Unassociated Document


    


    Exhibit
4.6

    


    EXECUTION
COPY

    


    REGISTRATION
RIGHTS AGREEMENT

    


    This
Registration Rights Agreement, dated as of March 1, 2004 (this “Agreement”), by and among AboveNet, Inc.
(formerly Metromedia Fiber Network, Inc.), a Delaware corporation and its
successors and assigns (the “Company”)
and the security holders of the Company listed on Schedule I hereto
(each a “Holder,” collectively, the
“Holders”).

    


    WITNESSETH

    


    WHEREAS,
the Company filed the Second Amended Plan of Reorganization of Metromedia Fiber
Network, Inc. et al. on July 2, 2003 (as amended and supplemented, the “Plan”);

    


    WHEREAS,
the Company filed an amended version of the Plan on July 16, 2003 (the “Amended
Plan”); and

    


    WHEREAS,
the Amended Plan stipulates that this Agreement be entered into by the Company
and the Holders.

    


    NOW,
THEREFORE, in consideration of the premises and the covenants hereinafter
contained, it is agreed as follows:

    


    SECTION
1.       Definitions; Rules of
Interpretation. (a) Capitalized terms used herein and not otherwise
defined have the meanings assigned to such terms in the Amended Plan. When used
in this Agreement:

    


    “Affiliate” means, when used
with respect to a Person, a limited or general partner of such Person or another
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with such Person.

    


    “Blackout Period” shall have
the meaning set forth Section 4.

    


    “Business Day” means any day
other than a Saturday, a Sunday, or a day on which commercial banks in New York,
New York are required by law to remain closed.

    


    “Common Stock” means the
common stock, $0.01 par value per share, of the Company and any security into
which such Common Stock is converted or for which it is exchanged in connection
with any merger, consolidation, reorganization or exchange offer.

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    “Control” means possession,
directly or indirectly, of the power to direct or cause the direction of
management or policies of a Person (whether through ownership of securities or
partnership or other ownership interests, by contract or
otherwise).

    


    “Demand Registration” shall
have the meaning set forth in Section 2(a).

    


    “Demand Registration
Statement” means a registration statement on Form S-3 and all amendments
and supplements to such registration statement, in each case including the
prospectus contained therein and all exhibits thereto and all material
incorporated by reference therein.

    


    “Demand Request” shall have
the meaning set forth in Section 2(a).

    


    “Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.

    


    “Form S-3” means such form
under the Securities Act as in effect on the date hereof or any successor form
under the Securities Act subsequently adopted by the SEC.

    


    “Governmental Authority” means
any government, court, administrative agency or commission or other governmental
agency, authority or instrumentality, domestic or foreign, of competent
jurisdiction.

    


    “Holder” and “Holders” have the meanings
set forth in the preamble to this Agreement.

    


    “Included Securities” shall
have the meaning set forth in Section 2(a).

    


    “Person” means any individual,
firm, corporation, partnership, limited liability company, trust, joint venture,
Governmental Authority or other entity, and shall include any successor (by
merger or otherwise) and any permitted assigns of such entity.

    


    “Public Sale” means any sale
of Registrable Securities to the public through a public offering registered
under the Securities Act or to the public pursuant to the provisions of Rule 144
(or any successor rule) adopted under the Securities Act.

    


    “Registrable Securities” means
(i) any Common Stock and (ii) any Common Stock issuable upon the conversion,
exercise or exchange of any option, warrant, right or other security, in each
case held by any Holders or entitled to be held by any Holder as of the
Effective Date of the Amended Plan and, to the extent that any such shares of
Common Stock are held by the Holders as of the effective date of any
Registration Statement, any Common Stock issued to a Holder as a result of a
stock split or stock dividend of shares of Common Stock under clauses (i) or
(ii) above; provided, that,

     

    
      
         


      

      
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    Registrable
Securities shall not include shares of Common Stock or other securities that
have been sold in a Public Sale or held by a Holder whose entire holdings of
Registrable Securities are then eligible for resale without registration under
Rule 144(k) or restrictions under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.

