Exhibit
10.8


 


Separation of Employment and
General Release Agreement


 


This Separation of Employment and General
Release Agreement (this “Agreement”) is made and entered into as of the 4th day
of March, 2008, by and between AboveNet Communications, Inc, a wholly owned
subsidiary of AboveNet, Inc., (collectively the “Company”) and Michael
Doris (“Employee”), who resides at 10 Nathan Court, Syosset, New York  11791. 
For purposes of this Agreement, the Company and Employee shall be
collectively referred to as the “parties” or individually as a “party”.  The Company and Employee by this Agreement
wish to resolve any claims or potential claims which Employee may have against
the Company by reason of his employment or the termination thereof.  The parties wish to set forth the terms and
conditions governing Employee’s separation of employment with the Company and
to provide for the settlement and release of any and all disputes and/or
controversies which have arisen or may hereafter arise between the Company or
its affiliates and Employee, including without limitation, any and all claims
arising out of or in any way related to Employee’s employment with the Company
and/or the separation of said employment, up to and including the effective
date of this Agreement.  This Agreement
becomes effective on the eighth (8th) day following its execution by
the Employee (the “Effective Date”). In consideration of the mutual agreements,
conditions and covenants herein set forth, the parties hereto agree as follows:


 


1.             TERMINATION OF EMPLOYMENT POSITION.  Employee’s position with the Company was
terminated, which termination became effective as of March 4, 2008 (the “Separation
Date”).  Such termination shall be
treated as an involuntary termination by the Company without cause for purposes
of determining the Employee’s rights under his employment agreement, stock
option agreement, stock unit agreement, and any other agreement or arrangement
with respect to the Employee’s employment. 
From and after the Separation Date, Employee will no longer perform
duties or hold himself/herself out as or represent himself/herself to be an
employee of the Company.


 


2.             PAYMENT AND BENEFITS.  In full satisfaction of all payments and
other obligations due Employee from the Company, including, without limitation,
all obligations (if any) for salary, bonus, accrued and unused vacation pay,
notice pay under an offer letter, if any, and employee benefits of every kind
and description, in place of and in addition to any severance pay Employee
would be entitled to under any existing Company severance policy, and those
obligations of the Company pursuant to the Employee’s Employment Agreement
dated as of August 31, 2003 as amended (the “Employment Agreement”), and
in consideration for the release of Claims as set forth in Section 5.01 of
this Agreement, the Company shall (i) pay to Employee $327,200.00, payable
in a lump sum on the next payroll date following the Effective Date, (ii) pay
to Employee his salary and any other bonuses earned but not yet paid through
the Separation Date; (iii) pay to Employee any accrued and unused days
under the Company’s Paid Time Off Policy through the Separation Date; (iv) continue
providing health and welfare benefits for eighteen (18) months (subject to such
continuing health and welfare benefits being terminated in the event coverage
is provided or otherwise available to Employee by a subsequent employer); (v) execute
and deliver and Employee shall execute and deliver the Consulting Contract
annexed hereto as Exhibit A, providing for consulting services by Employee
to the Company for a period of nine (9) months; (vi) provided that
the conditions for the payments of such bonuses and payments have been met as
of the Separation Date pursuant to the terms and conditions of the Employment
Agreement and such amounts have not yet been paid in full: (A) pay
Employee’s 2007 Annual Bonus (as defined in the Employment Agreement); and (B) pay
a pro rata portion of Employee’s 2008 Annual Bonus (as defined in the
Employment Agreement); and (vii) allow Employee to retain the two Company
laptops assigned to him, which shall be cleansed of all licensed software and
proprietary information following the expiration of the Consulting
Contract.  For purposes of this
paragraph, continued health and welfare benefits shall include:  medical (including prescription drug),
dental, and vision coverage for Employee and his family as well as basic life
insurance coverage for the Employee.  To
the extent legally permitted, medical (including prescription drug), dental and
vision coverage shall be provided through COBRA continuation 


 

















 


coverage.  All payments made hereunder shall be subject
to all applicable federal, state and local deductions and withholding.


