Exhibit 10.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, effective as of September 2, 2008 (the "Effective Date"),
by and between AboveNet, Inc. (the "Company"), a Delaware corporation having its
principal offices at 360 Hamilton Avenue, White Plains, New York 10601 and Rajiv
Datta, residing at 37 Aspen Way, Upper Saddle River, New Jersey 07458 (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Employee has been employed by the Company pursuant to an employment
agreement;
WHEREAS, the Company and the Employee now desire to provide for the continued
employment of the Employee by the Company after the Effective Date on the terms
and conditions hereinafter set forth herein and to replace and supersede the
existing employment agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1.
EMPLOYMENT; TERM.
(A)
THE COMPANY HEREBY AGREES TO EMPLOY THE
EMPLOYEE, AND THE EMPLOYEE HEREBY AGREES TO SERVE, AS SENIOR VICE PRESIDENT AND
CHIEF TECHNOLOGY OFFICER DURING THE TERM (DEFINED BELOW).
(B)
THE TERM (THE "TERM") OF THE EMPLOYEE'S
EMPLOYMENT HEREUNDER WILL COMMENCE ON THE EFFECTIVE DATE AND, UNLESS SOONER
TERMINATED AS PROVIDED IN SECTION 6 HEREOF, WILL TERMINATE AT THE END OF THE DAY
ON NOVEMBER 16, 2011. THE TERM SHALL BE AUTOMATICALLY EXTENDED, UNLESS SOONER
TERMINATED AS PROVIDED HEREIN, FOR SUCCESSIVE ADDITIONAL ONE-YEAR PERIODS,
UNLESS AT LEAST 120 DAYS PRIOR TO THE END OF THE TERM, THE COMPANY OR THE
EMPLOYEE HAS NOTIFIED THE OTHER THAT THE TERM WILL NOT BE EXTENDED.
2.
DUTIES.
(A)
THE EMPLOYEE WILL HAVE SUCH POWERS AND
DUTIES REASONABLY CONSISTENT WITH EMPLOYEE'S POSITION AS SENIOR VICE PRESIDENT
AND CHIEF TECHNOLOGY OFFICER AND WILL PERFORM SUCH DUTIES AS ASSIGNED TO HIM BY
THE CHIEF EXECUTIVE OFFICER, OR ALTERNATIVELY AT THE DISCRETION OF THE CHIEF
EXECUTIVE OFFICER THE PRESIDENT OF THE COMPANY, (THE "SUPERIOR").
THE EMPLOYEE
AGREES TO PERFORM HIS DUTIES AND EXERCISE HIS AUTHORITY PURSUANT TO THE
DIRECTION AND CONTROL OF HIS SUPERIOR AND WILL REPORT TO HIS SUPERIOR.
THE
EMPLOYEE WILL PERFORM HIS DUTIES DILIGENTLY, FAITHFULLY AND TO THE BEST OF HIS
ABILITY AND IN ACCORDANCE WITH SOUND BUSINESS PRACTICES. THE EMPLOYEE WILL BE
BASED IN WHITE PLAINS, NEW YORK, BUT WILL BE EXPECTED TO TRAVEL FROM TIME TO
TIME.
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(B)
THE EMPLOYEE WILL DEVOTE SUBSTANTIALLY ALL
HIS BUSINESS TIME AND ATTENTION TO HIS DUTIES AND RESPONSIBILITIES HEREUNDER,
SUBJECT TO PAID VACATIONS AND HOLIDAYS AS HEREINAFTER SET FORTH IN SECTION 5 OF
THIS AGREEMENT.
(C)
THE EMPLOYEE WILL COMPLY WITH ALL COMPANY
POLICIES INCLUDING ITS CODE OF CONDUCT.
3.
COMPENSATION.
(A)
BASE SALARY.
DURING THE TERM, FOR ALL THE
SERVICES RENDERED BY THE EMPLOYEE IN ALL CAPACITIES HEREUNDER, THE EMPLOYEE WILL
RECEIVE AN ANNUAL BASE SALARY OF $290,000 (THE "BASE SALARY") SUBJECT TO
REQUIRED DEDUCTIONS AND WITHHOLDINGS OR AS OTHERWISE REQUIRED BY LAW, PAYABLE IN
ACCORDANCE WITH THE STANDARD PAYROLL PRACTICES OF THE COMPANY THEN IN EFFECT
WHICH IS CURRENTLY TWICE A MONTH.
BASE SALARY MAY BE INCREASED BUT