    


    “Registration Statement” means
the Demand Registration Statement and/or the Piggyback Registration Statement,
as the case may be.

    


    “SEC” means the United States
Securities and Exchange Commission.

    


    “Securities” means the Common
Stock and any other securities of the Company.

    


    “Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
thereunder.

    


    (b)      Headings and Rules of Interpretation.
Descriptive headings are for convenience only and shall not control or affect
the meaning or construction of any provision of this Agreement. Except as
otherwise expressly provided in this Agreement, the following rules of
interpretation apply to this Agreement: (i) the singular includes the plural and
the plural includes the singular; (ii) “or” and “any” are not exclusive and
“include” and “including” are not limiting; (iii) a reference to any agreement
or other contract includes permitted supplements and amendments; (iv) a
reference to a law includes any amendment or modification to such law and any
rules or regulations issued thereunder and (v) a reference in this Agreement to
an Article, Section, Annex, Exhibit or Schedule is to the Article, Section,
Annex, Exhibit or Schedule of this Agreement.

    


    SECTION
2.       Demand Registration.
(a) Exercise of Rights.
At any time after the Company becomes eligible to file a registration statement
on Form S-3 with the SEC and subject to Section 2(c) hereof, after receipt of a
written request (the “Demand Request”)
from a Holder requesting that the Company effect a registration (a “Demand Registration”) under the Securities Act
covering all or part of such Holder’s Registrable Securities in connection with
a proposed underwritten offering of Common Stock, the Company shall give written
notice of such demand to all Holders within five (5) Business Days of receipt of
the Demand Request. Thereupon the Company shall, as expeditiously as is possible
but in any event no later than ninety (90) days of receipt of the Demand
Request, prepare and file with the SEC a registration statement on Form S-3
concerning (i) all Registrable Securities held by such Holders which are
requested to be registered in the Demand Request and (ii) any additional
Registrable Securities requested to be registered by any Holders who elect to
include Registrable Securities in such Demand Registration (together with the
Registrable Securities described in clause (i), the

     

    
      
         


      

      
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    “Included Securities”). The
Company shall use commercially reasonable efforts to cause the Demand
Registration Statement to be declared effective as promptly as possible after
the filing thereof, and shall use commercially reasonable efforts to keep such
Demand Registration Statement continuously effective under the Securities Act
until such date when all Included Securities have been sold or may be sold
without registration pursuant to Rule 144(k) under the Securities
Act.

    


    (b)      Limitations. (i) The Company
shall be required to effect no more than three (3) Demand Registrations for the
Holders. The Company shall not be required to prepare and file (x) more than one
(1) Demand Registration Statement under this Agreement in any twelve-month
period, (y) any Demand Registration Statement within 90 days following the date
of effectiveness of any Registration Statement or (z) any Demand Registration
Statement for Included Securities with a fair market value of less than $5
million. For the purposes of the preceding sentence, two or more registration
statements filed in response to one demand shall be counted as one Demand
Registration. Notwithstanding any contrary provision herein, a registration
statement shall be counted as one Demand Registration regardless of the number
of Holders of Included Securities who participate in the Demand
Registration.

    


    (ii) The
Company shall prepare and file the Demand Registration Statement only on Form
S-3.

    


    (iii) The
Demand Registration must be in connection with a proposed underwritten offering
of Common Stock held by the Holder making the Demand Request.

    


    (iv) The
Demand Request shall specify the intended method of distribution.

    


    (c)       Additional Requirements. A
registration shall not constitute a Demand Registration until it has become
effective and remains continuously effective for the lesser of (i) the period
during which all Included Securities registered in the Demand Registration are
sold and (ii) 180 days; provided, however, that a
registration shall not constitute a Demand Registration if (x) after such Demand
Registration has become effective, such registration or the related offer, sale
or distribution of the Registrable Securities thereunder is interfered with by
any stop order, injunction or other order or requirement of the SEC or other
Governmental Authority for any reason not attributable to the Holders and such
interference is not thereafter eliminated or (y) the conditions specified in the
underwriting agreement, if any, entered into in connection with such Demand
Registration are not satisfied or waived, other than by reason of a failure by
the Holders.

