Exhibit 10.2


 


PROFESSIONAL SERVICES AGREEMENT


 


 


This Agreement, effective as of the 1st day of December, 2005, is
entered into by and between Matt Nydell (“Consultant”), with offices noted at
the signature line below, and VIA NET.WORKS, Inc. (“VIA”), with its
registered office is at 1013 Centre Road, Wilmington, Delaware 19805, United
States.


 


In consideration of the mutual promises contained in
this Agreement and other good and valuable consideration, the parties agree as
follows:


 


Termination of Employment and Retention as
Consultant.  


 


The parties acknowledge that:


 


a. 
Consultant is currently employed by VIA and serves as its Senior Vice
President, General Counsel and Secretary under the terms of an Employment
Agreement dated April 24, 2002  (“Employment
Agreement”);


 


b.  VIA
has completed a transaction for the sale of all its operating assets and
intends to begin the winding-up and dissolution of VIA; and


 


c.  VIA
intends to terminate the Employment Agreement as of November 30, 2005; and


 


d.  VIA
requires the continuing services of Consultant on a part-time basis after November 30,
2005 for the purpose of supporting the winding-up and dissolution of the
company; and


 


e. 
Consultant has indicated his willingness to enter into this Agreement in
advance of the termination of the Employment Agreement in consideration of the
acceleration by VIA of the payment to Consultant of all sums that will become
due and payable to him under the Employment Agreement as at the date of
termination by VIA.


 


VIA hereby notifies Consultant of the termination of
the Employment Agreement effective as at November 30, 2005.  Upon execution of this Agreement, VIA shall
make full payment of all sums payable under the Employment Agreement arising
from the termination of employment from VIA. In order to maintain continuity of
information, Consultant shall be entitled to retain his laptop computer
indefinitely, subject to the Consultant’s continuing obligations to maintain
confidentiality of VIA confidential information.


 


Scope of Agreement and Description of Services. During the Term, Consultant will
provide professional services as described under the Statement of Work attached
to this Agreement as Exhibit A (“Services” or “Work”), and in accordance
with the terms and conditions of this Agreement. The Statement of Work may be
amended from time to time and additional Statements of Work may be agreed by
the parties upon written agreement of the parties, provided that all such
amendments and all new Statements of Work shall include the information and be
substantially in the form attached as Exhibit A.


 


Work Place, Travel. 
The ordinary place of work for Consultant shall be the office maintained
by Consultant.  Consultant may be
requested to travel in connection with the provision of the Services, including
travel to VIA’s offices in Hoofdorp, The Netherlands.  All international travel shall authorized in
advance by VIA.


 


Term; Termination. This Agreement shall be effective for one (1) year
from the effective date set forth above, unless earlier
terminated as provided below (the “Terms”). Consultant may terminate this


 


 


VIA Confidential


 


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Agreement
if VIA fails to make any payment required hereunder and such failure continues
for a period of thirty (30) days after written notice. VIA reserves the right
to terminate this Agreement or any Statement of Work (a) for its
convenience upon one (1) month written notice to Consultant at any time after
the first six months of the Agreement, (b) if Consultant materially
breaches any provision of this Agreement and fails to cure such breach within fifteen
(15) days of written notice of such breach by VIA, or (c) immediately, if
Consultant is unable to deliver the Services as a result of illness, disease,
incapacity or disability for any consecutive three (3) week period during
the Term.. The notice of termination shall specify the effective date of such
termination.  If no time period is
specified, then the termination shall be effective immediately upon receipt of
the written notice of termination.


 


Fees; Payment.  Each
Statement of Work shall set forth the basis on which Consultant shall be paid
for the Work to be performed, such as an hourly or monthly rate or a project fixed
fee. VIA shall also reimburse Consultant for all
reasonable expenses incurred by Consultant in fulfilling his duties under this
Agreement, including but not limited to automobile expense at £.40 / mile,
reimbursement of actual costs of telephone, facsimile and mobile phone calls,
air and ground travel, courier, mail and other delivery charges, office
supplies and business meals and when on travel. 
All travel and entertainment expense reimbursement requests shall be in
accordance with VIA’s written travel and expense policies.   Consultant shall invoice VIA
once each month for the Services performed and expenses incurred during the
prior month, unless otherwise specified in a Statement of Work. VIA shall make
payment within thirty (30) days after receipt thereof.


 


Consultant
Warranties. Consultant warrants that the work to be provided
hereunder will be performed in a professional manner and shall otherwise comply
with the specifications set forth in the Statement of Work.


