-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K+IsakarUg4mbA3IyCtSHo2KyWDtMYRn5VrBWbFXdl/qAn+ia7o8LEJikvAXi3AJ x/2SskEJgWE4mc/PQaQAxw== 0000891618-99-001878.txt : 19990430 0000891618-99-001878.hdr.sgml : 19990430 ACCESSION NUMBER: 0000891618-99-001878 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990429 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ABOVENET COMMUNICATIONS INC CENTRAL INDEX KEY: 0001026819 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 770424796 STATE OF INCORPORATION: CA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-1/A SEC ACT: SEC FILE NUMBER: 333-75795 FILM NUMBER: 99603774 BUSINESS ADDRESS: STREET 1: 50 W SAN FERNANDO ST STREET 2: SE 1010 CITY: SAN JOSE STATE: CA ZIP: 95113 BUSINESS PHONE: 4083676666 MAIL ADDRESS: STREET 1: 50 W SAN FERNANDO STREET 2: STE 1010 CITY: SAN JOSE STATE: CA ZIP: 95113 S-1/A 1 AMENDMENT NO.3 TO FORM S-1 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 1999. REGISTRATION NO. 333-75795 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 3 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ABOVENET COMMUNICATIONS INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN OUR CHARTER) DELAWARE 4813 77-0424796 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
50 W. SAN FERNANDO STREET, SUITE #1010 SAN JOSE, CALIFORNIA 95113 (408) 367-6666 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) SHERMAN TUAN CHIEF EXECUTIVE OFFICER 50 W. SAN FERNANDO STREET, SUITE #1010 SAN JOSE, CALIFORNIA 95113 (408) 367-6666 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPIES TO: CARLA S. NEWELL, ESQ. JORGE DEL CALVO, ESQ. BENNETT L. YEE, ESQ. STANTON D. WONG, ESQ. ALLISON M. WING, ESQ. GABRIELLA A. LOMBARDI, ESQ. TODD W. SMITH, ESQ. CHRISTINE F. NAKAGAWA, ESQ. GUNDERSON DETTMER STOUGH PILLSBURY MADISON & SUTRO LLP VILLENEUVE FRANKLIN & HACHIGIAN, LLP 2550 HANOVER STREET 155 CONSTITUTION DRIVE PALO ALTO, CA 94304 MENLO PARK, CA 94025 (650) 233-4500 (650) 321-2400
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]__________ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]__________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] ------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by the Registrant in connection with the sale of common stock being registered. All amounts are estimates except the SEC registration fee, the NASD filing fee and the Nasdaq National Market listing fee.
AMOUNT TO BE PAID ---------- SEC registration fee........................................ $158,000 NASD filing fee............................................. 30,500 Nasdaq National Market listing fee.......................... 50,000 Printing and shipping fees.................................. 150,000 Legal fees and expenses..................................... 275,000 Accounting fees and expenses................................ 200,000 Blue Sky qualification fees and expenses.................... 5,000 Transfer agent and registrar fees........................... 10,000 Miscellaneous fees.......................................... 21,500 -------- Total............................................. $900,000 ========
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law authorizes a court to award or a corporation's Board of Directors to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). Article VII, Section 6, of the Registrant's Bylaws provides for mandatory indemnification of our directors and officers and permissible indemnification of employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. The Registrant's Certificate of Incorporation provides that, pursuant to Delaware law, our directors shall not be liable for monetary damages for breach of the directors' fiduciary duty as directors to us and our stockholders. This provision in the Certificate of Incorporation does not eliminate the directors' fiduciary duty, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director's duty of loyalty to us for acts of omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. The Registrant has entered into Indemnification Agreements with our officers and directors, a form of which is attached as Exhibit 10.1 hereto and incorporated herein by reference. The Indemnification Agreements provide the Registrant's officers and directors with further indemnification to the maximum extent permitted by the Delaware General Corporation Law. Reference is made to Section 7 of the Underwriting Agreement filed as Exhibit 1.1 hereto, indemnifying officers and directors of the Registrant against certain liabilities. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES Since March 8, 1996, the Registrant's predecessor company has issued and sold the following securities (which numbers do not reflect either the 1 for 2.5 exchange effected in connection with our reincorporation II-1 3 into Delaware, the 1 for 1.6 reverse stock split effected in December 1998 or the 2 for 1 stock split to be effected May 7, 1999). (1) On August 28, 1996, Registrant sold and issued an aggregate of 4,100,000 shares of Series A preferred stock, at a purchase price of $0.10 per share, for cash in the aggregate amount of $410,000 to a group of investors pursuant to a Series A preferred stock Purchase Agreement. (2) On March 14, 1997, Registrant sold and issued an aggregate of 2,000,000 shares of Series B preferred stock, at a purchase price of $0.30 per share, for cash in the aggregate of $600,000 to a group of investors pursuant to a Series B preferred stock Purchase Agreement. (3) On April 30, 1997, Registrant terminated a joint venture agreement with DSK, Inc. by issuing 2,000,000 shares of Series B preferred stock. (4) On August 7, 1997, Registrant issued promissory notes in the principal amount of $989,000 and warrants to acquire 1,979,804 shares of Series B preferred stock at $0.50 per share. On December 31, 1997, Registrant entered into exchange agreements with the noteholders. Pursuant to the exchange agreements, the above notes, accrued interest of $21,200 and the related warrants were exchanged for (i) 2,527,640 shares of Series B preferred stock and (ii) warrants to acquire 494,951 shares of Series B preferred stock at $0.50 per share. (5) On May 11, 1998, Registrant sold and issued an aggregate of 8,012,000 shares of Series C preferred stock, at a weighted-average purchase price of $0.48 per share, for cash in the aggregate amount of $3,882,400 to a group of investors pursuant to a Series C preferred stock Purchase Agreement. (6) On June 30, 1998, Registrant issued promissory notes, in the principal amount of $7,000,000, convertible into Series D preferred stock (the "Series D Notes") to a group of investors pursuant to a Note Purchase Agreement. On July 15, 1998, Registrant sold and issued an aggregate of 8,461,538 shares of Series D preferred stock, at a purchase price of $1.30 per share, for cash and cancellation of indebtedness in the aggregate amount of $10,999,999.40 to a group of investors pursuant to a Series D preferred stock Purchase Agreement. All of the Series D Notes were converted into shares of Series D preferred stock on July 15, 1998. (7) On September 4, 1998, Registrant sold and issued an aggregate of 1,628,000 shares of Series E preferred stock, at a purchase price of $2.50 per share, for cash in the aggregate amount of $4,070,000 to a group of investors pursuant to a Series E preferred stock Purchase Agreement. In addition, the Registrant issued 7,100 shares of Series E Preferred in consideration for placement agent services. (8) As of October 31, 1998, Registrant has sold and issued 2,086,482 shares of our common stock for an aggregate purchase price of $68,288 to employees, directors and consultants pursuant to direct issuances and to exercises of options under our 1996 and 1997 Stock Option Plans and non-plan options. (9) During May 1998, Registrant issued warrants for 15,000 shares of common stock, with an exercise price of $.50 per share, to Jerry Weissman at Power Presentations for services to the Company. During the same time period, Registrant issued warrants for 24,375 shares of common stock, with an exercise price of $1.00 per share, to DEF Public Relations, Heidrich & Struggles and Greg Moyer at Flying Beyond for services to us. (10) During May 1998, Registrant issued warrants, in connection with various financing