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EXHIBIT 10.8
Xx. Xxxxx Xxxx May 19, 1998
00000 Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Dear Xxxxx:
This letter sets forth the basic terms and conditions of your employment
with AboveNet Communications, Inc., a California corporation ("AboveNet")
effective May 1, 1998. By signing this letter, you will be agreeing to these
terms. It is important that you understand clearly both what your benefits are
and what is expected of you by AboveNet.
1. Salary. You will be paid a monthly base salary of $11,667, less regular
payroll deductions, (payable as $5,833.50 semi-monthly), which covers all
hours worked. Generally, your salary will be reviewed annually but AboveNet
reserves the right to change your compensation from time to time on
reasonable notice.
2. Duties. Your job title will be Chief Technology Officer. Your duties
generally will be in the areas of keeping AboveNet current on relevant
technology, hiring and maintaining a staff of appropriate employees in your
areas of responsibility, consistent with AboveNet Human Resource policies
and budgets, making sure AboveNet retains its Tier 1 status, negotiating
peering agreements together with the AboveNet Finance Department, and
working with the AboveNet CEO and President to implement the AboveNet ISX
(Internet Service Exchange) mission and AboveNet's so-called one hop
solution, but you may be assigned other duties as needed and your duties
may change from time to time on reasonable notice, based on the needs of
AboveNet and your skills, as determined by AboveNet.
As an exempt employee, you are required to exercise your specialized
expertise, independent judgment and discretion to provide high-quality
services. You are required to follow office policies and procedures adopted
from time to time by AboveNet and to take such general direction as you may
be given from time to time by your superiors. AboveNet reserves the right
to change these policies and procedures at any time. (Also see Adjustments
and Changes in Employment Status). You are required to devote your full
energies, efforts and abilities to your employment, unless AboveNet
expressly agrees otherwise. You are not permitted to engage in any business
activity that competes with AboveNet.
3. Hours and Place of Work. As an exempt employee, you are expected to work
the number of hours required to get the job done. However, you are
generally expected to be present or available during normal working hours
of AboveNet. Normal working hours will be established by AboveNet and may
be changed as needed to meet the needs of the business. AboveNet agrees
that you may work from your residence located at 00000 Xxxxxxxx Xxxxx, Xxx
Xxxx, Xxxxxxxxxx 00000-0000, provided that you are available to attend
meetings as required by the AboveNet CEO and President and/or Board of
Directors, with appropriate prior notice to you. AboveNet will lend to you
the equipment listed on Attachment A for you to use in connection with your
work for AboveNet and will reimburse out-of-pocket expenses that you incur
in connection with your work for AboveNet, subject to your compliance with
AboveNet's standard employee expense reimbursement policies.
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4. Adjustments and Changes in Employment Status. You understand that the
Company reserves the right to make personnel decisions regarding your
employment, including but not limited to decisions regarding any promotion,
salary adjustment, transfer or disciplinary action, up to and including
termination, consistent with the needs of the business.
5. Proprietary Information Agreement. You will be required to sign and abide
by the terms of the enclosed Employee's Proprietary Information,
Inventions and Related Technology Agreement, which is incorporated into
this agreement by reference as Attachment B.
6. Immigration Documentation. Please be advised that your employment is
contingent on your ability to prove your identity and authorization to work
in the U.S. for AboveNet. You must comply with the Immigration and
Naturalization Service's employment verification requirements.
7. Representation and Warranty of Employee. You represent and warrant to
AboveNet that the performance of your duties will not violate any
agreements with or trade secrets of any other person or entity.
8. Employee Benefits. You will be eligible for paid vacation, sick leave and
holidays as set forth in our employee guidelines. You will be provided with
health insurance benefits and dental insurance benefits, as provided in our
benefit plans. These benefits may change from time to time. You will be
covered by workers' compensation insurance and State Disability Insurance,
as required by state law.
9. Additional Benefits, If Any. You will be provided with the following
additional benefits, which may also change from time to time: No additional
benefits.
