Stock”) of
AboveNet, Inc., a Delaware corporation (the “Company”),
understands that the Company intends to file with the Securities and Exchange
Commission (the “Commission”) a
registration statement (the “Registration
Statement”) for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the “Securities Act”), of
shares of Common Stock beneficially owned by the Selling Stockholder and certain
other holders of Common Stock (the “Shares”), in
accordance with the terms of the Agreement, dated ________ __, 2010, between the
Company, the Selling Stockholder and the other parties thereto (the “Resale Registration
Agreement”) to which this document is annexed.
In order
to sell or otherwise dispose of any Shares pursuant to the Registration
Statement, a holder of Shares generally will be required to be named as a
selling stockholder in the related prospectus or a supplement thereto (as so
supplemented, the “Prospectus”), deliver
the Prospectus to purchasers of Shares and be bound by the provisions of the
Resale Registration Agreement. Holders must complete and deliver this
Questionnaire in order to be named as selling stockholders in the
Prospectus.
Certain
legal consequences arise from being named as a selling stockholder in the
Registration Statement and the Prospectus. Accordingly, holders and
beneficial owners of Shares are advised to consult their own securities law
counsel regarding the consequences of being named or not being named as a
selling stockholder in the Registration Statement and the
Prospectus.
ELECTION
TO INCLUDE SHARES
The
undersigned Selling Stockholder hereby elects to include __________ Shares owned
by it in the Registration Statement.
The
undersigned Selling Stockholder hereby provides the following information to the
Company and represents and warrants that such information is
accurate:
QUESTIONNAIRE
|
1.
|
Name.
|
|
|
(a)
|
Full
Legal Name of Selling Stockholder
|
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which the Shares are held:
|
|
|
(c)
|
State
the names of any parties with whom the Selling Stockholder shares voting
or investment power with respect to any of the Company securities
beneficially owned or state “None.”
|
|
|
(d)
|
Full
Legal Name of Natural Control Person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose
of the securities covered by this Questionnaire):
|
|
2.
|
Address
for Notices to Selling Stockholder:
|
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Telephone:
|
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Fax:
|
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Contact
Person:
|
|
3.
|
Broker-Dealer
Status:
|
|
|
(a)
|
Are
you a broker-dealer?
|
Yes No
|
|
(b)
|
If
you answered “yes” to Question 3(a), did you receive your Shares as
compensation for investment banking services to the
Company?
|
Yes No
|
Note:
|
If
you answered “yes” to Question 3(a) and “no” to Question 3(b), the
Commission’s staff has indicated that you should be identified as an
underwriter in the Registration
Statement.
|
|
|
(c)
|
Are
you an affiliate of a
broker-dealer?
|
Yes No
|
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(d)
|
If
you are an affiliate of a broker-dealer, do you certify that you purchased
the Shares in the ordinary course of business, and at the time of the
purchase of the Shares to be resold, you had no agreements or
understandings, directly or indirectly, with any person to distribute the
Shares?
|
Yes No
|
Note:
|
If
you answered “no” to Question 3(d), the Commission’s staff has indicated
that you should be identified as an underwriter in the Registration
Statement.
|
|
|
4. Beneficial
Ownership of Securities of the Company Owned by the Selling
Stockholder.
|
Except
as set forth below in this Item 4, the undersigned is not the beneficial or
registered owner of any securities of the Company.
|
|
(a)
|
Type
and Amount of other Company securities beneficially owned by the Selling
Stockholder:
|
|
5.
|
Relationships
with the Company:
|
Except
as set forth below, neither the undersigned Selling Stockholder nor any of its
affiliates, officers, directors or principal equity holders (owners of 5% of
more of the equity securities of the undersigned) has held any position or
office or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
State any
exceptions here:
|
|
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6.
|
Plan
of Distribution:
|
The
undersigned Selling Stockholder has reviewed the form of Plan of Distribution
attached as Annex B to the Resale Registration Agreement, and hereby confirms
that the information contained therein regarding the undersigned and its plan of
distribution is correct and complete.
|
|
* * * * *
|
The
undersigned Selling Stockholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may occur
subsequent to the date hereof. All notices hereunder and pursuant to
the Resale Registration Agreement shall be made in writing, by hand delivery,
confirmed or facsimile transmission, first-class mail or air courier
guaranteeing overnight delivery at the address set forth below. In
the absence of any such notification, the Company shall be entitled to continue
to rely on the accuracy of the information in this Questionnaire.