     

    
      
         


      

      
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    (d)      Inclusion of Other
Securities. Neither the Company nor any of its security holders other
than the Holders of Registrable Securities shall be entitled to include any
securities in any underwritten Demand Registration unless (i) all of the Holders
of the Registrable Securities included in the Demand Registration shall have
agreed, in writing, to such inclusion and (ii) the Company and such other
security holders, as the case may be, shall have agreed in writing to sell such
securities on the same terms and conditions as shall apply to the Registrable
Securities to be included in such Demand Registration. The Company shall not be
required to register any shares of Common Stock obtained by the Holders other
than the Registrable Securities.

    


    (e)       Cutbacks. If the managing
underwriters of any Demand Registration advise the Company in writing that in
their good faith judgment the number of securities to be included in the Demand
Registration exceeds the number that can be sold in the offering in light of
marketing factors or because the sale of a greater number of securities would
adversely affect the price of the Registrable Securities to be sold in such
Demand Registration, then the total number of securities the underwriters advise
can be included in such Demand Registration shall be allocated (i) first, to each holder
of Included Securities in proportion to such Holder’s ownership of the total
number of Included Securities; and (ii) second, among any
securities of the Company the Company proposes to issue and sell for its own
account or register for sale by any Person other than a Holder of Registrable
Securities included in the Demand Registration in accordance with any
contractual provisions binding on the Company and/or the holders of such
securities or, if no contractual provisions apply, as the Company may
determine.

    


    (f)       Conflicting Priority Rights.
The Company will not hereafter enter into any agreement which is inconsistent
with or that grants rights that are superior to the rights of priority provided
in (e) above.

    


    SECTION
3.       Piggyback
Registrations.  (a) Exercise of Rights. If at any
time the Company proposes to file on its behalf and/or on behalf of any holder
of its Securities a registration statement under the Securities Act (other than
in connection with a Demand Registration, or the Registration of Securities
issuable pursuant to an employee stock option, stock purchase or similar plan or
a registration of securities on Form S-4 (or any successor form)), the Company
shall give written notice of such proposed registration to the Holders at least
thirty (30) days prior to the initial filing of a registration statement in
connection therewith, which notice shall set forth the intended method or
methods of disposition of the Securities proposed to be registered by the
Company. The notice shall offer to include in such filing the aggregate number
of shares of Registrable Securities as such Holders may request. At the written
request of any Holder delivered to the Company within fifteen (15) days after
the receipt of the notice from the Company, which request shall state the number
of Registrable Securities that such Holder wishes to register, the Company shall
effect the registration under the

     

    
      
         


      

      
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    Securities
Act (a “Piggyback Registration”) of the
Registrable Securities requested to be included in the Piggyback Registration
(the “Piggyback Securities”) as
expeditiously as possible and use commercially reasonable efforts to have such
registration become and remain effective as provided in Section 5 hereof. Each
Holder of Piggyback Securities shall be permitted to withdraw all or any part of
the Piggyback Securities of such Holder from any Piggyback Registration at any
time prior to the effective date of such Piggyback Registration; provided, in the case
of an underwritten offering, that such Holder is permitted to do so by the
managing underwriters or pursuant to any agreement with such managing
underwriters.

    


    (b)      Additional Requirements. No
Holder shall be entitled to include any securities in any underwritten Piggyback
Registration unless such Holder shall have agreed in writing to sell such
securities on the same terms and conditions as shall apply to the securities
(other than Piggyback Securities) to be included in such Piggyback Registration.
If a Piggyback Registration is to cover, in whole or in part, any underwritten
distribution, then the Company shall use commercially reasonable efforts to
cause all Piggyback Securities to be included in the underwriting on the same
terms and conditions as the securities (other than Piggyback Securities) being
sold through the underwriters.