10. Term of Employment. Your employment with AboveNet is for a term of three
(3) years, provided, however, that either you or AboveNet can terminate
your employment "at will" at any time for any reason, with or without cause
and with or without notice.
If you are terminated without cause, you will 6 months' notice or 6
months' pay in lieu of notice. Termination for cause requires no notice and
no additional pay.
11. Dispute Resolution Procedure. You and the Company ("the parties") agree
that any dispute, arising out of or related to the employment relationship
between them, including the termination of that relationship and any
allegations of unfair or discriminatory treatment arising under state or
federal law or otherwise, shall be resolved by final and binding
arbitration, except where the law specifically forbids the use of
arbitration as a final and binding remedy. The following dispute resolution
procedure shall apply:
(a) The party claiming to be aggrieved shall furnish to the other party a
written statement of the grievance identifying any witnesses or
documents that support the grievance and the relief requested or
proposed.
(b) The responding party shall furnish a statement of the relief, if any,
that it is willing to provide, and the witnesses or documents that
support its position as to the appropriate action. The parties can
mutually agree to waive this step. If the matter is not resolved at this
step, the parties shall submit the dispute to nonbinding mediation
before a mediator to be jointly selected by the parties. The Company
will pay the cost of mediation.
(c) If the mediation does not produce a resolution of the dispute, the
parties agree that the dispute shall be resolved by final and binding
arbitration. The parties shall attempt to agree to the identity of an
arbitrator, and if they are unable to do so, they will obtain a list
from the Federal Mediation and Conciliation Service and select an
arbitrator by striking names from that list.
The arbitrator shall have the authority to determine whether the
conduct complained of in paragraph (a) of this section violates
the rights of the complaining party and, if so, to
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grant any relief authorized by law; provided, however, the parties
agree, that for violations of the employee's trade secret
obligations, AboveNet retains the right to seek preliminary
injunctive relief in court in order to preserve the status quo or
prevent irreparable injury before the matter can be heard in
arbitration. The arbitrator shall not have the authority to modify,
change or refuse to enforce the terms of any employment agreement
between the parties. In addition, the arbitrator shall not have the
authority to require AboveNet to change any lawful policy or
benefit plan.
The hearing shall be transcribed. AboveNet shall bear the costs of
the arbitration if the employee prevails. If AboveNet prevails, the
employee will pay half the cost of the arbitration or $500,
whichever is less. Each party shall be responsible for paying its
own attorneys fees.
ARBITRATION SHALL BE THE EXCLUSIVE FINAL REMEDY FOR ANY DISPUTE
BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO DISPUTES
INVOLVING CLAIMS FOR DISCRIMINATION OR HARASSMENT (SUCH AS CLAIMS
UNDER THE FAIR EMPLOYMENT AND HOUSING ACT, TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT, OR THE AGE
DISCRIMINATION IN EMPLOYMENT ACT), WRONGFUL TERMINATION, BREACH OF
CONTRACT, BREACH OF PUBLIC POLICY, PHYSICAL OR MENTAL HARM OR
DISTRESS OR ANY OTHER DISPUTES, AND THE PARTIES AGREE THAT NO
DISPUTE SHALL BE SUBMITTED TO ARBITRATION WHERE THE PARTY CLAIMING
TO BE AGGRIEVED HAS NOT COMPLIED WITH THE PRELIMINARY STEPS
PROVIDED FOR IN PARAGRAPHS (a) AND (b) ABOVE.
The parties agree that the arbitration award shall be enforceable
in any court having jurisdiction to enforce this Agreement, so long
as the arbitrator's findings of fact are supported by substantial
evidence on the whole and the arbitrator has not made errors of
law; provided, however, that either party may bring an action in a
court of competent jurisdiction regarding or related to matters
involving the Company's proprietary information, or regarding or
relating to inventions that you may claim to have developed prior
to joining the Company or after joining the Company.