arrangements, to purchase 90,000 shares of common stock, with a weighted-average exercise price of $1.15 per share to Transamerica and 5,000 warrants of Series D preferred stock, with an exercise price of $1.00 per share to Silicon Valley Bank. (11) In July 1998, Registrant sold and issued warrants for 35,000 shares of our common stock, at an exercise price of $1.30 per share, to Primus Technology for services in connection with developing Registrant's Asian business opportunities. During the same time period, Registrant issued warrants for 10,000 shares of common stock, at a purchase price of $1.30 per share, for cash in the aggregate amount of $500 to Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. II-2 4 (12) In September 1998, Registrant issued warrants to purchase 100,000 shares of common stock in connection with a financing arrangement, to TransAmerica Business Credit Corporation. The exercise price for 50,000 shares is equal to $2.50 per share and the exercise price for the remaining 50,000 shares is equal to 80% of the price of this offering or, if this offering is not completed, 80% of the price of the next equity financing. (13) In October 1998, we issued warrants with an exercise price equal to $4.00 per share to purchase 26,250 shares to various consultants in connection with the construction of our new Internet service exchange. (14) In December 1998, we issued a warrant to purchase 100,000 shares of common stock in connection with a real estate lease to Forest City Enterprises, L.L.C. at an exercise price of $10.00 per share (the share numbers and exercise price reflect the exchange and reverse stock split). (15) In November 1998, David K. Small exercised options to purchase 15,625 shares of our common stock for an aggregate purchase price of $1,875 (the share numbers and exercise price reflect the exchange and reverse stock split). The sale of the above securities was deemed to be exempt from registration under the Securities Act in reliance upon Section 4(2) of the Securities Act or Regulation D promulgated thereunder, or Rule 701 promulgated under Section 3(b) of the Securities Act as transactions by an issuer not involving any public offering or transactions pursuant to compensation benefit plans and contracts relating to compensation as provided under such Rule 701. The recipients of securities in each such transaction represented their intentions to acquire the securities for investment only and now with a view to or for sale in connection with any distribution thereof, and appropriate legends were affixed to the share certificates issued in such transactions. All recipients had adequate access, through their relationships with the Registrant, to information about the Registrant. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits
EXHIBIT NO. DESCRIPTION ----------- ----------- 1.1(5) Form of Underwriting Agreement. 3.1(1) Third Amended and Restated Certificate of Incorporation. 3.5(1) Bylaws of Registrant. 4.2(1) Form of Registrant's Common Stock Certificate. 4.3(1) Amended and Restated Investors' Rights Agreement dated September 4, 1998. 4.4(a)(1) Stock Subscription Warrant No. 1 to purchase shares of Common Stock of Registrant issued to Transamerica Business Credit Corporation. 4.4(b)(1) Stock Subscription Warrant No. 2 to purchase shares of Common Stock of Registrant issued to Transamerica Business Credit Corporation. 4.4(c)(1) Stock Subscription Warrant No. 3 to purchase shares of Common Stock of Registrant issued to Transamerica Business Credit Corporation (see Exhibit No. 10.28). 4.4(d)(1) Stock Subscription Warrant No. 4 to purchase shares of Common Stock of Registrant issued to Transamerica Business Credit Corporation (see Exhibit No. 10.28). 4.5(1) Warrants to purchase shares of Series D Preferred Stock of Registrant issued to Silicon Valley Bank. 4.6(1) Form of Warrant to purchase shares of Common Stock of Registrant. 5.1(5) Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP ("Gunderson Dettmer"). 10.1(1) Form of Indemnification Agreement entered into by Registrant with each of our directors and executive officers. 10.2(1) 1996 Stock Option Plan.