By
signing below, the undersigned Selling Stockholder understands and agrees that
it will be bound by the terms and conditions of the Resale Registration
Agreement and this Questionnaire. By signing below, the undersigned
Stockholder consents to the disclosure of the information contained herein in
its answers to Items 1 through 6 and the inclusion of such information in the
Registration Statement and the related prospectus and any amendments or supplements
thereto. The undersigned Selling Stockholder understands that
such information will be relied upon by the Company in connection with the
preparation or amendment of the Registration Statement and the related
prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this
Questionnaire to be executed and delivered as of the date specified
below.
Date:
____________ __, 2010
By:
Name:
Title:
PLEASE
RETURN A COMPLETED QUESTIONNAIRE BY EMAIL TO XXXXXXX@XXXXX.XXX AND BY REGULAR
MAIL TO:
Xxxxxx
Xxxxxx
AboveNet,
Inc.
000
Xxxxxxxx Xxxxxx
Xxxxx
Xxxxxx, Xxx Xxxx 00000
ANNEX
B
FORM
OF PLAN OF DISTRIBUTION
Plan
of Distribution
General
The
selling stockholders may sell the shares of our common stock covered by this
registration statement from time to time on the New York Stock Exchange or
otherwise using one or more of the following methods:
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underwriters
in a public offering;
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“at
the market” to or through market makers or into an existing market for the
shares;
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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privately
negotiated transactions;
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through
the writing or settlement of standardized or over-the-counter options or
other hedging or derivative transactions, whether through an options
exchange or otherwise;
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by
pledge to secure debts and other obligations;
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in
other ways not involving market makers or established trading markets,
including direct sales to purchasers or sales effected through
agents;
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a
combination of any such methods of sale; and
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any
other method permitted pursuant to applicable
law.
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To the
extent required by law, this prospectus may be amended or supplemented from time
to time to describe a specific plan of distribution. Any prospectus
supplement relating to a particular offering of our common stock by the selling
stockholders may include the following information to the extent required by
law:
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the
terms of the offering;
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the
names of any underwriters or agents;
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the
purchase price of the securities;
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any
delayed delivery arrangements;
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any
underwriting discounts and other items constituting underwriters’
compensation;
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any
public offering price; and
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any
discounts or concessions allowed or reallowed or paid to
dealers.
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The
selling stockholders may offer our common stock to the public through
underwriting syndicates represented by managing underwriters or through
underwriters without an underwriting syndicate. If underwriters are
used for the sale of our common stock, the securities will be acquired by the
underwriters for their own account. The underwriters may resell the
common stock in one or more transactions, including in negotiated transactions
at a fixed public offering price or at varying prices determined at the time of
sale. In connection with any such underwritten sale of common stock,
underwriters may receive compensation from the selling stockholders, for whom
they may act as agents, in the form of discounts, concessions or
commissions. Underwriters may sell common stock to or through
dealers, and the dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. Such compensation may be
in excess of customary discounts, concessions or commissions.
If the
selling stockholders use an underwriter or underwriters to effectuate the sale
of common stock, we and/or they will execute an underwriting agreement with
those underwriters at the time of sale of those securities. To the
extent required by law, the names of the underwriters will be set forth in the
prospectus supplement used by the underwriters to sell those
securities. Unless otherwise indicated in the prospectus supplement
relating to a particular offering of common stock, the obligations of the
underwriters to purchase the shares will be subject to customary conditions
precedent and the underwriters will be obligated to purchase all of the shares
offered if any of the shares are purchased.
In
effecting sales, brokers or dealers engaged by the selling stockholders may
arrange for other brokers or dealers to participate. Broker-dealers
may receive discounts, concessions or commissions from the selling stockholders
(or, if any broker-dealer acts as agent for the purchaser of shares, from the
purchaser) in amounts to be negotiated. Such compensation may be in
excess of customary discounts, concessions or commissions. If dealers are
utilized in the sale of securities, the names of the dealers and the terms of
the transaction will be set forth in a prospectus supplement, if
required.
The
selling stockholders may also sell shares of our common stock from time to time
through agents. We will name any agent involved in the offer or sale
of such shares and will list commissions payable to these agents in a prospectus
supplement, if required. These agents will be acting on a best
efforts basis to solicit purchases for the period of their appointment, unless
we state otherwise in any required prospectus supplement.
The
selling stockholders may sell shares of our common stock directly to
purchasers. In this case, they may not engage underwriters or agents
in the offer and sale of such shares.