(d) AboveNet reserves the right to modify, change or cancel this provision
upon 30 days written notice. However, such cancellation shall not affect
matters which have already been submitted to arbitration.
(e) With respect to any litigation commenced pursuant to subsection (d) above,
the parties consent to the exclusive jurisdiction and venue of the
California state courts located in and serving Santa Xxxxx County,
California.
12. Integrated Agreement. Please note that this Agreement supersedes any prior
agreements, representations or promises of any kind, whether written, oral,
express or implied between the parties hereto with respect to the subject
matters herein. It constitutes the full, complete and exclusive agreement
between you and AboveNet with respect to the subject matters herein. This
agreement cannot be changed unless in writing, signed by you and the Chief
Executive Officer and President.
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13. Severability. If any term of this Agreement is held to be invalid, void or
unenforceable, the remainder of this Agreement shall remain in full force
and effect and shall in no way be affected; and, the parties shall use their
best efforts to find an alternative way to achieve the same result.
We look forward to having you join our organization as an employee.
In order to confirm your agreement with and acceptance of these terms, please
sign one copy of this letter and return it to me. The other copy is for your
records. If there is any matter in this letter which you wish to discuss
further, please do not hesitate to speak to me.
Very truly yours,
AboveNet
By: /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
Title: Chief Executive Officer
By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Title: President and Chief Operating Officer
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I agree to the terms of employment set forth in this Agreement.
/s/ XXXXX XXXX 5/20/98
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Employee -- Xxxxx Xxxx Date
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ATTACHMENT A
EQUIPMENT LIST
Equipment that is approved in the Budget and/or approved by the CEO and
President of AboveNet
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ATTACHMENT B
EMPLOYEE'S PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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ATTACHMENT B
EMPLOYEE'S PROPRIETARY INFORMATION,
INVENTIONS AND RELATED TECHNOLOGY AGREEMENT
As an employee of AboveNet Communications, Inc. (the "Company"), I recognize
that the Company is engaged in a continuous program of research, development
and production with respect to its business.
RECITALS:
I understand that:
A. Definitions for certain of the capitalized terms used in this Employee's
Proprietary Information, Inventions and Related Technology Agreement
("Agreement") are contained in Exhibit A attached to this Agreement.
B. My employment creates a relationship of confidence and trust between the
Company and me with respect to any information (i) applicable to the
business of the Company; or (ii) applicable to the business of any customer
of the Company; or (iii) which the Company is under a contractual
obligation to keep confidential which may be made known to me by the
Company or by any customer of the Company, or learned by me during the
period of my employment.
C. The Company possesses and will continue to possess Company Information.
D. In consideration for the compensation received by me from the Company, I
hereby agree as follows with respect to Company Information and Third Party
Information and with respect to the license and assignment of the
Transferred Technology.
1. PROTECTION OF PROPRIETARY INFORMATION.
1.1 COMPANY INFORMATION. All Company Information shall be the sole
property of the Company and its assigns or a third party, as applicable, and
the Company and its assigns or such third party shall be the sole owner of all
patents and other rights in connection with such Company Information. I hereby
assign to the Company any rights I may have or acquire in any or all Company
Information (subject to the ownership rights I retain in the Ethervalve
Technology). During the term of my employment by the Company and at all times
thereafter, I will keep in confidence and trust all Company Information, and I
will not directly or indirectly disclose, sell, use, lecture upon or publish
any Company Information or anything relating to it without the written consent
of the Company, except as may be necessary in the ordinary course of performing
my duties as an employee of the Company. I will obtain the Company's written
approval before publishing or submitting for publication any material that
relates to my work at the Company or incorporates any Company Information.
1.2 THIRD PARTY INFORMATION. I recognize that the Company has received and
in the future will receive Third Party Information subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. I agree, during the term of my employment and
thereafter, to hold all such Third Party Information in the strictest confidence
and not to disclose or use it, except as necessary in carrying out my work for
the Company consistent with the Company's agreement with such third party.