    


    (c)       Cutbacks. If the managing
underwriters of any Piggyback Registration advise the Company in writing that in
their good faith judgment the number of securities to be included in the
Piggyback Registration exceeds the number that can be sold in the offering in
light of marketing factors or because the sale of a greater number would
adversely affect the price of the Registrable Securities to be sold in such
Piggyback Registration, then the total number of securities the underwriters
advise can be included in such Piggyback Registration shall be allocated (i)
first, to the
securities of the Company the Company proposes to issue and sell for its own
account; (ii) second, the remaining
number of securities (a) fifty percent (50%) among any securities of the Company
the Company proposes to register for sale by any Person other than a Holder of
Piggyback Securities in such Piggyback Registration in accordance with any
contractual provisions binding on the Company and/or the holders of such
securities or, if no contractual provisions apply, as the Company may determine;
and (b) fifty percent (50%) among the Holders holding Piggyback Securities in
proportion to such Holder’s ownership of the total number of Piggyback
Securities.

    


    (d)      Conflicting Priority Rights.
The Company will not hereafter enter into any agreement which is inconsistent
with the rights of priority provided in paragraph (c) above.

    


    SECTION
4.       Blackout Periods. The
Company shall have the right to (i) delay the filing or effectiveness of a
Registration Statement required pursuant to Section

     

    
      
         


      

      
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    2 or 3
hereof or (ii) suspend the availability of a Registration Statement required
pursuant to Section 2 or 3 hereof and the related prospectus during such period
as shall be reasonably necessary (a “Blackout
Period”) in the event of (i) the issuance by the SEC of a stop order with
respect to a Registration Statement or the initiation of proceedings with
respect to a Registration Statement under Section 8(d) or 8(e) of the Securities
Act, (ii) the occurrence of any event or the existence of any fact as a result
of which (A) any 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) any prospectus
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, 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, 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 shareowners, 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 Holders notice of such
determination. The Company shall use its commercially reasonable efforts to
cause the Blackout Period to end as promptly as possible after its commencement.
Notwithstanding anything in this Section 4 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 a Registration Statement to lapse and any
Included Securities remain unsold, 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 Included
Securities to become effective, and any such Registration Statement shall not
constitute a Demand Registration for the purposes of Section 2(b). 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 4.

    


    SECTION
5.       Registration
Procedures. If any Registrable Securities of any Holder are to be
registered pursuant to Section 2 or Section 3 hereof, the Company covenants and
agrees that it shall use commercially reasonable efforts to effect the
registration and cooperate in the sale of the Registrable Securities to be
registered and shall as promptly as practicable:

     

    
      
         


      

      
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    (a)       (i)
prepare and file with the SEC a Registration Statement with respect to the
Registrable Securities and (ii) use commercially reasonable efforts to cause the
Registration Statement to become and remain effective for a period of time
required by Section 2.

    


    (b)      prior
to the filing described above in paragraph (a), furnish to each Holder
participating in such offering such reasonable number of copies of the
Registration Statement (including exhibits) and any amendments or supplements
thereto and any prospectus forming a part thereof and such other documents, as
such Holders may reasonably request, which documents may be reviewed by counsel
representing the Holders, in order to facilitate the public offering of the
Registrable Securities;

    


    (c)       notify
each such Holder, promptly after receiving notice thereof, of the date and time
when the Registration Statement becomes effective or when any post-effective
amendment or supplement or any prospectus forming a part of the Registration
Statement has been filed with the SEC;

    


    (d)      notify
each Holder participating in such offering promptly of any request by the SEC
for the amending or supplementing of the Registration Statement or prospectus or
for additional information;

    


