Exhibit 10.3


 


STOCK PURCHASE AGREEMENT


 


THIS STOCK PURCHASE AGREEMENT is entered into as of
October 28, 2008, by and between ABOVENET, INC., a Delaware corporation
(the “Purchaser”), and Rajiv Datta (the “Selling Stockholder”).


 


RECITALS


 


WHEREAS, the Selling Stockholder owns shares of
common stock of the Purchaser (“Common Stock”);


 


WHEREAS, the Purchaser has offered to purchase from
the Selling Stockholder on the terms set forth in this Agreement 3,500 shares
of Common Stock, which shares of Common Stock were delivered to the Selling
Stockholder in December 2007 pursuant to previously granted restricted
stock units (the “Shares”); and


 


WHEREAS, the Selling Stockholder desires to sell the
Shares to the Purchaser pursuant to this Agreement.


 


AGREEMENT


 


NOW, THEREFORE, the Purchaser and the Selling
Stockholder, intending to be legally bound, hereby agree as follows:


 


SECTION 1.       SALE AND PURCHASE OF SHARES


 


1.1          Sale and Purchase of Shares. At the Closing (as
defined below), the Selling Stockholder shall sell, assign, transfer and
deliver the Shares to the Purchaser, and the Purchaser shall purchase the
Shares from the Selling Stockholder, on the terms and subject to the conditions
set forth in this Agreement.


 


1.2          Purchase Price. The aggregate purchase price payable by the
Purchaser for the Shares shall be $175,245.00 (the “Purchase Price”),
representing a per share purchase price of $50.07.


 


1.3          Closing.


 


(a)       The closing of the sale of the Shares to the
Purchaser (the “Closing”) shall take place at the offices of the Purchaser at
10:00 a.m. (New York time) on the second business day following the
execution and delivery of this Agreement by the Purchaser and Selling
Stockholder or at such other
time and/or date as the Purchaser and the Selling Stockholder shall mutually
agree (the “Closing Date”).


 


(b)       At the Closing, the Selling Stockholder shall
deliver to the Purchaser the stock certificate(s) representing the Shares,
duly endorsed (or accompanied by a duly executed stock power), and the
Purchaser shall pay the Purchase Price to the Selling Stockholder by check
payable to the Selling Stockholder.


 

















 


SECTION 2.       REPRESENTATIONS AND
WARRANTIES OF THE SELLING STOCKHOLDER


 


The Selling Stockholder represents and warrants to
and for the benefit of the Purchaser as follows:


 


2.1          Authority; Binding Nature of
Agreement. The Selling Stockholder has the full power and authority to enter into
and consummate the transaction contemplated by this Agreement, and has duly
executed and delivered this Agreement. This Agreement constitutes a valid,
legal and binding obligation of the Selling Stockholder, enforceable against the Selling Stockholder in accordance
with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws relating to or affecting the rights of
creditors generally, and by general equity principles (regardless of whether
such enforcement is considered a proceeding in equity or at law).


 


2.2          Title to Stock. The Selling Stockholder is the legal and
beneficial owner and holder of the Shares to be sold to the
Purchaser pursuant to this
Agreement free and clear of any lien or other encumbrance (other than restrictions
on transfer under applicable securities law). On the Closing Date, the
Purchaser will acquire good title to the Shares, free of any lien or other
encumbrance (other than restrictions on transfer under applicable securities
law).


 


2.3            Legal Proceeding. There is no legal
proceeding pending, and no person has threatened to commence any such
proceeding, that may have an adverse effect on the ability of the Selling
Stockholder to comply with or perform the Selling Stockholder’s covenants or
obligations under this Agreement.


 


2.4            Disclosure. The Selling
Stockholder acknowledges and agrees that the Purchaser has made available
information regarding the Purchaser’s current and historical financial results,
including the Purchaser’s Annual Report on Form 10-K for the year ended
December 31, 2007, in order for the Selling Stockholder to evaluate the
merits and risks of the decision to sell the Shares to the Purchaser. The
Selling Stockholder has had an opportunity to ask questions of, and
receive satisfactory answers from, the Purchaser concerning the terms and
conditions of the transaction contemplated by this Agreement and the business
of the Purchaser, and all such questions have been answered to the complete
satisfaction of the Selling Stockholder. The Selling Stockholder acknowledges
that he has not received any representations or warranties (other than those
specifically set forth in this Agreement) in making his decision to sell the
Shares under this Agreement.