My obligations regarding Company Information and Third Party Information
shall continue until such time as the Proprietary Information is publicly known
without fault on my own part.
2. AVOID CONFLICT OF INTEREST. During the course of my employment, I
shall inform the Company before accepting any employment, consulting or other
relationship with another
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person or entity (i) in any field related to the Company's line of business, or
(ii) in a position that requires a significant time commitment. Lack of
objection by the Company regarding any particular outside activity does not in
any way reduce my obligations under this Agreement.
3. RETURN OF MATERIALS. All apparatus, computers, computer files and
media, data, documents, drawings, engineering log books, equipment, inventor
notebooks, programs, prototypes, records, samples, equipment and other
information and physical property, whether or not pertaining to Company
Information, furnished to me by the Company, or produced by myself or others
in connection with my employment, shall be and remain the sole property of the
Company and shall be returned promptly to the Company as and when requested by
the Company. Should the Company not so request, I shall return and deliver all
such property upon termination of my employment for any reason and I will not
take with me any such property or any reproduction of such property upon such
termination. I further agree that any property situated on the Company's
premises and owned by the Company, including computers, computer files, e-mail,
voicemail, disks and other electronic storage media, filing cabinets or other
work areas, is subject to inspection by Company personnel at any time with or
without notice.
4. NON-SOLICITATION. I agree that, during the period of my employment
and for a period of one (1) year following termination of my employment with
the Company for any reason, I will not directly or indirectly (i) solicit or in
any manner encourage employees or consultants of the Company to end their
relationships with the Company; or (ii) other than on behalf of the Company,
call on, solicit or take away, or attempt to do any of the same, the business
of any customer of the Company with whom I became acquainted during the course
of my employment. By signing this Agreement, I acknowledge and agree that the
names, addresses and product specifications of the Company's customers
constitute Company Information and that the sale or unauthorized use or
disclosure of this or any other Company Proprietary Information that I obtained
during the course of this Agreement would constitute unfair competition with the
Company. I promise not to engage in any unfair competition with the Company
either during the term of my employment or at any time thereafter.
5. COMPANY INVENTIONS. I will promptly disclose to the Company, or any
persons designated by it, any and all Company Inventions; such disclosure shall
continue for one (1) year after termination of my employment with respect to
any and all such Company Inventions made, conceived, reduced to practice or
learned during such one (1) year term. If any application for any United States
or foreign patent related to or useful in the business of the Company or any
customer of the Company shall be filed by me or for me during the period of one
(1) year after my employment is terminated, the subject matter covered by such
application shall be presumed to have been a Company Invention conceived during
my employment with the Company.
6. OWNERSHIP AND PROTECTION OF INVENTIONS.
6.1 THE COMPANY OWNS COMPANY INVENTIONS. I agree that any and all Company
Inventions shall be the sole property of the Company and its assigns, and the
Company and its assigns shall be the sole owner of all patents, trademarks,
copyrights and other rights in connection with such Inventions.
6.2 INVENTIONS PROTECTION. I hereby assign to the Company any rights I may
have or acquire in Company Inventions. In addition, to the extent permitted by
federal copyright law, the parties agree that any works resulting from my work
under this Agreement shall be "works for hire" as defined in federal copyright
law. I hereby assign to the Company all of my works of authorship and all rights
of copyright, trademark, patent and other such rights ("Intellectual Property
Rights") in such works to the extent such works result from my work under this
Agreement.
6.3 MAINTENANCE OF RECORDS. I agree to keep and maintain adequate and
current written records of all Inventions made by me (solely or jointly with
others) during the term of my employment with the Company. The records will be
in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain the sole
property of the Company at all times.
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7. ASSIGNMENT AND LICENSE OF TRANSFERRED TECHNOLOGY.