    (e)       (i)
notify each Holder participating in such offering after the Company has received
notice or otherwise obtains knowledge of the issuance of any order by the SEC
suspending the effectiveness of the Registration Statement or any amendment
thereto or of the initiation or threatening of any proceeding for that purpose
and (ii) promptly use commercially reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal promptly if a stop order should be
issued;

    


    (f)       prepare
and file with the SEC such amendments and supplements to the Registration
Statement and the prospectus forming a part thereof as may be necessary to keep
the Registration Statement effective for a period of time required by Section 2
and in order to keep such Registration Statement accurate and complete during
such period;

    


    (g)      as
promptly as reasonably possible, provide the Holders with copies of all written
communications between the Company and the SEC relating to a Registration
Statement;

    


    (h)      furnish
to each Holder participating in such offering one (1) copy of the Registration
Statement, each amendment and supplement thereto, such number of copies of the
prospectus included in the Registration Statement (including any

     

    
      
         


      

      
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    preliminary
prospectus) and such other documents such Holder may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by such
Holder;

    


    (i)        use
commercially reasonable efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
each Holder of Registrable Securities shall reasonably request and do any and
all other acts and things which may be reasonably necessary or advisable to
enable each Holder to consummate the disposition in such jurisdictions of the
Registrable Securities; provided, that, the
Company shall not be required to qualify generally to do business in any
jurisdiction in which it would not otherwise be required to qualify but for this
paragraph;

    


    (j)        use
its commercially reasonable efforts to cause all such Registrable Securities to
be listed on each securities exchange or quotation system, if any, on which
similar securities are listed or traded;

    


    (k)       provide
a transfer agent and registrar, which may be a single entity, for all the
Registrable Securities not later than the effective date of the Registration
Statement;

    


    (1)       enter
into customary agreements (including an underwriting agreement in customary
form) and take all other actions, if any, as the Holders participating in such
offering or the underwriters shall reasonably request in order to expedite or
facilitate the disposition of the Registrable Securities pursuant to this
Agreement; provided, however, that the
Company shall not be required to take any actions to facilitate an underwritten
offering by the Holders unless such offering relates to Included Securities or
Piggyback Securities with a fair market value of at least $5
million;

    


    (m)      notify
each Holder of any Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, promptly upon the Company’s becoming aware
that the prospectus included in such 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 SEC (subject to the Company’s rights in Section 4), and
promptly notify each Holder of the filing of, such amendments or supplements to
any registration statement as may be necessary to correct any such statements or
omissions.

    


    SECTION
6.       Cooperation by the
Holders. (a) Cooperation. Each Holder
agrees not to effect any Public Sale or distribution of any Registrable
Securities or of any securities convertible into or exchangeable or exercisable
for such Registrable Securities, including a sale pursuant to Rule 144 under the
Securities Act and to enter into

     

    
      
         


      

      
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    a lock-up
agreement with reasonable and customary exceptions covering a period of time not
to exceed nine (9) months as reasonably determined by the managing underwriter
beginning on the effective date of any Demand Registration Statement or
Piggyback Registration Statement in any underwritten offering of the Company. In
the case of an underwritten offering and only to the extent requested by the
managing underwriter for such underwritten offering, each Holder who holds
Registrable Securities included in such underwritten offering agrees to enter
into an underwriting agreement with the managing underwriter with reasonable and
customary exceptions.

    


    (b)      Suspension by Company.
Holders of Registrable Securities included in any registration statement will
not (until further notice) effect sales of Registrable Securities included in
any registration statement after receipt of written notice from the Company to
suspend sales during a Blackout Period. If the Company notifies the Holders to
suspend the use of a prospectus pursuant to Section 4, the Holders shall suspend
the use of such prospectus.

    


    SECTION
7.       Additional Covenants of the
Company. (a) Other
Registration Rights. From and after the date of this Agreement, the
Company shall not, without the prior written consent of two-thirds (2/3) in
interest of the Holders, grant to any holder or prospective holder of any
securities of the Company the right to demand the Company to register any
securities of the Company which is inconsistent with the rights set forth in
this Agreement.