II-3 5
EXHIBIT NO. DESCRIPTION ----------- ----------- 10.3(1) 1997 Stock Option Plan. 10.4(1) 1998 Stock Incentive Plan. 10.5(1) 1998 Employee Stock Purchase Plan. 10.6(1) Employment Agreement between Registrant and Warren J. Kaplan. 10.7(1) Employment Agreement between Registrant and Sherman Tuan. 10.8(1) Employment Agreement between Registrant and David Rand. 10.9(1) Stock Option Agreement between Registrant and Warren J. Kaplan. 10.10(1) Technology Agreement between Registrant and David Rand. 10.11(1) Lease Equipment Agreement between Registrant and Cisco Systems Capital Corporation. 10.12(1) Loan and Security Agreement between Registrant and Silicon Valley Bank. 10.13(1) Master Loan and Security Agreements between Registrant and Transamerica Business Credit Corporation. 10.14(1) Promissory Note by Registrant to Transamerica Business Credit Corporation. 10.15(1) Office Lease between 50 West San Fernando Associates and Registrant dated May 15, 1996 (San Jose Office, 10th Floor). 10.16(1) First Amendment to Lease Agreement between 50 West San Fernando Associates and Registrant, dated December 12, 1996 (San Jose Office, 10th Floor). 10.17(1) Second Amendment to Lease between 50 West San Fernando Associates and Registrant, dated February 23, 1998 (San Jose Office, 10th Floor). 10.18(1) Office Lease between 50 West San Fernando Associates and Registrant, dated May 15, 1996 (San Jose Office, 18th Floor). 10.19(1) First Amendment to Lease Agreement between 50 West San Fernando Associates and Registrant, dated December 12, 1996 (San Jose Office, 18th Floor). 10.20(1) Second Amendment to Lease between 50 West San Fernando Associates and Registrant, dated February 24, 1998 (San Jose Office, 18th Floor). 10.21(1) Consent of Landlord between Registrant and Halcyon Software California Inc., dated March 31, 1998 (San Jose Office, Suite 1012). 10.22(1) Consent of Landlord between 50 West San Fernando Associates and KPMG Peat Marwick LLP, dated April 6, 1998 and April 12, 1998 (Registrant sublease from KPMG Peat Marwick LLP, San Jose Office, 10th Floor). 10.23(1) Sublease between KPMG Peat Marwick (USA) LLP and Registrant, dated March 13, 1998 (Registrant sublease from KPMG Peat Marwick LLP (USA), San Jose Office, 10th Floor). 10.24(1) Deed of Lease between Gosnell Properties, Inc. and Registrant dated September 3, 1997 (Suite B-290, Vienna, VA/"D.C."). 10.25(1) Deed of Lease between Gosnell Properties, Inc. and Registrant dated January 30, 1998 (Suite 110, Vienna, VA/"D.C."). 10.26(1) Network Access Agreement between Goodnet and Registrant dated June 11, 1996. 10.27(1)(3) Fiber Optic Private Network Agreement Product Order between Metromedia Fiber Network Services, Inc. and Registrant, dated September 1, 1998. 10.28(1) Amended and Restated Master Loan and Security Agreement between Registrant and Transamerica Business Credit Corporation. 10.29(1) Loan Modification Agreement between Registrant and Silicon Valley Bank dated as of October 26, 1998. 10.30(1) Lease by and between F.C. Pavilion, L.L.C. and Registrant dated as of December 4, 1998. 10.31(2)(3) Atlantic Crossing/AC-1 Submarine Cable System Capacity Purchase Agreement, dated December 23, 1998, by and between Atlantic Crossing LTD, a Bermuda corporation, and AboveNet.
II-4 6
EXHIBIT NO. DESCRIPTION ----------- ----------- 10.32(2)(3) Atlantic Crossing/AC-1 Submarine Cable System Capacity Indefeasible Right of Use Agreement in Inland Capacity (United Kingdom), dated December 23, 1998, by and between GT U.K. LTD and AboveNet. 10.33(2)(3) Atlantic Crossing/AC-1 Submarine Cable System Indefeasible Right of Use 1.1 Agreement in Inland Capacity (United States), dated December 23, 1998, by and between GT U.K. LTD and AboveNet. 10.34(4) Letter Agreement by and between Global Crossing Ltd. and Registrant, dated March 23, 1999. 10.35(5) Agreement of Lease between 111 Eighth Avenue LLC and Registrant, dated January, 1999 (Registrant lease from 111 Eighth Avenue LLC portion of 2nd Floor, 111 Eighth Ave., New York, NY). 10.36(4)(5) Shareholders Agreement by and between Raiffeisen Rechenzentrum Ges. m.b.H and Registrant, dated March 8, 1999. 10.37(4)(5) Cooperation Agreement, by and between Registrant and AboveNet Deutschland GmbH, dated March 25, 1999. 10.38(4)(5) Shareholder Agreement relating to AboveNet UK Limited, by and between Registrant, Mr. W. Dobbie and Mr. A. MacSween and AboveNet UK Limited, dated March, 1999. 16.1(1) Letter Regarding Change in Certifying Accountants. 23.1(5) Consent of Gunderson Dettmer (included in Exhibit 5.1). 23.2(5) Consent of Deloitte & Touche LLP, Independent Accountants. 23.3(5) Independent Auditors' Report on Schedule. 27.1(5) Financial Data Schedule. 99.1(1) Consent of Forrester Research, Inc. 99.2(1) Consent of International Data Corporation.