7.1 ETHERVALVE TECHNOLOGY. I hereby confirm that the license I granted to
Company as of July 10, 1996, was, has always been and currently is, an exclusive
(subject only to the prior non-exclusive license that I granted to Aponet),
perpetual, irrevocable, royalty-free, worldwide license (with the right to grant
sublicenses) to use, copy, modify and fully exploit the product and related
technology known as EtherValve,as described in more detail in Exhibit B to this
Agreement. In addition, I hereby confirm that Company owns all right, title and
interest in and to the xxxx "EtherValve."
7.2 MRTG TECHNOLOGY. I hereby confirm that I have granted, and Company
holds, a non-exclusive perpetual, irrevocable, royalty-free, worldwide license
(with the right to grant sublicenses) to use, copy, modify and fully exploit the
product and related technology known as MRTG, as described in more detail in
Exhibit B to this Agreement.
7.3 ASSIGNMENT OF ALL RELATED TECHNOLOGY. Effective as of the date of this
Agreement, I hereby assign, convey and transfer to Company all right, title and
interest in and to all Related Technology. I hereby confirm that I do not own
and right, title or interest in or to any of the following marks: AboveNet, APS,
ASAP, As-UR-Here, EtherValve, ISPCondo, ISX, WebCondo Cabriolet and
Remote-Hand-Services.
8. ASSISTANCE AS TO COMPANY INVENTIONS AND TRANSFERRED TECHNOLOGY. I
agree, as to any and all Inventions and Transferred Technology, to assist the
Company in every proper way (but at the Company's expense) to obtain and from
time to time enforce Intellectual Property Rights on Company Inventions and
Transferred Technology in any and all countries. To that end, I will perform any
further acts and execute and deliver all documents for use in applying for and
obtaining such Intellectual Property Rights there-on and enforcing the same, as
the Company may desire, together with any assignments of such protections to the
Company or persons designated by it. My obligation to assist the Company in
obtaining and enforcing Intellectual Property Rights on Company Inventions and
Transferred Technology in any and all countries shall continue beyond the
termination of my employment, but, after such termination, the Company shall
compensate me at a reasonable rate to be negotiated in good faith for time
actually spent by me at the Company's request on such assistance. I acknowledge
that I may be unavailable when the Company needs to secure my signature for
lawful and necessary documents required to apply for or execute any Intellectual
Property Rights with respect to Company Inventions and Transferred Technology
(including renewals, extensions, continuations, divisions or continuations in
part of patent applications). Therefore, I agree to irrevocably designate and
appoint the Company and its duly authorized officers and agents, as my agents
and attorneys-in-fact, to act for and in my behalf and instead of me, to execute
and file any such application(s) and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyrights, trademarks and
other protections on Inventions with the same legal force and effect as if
executed by me. The Company shall also have the right to keep any and all
Company Inventions and Transferred Technology as trade secrets. I hereby waive
and quitclaim to the Company any and all claims of any nature whatsoever, which
I now or may hereafter have for infringement of Intellectual Property Rights
assigned hereunder to the Company.
9. EMPLOYEE INVENTIONS. If in the course of my employment with the
Company, I incorporate into a Company product, process or machine an Employee
Invention or any other inventions, technical writings, papers, journal articles,
developments, improvements,and trade secrets, which are owned by me or in which
I have an exclusive interest, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Employee Invention as part of or in
connection with such product, process or machine. I acknowledge and agree that
the Company and its subsidiaries or affiliates are free to compete or develop
information, inventions and products within the areas and type of the Employee
Inventions.
10. NO CONFLICTING OBLIGATION. I represent that my performance of all the
terms of this Agreement and that my employment by the
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Company does not and will not breach any agreement to keep in confidence
proprietary information acquired by me in confidence or in trust prior to my
employment by the Company. I have not entered into, and I agree I will not
enter into, any agreement either written or oral in conflict with this
Agreement. I also understand that I am not to breach any obligation of
confidentiality I have to others during my employment with the Company.
