Exhibit 10.2


 


CONSULTING CONTRACT INDIVIDUAL


 


THIS AGREEMENT MADE AS OF
February 15, 2007


 


	
  BETWEEN

  	
  ABOVENET COMMUNICATIONS, INC. 

  a Delaware corporation having a place of business 

  at 360 Hamilton Avenue, White Plains, New York 10601

  
	
   

  	
   

  
	
   

  	
  hereinafter referred to as the “Company”

  
	
   

  	
   

  
	
  AND

  	
  Joe Ciavarella 

  93 Crest Road West 

  Merrick, NY 11566

  (Social Security No: ###-##-####)

  
	
   

  	
   

  
	
   

  	
  hereinafter referred to as the “Consultant”

  



 


IN CONSIDERATION
OF the promises and mutual covenants and agreements herein contained, the
parties agree as follows:


 


1.        SCOPE OF WORK.


 


Subject to the
terms and conditions hereinafter provided, Company engages the Consultant for
the furnishing of services specifically described in Exhibit “A”,
“Statement of Work for Consultant”, dated as of even date herewith, which is
hereby incorporated by reference, and for such other tasks as may be mutually
agreed upon in writing between the Consultant and the Company.


 


2.        TERM.


 


The services
called for under this Contract shall commence on February 15, 2007 and
terminate on such date agreed by parties as determined in accordance with Article 14
of Exhibit B.


 


3.        CONSIDERATION AND PAYMENT.


 


A. As
consideration for such services and for assigning the rights in invention(s),
design(s), patent(s), trademark(s) and copyright(s), as hereinafter
provided, the Company agrees to pay the Consultant $150 and 00/100 Dollars
($150.00) per hour.


 


B. The Consultant
shall invoice at the 15th and 30th of each calendar month and each
month thereafter during the term.


 


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C. Invoices shall
be sent by the Consultant to the Company attention Michael Doris.


 


D. If applicable,
the Consultant shall list the contract or contracts to be charged and the
amount applicable to each.


 


4.        EXPENDITURE LIMITATION.


 


All expenditures
incurred in connection with the performance of the services hereunder must be
approved in advance by the Chief Financial Officer of the Company.


 


5.        DIRECTION.


 


The Consultant
shall report to and be responsible for his performance and receive his
direction from Michael Doris or his designee.


 


6.        GENERAL CONDITIONS.


 


The General
Conditions, set forth in Exhibit “B” entitled “General Conditions for
Individual Consulting Contracts”, dated of even date herewith, which is
attached hereto, are hereby incorporated by reference herein.


 


IN WITNESS
WHEREOF, the parties hereto have caused this Contract to be executed as of the
day and year first above written.


 


	
   

  	
   

  	
  AboveNet Communications, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Michael Doris

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Michael Doris

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  SVP / CFO

  
	
   

  	
   

  	
   

  	
  Date:

  	
   

  
						



 


	
   

  	
  Consultant:

  
	
   

  	
   

  	
  Name:

  	
  /s/ Joseph Ciavarella

  
	
   

  	
   

  	
  Date:

  	
  2/16/07

  



 


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EXHIBIT “A”


STATEMENT OF WORK FOR CONSULTANT


Dated as of February 15, 2007


 


	
  ·

  	
  Help as required with
  Audit from 8/31/2003 to 12/31/2006

  
	
   

  	
   

  
	
  ·

  	
  Emphasis on 8K, 10K and 10Q reporting

  
	
   

  	
   

  
	
  ·

  	
  Various accounting memo’s and procedures

  



 


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TABLE OF CONTENTS

EXHIBIT “B” 

Dated as of February 15, 2007


 


GENERAL
CONDITIONS FOR INDIVIDUAL CONSULTING CONTRACTS


 


	
  Article 1.
  Applicable Law

  
	
  Article 2.
  Assignment

  
	
  Article 3.
  Confidential Matters

  
	
  Article 4.
  Conflict of Interest

  
	
  Article 5. General
  Relationship

  
	
  Article 6.
  Independent Contractors and Employees of Consultant

  
	
  Article 7.
  Inventions, Patents, Trademarks, and Copyrights

  
	
  Article 8.
  Non-Assertion of Rights By Consultant or Others

  
	