- ------------------------- (1) Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 333-63141) originally filed with the Securities and Exchange Commission on September 10, 1998. (2) Incorporated by reference to the Company's filing on Form 10-Q filed with the Securities and Exchange Commission on February 11, 1999 (3) Confidential treatment granted as to certain portions of exhibit. (4) Confidential treatment requested as to certain portions of exhibit. (5) Previously filed. (b) Financial Statement Schedule (i) Schedule II. Valuation and Qualifying Accounts. Schedules not listed above have been omitted because the information required to be set forth therein is not applicable. ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes to provide to the Underwriters at the closing specified in the Underwriting Agreement, certificates in such denominations and registered in such names as required by the Underwriters to permit prompt delivery to each purchaser. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the Delaware General Corporation Law, the Registrant's Restated Certificate of Incorporation, the Registrant's Bylaws, and Registrant's indemnification agreements or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person II-5 7 in connection with the securities being registered hereunder, the Registrant will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of Prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-6 8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Amendment No. 3 to Registration Statement on Form S-1 to be signed on our behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on this 29th day of April 1999. ABOVENET COMMUNICATIONS INC. By: /s/ DAVID F. LARSON ------------------------------------ David F. Larson Senior Vice President and Chief Financial Officer Pursuant to the requirement of the Securities Act of 1933, this Amendment No. 3 to Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
NAME AND SIGNATURE TITLE DATE ------------------ ----- ---- /s/ SHERMAN TUAN* Chairman of the Board and Chief April 29, 1999 - ------------------------------------------------ Executive Officer (Principal Sherman Tuan Executive Officer) and Director /s/ DAVID F. LARSON Senior Vice President and Chief April 29, 1999 - ------------------------------------------------ Financial Officer (Principal David F. Larson Financial Officer) /s/ KEVIN HOURIGAN* Vice President Finance (Principal April 29, 1999 - ------------------------------------------------ Accounting Officer) Kevin Hourigan /s/ PETER C. CHEN, PH.D.* Vice Chairman of the Board April 29, 1999 - ------------------------------------------------ Peter C. Chen, Ph.D. /s/ WARREN J. KAPLAN* President, Chief Operating Officer April 29, 1999 - ------------------------------------------------ and Director Warren J. Kaplan /s/ ROBERT A. BURGELMAN* Director April 29, 1999 - ------------------------------------------------ Robert A. Burgelman /s/ FRANK R. KLINE* Director April 29, 1999 - ------------------------------------------------ Frank R. Kline /s/ JAMES SHA* Director April 29, 1999 - ------------------------------------------------ James Sha /s/ TOM SHAO, PH.D.* Director April 29, 1999 - ------------------------------------------------ Tom Shao, Ph.D. /s/ KIMBALL W. SMALL* Director April 29, 1999 - ------------------------------------------------ Kimball W. Small /s/ FRED A. VIERRA* Director April 29, 1999 - ------------------------------------------------ Fred A. Vierra *By: /s/ DAVID F. LARSON ------------------------------------------ David F. Larson Attorney-In-Fact
