Exhibit 10.4


 


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 Douglas Jendras (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 3,150 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 $157,720.50 (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/ Douglas Jendras

  



 


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STOCK POWER


 


FOR VALUE RECEIVED, Douglas Jendras hereby sells, assigns and transfers unto AboveNet, Inc.
(3,150) shares of the Common Stock of AboveNet, Inc. standing in his name
on the books of said Corporation, represented by Certificate Number(s) AN2719
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.


 


	
   

  	
   

  
	
  Dated:

  	
  10/28/08

  	
   

  	
  /s/
  Douglas Jendras

  
	
   

  	
  Douglas
  Jendras