The
selling stockholders and any underwriters, broker-dealers or agents that
participate in the sale of the selling stockholders’ shares of common stock or
interests therein may be “underwriters” within the meaning of the Securities Act
of 1933, as amended (the “Securities Act”). Any discounts,
commissions, concessions or profit they earn on any resale of the shares may be
underwriting discounts and commissions under the Securities
Act. Selling stockholders who are “underwriters” within the meaning
of the Securities Act will be subject to the prospectus delivery requirements of
the Securities Act. We will make copies of this prospectus available
to the selling stockholders for the purpose of satisfying the prospectus
delivery requirements of the Securities Act, if applicable. If any
entity is deemed an underwriter or any amounts deemed underwriting discounts and
commissions, the prospectus supplement will identify the underwriter or agent
and describe the compensation received from the selling
stockholders.
The
selling stockholders will act independently of us in making decisions with
respect to the timing, manner and size of any sale of our common stock and we
are not aware of any plans, arrangements or understandings regarding any such
sales. We cannot assure you that the selling stockholders will sell
any or all of the shares of our common stock offered by them pursuant to this
prospectus. In addition, we cannot assure you that the selling
stockholders will not transfer the shares of our common stock by other means not
described in this prospectus. Moreover, shares of common stock
covered by this prospectus that qualify for sale pursuant to Rule 144 under
the Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
From time
to time, one or more of the selling stockholders may pledge, hypothecate or
grant a security interest in some or all of the shares owned by
them. The pledgees, secured parties or persons to whom the shares
have been hypothecated will, upon foreclosure, be deemed to be selling
stockholders. The number of shares a selling stockholder is offering
under this prospectus will decrease as and when it takes such
actions. The plan of distribution for that selling stockholder’s
shares will otherwise remain unchanged. In addition, a selling
stockholder may, from time to time, sell the shares short, and, in those
instances, this prospectus may be delivered in connection with the short sales
and the shares offered under this prospectus may be used to cover short
sales.
A selling
stockholder may enter into hedging transactions with broker-dealers and the
broker-dealers may engage in short sales of the shares in the course of hedging
the positions they assume with that selling stockholder, including, without
limitation, in connection with distributions of the shares by those
broker-dealers. A selling stockholder may enter into option or other
transactions with broker-dealers that involve the delivery of the shares offered
hereby to the broker-dealers, who may then resell or otherwise transfer those
securities.
A selling
stockholder which is an entity may elect to make a pro rata in-kind distribution
of the shares of common stock to its members, partners or
shareholders. In such event we may file a prospectus supplement to
the extent required by law in order to permit the distributees to use the
prospectus to resell the common stock acquired in the distribution. A
selling stockholder that is an individual may make gifts of shares of common
stock covered hereby. Such donees may use the prospectus to resell
the shares or, if required by law, we may file a prospectus supplement naming
such donees.
FMA and
the selling stockholders requested that we file this registration statement
pursuant to the Resale Registration Agreement in order to reduce administrative
issues that the selling stockholders face as investment companies registered
with the Securities and Exchange Commission. Pursuant to the Resale
Registration Agreement, we have agreed to indemnify the selling stockholders
against certain liabilities under the Securities Act and to contribute with
respect to certain payments the selling stockholders may be required to make,
and in the future we and the selling stockholders may enter agreements under
which we and they may indemnify underwriters, dealers and agents who participate
in the distribution of our common stock against certain liabilities under the
Securities Act, and to contribute with respect to payments which the
underwriters, dealers or agents may be required to make.
If
underwriters or dealers are used in the sale, until the distribution of the
securities is completed, rules of the Securities and Exchange Commission may
limit the ability of any underwriters to bid for and purchase the
securities. As an exception to these rules, representatives of any
underwriters are permitted to engage in transactions that stabilize the price of
the securities. These transactions may consist of bids or purchases
for the purpose of pegging, fixing or maintaining the price of the
securities. If the underwriters create a short position in the
securities in connection with the offering (that is, if they sell more
securities than are set forth on the cover page of the prospectus supplement)
the representatives of the underwriters may reduce that short position by
purchasing securities in the open market.
We make
no representation or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of our common
stock. In addition, we make no representation that the any party will
engage in these transactions or that these transactions, once commenced, will
not be discontinued without notice.
SCHEDULE
A
SELLING
STOCKHOLDERS
Mutual
Beacon Fund
Mutual
Global Discovery Fund (f/k/a Mutual Discovery Fund)
Mutual
European Fund
Mutual
Quest Fund (f/k/a Mutual Qualified Fund)
Mutual
Shares Fund
Mutual
Global Discovery Securities Fund (f/k/a Mutual Discovery Securities
Fund)
Mutual
Shares Securities Fund
Mutual
Beacon Fund (Canada)
Franklin
Mutual Recovery Fund
Mutual
Recovery Fund, Ltd.
Franklin
Mutual Beacon Fund
Franklin
Mutual Shares Fund
