Exhibit 10.6


 


STOCK UNIT AGREEMENT


 


STOCK UNIT AGREEMENT (“Agreement”) effective as
of August 7, 2007 (“Grant Date”), by and between AboveNet, Inc. (the “Company”)
and Michael Doris (the “Participant”).


 


WHEREAS, the Company believes it desirable that the Participant
be provided additional incentive to advance the interests of the Company
through a grant of stock units under the AboveNet, Inc. Management
Incentive Plan (the “Plan”):


 


NOW, THEREFORE, the parties agree as follows:


 


1.             Grant of Stock Units.


 


Pursuant
to the Plan and subject to the terms and conditions set forth herein and
therein, the Company hereby grants to the Participant 10,000 stock units (the “Stock
Units”). Each Stock Unit constitutes a right to receive from the Company one
share (each a “Unit Share” and collectively the “Unit Shares”) of the Company’s
Common Stock, $.01 par value per share (the “Common Stock”).


 


2.             Vesting; Delivery of Unit Shares.


 


The
Stock Units vest (i.e., arc not subject to
forfeiture) upon the one year anniversary of the Grant Date, and the underlying
Unit Shares of the vested Stock Units shall be delivered to the Participant on August 17,
2009 or such earlier date set forth in Section 5(a) and 5(e).


 


3.             Adjustment Upon Changes in Capitalization.


 


The
aggregate number of Stock Units and Unit Shares shall be proportionately
adjusted by the Board or the Compensation Committee of the Board (the “Committee”)
for any increase or decrease in the number of issued shares of Common Stock
resulting from a subdivision or consolidation of shares or other capital
adjustment, or the payment of a stock dividend or other increase or decrease in
such shares, effected without receipt of consideration by the Company, or other
change in corporate or capital structure. The Board or the Committee may also
make the foregoing changes and any other changes, including changes in the
classes of securities available, to the extent it is deemed necessary or
desirable to preserve the intended benefits of the Plan for the Company and the
Participant in the event of any other reorganization, recapitalization, merger,
consolidation, spin-off, extraordinary dividend or other distribution or
similar transaction.


 


4.             Withholding. 


 


The Company’s obligation to
deliver Unit Shares under this Agreement shall be


 

















 


subject to the payment by
the Participant of any applicable federal, state and local withholding tax. The
Company shall, to the extent permitted by law, have the right to deduct from
any payment of any kind otherwise due to the Participant any federal, state or
local taxes required to be withheld with respect to the vesting of the Stock
Units or the delivery of the Unit Shares.


 


5.             Termination
of Employment; Change in Control.


 


(a)          In the event of the Participant’s death
prior to the Stock Units vesting or prior to delivery of the Unit Shares after
vesting has occurred, any unvested Stock Units, if any, shall immediately vest
and the underlying Unit Shares shall be immediately delivered to the
Participant’s beneficiary or beneficiaries.


 


(b)         Upon the termination of Participant’s
employment with the Company as a result of a disability as hereinafter defined,
any unvested Stock Units shall immediately vest. For the purposes of this
Agreement, disability shall mean that the Participant is unable, for a period
of ninety (90) consecutive days or more, because of physical or mental illness
or condition, to perform his duties as an employee of the Company.


 


(c)          In the event of the termination of the
Participant’s employment by the Company for Cause or by the Participant. any
unvested Stock Units shall immediately be forfeited. For purposes of this
Agreement. Cause shall have the definition set forth in the Plan.


 


(d)         Upon the termination of the Participant’s
employment by the Company without Cause, any unvested Stock Units shall
immediately vest.


