EXHIBIT 10.1


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement (the “Agreement”) is being
entered into between VIA NET.WORKS, Inc. (“VIA”) and Raymond Walsh (the “Executive”)
in order to reflect Executive’s promotion and appointment to Chief Executive
Officer of VIA effective January 25th 2005 and shall replace
and supersede all prior agreements relating to Executive’s employment with VIA.


 


For and in consideration of the mutual promises
contained herein, and for other good and sufficient consideration, receipt of
which is hereby acknowledged, VIA and Executive (sometimes hereafter referred
to as the “parties”) agree as follows:


 


1.             Title,
Duties and Place of Work.  Executive
shall serve as the President and Chief Executive Officer.   Executive shall report to VIA’s Board of
Directors.  Executive shall serve VIA
faithfully and to the best of his ability. 
Executive’s normal place of work will be the Netherlands at the VIA
office in the Amsterdam area.


 


2.             Term.  Executive’s employment with VIA under this
Agreement shall continue for an indefinite period, unless earlier terminated by
either party in accordance with Paragraph 4 below.


 


3.             Compensation
and Benefits.


 


(a)           Salary.  During Executive’s employment, VIA shall pay
Executive an annual base salary of not less than US$300,000 (“Base Salary”).  Executive’s Base Salary shall be paid in
accordance with VIA’s usual payroll practices and policies, taking into account
expatriate payroll issues as appropriate, and shall be less standard deductions
for all appropriate U.S. employment-related taxes.  Executive shall be eligible for merit and
market-based increases in accordance with company policy, as may be determined
from time to time by the Board of Directors or the Compensation Committee of
the Board of Directors.


 


(b)           Benefits.  During Executive’s employment, Executive
shall be eligible for all benefits, including stock options, provided to other
VIA executive employees working overseas, provided that Executive qualifies for
such benefits.  Any and all benefits offered
by VIA may be supplemented, discontinued, or changed from time to time at VIA’s
sole discretion and in accordance with VIA’s policies and practices.


 


(c)           Expatriation
and Relocation.  As consideration for
the expatriation of the Executive, VIA shall pay an additional monthly sum (“Expatriate
Payment”) in accordance with VIA’s Foreign Assignment Policy.


 


The
Expatriate Payment shall cease immediately in the event that Executive
terminates the employment. In the case the Company terminates the employment
agreement, the Expatriate Payment ceases after 3 months after termination of
the agreement.


 


For
avoidance of doubt, the Expatriate Payment amounts to $ 95,000 net (FSA) per
annum, and the allowance for moving expenses will be up to $ 25,000 maximum.


 


(d)           Bonus.  Subject to the last sentence of this
paragraph 3(d), Executive shall be eligible for an annual bonus up to 100% of
his base salary in line with the VIA Bonus Policy.


 





















 


(e)           Tax
Equalization.  During the period of
Executive’s Employment during which he is covered under VIA’s Foreign
Assignment Policy, VIA shall pay to the Executive or otherwise cause to be paid
on behalf of Executive an additional amount so that, on an after-tax basis, the
compensation and benefits received by the Executive under this Agreement will
not be less than the corresponding after-tax amount that the Executive would
have received if such payments had not been subject to taxes other than United
States federal, state and local taxes.  The
Executive will use commercially reasonable efforts to minimize the amount of
U.S. and non-U.S. taxes that are imposed on such amounts.  The amount of the tax equalization payment
shall be determined by an independent third party designated by VIA and reasonably
acceptable to the Executive.  The
Executive will provide such third party with sufficient information, including
information concerning his income, deductions, tax payments and tax returns,
from which it can calculate the amount of the payments that are due under this
subsection.  Any foreign tax credits
(resulting from non-U.S. taxes that were paid or reimbursed by VIA) that offset
the Executive’s U.S. taxes will be for the benefit of, and remitted to, VIA, as
applicable, as soon as practicable after the Executive receives a refund or other
tax benefit from such credit.


 


4.             Termination.  Notwithstanding anything herein to the
contrary, Executive’s employment under this Agreement shall terminate upon
occurrence of any of the following:


 


(a)           By VIA.


 


(i)            VIA may
terminate Executive’s employment at any time for any reason, without Cause and
with or without notice.  If VIA
terminates Executive’s employment without Cause , the Executive shall be
entitled to the Severance amount set forth in Paragraph 5 below. VIA may
terminate Executive’s employment with Cause at any time.  If VIA terminates his employment with Cause,
he shall not be entitled to any severance, but he shall be entitled to his base
compensation through the date of termination.


 


(ii)           As used
herein, “Cause” shall mean any one or more of the following events:  (aa) the commission of a criminal offence or
a crime involving moral turpitude; (bb) the commission of any material act of
dishonesty; (cc) an act that in any way brings VIA or its affiliates into
disrepute; (dd) gross negligence or willful misconduct in performance of any
duty owed by Executive to VIA or any of its affiliates; (ee) a serious or
persistent breach of this Agreement by Executive; (ff) the failure of Executive
to comply with proper and lawful instructions or directions of the Board of
Directors; (gg) to take, or fail to take, any action, within the scope of
Executive’s duties, which does or which may materially or adversely affect VIA’s
business or operations; or (hh) harassment or discrimination against VIA’s employees,
customers or vendors in violation of VIA’s policies.


 


(b)           By
Executive.


 


(i)            Executive
may terminate his employment at any time for any reason, with or without a good
or important reason and with or without notice. 
In the event of such a termination, Executive shall not be entitled to
any severance, but he shall be entitled to base compensation through the date
of termination and payment for all accrue but unused vacation through the
termination date.


