Exhibit 4.7


 


AMENDMENT TO RIGHTS AGREEMENT


 


THIS AMENDMENT TO RIGHTS AGREEMENT (this “Amendment” ), dated as of August 7, 2008 (“Amendment Effective Date” ), is between
AboveNet, Inc., a Delaware corporation (the “Company”), and American Stock
Transfer & Trust Company (the “Rights Agent”).


 


A.  The Company previously
entered into a Rights Agreement, dated as of August 3, 2006, with the
Rights Agent (the “Rights Agreement”).


 


B.  The Company now wishes to
amend the Rights Agreement as further set forth herein.


 


Accordingly, in consideration of the premises and the mutual agreements herein set forth, the Rights
Agreement is hereby amended as of the Amendment Effective Date as follows:


 


1.                                       Section 1(a) of the Rights
Agreement is amended and restated to read in its entirety as follows:


 


(a)   “Acquiring Person”
shall mean any Person (as such term is hereinafter defined) who or that,
together with all Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 15% or more of the Common Shares then
outstanding.  Notwithstanding the foregoing, (A) the term Acquiring
Person shall not include (i) the Company, (ii) any Subsidiary (as
such term is hereinafter defined) of the Company, (iii) any employee
benefit or compensation plan of the Company or any Subsidiary of the Company, (iv) any
entity holding Common Shares for or pursuant to the terms of any such employee
benefit or compensation plan of the Company or any Subsidiary of the Company, (v) any
Person, together with all Affiliates and Associates of such Person, who is the
Beneficial Owner of 15% or more of the Common Shares outstanding as of the date
of this Agreement until such time after the date of this Agreement that such Person,
together with all Affiliates and Associates of such Person, shall become the
Beneficial Owner of any additional Common Shares (other than by means of a
dividend made by the Company on the Common Shares outstanding or pursuant to a
split, subdivision or other reclassification of the Common Shares undertaken by
the Company or as a result of (x) the distribution of Common Shares or
other Company securities (or the exercise thereof) in connection with the
Second Amended Plan of Reorganization, dated July 1, 2003, of Metromedia
Fiber Network, Inc., et al., as the same may be amended and supplemented
(the “Bankruptcy Plan of Reorganization”), or (y) the granting to a member
of the Board of Directors of Common Shares or options to purchase Common Shares
or the vesting of Common Shares or options to purchase Common Shares held by a
member of the Board of Directors (which options and/or Common Shares have been
contributed by the member of the Board of Directors to such Person or the
member of the Board of Directors is, or is an Affiliate or Associate of, such
Person) ) and shall then beneficially own more than 15% of the Common Shares
issued and outstanding, or (vi) an Excluded Stockholder (as hereinafter
defined) and (B) no Person shall become an “Acquiring Person” or fail to


 

















 


qualify as an Excluded Stockholder either (i) as the result of an
acquisition of Common Shares by the Company which, by reducing the number of
Common Shares issued and outstanding, increases the proportionate number of
Common Shares beneficially owned by such Person to 15% or more (or 20% or more
in the case of an Excluded Stockholder, together with its Affiliates and
Associates) of the Common Shares then outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more (or 20% or more in the case of an Excluded
Stockholder, together with its Affiliates and Associates) of the Common Shares
then outstanding by reason of share purchases by the Company and shall,
following written notice from, or public disclosure by the Company of such
share purchases by the Company, become the Beneficial Owner of any additional
Common Shares without the prior consent of the Company and shall then
Beneficially Own more than 15% (or 20% in the case of an Excluded Stockholder, together
with its Affiliates and Associates) of the Common Shares then outstanding, then
such Person shall be deemed to be an “Acquiring Person,” or (ii) as the
result of the acquisition of Common Shares directly from the Company whether as
a result of (x) the distribution of Common Shares or other Company
securities (or the exercise thereof) in connection with the  Bankruptcy
Plan of Reorganization or (y) the granting to a member of the Board of
Directors of Common Shares or options to purchase Common Shares and/or the
vesting of Common Shares or options to purchase Common Shares held by a member
of the Board of Directors (which options and/or Common Shares have been
contributed by the Director to such Person or the Director is, or is an
Affiliate or Associate of, such Person)  or (z) otherwise; provided, however,
that if a Person shall become the Beneficial Owner of 15%  or more (or 20% or more in the case of an
Excluded Stockholder, together with its Affiliates and Associates) of the
Common Shares then outstanding by reason of share purchases or issuances
directly from the Company and shall, after that date, become Beneficial Owner
of any additional Common Shares without the prior written consent of the
Company and shall then Beneficially Own more than 15% (or 20% in the case of an
Excluded Stockholder, together with its Affiliates and Associates) of the
Common Shares then outstanding, then such Person shall be deemed to be an “Acquiring
Person” or (iii) if the Board of Directors determines in good faith that a
Person who would otherwise be an “Acquiring Person” has become such
inadvertently, and such Person divests, as promptly as practicable (as
determined in good faith by the Board of Directors), following receipt of
written notice from the Company of such event, of Beneficial Ownership of a
sufficient number of Common Shares so that such Person would no longer be an “Acquiring
Person,” then such Person shall not be deemed to be an “Acquiring Person” for
any purposes of this Agreement; provided,
however, that if such Person shall again become the Beneficial Owner
of 15% or more (or 20% or more in the case of an Excluded Stockholder, together
with its Affiliates and Associates) of the Common Shares then outstanding, such
Person shall be deemed an “Acquiring Person,” subject to the exceptions set
forth in this Section 1(a).


