Exhibit 10.1


 


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 William LaPerch (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 2,000 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
$100,140.00 (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


 


2

















 


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).


 


3

















 


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]


 


4

















 


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/
  William LaPerch

  



 


5

















 


STOCK POWER


 


FOR VALUE RECEIVED,  William LaPerch
hereby sells, assigns and transfers unto AboveNet, Inc. (2,000) shares of
the Common Stock of AboveNet, Inc. standing in his name on the books of
said Corporation, represented by Certificate Number(s) AN2716 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/ William LaPerch

  
	
   

  	
   

  	
  William
  LaPerch

  



 


6