II-7 9 SCHEDULE II VALUATION AND QUALIFYING ACCOUNTS
BALANCE AT CHARGED TO BALANCE AT BEGINNING OF COST AND DEDUCTIONS/ END OF PERIOD EXPENSES WRITE-OFF PERIOD ------------ ---------- ----------- ---------- PERIOD FROM MARCH 8, 1996 (INCEPTION) TO JUNE 30, 1996 Accounts receivable allowance............... $ -- $ -- $ -- $ -- YEAR ENDED JUNE 30, 1997 Accounts receivable allowance............... $ -- $15,000 $ -- $15,000 YEAR ENDED JUNE 30, 1998 Accounts receivable allowance............... $15,000 $58,787 $13,787 $60,000
10 EXHIBIT INDEX
EXHIBIT SEQUENTIALLY NUMBER DESCRIPTION OF DOCUMENT NUMBERED PAGE - ----------- ----------------------- ------------- 1.1(5) Form of Underwriting Agreement. 3.1(1) Third Amended and Restated Certificate of Incorporation. 3.5(1) Bylaws of Registrant. 4.2(1) Form of Registrant's Common Stock Certificate. 4.3(1) Amended and Restated Investors' Rights Agreement dated September 4, 1998. 4.4(a)(1) Stock Subscription Warrant No. 1 to purchase shares of Common Stock of Registrant issued to Transamerica Business Credit Corporation. 4.4(b)(1) Stock Subscription Warrant No. 2 to purchase shares of Common Stock of Registrant issued to Transamerica Business Credit Corporation. 4.4(c)(1) Stock Subscription Warrant No. 3 to purchase shares of Common Stock of Registrant issued to Transamerica Business Credit Corporation (see Exhibit No. 10.28). 4.4(d)(1) Stock Subscription Warrant No. 4 to purchase shares of Common Stock of Registrant issued to Transamerica Business Credit Corporation (see Exhibit No. 10.28). 4.5(1) Warrants to purchase shares of Series D Preferred Stock of the Registrant issued to Silicon Valley Bank. 4.6(1) Form of Warrant to purchase shares of Common Stock of the Registrant. 5.1(5) Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP ("Gunderson Dettmer"). 10.1(1) Form of Indemnification Agreement entered into by Registrant with each of our directors and executive officers. 10.2(1) 1996 Stock Option Plan. 10.3(1) 1997 Stock Option Plan. 10.4(1) 1998 Stock Incentive Plan. 10.5(1) 1998 Employee Stock Purchase Plan. 10.6(1) Employment Agreement between the Registrant and Warren J. Kaplan. 10.7(1) Employment Agreement between the Registrant and Sherman Tuan. 10.8(1) Employment Agreement between the Registrant and David Rand. 10.9(1) Stock Option Agreement between the Registrant and Warren J. Kaplan. 10.10(1) Technology Agreement between the Registrant and David Rand. 10.11(1) Lease Equipment Agreement between Registrant and Cisco Systems Capital Corporation. 10.12(1) Loan and Security Agreement between the Registrant and Silicon Valley Bank. 10.13(1) Loan and Security Agreements between the Registrant and Transamerica Business Credit Corporation. 10.14(1) Promissory Note by Registrant to Transamerica Business Credit Corporation. 10.15(1) Office Lease between 50 West San Fernando Associates and Registrant dated May 15, 1996 (San Jose Office, 10th Floor). 10.16(1) First Amendment to Lease Agreement between 50 West San Fernando Associates and Registrant, dated December 12, 1996 (San Jose Office, 10th Floor). 10.17(1) Second Amendment to Lease between 50 West San Fernando Associates and Registrant, dated February 23, 1998 (San Jose Office, 10th Floor). 10.18(1) Office Lease between 50 West San Fernando Associates and Registrant, dated May 15, 1996 (San Jose Office, 18th Floor).
