Exhibit
10.9


 


TABLE OF CONTENTS


Consulting Individual


 


Parties to Contract


Basic Contract


Article  1. Scope of Work


Article  2. Term


Article  3. Consideration and Payment


Article  4. Expenditure Limitation


Article  5. Direction


Article  6. General Conditions


Signatures


Exhibit “A” - Statement of Work for Consultant


Exhibit “B” - General Conditions for Individual Consulting
Contracts


 

















 


CONSULTING CONTRACT


 


THIS AGREEMENT MADE AS OF MARCH 4, 2008


 


	
  BETWEEN

  	
  ABOVENET
  COMMUNICATIONS, INC.

  
	
   

  	
  a
  Delaware corporation having a place of business

  
	
   

  	
  at
  360 Hamilton Avenue, White Plains, New York 10601,

  
	
   

  	
  a
  wholly-owned subsidiary of AboveNet, Inc.

  
	
   

  	
   

  
	
   

  	
  together,
  both companies being hereinafter referred to as the

  
	
   

  	
  “Company”

  
	
   

  	
   

  
	
  AND

  	
  Michael
  Doris, residing at

  
	
   

  	
  10
  Nathan Court

  
	
   

  	
  Syosset,
  New York 11791

  
	
   

  	
   

  
	
   

  	
  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.


 


2.          TERM.


 


The services called for under this Contract shall commence immediately
following the Consultant’s last day of employment with the Company and shall
terminate nine (9) months after commencement.  This Contract shall be executed
simultaneously with the Separation of Employment and General Release Agreement
between the parties (the “Separation Agreement”).  If the Separation Agreement shall be revoked
or terminated, this Contract shall be revoked or terminated simultaneously
therewith, with no further action required by either party hereto, except to
pay all accrued amounts that may be due for services rendered through such date
of termination


 


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 Six Thousand Two Hundred 


 


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Ninety-Two and 31/100 Dollars ($6,292.31) per week, which amount shall
be remitted automatically to the Consultant each week without the necessity of
the Consultant preparing an invoice.


 


2006
Securities Filing Payment.  As further consideration for such services,
at such time as the Company completes and files with the Securities and
Exchange Commission a Form 10-K with respect to the Company’s financial
position for its fiscal year 2006, then the Consultant shall be paid $50,000.00
(the “2006 Securities Filing Payment”), unless the Consultant received payment
of a 2006 Securities Filing Payment under his employment agreement.  Payment of the 2006 Securities Filing Payment
shall be made automatically within ten (10) days of the SEC filing,
without the necessity of the Consultant preparing an invoice.  Consultant shall be entitled to the 2006
Securities Filing Payment no matter when the applicable SEC filing is made,
even if after the end of the term of this Contract.


 


2007
Securities Filing Payment.  As further consideration for such services,
at such time as the Company completes and files with the Securities and
Exchange Commission a Form 10-K or Form 8-K with respect to the
Company’s financial position for its fiscal year 2007, then the Consultant
shall be paid $50,000.00 (the “2007 Securities Filing Payment”), unless the Consultant
received payment of a 2007 Securities Filing Payment under his employment
agreement.  Payment of the 2007
Securities Filing Payment shall be made automatically within ten (10) days
of the SEC filing, without the necessity of the Consultant preparing an
invoice.  If the 2006 Securities Filing
Payment has not been paid by the due date for the payment of the 2007
Securities Filing Payment, then the 2006 Securities Filing Payment shall also
be paid simultaneously with the 2007 Securities Filing Payment.  Consultant shall be entitled to the 2007
Securities Filing Payment no matter when the applicable SEC filing is made,
even if after the end of the term of this Contract.


 


D.         The Consultant shall invoice
any out-of-pocket or other expenses at end of each week during the term, with
payment to be remitted to the Consultant within ten (10) days of
invoice.  Invoices shall be sent by the
Consultant to Sheila Chang, Director of Human Resources c/o the Company.


 


4.          EXPENDITURE
LIMITATION.


 


For services, travel and other expenses, the total authorized
expenditure limitation hereunder is not to exceed Ten Dollars, without prior
written authorization by the Company.  In
addition, the Consultant shall be reimbursed for all commuting expenses for
roundtrip travel from his home to the Company’s headquarters in White Plains,
New York (including standard mileage reimbursement, tolls, and parking) upon
certification of all such costs.  Such
commuting expenses shall not require prior authorization from the Company.