 


Ownership of Materials. Consultant will disclose and
promptly furnish to VIA any and all business, financial and legal information,
documentation, enhancements, manuals, and other material that Consultant
prepares for or delivers to VIA under any Statement of Work (the “Results”).
VIA shall have perpetual ownership, including copyrights, trade secrets and
patent rights of and respect to the Results. To the extent there are any
concerns as to the ownership rights of VIA, Consultant hereby assigns to VIA
all right, title and interest therein and to the Results, including any and all
patent, copyright, trade secret and other interests of any nature whatsoever.
Consultant agrees that it shall have no right to use the Work for any purpose
without VIA’s written consent in each instance. 
VIA shall retain ownership over any material provided to Consultant
during the course of this Agreement and Consultant agrees to maintain such
materials in good condition at Consultant’s expense.


 


Confidentiality. Consultant acknowledges that all
information about VIA, its business, operations and customers that Consultant
or its personnel and/or permitted subcontractors learn in any way and from any
source as a result of this Agreement, including the Results, constitutes a
trade secret, or is confidential or proprietary to VIA. Consultant shall receive
and hold such trade secrets and/or confidential or proprietary information in
confidence, shall hold the same in trust, shall not disclose or furnish the
same to any third party without VIA’s prior written consent, and shall not use
the same for any purpose other than the performance of its obligations under
this Agreement or otherwise in direct connection with the operation of this
Agreement. Upon termination of this agreement, Consultant shall return or, at
the discretion of VIA, destroy all VIA trade secret and/or confidential and
proprietary material in Consultant’s care, custody or control. Notwithstanding
the foregoing, this paragraph shall not encompass information about VIA that is
or becomes publicly available through no fault of Consultant, is already
lawfully in Consultant’s possession, is independently developed by Consultant,
or is legitimately and lawfully obtained by Consultant from third parties not
under obligations of confidentiality to VIA. Consultant acknowledges that the
Confidential Information under this Agreement constitutes unique, valuable and
special trade secret and business information of VIA, and that disclosure may
cause irreparable injury to VIA. 
Accordingly, Consultant acknowledges and agrees that the remedy at law
for any breach of the covenants contained in this Agreement may be inadequate,
and in recognition, agrees that VIA shall, in addition, be entitled to seek
injunctive relief without bond including reasonable attorneys’ fees and other
court costs and


 


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expenses, in the
event of a breach or threatened breach of any of the provisions of this
Agreement, which relief shall be in addition to and not in derogation of any
other remedies which may be available to VIA as a result of such breach.


 


Hold Harmless.


 


Consultant is
entirely responsible for arranging for property damage, casualty and car
insurances and Consultant will hold VIA harmless for and against any property
losses or injuries you might incur while at VIA locations or off-site carrying
out the duties required under this Agreement. 
Consultant warrants
that it will comply with all applicable local and European Union employment and
tax laws and regulations and indemnify and hold VIA harmless from and against
all liabilities, claims, costs, losses, damages (including without limitation
punitive or special damages), and expenses (including attorneys’ fees and
allocated in-house legal expenses) arising out of breach of the foregoing
warranty.


 


Relationship of the Parties; Indemnification


 


The relationship
of Consultant to VIA is that of an independent contractor and in no case shall
the relationship be deemed to be or construed as being as employee-employer,
joint venturers, partners, or agent to principal.  Notwithstanding the foregoing, Consultant may
be called upon to act as a director or officer of VIA or one or more VIA
subsidiary entities in which case Consultant shall have such authority to act
on behalf of VIA as provided under applicable law, VIA’s bylaws or those of the
subsidiary entity, by resolution of the Board of Directors of VIA, and as
consistent with VIA’s internal policies. 
To the extent that
Consultant shall serve in the capacity as officer or director of VIA or any of
its subsidiaries during the Term, VIA shall indemnify and hold harmless
Consultant from and against any liabilities, claims, suits and actions that
Consultant may incur or suffer as result or arising out of or related in any
manner to the performance of Consultant’s duties as an officer or director of
VIA or its subsidiaries.  The terms of
the indemnification shall be more specifically governed by the bylaws of VIA
and any pre-existing indemnification agreement between the parties, and the
parties expressly agree that the terms of such pre-existing agreement are
hereby incorporated into this agreement and such terms and conditions shall
continue in full force and effect as if expressly restated herein.


 


Limitation of Liability. Neither Consultant nor VIA shall
be liable to the other, their officers, directors, agents, or employees, or to
any person claiming rights derived from such party’s rights, for any indirect, special, punitive or
consequential damages, loss of profits or revenues, or exemplary damages of any
kind, whether arising out of this Agreement or from any breach or
partial breach of the provisions of this Agreement or arising out of any act or
omission of any of the named entities, their employees, officers, agents,
affiliates, successors or assigns, or arising under theories of strict
liability or tort, regardless of
whether such party was advised, had other reason to know, or in fact knew of
the possibility thereof.


 


Notices. Notices hereunder shall be effective when
in writing and delivered personally, by registered mail, through a commercial
overnight delivery service that provides a receipt, or via facsimile upon
receipt of successful transmission, to the parties at their respective
addresses set forth below. A party can change its notice address hereunder by
giving notice thereof to the other party in accordance with this section.


