April 13, 2006
Via U.S. Mail
J. Curt Hockemeier
President and Chief Executive Officer
Arbinet-thexchange, Inc.
120 Albany Street, Tower II, Suite 450
New Brunswick, New Jersey 08901
Re: Arbinet-thexchange, Inc.
PRE 14A
Filed on April 4, 2006
File No. 0-51063
Dear Mr. Hockemeier:
We have reviewed your filing and have the following comments.
Where indicated, we think you should revise your document in
response
to these comments. If you disagree, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your
explanation.
In some of our comments, we may ask you to provide us with
supplemental information so we may better understand your
disclosure.
After reviewing this information, we may or may not raise
additional
comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or on any other
aspect
of our review. Feel free to call us at the telephone numbers
listed
at the end of this letter.
Schedule 14A
General
1. We note that you have filed your preliminary proxy materials
under
the EDGAR header tag of "PRE 14A," as opposed to the EDGAR header
tag
of "PREC14A," which should be utilized for contested
solicitations.
Please keep this in mind for future reference.
Introduction, page 1
2. You indicate at the bottom of page 1 that Messrs. Mashinsky and
Marmon have filed a preliminary proxy statement for the purpose of
proposing and soliciting proxies in support of a slate of three
nominees, however, based upon the most recent revised preliminary
proxy statement (dated April 10, 2006) filed by such persons, it
would appear that they are now soliciting proxies in support of a
slate of two nominees and are excluding Mr. Lavin. Please revise
your materials accordingly.
Election of a class of directors, page 3
3. You indicate here that Mr. Pound was recommended to the
Nominating
and Corporate Governance Committee based on his business
experience,
leadership ability and financial background, however, you do not
indicate who has recommended Mr. Pound, pursuant to Item
7(d)(2)(ii)(J) of Schedule 14A. Please revise.
4. Further, you refer to Mr. Pound as a "new, independent
director..." Clarify what you mean by your reference to
"independent." Is this your definition or is this the definition
as
applied by the NASD? If this constitutes your definition, briefly
define it for readers.
Security ownership of certain beneficial owners and management,
page
7
5. You indicate that Alex Mashinsky, et al. owns 1,506,980 shares
of
the Company`s common stock, as of March 31, 2006, however, the
Schedule 13D filed by this group would appear to reflect a larger
number and percentage of shares. Please revise to update this
information or explain why these amounts differ.
Employment Agreements, page 17
6. In your discussion of the employment agreements you have
entered
into with Messrs. Hockemeier, Roberts, Sach and Eng, consider
revising this discussion to address in quantified detail the
amounts
that would be payable in the event the employment of any of these
persons were terminated. For example, rather than stating that
"certain" of Mr. Hockemeier`s options to purchase shares of your
common stock will vest on an accelerated basis, quantify the
amount
that would be subject to acceleration.
Soliciting Material pursuant to Rule 14a-12 filed April 4, 2006
7. Please characterize consistently each statement or assertion of
opinion or belief as such, and ensure that a reasonable basis for
each opinion or belief exists. Support for opinions or beliefs
should be self-evident, disclosed in the proxy statement or
provided
to the staff on a supplemental basis, with a view toward
disclosure,
by submitting a Schedule 14A that has been annotated with support
for
each of the assertions made. For example, you indicate here that
the
Arbinet Board believes that stockholders` interests are best
served
by the election of the Board`s director nominees because of, inter
alia, "the dissident`s past record at Arbinet." Please revise to
remove this statement or characterize it as your belief and
provide
proper support.
As appropriate, please amend your filing and respond to
these
comments within 10 business days or tell us when you will provide
us
with a response. You may wish to provide us with marked copies of
the amendment to expedite our review. Please furnish a cover
letter
with your amendment that keys your responses to our comments and
provides any requested supplemental information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the filing persons are in possession
of
all facts relating to a company`s disclosure, they are responsible
for the accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide,
in writing, a statement from the filing person acknowledging that:
* the filing person is responsible for the adequacy and accuracy
of
the disclosure in the filing;
* staff comments or changes to disclosure in response to staff
comments do not foreclose the Commission from taking any action
with
respect to the filing; and
* the filing person may not assert staff comments as a defense in
any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
You may contact me at (202) 551-3264 with any questions. You
may also reach me via facsimile at (202) 772-9203.
Sincerely,
Mara L. Ransom
Special Counsel
Office of Mergers and
Acquisitions
cc via facsimile at (617) 523-1231:
Joseph L. Johnson III
Goodwin Procter
Arbinet-thexchange, Inc.
April 13, 2006
Page 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-3628
DIVISION OF
CORPORATION FINANCE