 


3.             SURRENDER OF COMPANY PROPERTY.  Upon the expiration of the term of the
Consulting Contract, or as earlier requested by the Audit Committee (unless
such Company property surrender impedes the Employee’s ability to perform under
the Consulting Contract), Employee shall surrender to the Company to the extent
not already surrendered, all property of the Company in his possession,
including, without limitation, all Company files and documents in any form or
medium; employee lists, and files; keys and card keys for the Company’s doors,
file cabinets and other locks; all credit cards provided to him by the Company;
the computer printer, diskettes and other equipment provided to him by the
Company; and all Company business cards and letterhead paper, envelopes, and
labels.  Employee further agrees that
after the term of the Consulting Contract he will (i) not remove any
property or documents from the premises of the Company, other than his personal
property or documents which do not include any information relating to the
Company; and (ii) return promptly to the Company any written
communications, documents, or other property of any kind which are received by
him after the Separation Date and which were sent to him in his capacity as an
employee of the Company.  Employee shall
be entitled to retain  Company laptops in
his possession.


 


The Employee shall make himself reasonably available
to the Company following his Separation Date to assist the Company, as may be
reasonably requested by the Company at mutually convenient times and places,
with respect to pending and future litigations, arbitrations, governmental
investigations or other dispute resolutions relating to matters that arose
during the Employee’s employment with the Company, (i) at no cost to the
Company during the term of the Consulting Contract and (ii) following the
expiration or prior termination of the Consulting Contract, the Company will
pay the Employee for such services at a rate of five hundred dollars ($500.00)
per hour, in addition to all reasonable expenses and costs he may incur as a
result of providing such assistance, upon receipt of proper documentation
thereof.


 


4.             CONFIDENTIALITY OBLIGATIONS.  “Confidential Information” means any
information of a confidential or proprietary nature which (1) relates to
the business of the Company or any persons or entities affiliated with the
Company; (2) has been created, discovered or developed by, or otherwise
become known to the Company or any affiliates of the Company; or (3) is
defined in any agreement concerning Confidential Information executed between
the parties or in any Company confidentiality policy agreed to by the Employee
(the “Confidentiality Agreement”). 
Confidential Information includes, but is not limited to, trade secrets,
processes, formulas, computer programs, data, know-how, inventions,
improvements, techniques, marketing and product plans, strategies, forecasts,
employee lists, customer lists and suppliers lists.  Employee acknowledges and agrees that he has
had access to or has received any and all Confidential Information in a confidential
capacity and will maintain and protect the confidentiality thereof in
accordance with the terms of the Confidentiality Agreement and will not
disclose any Confidential Information except in accordance with the terms and
conditions of such agreement.  Under no
circumstances and at no time shall Employee, directly or indirectly, disclose,
divulge, render or offer any knowledge or information with respect to any
Confidential Information, except as may be specifically requested by the
Company in writing delivered to Employee or otherwise required by legal process
or proceeding.  All Confidential
Information received by Employee was and shall be the sole and exclusive
property of the Company and its successors and assigns.  Employee hereby agrees to assign to the
Company and its successors and assigns, any rights or interests he may have or
acquire in any Confidential Information. 
Employee hereby agrees to deliver promptly to the Company all material,
documents and data of any nature containing or pertaining to any Confidential
Information at the end of the term of the Consulting Contract.  Employee further agrees not to duplicate or
otherwise reproduce the Confidential Information, except within the scope of his
Consulting Contract, with such Confidential Information to be returned to the
Company at the end of the term of the Consulting Contract.


 


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5.             RELEASE AND
WAIVER.