11. NO IMPROPER USE OF INFORMATION OF PRIOR EMPLOYERS OR OTHERS. As part
of the consideration for the offer of employment by the Company and of my
employment or continued employment by the Company. I have not brought and will
not bring to the Company, or use or disclose in the performance of my
responsibilities any equipment, supplies, facility, electronic media, software,
trade secret or other information or property of any former employer or any
other person or entity which are not generally available to the public, unless
I have obtained their written authorization for its possession and use.
12. NOTIFICATION OF NEW EMPLOYER. In the event that I leave the employ of
the Company, I hereby consent to the notification of my new employer of my
rights and obligations under this Agreement.
13. EQUITABLE RELIEF. I acknowledge that any breach or threatened breach
by me of this Agreement will result in immediate and irreparable harm to the
Company, for which the Company will be entitled to injunctive relief to restrain
me from violating this Agreement or to compel me to cease and desist all
unauthorized use and disclosure of the Proprietary Information, without posting
bond or other security. I will indemnify Company against any costs, including
reasonable legal fees, incurred in obtaining relief against my breach of this
Agreement. Nothing in this section shall be construed as prohibiting the Company
from pursuing any other remedies available to it for such breach or threatened
breach, including recovery of damages from me.
14. DISPUTE RESOLUTION PROCEDURE. I agree that any dispute arising out of
or related to the employment relationship between me and the Company, including
the termination of that relationship, shall be resolved in accordance with the
dispute resolution procedures set forth in my letter of offer of employment
dated May 19, 1998.
15. MODIFICATIONS. No modification of this Agreement shall be valid
unless made in writing and signed by the parties hereto.
16. SEVERABILITY. If any term or provision of the Agreement shall be
declared invalid, illegal or unenforceable, such term or provision shall be
amended to achieve as nearly as possible the same effect of protecting
Proprietary Information as the original term or provision, and all remaining
provisions shall continue in full force and effect.
17. TERM OF EMPLOYMENT. I understand that my employment is for a three
year term, subject to my right and Company's right to terminate my employment
"at will" at any time, for any reason, with or without cause and with or
without notice subject to the requirements of my letter of offer of employment
dated May 19, 1998, but my obligations under this Agreement shall survive such
termination.
18. SECTION 2870 INVENTIONS. Section 6 of this Agreement does not apply
to inventions which qualify fully for protection under section 2870 of the
California Labor Code ("Section 2870"). Currently, Section 2870 applies to
inventions for which no equipment, supplies, facility or trade secret
information of the Company was used and which was developed entirely on my own
time, and (i) which does not relate, at the time of conception or reduction to
practice of the invention, to the business of the Company, or to the Company's
actual or demonstrably anticipated research or development, or (ii) which does
not result from any work performed by me for the Company.
19. SURVIVAL OF OBLIGATIONS. This Agreement shall survive termination of
my employment, regardless of the circumstances of such termination.
20. EFFECTIVE DATE. This Agreement shall be effective as of the first day
of my employment by the Company.
21. BINDING EFFECT. This Agreement shall be binding upon my heirs,
executors, administrators or other legal representatives and
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shall inure to the benefit of successors and assigns of the Company.
22. INTEGRATED AGREEMENT. This Agreement, together with my letter of offer
of employment dated May 19, 1998, constitutes the full, complete and exclusive
agreement between the Company and me with regard to this Agreement's subject
matter. These Agreements supersede any previous agreements or representations,
whether oral or written, express or implied between the Company and me with
respect to their subject matter. These Agreements shall not be modified unless
in writing, signed by me and the CEO or President of the Company.
23. EXHIBITS. The following Exhibits are made a part of and incorporated
by reference in this agreement:
Exhibit A: Definitions.
Exhibit B: Transferred Technology
24. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
25. ACKNOWLEDGEMENT. I certify and acknowledge that I have carefully read
all of the provisions of this Agreement and that I understand and will fully
and faithfully comply with such provisions.
Dated as of May 19, 1998
EMPLOYEE ACCEPTED AND AGREED TO BY:
ABOVENET COMMUNICATIONS, INC.