 





















 


(c)           Upon
Death or Disability.


 


The Executive’s employment shall terminate upon death
or because of disability.  For purposes
of this paragraph, disability shall occur if the Executive has been unable, by
reason of illness or injury, to perform his normal duties on behalf of VIA on a
full time basis for a period of 90 days, whether or not consecutive, within the
preceding 360-day period, or the Executive has received disability benefits for
permanent and total disability under any long-term disability income policy
held by or on behalf of the Executive. 
If Executives employment is terminated under this paragraph, VIA shall
pay to the estate of the Executive or to the Executive, as the case may be, the
compensation and benefits which would otherwise be payable to him under
Paragraph 3 hereof up to the date the termination of his employment
occurs.  However, any Executive Bonus,
assuming the attainment of the goals set forth, for the fiscal year in which
termination occurs because of death or disability will be pro-rated based on
his length of service with VIA in that year.


 


5.             Severance.  In the event Executive is eligible for
severance as set forth in this Agreement, VIA shall pay Executive an amount
equal to twelve months of his Base Salary in effect at the time of his
termination. Tax equalization benefits shall apply to this payment.  The parties acknowledge and agree that
payment of any severance under this Paragraph 5 shall be contingent upon the
Executive signing a Release of Claims (the “Release”) in a form acceptable to
VIA.  This payment shall be made in a
lump sum no later than five (5) days after the expiration of any revocation
period set forth in the Release and shall be reduced by standard deductions for
federal, state, and local taxes as determined by VIA.  At the reasonable request of Executive and
agreement of VIA, payment may be made over time in a manner agreed upon by the
parties.


 


6.             Proprietary
and/or Confidential Information. 
Executive acknowledges that during his employment with VIA, he has had
and will have access to trade secrets and other confidential and/or proprietary
information (“Confidential Information”). 
Executive agrees that he shall continue to abide and be bound by the
promises and obligations in all confidentiality agreements that he has or may
have signed with VIA or its affiliates, including but not limited to the VIA
NET.WORKS, INC. Employee Confidentiality Agreement.  In addition, Executive agrees that he will
use his utmost diligence to preserve, protect, and prevent the disclosure of
such Confidential Information, and that he shall not, either directly or
indirectly, use, misappropriate, disclose or aid any other person in disclosing
such Confidential Information.  Executive
acknowledges that as used in this Agreement, Confidential Information includes,
but is not limited to, all methods, processes, techniques, practices, product
designs, pricing information, billing histories, customer requirements,
customer lists, employee lists, salary information, personnel matters,
financial data, operating results, plans, contractual relationships,
projections for new business opportunities for new or developing business for
VIA, and technological innovations in any stage of development.  “Confidential Information” also includes, but
is not limited to, all notes, records, software, drawings, handbooks, manuals,
policies, contracts, memoranda, sales files, or any other documents generated
or compiled by any employee of VIA.  Such
information is, and shall remain, the exclusive property of VIA, and Executive
agrees that he shall promptly return all such information to VIA upon the
termination of his employment.


 


7.             Return
of Property.  Executive agrees that
upon the termination of his employment for any reason, he will deliver to VIA
the originals and all copies of all files, documents, papers, materials and
other property of VIA or its affiliates relating to their affairs, which may
then be in his possession or under his control. 
Executive may retain only personal correspondence and notes relating to
the duties and responsibilities of his employment.


 





















 


8.             Binding
Agreement.  This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
representatives, successors and assigns, and Executive’s heirs, executors and
administrators.


 


9.             Entire
Agreement; Amendment.  This Agreement
contains the entire agreement between the parties relating to the subject
matter of this Agreement, and the parties expressly agree that this Agreement
supersedes any employment or consulting contract Executive has or may have with
VIA and any other Agreement between Executive and VIA, including without
limitation any VIA stock plan.  Each
party acknowledges and agrees that in executing this Agreement they do not rely
upon any oral representations or statements made by the other party or the
other party’s agents, representatives or attorneys with regard to the subject
matter of this Agreement.  This Agreement
may not be altered or amended except by an instrument in writing signed by both
parties hereto.


 


10.          Breaches
or Violation.  Executive acknowledges
that any breach of this Agreement (including without limitation any breach of
Paragraph 6) would cause VIA substantial irreparable injury.  Executive agrees that in the event of any
violation of this Agreement, in addition to any damages allowed by law, VIA
shall be entitled to injunctive and/or other equitable relief.


 


11.          Governing
Law.  This Agreement shall be
governed by, and construed in accordance with, the laws of the State of Georgia
(excluding the choice of law rules thereof). 
The language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not strictly for or
against any of the parties.


 


12.          Waiver.  Neither the waiver by either party of a
breach of or default under any of the provisions of the Agreement, nor the
failure of such party, on one or more occasions, to enforce any of the
provisions of the Agreement or to exercise any right or privilege hereunder
shall thereafter be construed as a waiver of any subsequent breach or default
of a similar nature, or as a waiver of any provisions, rights or privileges
hereunder.


 


13.          Assignment.  This Agreement and the rights and
obligations of the parties hereunder may not be assigned by either party
without the prior written consent of the other party.


 


IN WITNESS HEREOF, THE PARTIES HAVE AFFIXED THEIR
SIGNATURES BELOW:


 


	
  Raymond
  Walsh

  	
  VIA
  NET.WORKS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Raymond
  Walsh

  	
   

  	
  By:

  	
  /s/
  Matt S. Nydell,

  	
   

  
	
   

  	
  Senior
  Vice President, General

  
	
   

  	
  Counsel
  & Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:
  10 March 2005

  	
  Date:
  10 March 2005

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness:
  Malcolm Bell