 


5.01  Release and Waiver of
Claims.  (a) Employee hereby
absolutely and forever releases, relieves and discharges the Company and each
of its past, present and future partners, owners, stockholders, predecessors,
successors, assigns, heirs, agents, directors, officers, employees,
representatives, attorneys, subsidiaries and all other persons, firms and
corporations acting by, through or in concert with any of them or with whom any
of them is now or may hereafter be affiliated (each “Released Party”) from any
and all manner of actions and causes of action, at law or in equity, rights,
suits, debts, liens, contracts, agreements, promises, liabilities, claims,
counterclaims, demands, obligations, accounts, reckonings, deficiencies,
guarantees, damages, losses, costs and expenses (including, without limitation,
legal fees) of every kind or character whatsoever, whether known or unknown,
suspected or unsuspected, mature or to mature in the future, disclosed, or
undisclosed, concealed or hidden, fixed or contingent, which, as of the
Effective Date of this Agreement, Employee had, now has, or may hereafter have
or claim to have against any Released Party (collectively, “Claims”) by reason
of any matter, cause or thing whatsoever, from the beginning of time, through
and including the date hereof, including, without limitation, any and all Claims
arising out of, or which hereafter may be alleged or claimed to arise out of,
or which hereafter may be alleged or claimed to arise out of, or be in any way
connected with, either directly or indirectly, any and all agreements, whether
written or oral, or any other form of affiliation between Employee and the
Company, including but not limited to any stock option agreement or plan, all
provisions contained in any offer letter, if any, the Employment Agreement, and
any severance pay pursuant to any company policy, up to and including the
Effective Date (hereinafter collectively referred to as the “Released Claims”).


 


(b) The Released Claims shall specifically include any and all
Claims for compensatory and/or exemplary or punitive damages and/or other relief
relating to or in any way connected with the terms, conditions and benefits of
employment, including without limitation, any claim or matter of any nature
whatsoever arising out of Employee’s employment with the Company or the
separation thereof and any claims arising under Title VII of the Civil Rights
Act of 1964, as amended, including, without limitation, the Pregnancy
Discrimination Act of 1978, 42 USCS §2000e(k), the Civil Rights Act of 1991,
the Age Discrimination Employment Act of 1967, as amended, all state and local
laws (including both state and local statutory and common law), rules and
regulations against discrimination, the Federal Rehabilitation Act, the
Employee Retirement Income Security Act of 1974, as amended, the Family and
Medical Leave Act, the Americans with Disabilities Act of 1990, workers’
compensation benefits, emotional distress, disability, and other health
benefits, and any discrimination, including, without limitation, of age, sex,
national origin, race, religion, mental or physical disability, association
and/or any other type of discrimination, whether or not specifically or
particularly described herein and the right to receive any benefit or remedial
relief as a consequence of any such charge of discrimination.


 


5.02  Acknowledgment of the
Parties Regarding Discovery of Different or Additional Facts or Claims; Waiver
regarding errors and omissions. 
Employee hereby expressly acknowledges that he or his attorneys may
hereafter discover Claims presently unknown or unsuspected or facts different
from or in addition to those which they now know or believe to be true with
respect to the subject matter of this Agreement, or any part thereof, and each
of the parties agrees that this Agreement and the releases herein given shall
be and remain in full force and effect in all respects, notwithstanding the
discovery or existence of such different or additional facts and/or
Claims.  Employee hereby waives all
rights under any federal, state, local or foreign law, statute, rule, order or
regulation which provides in effect that a general release does not extend to
claims which the releasing party does not know or suspect to exist in his favor
at the time of executing the release which if known by him/her must have
materially affected his settlement with the released party.  Employee hereby expressly acknowledges that
he was advised by the Company to consult with an attorney before executing this
Agreement and the releases herein. 
Employee expressly waives any right or claim of right to assert
hereafter that any Claim, has, through ignorance, oversight, or error been
omitted from the terms of this Section 5.


 


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5.03  Representations and
Warranties in Connection with the General Release.


 


(a) Employee represents and warrants
that he has not and will not file any complaints, charges or lawsuits against
the Company or any Released Party, or any of them, with any governmental agency
or any court including, without limitation, any claim or matter of any nature
whatsoever related to or arising out of his employment with the Company or the
separation of such employment.  Employee
agrees to indemnify and hold the Company harmless from and against any and all
loss, cause, damage or expense, including without limitation, attorneys’ fees
incurred by the Company arising out of any breach of this Agreement by Employee
or the fact that any representation made herein by Employee was false when
made.


