STOCK UNIT AGREEMENT
EXHIBIT
10.52
STOCK
UNIT AGREEMENT (“Agreement”)
effective as of September 8, 2008 (“Grant Date”), by and between AboveNet, Inc.
(the “Company”) and Xxxxxxx XxXxxxx (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. 2008 Equity Incentive Plan (the “Plan”);
NOW,
THEREFORE,
the
parties agree as follows:
1. Grant
of Stock Units.
Pursuant
to the Plan and on the terms and subject to the conditions set forth herein
and
therein, the Company hereby grants to the Participant 21,000 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”), subject
to adjustment as provided in the Plan. Capitalized terms that are not defined
in
this Agreement shall have the respective meanings given in the Plan.
2. Vesting;
Delivery of Unit Shares.
The
Stock
Units vest (i.e.,
are not
subject to forfeiture) as follows: (a) 7,000 of the Stock Units shall vest
on or
before March 15, 2010 based on the determination of the Compensation Committee
of the Board of Directors as to whether the Company achieved the financial
and
other targets set by the Compensation Committee in its discretion with respect
to the 2009 fiscal year and the underlying Unit Shares shall be delivered to
the
Participant on March 15, 2010; (b) 7,000 of the Stock Units shall vest on or
before March 15, 2011 based on the determination of the Compensation Committee
of the Board of Directors as to whether the Company achieved the financial
and
other targets set by the Compensation Committee in its discretion with respect
to the 2010 fiscal year and the underlying Unit Shares shall be delivered to
the
Participant on March 15, 2011; and (c) 7,000 of the Stock Units shall vest
on or
before March 15, 2012 based on the determination of the Compensation Committee
of the Board of Directors as to whether the Company achieved the financial
and
other targets set by the Compensation Committee in its discretion with respect
to the 2011 fiscal year and the underlying Unit Shares shall be delivered to
the
Participant on March 15, 2012. The Stock Units are subject to earlier vesting
as
set forth in Sections 4(a), 4(b), 4(d) and 4(e). The Unit Shares are subject
to
earlier delivery only as set forth in Section 4(a) (death) and Section 4(e)
(Change of Control).
3. 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.
4. Termination
of Employment; Change of Control.
(a) In
the
event of the Participant’s death prior to the vesting of all Stock Units granted
under this Agreement or prior to delivery of all 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 Continuous Service with the Company as a result of
a Disability, any unvested Stock Units shall immediately vest.
(c) In
the
event of the termination of the Participant’s Continuous Service by the Company
for Cause or by the Participant other than for Good Reason, any unvested Stock
Units shall immediately be forfeited.
(d) Upon
the
termination of the Participant’s Continuous Service by the Company without Cause
or by the Employee for Good Reason, any unvested Stock Units shall immediately
vest.
(e) In
the
event of a Change of Control, any unvested Stock Units shall immediately vest
and the underlying Unit Shares of all vested Stock Units shall be immediately
delivered to the Participant.
(f) The
parties may not accelerate the delivery of any Stock Units before the dates
set forth above.
5. 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) 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, following notice from the Participant
as provided below, to repurchase such number of Unit Shares at the Fair Market
Value 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 (b)
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 not
less
than two (2) business days before the delivery date. In the event such
Participant does not exercise such right, he shall be deemed to have elected
to
forego such right.
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6. No
Rights in Unit Shares.
The
Participant shall have none of the rights of a shareholder with respect to
particular Unit Shares unless and until such Unit Shares are issued and
delivered to him under this Agreement.
7. 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 hereunder, or any claim under the Plan,
except as specifically provided in this Agreement.
8. 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.
9. Miscellaneous.
This
Agreement cannot be changed or terminated orally. The Company at any time,
and
from time to time, may amend the terms of this Agreement; provided,
however,
that the
rights under this Agreement shall not be impaired by any such amendment unless
(i) the Company requests the consent of the Participant and (ii) the Participant
consents in writing. This Agreement and the Plan contain the entire agreement
between the parties relating to the subject matter hereof. In the event of
any
conflict between the provisions of this Agreement and those of the Plan, the
provisions of the Plan shall control. The paragraph headings herein are intended
for reference only and shall not affect the interpretation hereof.
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/s/
Xxxxxxx XxXxxxx
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Xxxxxxx
XxXxxxx
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Participant
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ABOVENET,
INC.
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By:
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/s/ Xxxxxx Xxxxxx |
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Name:
Xxxxxx Xxxxxx
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Title:
SVP and General Counsel
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