 


Miscellaneous. In the event of Acts of God, war,
governmental order or other similar cause beyond the reasonable control of a
party hereto whose performance is affected thereby, such affected party shall
not be liable for any failure or delay to perform its obligations under this
Agreement.


 


This is an agreement for personal services and may not be assigned by
Consultant.


 


No provision of this Agreement may be changed or modified in any
manner, except by an instrument in writing signed by duly authorized
representatives of both parties hereto. Any waiver by either party of any
breach of any provision of this Agreement shall not be construed as a waiver of
any continuing


 


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or succeeding breach of such provision, a waiver of the provision
itself or a waiver of any right under this Agreement.


 


This
Agreement, including all matters relating to the validity, construction,
performance and enforcement thereof, shall be governed by the laws of the State
of Delaware without giving effect to its principles of conflicts of law. In the
event any provision of this Agreement is held to be invalid or unenforceable,
the remaining provisions of this Agreement will remain in full force. This
Agreement and the attached Statement(s) of Work constitute the entire Agreement
between the parties and supersede any prior or contemporaneous oral or written
representations with regard to the subject matter hereof. To the extent of any
conflict or inconsistency between the attached Statements of Work and any
provision of this Agreement, the provision of the Statement of Work shall
control.


 


VIA and Consultant have executed this Agreement shall be effective as
of the date first above written.


 


AGREED TO AND ACCEPTED:


 


 


	
  /s/ Matt Nydell

  	
   

  
	
   

  
	
  Consultant

  
	
   

  
	
  Date:

  	
  November 3,
  2005

  	
   

  
	
   

  
	
  Notice Address:

  
	
   

  
	
   

  
	
  VIA NET.WORKS, Inc.

  
	
   

  
	
  By:

  	
  /s/ Robert
  Michael McTighe

  	
   

  
	
   

  
	
  Title: Chairmman of the Board

  
	
   

  
	
  Date:

  	
  November 3,
  2005

  	
   

  
				



 


Notice Address:


 


c/o Frederick Rosner


Jaspan Schlesinger Hoffman LLP


913 N. Market Street, Twelfth Floor


Wilmington, DE  19801


USA


 


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Schedule A


Statement of
Work


 


Contractor Responsibilities and Description
of Work:


 


1.                                       Project Purpose:  Completion of Plan of Dissolution and
Liquidation of VIA NET.WORKS, Inc.


 


2.             Scope of
Work:


 


A. Continue to act as Senior
Vice President and Secretary of VIA NET.WORKS, Inc. and an officer and director
of subsidiaries of the company, as required. 
Oversee and be responsible for compliance by all VIA companies with
applicable legal and regulatory requirements. Undertake such as actions as may
be requested by the Board of Directors from time to time, consistent with Consultant’s
fiduciary obligations as Senior Vice President and Secretary of VIA.


 


B.  Oversee the implementation of the Plan of
Dissolution and Liquidation and support company compliance with post-closing
obligation under Sale Agreement with Interoute, review payment plans and payment
proposals to creditors and vendors, negotiating with vendors as required, support
actions to collect legal claims of Company, collaborate with CEO to provide
periodic reports to board of directors on progress of plan of dissolution and
liquidation; support the preparation and filing of periodic reports to SEC and
Euronext, as required.


 


C.  Oversee and support all VIA litigation
proceedings.


 


D.  Complete preparation and submission to the
Board of Directors of all minutes of prior meetings of the board.


 


C.  Consultant shall, in his capacity of an
officer of VIA, be authorized to engage and retain professionals, advisors and
vendors in the name and on behalf of VIA and its subsidiaries in the course of
performing the Services and as may be required by VIA, as determined in the
exercise of the reasonable discretion of Consultant.


 


3.                                       VIA Supervisor:  Chairman of the Board of Directors


 


4.             VIA Obligations:  VIA
will make available to Consultant the services of professionals, including
legal, tax and accounting advisors, as may be reasonably required by Consultant
for the purpose of performing the Services hereunder.  VIA will hold Consultant harmless and
indemnify Consultant from and against all liabililities, losses, expenses and
claims arising out of any action allegedly taken by Consultant as a
professional legal advisor to VIA.


 


5.                                       Estimated Hours for Project and Fee Basis:  It is estimated that the
Services under this Statement of Work will require approximately 10 hours per
month.  The monthly fee is based on Consultant
being available to perform Services under this Statement of Work for this
period of time.  If the estimate is
exceeded, reassessment of the commitment and fee will be required. Parties
agree that this Statement of Work will continue for a minimum period of 6
months.


 


6.                                       Fee Basis:   £2,000 per month gross for 6 months plus
continuing private ex-patriate health insurance coverage with Cigna
International.


 


	
  Agreed and Accepted:

  
	
   

  
	
   

  
	
  VIA Project Manager: 

  	
   

  	
   

  
	
   

  
	
   

  
	
  Consultant: 

  	
   

  	
   

  
				



 


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