11
EXHIBIT SEQUENTIALLY NUMBER DESCRIPTION OF DOCUMENT NUMBERED PAGE - ----------- ----------------------- ------------- 10.19(1) First Amendment to Lease Agreement between 50 West San Fernando Associates and Registrant, dated December 12, 1996 (San Jose Office, 18th Floor). 10.20(1) Second Amendment to Lease between 50 West San Fernando Associates and Registrant, dated February 24, 1998 (San Jose Office, 18th Floor). 10.21(1) Consent of Landlord between Registrant and Halcyon Software California Inc., dated March 31, 1998 (San Jose Office, Suite 1012). 10.22(1) Consent of Landlord between 50 West San Fernando Associates and KPMG Peat Marwick LLP, dated April 6, 1998 and April 12, 1998 (Registrant sublease from KPMG Peat Marwick LLP, San Jose Office, 10th Floor). 10.23(1) Sublease between KPMG Peat Marwick (USA) LLP and Registrant, dated March 13, 1998 (Registrant sublease from KPMG Peat Marwick LLP (USA), San Jose Office, 10th Floor). 10.24(1) Deed of Lease between Gosnell Properties, Inc. and Registrant dated September 3, 1997 (Suite B-290, Vienna, VA/"D.C."). 10.25(1) Deed of Lease between Gosnell Properties, Inc. and Registrant dated January 30, 1998 (Suite 110, Vienna, VA/"D.C."). 10.26(1) Network Access Agreement between Goodnet and Registrant dated June 11, 1996. 10.27(1)(3) Fiber Optic Private Network Agreement Product Order between Metromedia Fiber Network Services, Inc. and Registrant, dated September 1, 1998. 10.28(1) Amended and Restated Master Loan and Security Agreement between Registrant and Transamerica Business Credit Corporation. 10.29(1) Loan Modification Agreement between Registrant and Silicon Valley Bank dated as of October 26, 1998. 10.30(1) Lease by and between F.C. Pavilion, L.L.C. and Registrant dated December 4, 1998. 10.31(2)(3) Atlantic Crossing/AC-1 Submarine Cable System Capacity Purchase Agreement, dated December 23, 1998, by and between Atlantic Crossing LTD, a Bermuda corporation, and AboveNet. 10.32(2)(3) Atlantic Crossing/AC-1 Submarine Cable System Capacity Indefeasible Right of Use Agreement in Inland Capacity (United Kingdom), dated December 23, 1998, by and between GT U.K. LTD and AboveNet. 10.33(2)(3) Atlantic Crossing/AC-1 Submarine Cable System Indefeasible Right of Use 1.1 Agreement in Inland Capacity (United States), dated December 23, 1998, by and between GT U.K. LTD and AboveNet. 10.34(4) Letter Agreement by and between Global Crossing Ltd. and Registrant, dated March 23, 1999. 10.35(5) Agreement of Lease between 111 Eighth Avenue LLC and Registrant, dated January, 1999 (Registrant lease from 111 Eighth Avenue LLC portion of 2nd Floor, 111 Eighth Ave., New York, NY). 10.36(4)(5) Shareholders Agreement by and between Raiffeisen Rechenzentrum Ges. m.b.H and Registrant, dated March 8, 1999. 10.37(4)(5) Cooperation Agreement, by and between Registrant and AboveNet Deutschland GmbH, dated March 25, 1999. 10.38(4)(5) Shareholder Agreement relating to AboveNet UK Limited, by and between Registrant, Mr. W. Dobbie and Mr. A. MacSween and AboveNet UK Limited, dated March, 1999. 16.1(1) Letter Regarding Change in Certifying Accountants. 23.1(5) Consent of Gunderson Dettmer (included in Exhibit 5.1).
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EXHIBIT SEQUENTIALLY NUMBER DESCRIPTION OF DOCUMENT NUMBERED PAGE - ----------- ----------------------- ------------- 23.2(5) Consent of Deloitte & Touche LLP, Independent Accountants. 23.3(5) Independent Auditors' Report on Schedule. 27.1(5) Financial Data Schedule. 99.1(1) Consent of Forrester Research, Inc. 99.2(1) Consent of International Data Corporation.