 


(b) Each party is fully aware of the
contents of this
Agreement and of its legal effect and has obtained such legal advice as he or
it deem appropriate.  Employee
acknowledges that he has been given sufficient time and opportunity to review
this Agreement; that he has been given twenty-one (21) days to consider this Agreement
before signing it; that he has been given sufficient time and opportunity, and
indeed has been advised, to consult with his own attorney regarding his rights
and this Agreement prior to the execution hereof and has obtained such legal
advice as he deemed appropriate.


 


(c) Employee represents and warrants
that he is the sole and lawful owner of all rights, title and interest in and
to the Released Claims herein, and he has not assigned or transferred or
purported to assign or transfer to any other person any rights or interests in
or to any such Claims or any part or portion of any of such Claims.  Employee understands and agrees that there is
no agreement or understanding between him/her and the Company, including, but
not limited to, any applicable severance plan of the Company, and that this
Agreement sets forth the entire agreement between the parties and supersedes
any and all prior agreements or understandings between the parties pertaining
to the subject matter herein.


 


(d) Voluntary Agreement; Remedies.  The parties hereto have carefully read this
Agreement and know and fully understand the contents thereof and they sign the
same freely and voluntarily.  No promise
or inducement has been made or offered, except as herein set forth, and this
Agreement is executed without reliance upon any statement or representation by
any of the released parties or their representatives concerning the nature or
extent of injuries or damages or legal liability therefore. Each of the parties
agrees that this Agreement and the releases herein given shall be and remain in
full force and effect in all respects, notwithstanding the discovery or
existence of different or additional facts and/or Claims.  Employee understands that his breach of this
Agreement will cause the Company irreparable harm which will not be adequately
compensated by money damages. 
Accordingly, in the event of a breach or threatened breach of this
Agreement by Employee or others acting with Employee or at his direction,
Employee agrees that the Company will be entitled to seek immediately and
obtain a temporary restraining order and preliminary and permanent injunction
against such acts of breach, in addition to all other remedies available to the
Company.  In addition to the foregoing in
the event of breach of this Agreement by Employee, the Company shall be
relieved of its obligation to make the payments and provide the benefits to
Employee set forth in Section 2 of this Agreement.


 


5.04  Waiver and Release Not
Applicable to Company’s Indemnification Obligations.  Notwithstanding any other provision of this Section 5
or any other part of this Agreement, the Company shall remain obligated to
indemnify the Employee pursuant to Section 23 of his Employment Agreement,
which Section 23 shall survive the termination of his employment.


 


5.05  Waiver and Release Not
Applicable to Company’s Post-Termination Obligations.  Notwithstanding any other provision of this Section 5
or any other part of this Agreement, no provision of this Agreement shall
operate to relieve the Company of any of its obligations to the Employee after
his termination pursuant to his rights under the Consulting Agreement; the
Stock Option Agreement between Employee and the Company, dated as of September 10,
2003; and the Stock Unit Agreement between Employee and the Company, effective
as of August 7, 2007.


 


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6.     ADDITIONAL AGREEMENT;
NOTICES, MISCELLANEOUS.


 


6.01  Confidentiality of the
Agreement.  The Company and Employee
acknowledge and agree that the terms and provisions of this Agreement were made
in strictest confidence and shall remain confidential, except for any
disclosures to the accountants or attorneys of either party or which may be
required by applicable law and except as otherwise required to comply with the
provisions of this Agreement, and that they shall not disclose or cause or
allow to be disclosed, privately or publicly, any of the terms or provisions of
this Agreement to any other person or entity.


 


6.02  Negative Information;
Employment Information; Interference with the Agreement.  For a period of two (2) years following
his termination, Employee agrees that he has not made, and agrees to refrain
from making, unless legally compelled, any negative, detracting or unfavorable
statements concerning the Company, its business or business endeavors, its
products or product history, or its former or present officers, directors,
agents, distributors or employees, which may have the effect of diminishing the
reputations of the Company or the Company’s former or present officers,
directors, agents, distributors or employees or of its business or business
endeavors.  The Company and Employee
agree not to take any action which would interfere with the performance of this
Agreement by the other party or which would adversely affect any of the rights
provided for hereunder.