 


SECTION 3.        REPRESENTATIONS AND
WARRANTIES OF THE PURCHASER


 


The Purchaser represents and warrants to and for the
benefit of the Selling Stockholder as follows:


 


3.1          Authority; Binding Nature of
Agreement. The Purchaser has the
full power and authority to enter into and consummate the transaction contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement. This
Agreement constitutes a valid, legal and binding obligation of the Purchaser,
enforceable against it in accordance with the terms hereof, except as


 


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such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered a
proceeding in equity or at law).


 


3.2          Acquisition of
Shares.  The Purchaser is not acquiring the Shares with the current intention of
making a public distribution thereof.


 


SECTION 4.       STANDSTILL
AGREEMENT


 


4.1          Standstill.  During
the period commencing on the day following the Closing Date and ending on the
earlier to occur of (a) the six months after the date that the Purchaser
becomes current with respect to its periodic filings required under the Securities
Exchange Act of 1934 and (b) such time as the Common Stock is listed on a
national securities exchange, the Selling Stockholder shall not, and shall not
enter into any agreement, arrangement or undertaking to, sell, assign,
transfer, pledge, gift, permit to exist any lien on or otherwise dispose of any
shares of Common Stock or other securities of the Purchaser.


 


SECTION 5.       TERMINATION


 


5.1          Termination Event.  This
Agreement may be terminated prior to the Closing by the mutual consent of the
Purchaser and the Selling Stockholder.


 


SECTION 6.       MISCELLANEOUS
PROVISIONS


 


6.1          Further Assurances.  Each party hereto shall execute and/or cause
to be delivered to the other party hereto such instruments and other documents,
and shall take such other actions, as such other party may reasonably request
(prior to, at or after the Closing) for the purpose of carrying out or
evidencing the transaction contemplated by this Agreement.


 


6.2          Headings.  The
underlined headings contained in this Agreement are for convenience of
reference only, shall not be deemed to be a part of this Agreement and shall
not be referred to in connection with the construction or interpretation of
this Agreement.


 


6.3          Counterparts.  This
Agreement may be executed in counterparts (including by facsimile), both of
which shall constitute an original and which, when taken together, shall
constitute one agreement.


 


6.4          Governing Law.  This
Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of
New York (without giving effect to principles of conflicts of laws).


 


6.5          Successors and
Assigns.  This Agreement shall be binding
upon (a) the Purchaser and its successors and assigns (if any) and
(b) the Selling Stockholder and its personal representatives, executors,
administrators, estates, heirs, successors and assigns (if any).


 


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6.6          Amendments.  This Agreement may
not be amended, modified, altered or supplemented other than by means of a
written instrument duly executed and delivered on behalf of the Purchaser and
the Selling Stockholder.


 


6.7          Severability.  Any term or provision of this Agreement that
is invalid or unenforceable shall not affect the validity or enforceability of
the remaining terms and provisions hereof. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such
determination shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision, and this Agreement shall be enforceable as so modified.


 


6.8          Entire Agreement.  This Agreement sets
forth the entire understanding of the parties relating to the subject matter
thereof and supersedes all prior agreements and understandings between the
parties relating to the subject matter thereof.


 


6.9          Construction.


 


(a)           For purposes of this Agreement, whenever the
context requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the
feminine gender shall include the masculine and neuter genders; and the neuter
gender shall include the masculine and feminine genders.


 


(b)           The parties hereto agree that any
rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be applied in the construction or
interpretation of this Agreement.


 


[Remainder of Page Intentionally Left Blank]


 


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The parties hereto have caused this Agreement
to be executed and delivered as of date first written above.


 


	
   

  	
  ABOVENET, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
   

  	
  Name: Robert Sokota

  
	
   

  	
   

  	
  Title: SVP & General
  Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SELLING STOCKHOLDER

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Rajiv Datta

  



 


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STOCK POWER


 


FOR VALUE RECEIVED, Rajiv Datta hereby sells, assigns and
transfers unto AboveNet, Inc. (3,500) shares of the Common Stock of
AboveNet, Inc. standing in his name on the books of said Corporation,
represented by Certificate Number(s) AN2720 herewith, and do hereby irrevocably
constitute and appoint American Stock Transfer and Trust Company attorney to transfer said stock on the
books of said Corporation with full power of substitution in the premises.


 


 


	
   

  	
  /s/ Rajiv Datta

  
	
  Dated:

  	
  10/28/2008

  	
   

  	
  Rajiv Datta