By: /s/ XXXXX XXXX By: [SIG]
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Name: Xxxxx Xxxx Name: [ILLEGIBLE]
Title CTO
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Social Security No. 000 00 0000
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Address 00000 Xxxxxxxx Xx.
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Xxx Xxxx, XX 00000-0000
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EXHIBIT A
1. DEFINITIONS. As used in the foregoing Agreement, the following terms
shall have the meanings as defined below. Where the context so indicates,
a word in the singular form shall include the plural and vice-versa.
1.1. COMPANY INFORMATION shall mean Information that the Company has
created, discovered, developed or acquired. Company Information does
not include any Employee Information. Company Information includes,
but is not limited to, the Transferred Technology and all Company
network, peering and transit agreements.
1.2. COMPANY INVENTION shall mean an Invention that I make, conceive or
reduce to practice or learn, either alone or jointly with others,
that (i) results from tasks assigned me by the Company or directed
by me in the scope of my employment by Company, or (ii) results
from use of premises, equipment or materials owned, leased or
contracted for by the Company. In particular, if the Company sends
to me a "Task Assignment Form" substantially in the form attached
as Exhibit C, and I agree that the task described in such form is
within the scope of my duties for the Company, then I will sign and
return the Task Assignment Form to Company and each invention that
I make in connection with my performance of such task will be a
Company Invention.
1.3. EMPLOYEE INFORMATION shall mean Information that I have created,
discovered, developed or acquired outside the scope of my
employment by Company and not using any premises, equipment, or
materials owned, leased or contracted for by Company.
1.4. THIRD PARTY INFORMATION shall mean Information that Company
receives from a third party that is private, confidential or
proprietary to such third party.
1.5. INFORMATION shall mean all information, whether oral or written,
including but not limited to information pertaining to inventions,
confidential knowledge, trade secrets, ideas, data, programs, works
of authorship, know-how, improvements, discoveries, designs,
techniques, and technical information.
1.6. TRANSFERRED TECHNOLOGY shall mean, collectively, the Ethervalve
Technology, the MRTG Technology and the Related Technology, each as
defined in Exhibit B to this Agreement.
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EXHIBIT B
TRANSFERRED TECHNOLOGY
ETHERVALVE TECHNOLOGY LICENSED TO COMPANY:
All right, title and interest (including patent rights, copyrights, trade
secret rights, mask work rights, trademark rights and other rights throughout
the world) relating to any and all inventions (whether or not patentable), works
of authorship, mask works, designs, know-how, ideas and information relating to
bandwidth management software known as "EtherValve").
"MRTG TECHNOLOGY LICENSED TO COMPANY:
All right, title and interest (including patent rights, copyrights, trade
secret rights, mask work rights, trademark rights and other rights throughout
the world) relating to any and all inventions (whether or not patentable), works
of authorship, mask works, designs, know-how, ideas and information relating to
customer monitoring software known as Multi Router Traffic Grapher ("MRTG").
RELATED TECHNOLOGY ASSIGNED TO COMPANY:
All right, title and interest (including patent rights, copyrights, trade
secret rights, mask work rights, trademark rights and other rights throughout
the world) relating to any and all inventions (whether or not patentable), works
of authorship, mask works, designs, know-how, ideas and all related hardware
design, software code (both source code and binary format), methodology and
algorithms for the following software programs:
o Customer monitoring and notification software called "Automated
Pro-Active Services, "APS"); and.
o Customer monitoring software called Asymmetric Allocation of Packets
("ASAP").
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EXHIBIT C
TASK ASSIGNMENT FORM
AboveNet Communications, Inc.
Date:
----------------------
AboveNet Task Description:
Requested Deliverables:
Target Completion Date:
The undersigned AboveNet employee agrees to perform the task(s) described in
this Task Assignment Form and agrees that any Deliverables I provide to
AboveNet and inventions that I may make in the course of performing such tasks,
will be Company Inventions as defined in my "Employee's Proprietary
Information, Inventions and Related Technology Agreement."
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Xxxxx Xxxx
Dated:
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