    


    (b)      Restrictions on Public Sale by the
Company. The Company agrees, unless it obtains the written consent of the
managing underwriter(s) of any underwritten offering of Registrable Securities
pursuant to this Agreement, not to effect any Public Sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such equity securities, during the period commencing thirty (30)
days prior to, and ending on 180 days following, the effective date of any
underwritten Demand Registration or Piggyback Registration, except in connection
with any such underwritten registration, or pursuant to any registration
statements on Form S-8, Form S-4 or any successor form.

     

    (c)       S-3 Eligibility. The Company
agrees to use commercially reasonable efforts to (i) become eligible to file a
registration statement on Form S-3 and (ii) maintain such eligibility until the
Registrable Securities have been registered or sold.

    


    (d)      Most Favored Nation Rights.
In the event the Company grants “shelf” registration rights with respect to
shares of Common Stock to a Person or Persons other than the Holders, the
Company shall grant the Holders equivalent “shelf” registration rights to the
Holders for an equal number of shares of Common Stock.

     

    
      
         


      

      
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    SECTION
8.       Indemnification.        (a)
Indemnification by the
Company. To the fullest extent permitted by law, in the event of any
registration of any Registrable Securities pursuant to the provisions of this
Agreement, the Company shall indemnify, defend and hold harmless each selling
Holder, each other Person who participates as an underwriter in the offering or
sale of such Registrable Securities, each other Person, if any, who controls
such Holder or any such underwriter within meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and their respective directors,
officers, agents, partners, managers, members, employees, stockholders 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 Registrable Securities 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 and in conformity with
written information about such Indemnitee furnished to the Company in a writing
duly provided by or on behalf of such Indemnitee specifically stating that it is
for use in the preparation thereof; and provided further,
that the Company shall not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereon) or expense arises
out of such Person’s failure to send or give a copy of the final prospectus, as
the same may be then supplemented or amended, to the Person asserting a claim
based upon an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person 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 Registrable Securities of each
Indemnitee.

     

    
      
         


      

      
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    (b)      Indemnification by Holders.
The Company may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to this Agreement, that the Company
shall have received an undertaking reasonably satisfactory to it from each
Holder offering Registrable Securities under such registration statement,
severally and not jointly, to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 8(a)) the Company, each director
of the Company, each officer of the Company signing such registration statement
and each other Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act with respect to (i) any untrue statement or
alleged untrue statement in or (ii) omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein or any amendment or supplement thereto, if such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information about such
Holder as a stockholder of the Company furnished to the Company in a writing by
or on behalf of such Holder specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. 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 or controlling Person and
shall survive the transfer by the seller of the securities of the Company being
registered. Notwithstanding the foregoing, each Holder’s liability under this
Section 8(b) with respect to any particular registration shall be limited to an
amount equal to the net proceeds received by such Holder from the Registrable
Securities sold by such Holder in such registration.

    


    (c)       Contribution. If the
indemnification provided for in Section 8(a) or Section 8(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 8(c) is not permitted by applicable law, the parties
shall contribute based upon the relevant benefits received by the Company and
the Holders from the sale of Securities.

     

    
      
         


      

      
        12

        
          

        

      

      
         


      

    

     

    The
Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 8(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. The obligation of any Holder obliged to make contribution
pursuant to this Section 8(c) shall be several and not joint, and no such Holder
shall be obliged to make contribution in excess of an amount equal to the net
proceeds received by such Holder from the Registrable Securities sold by such
Holder in such registration.

    


    (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 such 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.