  Article 9. Notices

  
	
  Article 10.
  Reports

  
	
  Article 11. Safety
  and Security Regulations

  
	
  Article 12. Strict
  Loyalty

  
	
  Article 13.
  Superseding Effect

  
	
  Article 14.
  Termination

  
	
  Article 15. Title
  to Information

  
	
  Article 16. Travel
  and Living Expenses

  



 


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EXHIBIT “B”

Dated as of February 15, 2007


 


GENERAL
CONDITIONS FOR INDIVIDUAL CONSULTING CONTRACTS


 


1.        APPLICABLE LAW.


 


Any controversy or
claim arising out of or relating to this Contract shall be governed by the laws
of the State of New York, without reference to the conflict of law principles
thereof. Any litigation under this Contract, if commenced by Consultant, shall
be brought in a Court of competent jurisdiction in the City, State and County
of New York. Pending the resolution of any dispute, the Consultant shall
proceed as directed by the Company in writing.


 


2.        ASSIGNMENT.


 


This Contract is
for personal services and shall not be transferred or assigned by the
Consultant without prior written consent of Company.


 


3.        CONFIDENTIAL MATTERS.


 


The Consultant
during duration of this engagement shall keep in strictest confidence all information
relating to this Contract which may be acquired in connection with or as a
result of this Contract. During the term of this Contract and at any time
thereafter, without the prior written consent of Company, the Consultant shall
not publish, communicate, divulge, disclose or use any of such information
which has been designated as Company proprietary information or which from the
surrounding circumstances in good conscience ought to be treated as Company
proprietary information. Upon termination or expiration of this Contract,
Consultant shall deliver all records, data, information, and other documents
and all copies thereof to Company and such shall remain the property of
Company.


 


4.        CONFLICT OF INTEREST.


 


The Consultant
shall not act as a sales agent, or in a liaison capacity as an officer,
employee, agent, or representative of any Company supplier or prospective
supplier nor serve in any of the foregoing capacities for any of Company’s
competitors or prospective competitors without the prior written approval of
Company. The Consultant hereby warrants that there is no conflict of interest
in Consultant’s full time or other employment, if any, or other consulting
contracts, if any, with the activities to be performed hereunder and Consultant
shall advise Company if a conflict of interest arises in the future. If
applicable, the Consultant certifies that the services to be performed under
this Contract shall not result in a conflict of interest prohibited by law or
regulation.


 


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5.        GENERAL RELATIONSHIP.


 


In all matters
relating to this Contract, the Consultant shall be acting as an independent
contractor. Neither the Consultant nor employees of the Consultant, if any, are
employees of Company under the meaning or application of any Federal or State
Unemployment or Insurance Laws or Workman’s Compensation Laws, or otherwise.
The Consultant shall assume all liabilities or obligations imposed by any one
or more of such laws with respect to employees of the Consultant, if any, in
the performance of this Contract. The Consultant shall not have any authority
to assume or create any obligation, express or implied, on behalf of Company
and the Consultant shall have no authority to represent himself as an agent,
employee, or in any other capacity of Company.


 


6.        INDEPENDENT CONTRACTORS AND EMPLOYEES OF CONSULTANT.


 


The Consultant
shall not utilize any entities, persons or employees on the work to be
performed hereunder unless said entities, persons or employees have executed a
contract agreeing to be bound by the terms of Articles 3, 7, 11 and 12 of this Exhibit “B”.


 


7.        INVENTIONS, PATENTS, TRADEMARKS, AND COPYRIGHTS.


 


A.       The Consultant hereby
assigns to Company the entire right, title and interest throughout the entire
world in and to all work performed, writing(s), formula(s), design(s),
model(s), drawing(s), photograph(s), design invention(s) and other
invention(s) made, conceived or reduced to practice or authored by Consultant
or Consultant’s employees, either solely or jointly with others, during the
performance on this Contract or with the use of information, materials or
facilities of Company during the period in which Consultant is retained by
Company or its successor in business, under this Contract or any extensions or
renewals thereof.