 


(e)          In the event of a Change in Control, any
unvested Stock Units shall immediately vest and the underlying Unit Shares of
the vested Stock Units shall be immediately delivered to the Participant. For
purposes of this Agreement, notwithstanding any other definition set forth in
the Plan, a Change in Control shall be defined as (1) the acquisition by a
person or group of outstanding stock of the Company, which together with the
stock held by such person or group, represents more than 50% of the fair market
value or total voting power of the stock of the Company (and provided that, if
any person or group is considered to own more than 50% of the voting power or
fair market value of the stock of the Company, the acquisition of additional
stock by that same person or group will not constitute a Change in Control). (2) the
acquisition during any I2-month period by a person or group of stock of the
Company possessing 35% or more of the voting power of the stock of the Company.
(3) the replacement of a majority of the members of the Board of Directors
during any 12-month period by directors whose appointment or election is not
endorsed by a majority of the members of the Company’s Board of Directors
before the appointment or election, or (4) the acquisition by a person or
group of 40% or more of the assets of the Company (measured as total gross fair
market value) during any 12-month period.


 


(f)          The parties may not accelerate the
delivery of any Stock Units before the dates set forth above.


 


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6.             Transfer
of Stock Units; Limitations on Delivery of Unit Shares; Put Right.


 


(a)          The Stock Units are not
transferable otherwise than by will or the laws of descent and distribution.
Any attempt to transfer the Stock Units in contravention of this subparagraph (a) is
void ab initio. The Stock Units shall not be subject to execution,
attachment or other process.


 


(b)         The Company shall use its
commercially reasonable efforts to cause the Unit Shares delivered to the
Participant under this Agreement to be free from restrictions on transfer under
the federal securities law other than such restrictions that may be applicable
to the holder solely by virtue of being an Affiliate (as defined in Rule 144
issued under the 1933 Acts) of the Company.


 


(c)          In the event that on the date
of delivery, any of the following shall be true (1) the Unit Shares may
not be sold by the Participant at such time under Rule 144 of the
Securities Act of 1933, as amended (the “Securities Act”), or pursuant to a
currently effective registration statement under the Securities Act. (2) the
Participant is unable to sell the stock underlying his Unit Shares due to any
Company imposed trading restriction or the Participant otherwise is in
possession of material, non-public information regarding the Company or its
securities or (3) the Company’s shares are not listed on a national stock
exchange, the Company shall be obligated to repurchase such number of Unit
Shares at the Fair Market Value (as defined in the Plan) of the Unit Shares on
the date of such repurchase as required to meet the Company’s required minimum
tax withholding with respect to the delivered Unit Shares (based on minimum
statutory withholding rates for federal, state and local purposes, including
payroll taxes, that are applicable to such supplemental taxable income).
Notwithstanding the immediately preceding sentence, in the event the Internal
Revenue Service determines that the fair market value of the Unit Shares is
greater than the Fair Market Value as determined under the Plan and the
Participant has incurred additional liability for income taxes, the Fair Market
Value for purposes of this subparagraph (c) shall be increased to the
value determined by the Internal Revenue Service. The Participant must give his
notice to the Company of his election to exercise the right to require the
Company to repurchase a portion of the Unit Shares within forty-five (45) days
before or after the delivery date. In the event such Participant does not
exercise such right, he shall be deemed to have elected to forego such right.


 


7.             No
Rights in Unit Shares.


 


The
Participant shall have none of the rights of a shareholder with respect to the
Unit Shares unless and until Unit Shares are issued and delivered to him under
this Agreement.


 


8.             No
Right to Employment.


 


Nothing
contained herein shall be deemed to confer upon the Participant any right to
remain as an employee of the Company. The Company reserves the right to dismiss
the Participant free from any liability, or any claim under the Plan, except as
specifically provided in this Agreement.


 


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9.             Governing
Law/Jurisdiction.


 


This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without reference to principles of conflict of laws.


 


10.          Miscellaneous.


 


This
Agreement cannot be changed or terminated orally. This Agreement and the Plan
contain the entire agreement between the parties relating to the subject matter
hereof. The paragraph headings herein are intended for reference only and shall
not affect the interpretation hereof.


 


IN WITNESS WHEREOF, the parties have executed
this Agreement as of the day and year first above written.


 


	
   

  	
  /s/
  Michael Doris

  
	
   

  	
  Michael Doris 

  
	
   

  	
  Participant

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABOVENET,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Sokota

  
	
   

  	
   

  	
  Name:

  	
  Robert
  Sokota

  
	
   

  	
   

  	
  Title:

  	
  SVP
  and General Counsel

  



 


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