 


2.                                       Section 1(g) of the Rights
Agreement is amended and restated to read in its entirety as follows:


 


(g)(i)   “Distribution Date” shall have the meaning set forth in Section 3(a) hereof.


 


(g)(ii)  “Excluded Stockholder”
shall mean JGD Management Corp., a Delaware


 


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corporation (“JGD”); HFR ED Select Fund IV Master Trust, a trust
organized under the laws of Bermuda; Lyxor/York Fund Limited, a limited company
organized under the laws of Jersey, Channel Islands; Permal York Limited, a
limited company organized under the laws of the British Virgin Islands; York
Capital Management, L.P., a Delaware limited partnership; York Investment
Limited, a corporation organized under the laws of the Commonwealth of The
Bahamas; York Select, L.P., a Delaware limited partnership; York Credit
Opportunities Fund, L.P., a Delaware limited partnership; York Credit
Opportunities Unit Trust, a trust organized under the laws of the Cayman
Islands; York Select Unit Trust, a trust organized under the laws of the Cayman
Islands; York Global Value Partners, L.P., a Delaware limited partnership; York
Enhanced Strategies Fund, LLC, a Delaware limited liability company, York Long
Enhanced Fund, L.P., a Delaware limited partnership, and funds and accounts
managed by JGD that hold any Company securities and the respective Affiliates
and Associates of any of the foregoing (collectively, the “York Group”); provided,
however, that, except as otherwise provided in the definition of “Acquiring
Person,” none of the members of the York Group shall be an Excluded Stockholder
if members of the York Group, individually or collectively, become the
Beneficial Owner of 20% or more of the outstanding Common Shares without the
prior written consent of the Company.


 


3.                                       All capitalized terms not defined in this
Amendment shall have the meanings ascribed to such terms in the Rights
Agreement.


 


4.                                       Except as amended pursuant to this
Amendment, the Rights Agreement shall remain in full force and effect in
accordance with its terms.


 


[Signature page to follow]


 


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IN WITNESS WHEREOF, the parties to this Amendment have caused this
Amendment to be duly executed, as of the day and year first above written.


 


	
  ATTEST:

  	
   

  	
  ABOVENET, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Jill Sandford

  	
   

  	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
  Name:

  	
  Jill Sandford

  	
   

  	
   

  	
  Name:

  	
  Robert Sokota

  
	
  Title:

  	
  Assistant Secretary

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President and General

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Counsel

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  AMERICAN STOCK TRANSFER & TRUST 

  
	
   

  	
   

  	
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Anthony J. Foti

  	
   

  	
   

  	
  By:

  	
  /s/ J. Wolf

  
	
  Name:

  	
  Anthony J. Foti

  	
   

  	
   

  	
  Name:

  	
  J. Wolf

  
	
  Title:

  	
  Account Administrator

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
											



 


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