Exhibit 10.2


 


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 Robert
Sokota (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


 


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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/
  William G. LaPerch

  
	
   

  	
   

  	
  Name:

  	
  William
  G. LaPerch

  
	
   

  	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLING
  STOCKHOLDER

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Robert Sokota

  
					



 


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STOCK POWER


 


FOR VALUE RECEIVED, Robert Sokota 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) AN2718 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/ Robert Sokota

  
	
   

  	
   

  	
  Robert
  Sokota