 


B.        The Consultant shall
promptly disclose to Company all work(s), writing(s), formula(s), design(s),
model(s),

photograph(s), drawing(s), design invention(s) and other invention(s) made,
conceived, or reduced to practice or authored by the Consultant or Consultant’s
employees in the course of the performance of this Contract.


 


C.        The Consultant shall sign,
execute and acknowledge or cause to be signed, executed and acknowledged
without cost, but at the expense of Company, any and all documents and to
perform such acts as may be necessary, useful or convenient for the purpose of
securing to Company or its nominees, patent, trademark, or copyright protection
throughout the world upon all such work(s), writing(s), formula(s), design(s),
model(s), drawing(s), photograph(s), design invention(s) and other
invention(s), title to which Company may acquire in accordance with the
provisions of this clause.


 


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D.        The Consultant has acquired
or shall acquire from each of its employees the necessary rights to all such
work(s), 

writing(s), formula(s), design(s), model(s), drawing(s), photograph(s), design
invention(s) and other invention(s) made by such employees within the
scope of their employment by the Consultant in performing services under this
Contract and to the best of the ability of the Consultant to obtain the
cooperation of each such employee to secure to Company or its nominees the
rights to such 

work(s), writing(s), formula(s), design(s), model(s), drawing(s),
photograph(s), design invention(s) and other invention(s) as Company
may acquire in accordance with the provisions of this clause.


 


8.        NON-ASSERTION OF RIGHTS BY CONSULTANT OR OTHERS.


 


During and after
the term of this Contract, Consultant shall not assert or permit any other
party to assert against Company, its subsidiaries, vendors and customers, any
patent or other rights with respect to which Consultant has the right to assert
or license at the termination or expiration of this Contract because of the
practice of any process or the manufacture, use or sale of any product arising
out of the subject matter of this Contract.


 


9.        NOTICES.


 


Any notice
required to be given hereunder shall be deemed to have been sufficiently given
either when served personally or when sent by first class mail addressed to the
Parties at the addresses set forth in this Contract. Ordinary first-class mail
will be used for the mailing to the Consultant of copies of office actions and
amendments during the prosecutions of any U.S. Patent applications by Company
relating to inventions by the Consultant or Consultant’s employees.


 


10.      REPORTS.


 


The Consultant,
when directed, shall provide written reports with the respect to the services
rendered hereunder. The Consultant shall submit a detailed invoice settling for
the services performed hereunder and the days and hours worked.


 


11.      SAFETY AND SECURITY REGULATIONS.


 


Consultant shall
comply with all applicable Company security regulations. If the Consultant
renders services at Company’s facility, Consultant shall not remove any Company
proprietary information therefrom. The Consultant shall comply with all
applicable safety regulations.


 


12.      STRICT LOYALTY.


 


The Consultant and
its employees shall avoid all circumstances and actions which would place the
Consultant in a position of divided loyalty with respect to the obligations
undertaken under this Contract.


 


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13.      SUPERSEDING EFFECT.


 


This Contract
supersedes all prior oral or written agreements, if any, between the parties,
and constitutes the entire agreement between the parties. This Contract may not
be amended in any manner except by a written agreement executed by both parties
hereto.


 


14.      TERMINATION.


 


Company reserves
the right to cancel this Contract upon two (2) days prior written notice
to the Consultant. If this Contract is so terminated, Company shall be liable
only for the payment of services performed and approved expenses prior to the
effective date of termination. Consultant has the right to terminate this
agreement on 10 days prior written notice.


 


15.      TITLE TO INFORMATION AND EQUIPMENT.


 


All information,
developed under this Contract, of whatever type relating to the work performed
under this Contract shall be the exclusive property of Company. All machines,
instruments and products purchased, manufactured or assembled by Consultant
pursuant to this Contract and paid for by Company shall be the exclusive
property of Company. Upon termination of this Contract, Consultant shall
dispose of such items as directed by Company.


 


16.      TRAVEL AND LIVING EXPENSES.


 


The Consultant
will not be paid in addition to the compensation set forth in Article 3,
entitled “Compensation and Payment”, any travel costs or living expenses. A
detailed statement of expenses, all of which must be previously approved in
writing by the Company, shall be submitted with each invoice. All travel must
have the prior written approval of the persons designated in Article 5, entitled
“Direction”.


 


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