     

    
      
         


      

      
        13

        
          

        

      

      
         


      

    

     

    (e)       Payments. The indemnification
required by this Section 8 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
9.       Expenses. The Company
shall pay all customary and reasonable expenses of the Holders in connection
with any Demand Registration or Piggyback Registration, including without
limitation all registration, filing and NASD fees, all fees and expenses of
complying with securities or blue sky laws, all reasonable fees and
disbursements of one counsel for the Holders and any reasonable fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding any underwriting discounts and commissions, if any,
relating to the Registrable Securities being sold by the Holders, which shall be
paid by the Holders in proportion to the amount of each Holder’s Included
Securities or Piggyback Securities included in a Registration
Statement.

    


    SECTION
10.     Selection of Managing
Underwriter. The managing underwriter or underwriters for any offering of
Registrable Securities to be registered pursuant to Section 2 or 3 hereof shall
be selected a majority of the Holders of the Registrable Securities included in
such registration statement, which underwriter(s) shall be reasonably acceptable
to the Company.

    


    SECTION
11.     Miscellaneous. (a)
Specific Performance.
The parties acknowledge that the Holders’ damages at law would be an inadequate
remedy for the breach or non-performance of any provision of this Agreement by
the Company, and agree in the event of such breach that the aggrieved party may
obtain temporary and permanent injunctive relief restraining the Company from
such breach or compelling specific performance of such provision, and, to the
extent permissible under applicable statutes and rules of procedure, a temporary
injunction may be granted immediately upon the commencement of any such suit
without proof of actual harm. Nothing contained in this Agreement shall be
construed as prohibiting any party from pursuing other remedies available at law
or equity for such breach or non-performance.

    


    (b)      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 a
Holder, to the address of such Holder set forth on Schedule I
hereto

    


    if to the
Company:

    


    AboveNet,
Inc.

    360
Hamilton Avenue

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    White
Plains, New York 10601

    Attention:
General Counsel

    Telephone:
(914) 421-6700

    Facsimile:
(914) 421-6793

    


    with a
copy to:

    


    Kronish
Lieb Weiner & Hellman LLP

    1114
Avenue of the Americas

    New York,
New York 10036

    Attention:
Ralph J. Sutcliffe, Esq.

    Telephone:
(212) 479-6000

    Facsimile:
(212) 479-6275

    


    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 11(b) or in accordance with the latest unrevised direction from
such party given in accordance with this Section 11(b).

    


    (c)       Assignment. This Agreement
and the rights, interests and obligations hereunder shall not be assignable or
transferable by the Company without the prior written consent of the majority in
interest of the Holders. Any Holder may assign, in its sole discretion, any or
all of its rights, interests and obligations under this Agreement to any of its
Affiliates or any of its limited or general partners or to any transferee of
Registrable Securities who agrees to become bound by the provisions of this
Agreement, other than a transferee who shall acquire such Registrable Securities
in a Public Sale. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns.

    


    (d)      No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein expressed or
implied shall give or be construed to give to any Person, other than the parties
hereto and such successors and assigns, any legal or equitable rights
hereunder.

    


    (e)       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 departure from the
provisions hereof may not be given unless the Company has obtained the written
consent of a majority in interest of the Holders.

     

    
      
         


      

      
        15

        
          

        

      

      
         


      

    

     

    (f)       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.

    


    (g)      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.

    


    (h)      Counterparts. This Agreement
may be executed in one or more counterparts, 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.

    


    (i)        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.

    


    IN
WITNESS WHEREOF, the parties have duly executed this Registration Rights
Agreement as of the day and year first above written.

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    	
                                            ABOVENET,
      INC.

                                          
	 
      	 
      	 
      
	
                                            By: 

                                          	/s/
      Robert Sokota
	 
      	
                                            Name:

                                          	Robert
      Sokota
	 
      	
                                            Title:

                                          	SVP/General
      Counsel
	 
      	 
      	 
      
	
                                            FIBER,
      LLC

                                          
	 
      	 
      	 
      
	
                                            By:

                                          	
                                            /s/
      Brian Marcinek

                                          
	 
      	
                                            Name: 

                                          	
                                            Brian
      Marcinek

                                          
	 
      	
                                            Title:

                                          	
                                            Vice
      President

                                            Eagle
      River, Inc.