 


6.03  Notices.  Any and all notices or other communications
which either party shall be required or may elect to provide the other party
pursuant to this Agreement shall be in writing unless otherwise so agreed.  Any notice or communication hereunder shall
be personally delivered,  or sent by
certified or registered mail, postage prepaid, return receipt requested, or
sent by overnight courier service providing evidence of delivery to the other
party at the applicable address set forth below.  Delivery or service of any written notice or
communication shall be deemed completed (i) upon personal delivery, (ii) if
mailed, three business days after deposit in the United States mail, postage
prepaid, and (iii) if by overnight courier service, one business day after
deposit with the courier service.  Any
party may change the address to which notices are to be addressed by giving the
other party notice in the manner provided in this Section 6.03.


 


	
  If
  to the Company:

  	
  Sheila
  Chang, Director, Human Resources

  
	
   

  	
  AboveNet
  Communications, Inc.

  
	
   

  	
  360
  Hamilton Avenue

  
	
   

  	
  White
  Plains, New York 10601

  
	
   

  	
   

  
	
  If
  to Employee:

  	
  Michael
  Doris

  
	
   

  	
  10
  Nathan Court

  
	
   

  	
  Syosset,
  New York 11791

  



 


6.04  Counterparts; Further
Assurances.  This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original, and will become effective and binding upon the parties at such time
as all of the signatories hereto have signed each counterpart of this
Agreement.  Each of the parties hereto
shall sign a sufficient number of counterparts so that each party will receive
a fully executed original of this Agreement.   
The parties hereto agree to execute such other documents and to take
such other action as may be reasonably necessary to further the purposes of
this Agreement.


 


6.05  Governing Law.  This Agreement and any other documents
referred to herein shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without regard to conflicts
of laws principles thereof.


 


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6.06  Benefit and Burden;
Waiver of Amendment.  This Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and, as
applicable, their respective heirs, executors, administrators, representatives,
successors and assigns. No breach of any provision hereof can be waived unless
in writing.  Waiver of any one breach
shall not be deemed to be a waiver of any other breach of the same or any other
provision hereof.  This Agreement may be
amended only by a written agreement executed by the parties.


 


6.07  Survival of Warranties
and Representations; Severability; Entire Agreement.  The warranties and representations of this
Agreement are deemed to survive the date of execution hereof.  In the event any provision of this Agreement
should be held to be void, voidable or unenforceable in any respect, the
remaining provisions shall remain in full force and effect.  All agreements, covenants, representations
and warranties, express and implied, oral and written, of the parties hereto
concerning the subject matter of this Agreement, or any part thereof, are
contained in this Agreement.  The
provisions of Sections 10, 11, 12, 13, 14, and 23 of the Employment Agreement
shall survive (i) the termination of such agreement and (ii) the
execution of this Agreement. 
Furthermore, nothing herein shall be deemed a waiver or release of any
of the obligations that arise under such provisions of the Employment
Agreement.


 


6.08  Revocation.  Employee acknowledges that this Agreement and
the releases herein will not take effect until the Effective Date.  Employee acknowledges that he may revoke this
Agreement at any time during the seven (7) day post-execution period only
by written notice delivered to the Company within such seven (7) day
post-execution period provided in accordance with Section 6.03 of this
Agreement.


 


IN WITNESS WHEREOF, the parties have executed this Agreement as of the
respective dates set forth below.


 


	
  Employee

  	
  AboveNet
  Communications, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   /s/ Michael Doris

  	
   

  	
  By:
  

  	
   /s/ Robert Sokota

  
	
  Michael
  Doris

  	
  Name:

  	
  Robert
  Sokota

  
	
  Date:  March 4,
  2008

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
  Date:

  	
  March 4,
  2008

  
					



 


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