 


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5.          DIRECTION.


 


The Consultant shall report to and be responsible for his performance
and receive his direction from the Company’s Audit Committee.


 


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.    The parties acknowledge that any
Restrictive Covenant periods under Section 11 of the Consultant’s former
employment agreement (including any no-compete or no-solicit periods) shall run
concurrent with the term of this Contract.


 


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/
  Robert Sokota

  
	
   

  	
   

  	
  Name:
  

  	
  Robert
  Sokota

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   /s/
  Michael Doris

  
	
   

  	
   

  	
  Michael
  Doris

  
					



 


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EXHIBIT “A”


STATEMENT OF WORK FOR CONSULTANT


Dated as of March 4, 2008


 


·                  Assist in the
completion of any and all financial and accounting tasks and other matters that
were within the scope of Consultant’s employment when Consultant was employed
by the Company, in each case as requested by the Company’s Audit Committee.


·                  Assist in (i) the
completion of the Company’s 2006 and 2007 audits, (ii) the preparation and
filing with the Securities and Exchange Commission of Form 10-K with
respect to fiscal year 2006 and Forms 10-K and/or 8-K with respect to fiscal
years 2007, (iii) the completion and filing of any and all of the Company’s
historical tax returns, if requested by the Audit Committee


·                  Assist with any
transition to a new CFO.  Consultant
acknowledges that such transition will require that (i) a substantial
portion of his business time be devoted to providing such services during the
first two months of such transition, and thereafter, as needed and requested by
the Company’s Audit Committee and (ii) Consultant will need to be in the
Company’s headquarters from time to time as requested by the Company’s Audit
Committee.  The parties acknowledge that
after the first two months, the Consultant may be employed by another party and
will accommodate the required time needed to fit such working schedule.


·                  Provide
reasonable representations and certifications for work previously performed as
Chief Financial Officer of the Company, as appropriate and reasonably requested
the Company’s Audit Committee.


·                  Provide support
for finance and accounting functions as requested by the Board of Directors,
Outside Accountants or the Company’s Audit Committee.


 


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EXHIBIT “B”


Dated as of March 4, 2008


 


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

  
	
  Article 17.
  Indemnification

  



 


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EXHIBIT “B”


Dated as of March 4, 2008


 


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 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 been approved in advance and in writing by the Company, at the Company’s
sole discretion,  and 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.          NOTICES.


 


Any notice required to be given hereunder shall be deemed to have been
sufficiently given either when served personally or five (5) days after
having been sent by first class mail addressed to the Parties at the addresses
set forth in this Contract.


 


9.          REPORTS.


 


The Consultant, when directed, shall provide written reports with the
respect to the services rendered hereunder.


 


10.        SAFETY AND SECURITY REGULATIONS.


 


Consultant shall comply with all applicable Company security
regulations.  If the Consultant renders
services at the Company’s facility, the Consultant shall  return any Company proprietary information
upon the expiration of the term of this Contract.  Consultant shall comply with all applicable
safety regulations.


 


11.        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.


 


12.        SUPERSEDING
EFFECT.


 


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


 


13.        TERMINATION.


 


A.         If this Contract is
terminated, Company shall be liable only for the payment of services performed
and expenses incurred prior to the effective date of termination.


 


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B.               The following
event shall be an “Event of Default”, the occurrence of which gives the
non-defaulting party the right to terminate this Contract by written notice
following the expiration of any stated cure period and pursue its remedies
under the Contract:  the breach of any
material term or condition of this Contract and such breach remains uncured
five (5) days after delivery to the breaching party of written notice of
such breach.


 


14.        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.


 


15.        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,
parking expense, or living or hotel expenses except as set forth therein.


 


16.  INDEMNIFICATION.


 


The
Company shall indemnify and hold harmless the Consultant by reason of the fact
that Consultant is or was a consultant of the Company or is or was serving at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other entity or enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in satisfaction or settlement actually and reasonably incurred by Consultant in
connection with such action, suit or proceeding if Consultant acted in good
faith and in a manner Consultant reasonably believed to be in or not opposed to
the best interest of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.  The termination of any proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that Consultant did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was
unlawful.  Expenses (including attorneys’
fees) incurred by Consultant in defending a civil or criminal action, suit or
proceeding shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such Consultant to repay such amount if it shall ultimately be determined
that Consultant is not entitled to be indemnified by the Company.  This Section 16 shall survive the term
of this Contract.


 


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