- --------------- (1) Incorporated by reference to the Company's Registration Statement on Form S-1 (No. 333-63141) originally filed with the Securities and Exchange Commission on September 10, 1998. (2) Incorporated by reference to the Company's filing on Form 10-Q filed with the Securities and Exchange Commission on February 11, 1999. (3) Confidential treatment granted as to certain portions of exhibit. (4) Confidential treatment requested as to certain portions of exhibit. (5) Previously filed. EX-10.34 2 AGREEMENT BETWEEN GLOBAL CROSSING & REGISTRANT 1 EXHIBIT 10.34 [LOGO GLOBAL CROSSING] March 23, 1999 Mr. Dave Rand CTO AboveNet Communications 50 W. San Fernando St. #1010 San Jose, CA 95113 USA Dear Mr. Rand: This letter confirms our understanding with respect to the sale by Global Crossing International Ltd. and/or its affiliates ("GCI") to AboveNet Communications, Inc. ("AboveNet") of capacity on GCI's Pan European network ("PEC"). Purchased Capacity. GCI hereby agrees to sell (or cause its affiliates to sell) and ABOVENET hereby agrees to purchase on the RFS Date (to be defined) for PEC [*] (the "Purchased Capacity") consisting of indefeasible rights of use ("IRUs") for point-to-point capacity on the following PEC city-to- city segments (GCI PoP to GCI PoP) as follows: (1) [*] (2) [*] (3) [*] The aggregate purchase price (the "Purchase Price") for the Purchase Capacity shall be [*] provided however, if ABOVENET does not enter into a global network offer within [*] days of the date hereof with Global Crossing Holdings Ltd. for an [*] the aggregate purchase price for the Purchased Capacity shall be increased to $7.5 million. The Purchase Price shall be paid as follows (i) [*] of the Purchase Price shall be payable on the date this letter agreement is executed by ABOVENET and (ii) [*] million shall be payable just prior to activation of the circuit but no later than April 30, 1999 (iii) the balance of the Purchase Price shall be financed over a [*] period at the rate of 10.5% with net payable on or before December 30, 1999. Interest payments shall be made on the 5th of every month. If tail circuits are required to connect the Purchased Capacity to ABOVENET's local PoP, GCI agrees to assist ABOVENET in obtaining such connectivity, all at ABOVENET's expense. Maintenance payments shall be payable in accordance with the [*] Capacity Purchase Agreement. Documentation. ABOVENET and GCI and/or its affiliates shall enter into capacity purchase agreements with respect to the Purchased Capacity promptly after the execution of this letter agreement, but not later than April 30, 1999. - -------------- *Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. 2 Miscellaneous. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York. This letter agreement may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. This letter agreement may not be amended or waived except in an instrument in writing and signed by each of the parties hereto. This letter agreement shall be binding upon each of the parties hereto and their respective successors and permitted assigns. Neither party hereto shall be permitted to assign any of their rights or obligations hereunder without the other party's prior written consent, provided, however, (i) GCI may assign and delegate any and all of its rights and obligations hereunder to its affiliates and (ii) ABOVENET may, without relieving it of its obligations hereunder, assign its rights hereunder to its wholly-owned subsidiaries. ABOVENET shall keep the provisions of this letter agreement and any non-public information, written or oral, with respect to this Agreement ("Confidential Information") confidential and shall not disclose Confidential Information, in whole or in part, to any person other than affiliates, officers, directors, employees, agents or representatives of ABOVENET (collectively, "Representatives") who need to know such Confidential Information for the purpose of negotiating, executing and implementing this letter agreement. ABOVENET agrees to inform each of its Representatives of the non-public nature of the Confidential Information and to direct such persons to treat such Confidential Information in accordance with this paragraph. Nothing herein shall prevent ABOVENET from disclosing Confidential Information (i) upon the order of any court or administrative agency, (ii) upon the request or demand of, or pursuant to any regulation of, any regulatory agency or authority or (iii) to a party's legal counsel or independent auditors. ABOVENET shall not make any public announcement regarding this letter agreement or the terms hereof, without the prior written consent of GCI. If the foregoing correctly sets forth our understanding, please indicate your agreement to be bound by the terms hereof by signing in the space indicated below. GLOBAL CROSSING HOLDINGS LTD. By: /s/ K. Eugene Shutler ------------------------------------- Name: K. Eugene Shutler Title: President AGREED AND ACCEPTED: ABOVENET COMMUNICATIONS, INC. By: /s/ Dave Rand -------------------------------------- Name: Dave Rand Title: CTO Agreement subject to satisfactory completion of the European ring agreement before April 2, 1999. Timeframe may be extended by mutual consent. Terms are to be no less favorable on future orders. [initials] -----END PRIVACY-ENHANCED MESSAGE-----