                                            Its
      Manager

                                          


                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
         


      

      
        16

        
          

        

      

      
         


      

    

     

    
      
        
          
            
              
                	
                        FRANKLIN
      MUTUAL ADVISERS, LLC

                      
	 
      	 
      	 
      
	
                        By: 

                      	/s/
      Bradley
      Takahashi
	 
      	
                        Name: 

                      	
                        Bradley
      Takahashi

                      
	 
      	
                        Title:

                      	
                        Vice
      President

                      


              

            

          

        

      

    

    


    
      
        	 
      	
                
                  TRUST
      ESTABLISHED PURSUANT TO THAT CERTAIN TRUST AGREEMENT, DATED MAY 30, 1984,
      AS AMENDED AND RESTATED AND SUPPLEMENTED, BETWEEN JOHN W. KLUGE, AS
      GRANTOR, AND STUART SUBOTN1CK, JOHN W. KLUGE AND CHASE MANHATTAN BANK AS
      TRUSTEES

                

              


      

    

    


    
      
        
          
            
              
                	
                        By: 

                      	/s/
      Stuart Subotnick
	 
      	
                        Name: 

                      	
                        Stuart
      Subotnick

                      
	 
      	
                        Title:

                      	
                        Trustee

                      


              

            

          

        

      

    

     

    
      
         


      

      
        17

        
          

        

      

      
         


      

    

     

    Schedule
I

    


    List of
Holders

    


    
      
        
          
            	
                    HOLDER

                  	 	
                    ADDRESS

                  
	 
      	 	 
      
	
                    FIBER,
      LLC

                  	 	
                    2300
      Carillon Point

                  
	 
      	 	
                    Kirkland,
      WA 98033

                  
	 
      	 	
                    Attn:
      Brian Marcinek

                  
	 
      	 	
                    Telephone:
      (425) 828-8403

                  
	 
      	 	
                    Facsimile:
      (425) 838-8061

                  
	 
      	 	
                    Email: bmarcinek@eriv.com

                  
	 
      	 	 
      
	 
      	 	
                    with
      a copy to:

                  
	 
      	 	 
      
	 
      	 	
                    DAVIS
      WRIGHT TREMAINE LLP

                  
	 
      	 	
                    2600
      Century Square

                  
	 
      	 	
                    1501
      Fourth Avenue

                  
	 
      	 	
                    Seattle,
      WA 98101-1688

                  
	 
      	 	
                    Attn:
      Benjamin G. Wolff, Esq.

                  
	 
      	 	
                    Telephone:
      (206) 903-3939

                  
	 
      	 	
                    Facsimile:
      (206) 628-7699

                  
	 
      	 	
                    Email: benwolff@dwt.com

                  
	 
      	 	 
      
	
                    THE
      KLUGE TRUST

                  	 	
                    810
      Seventh Avenue, 29th Floor

                  
	 
      	 	
                    New
      York, New York 10019

                  
	 
      	 	 
      
	 
      	 	
                    with
      a copy to:

                  
	 
      	 	 
      
	 
      	 	
                    David
      A. Persing

                  
	 
      	 	
                    Senior
      Vice President and General

                  
	 
      	 	
                    Counsel

                  
	 
      	 	
                    Metromedia
      Company

                  
	 
      	 	
                    One
      Meadowlands Plaza, 6th Floor

                  
	 
      	 	
                    East
      Rutherford, NJ 07073

                  
	 
      	 	 
      
	
                    FRANKLIN MUTUAL
      ADVISERS, LLC

                  	 	
                    51
      John F. Kennedy Parkway

                  
	
                     
      

                  	 	
                    Short
      Hills, NJ 07078

                  
	 
      	 	
                    Attn:
      Bradley Takahashi

                  
	 
      	 	
                    Telephone:
      (973) 912-2152

                  
	 
      	 	
                    Facsimile:
      (973) 912-0646