-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BQA6QujXIsP93YIxir4dt7y37MVE5ugyD8He2HJltA8rayz9sxD7pfzOk4e4Oo7F p1Gpo6zEVkj2hHpVUezsJw== 0001104659-05-042921.txt : 20050906 0001104659-05-042921.hdr.sgml : 20050905 20050906165815 ACCESSION NUMBER: 0001104659-05-042921 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 20050906 DATE AS OF CHANGE: 20050906 GROUP MEMBERS: BROAD BMEDIA INVESTMENTS AG GROUP MEMBERS: INTEROUTE COMMUNICATIONS HOLDINGS SA GROUP MEMBERS: THE SANDOZ FAMILY FOUNDATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VIA NET WORKS INC CENTRAL INDEX KEY: 0001098402 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 841412512 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-60239 FILM NUMBER: 051070889 BUSINESS ADDRESS: STREET 1: 12100 SUNSET HILLS RD STREET 2: SUITE 110 CITY: RESTON STATE: VA ZIP: 20190 BUSINESS PHONE: 7034640300 MAIL ADDRESS: STREET 1: 12100 SUNSET HILLS RD STREET 2: SUITE 110 CITY: RESTON STATE: VA ZIP: 20190 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Mawlaw 660, LTD CENTRAL INDEX KEY: 0001337967 IRS NUMBER: 000000000 STATE OF INCORPORATION: X0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: WALBROOK BUILDING, 195 MARSH WALL CITY: LONDON STATE: X0 ZIP: E14 9SG BUSINESS PHONE: 011-44-20-7025-9007 MAIL ADDRESS: STREET 1: WALBROOK BUILDING, 195 MARSH WALL CITY: LONDON STATE: X0 ZIP: E14 9SG SC 13D 1 a05-15832_1sc13d.htm SC 13D

	UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. )*

VIA NET.WORKS, INC.

(Name of Issuer)

Voting Common Stock, $0.001 par value

(Title of Class of Securities)

925912 107

(CUSIP Number)

	Maurice Woolf		With a Copy to:
	Interoute Communications Holdings Limited
	Group General Counsel		David A. Carpenter
	Walbrook Building, 195 Marsh Wall		Mayer, Brown, Rowe & Maw LLP
	London, E14 9SG		71 South Wacker Drive
	United Kingdom		Chicago, Illinois 60606
	Tel. No.: 44-20-7025-9007		Tel. No.: (312) 701-8432

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

August 26, 2005

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

^* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 925912 107

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Mawlaw 660 Limited

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			ý
		(b)			o

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) AF

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization United Kingdom

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power

			8.	Shared Voting Power 63,083,536 shares

			9.	Sole Dispositive Power

			10.	Shared Dispositive Power 63,083,536 shares

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 63,083,536 shares

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 46.5%*

	14.	Type of Reporting Person (See Instructions) CO

*The percentage is based on 65,284,651 shares of voting common stock, par value $.001 per share, issued and outstanding as of August 25, 2005, before giving effect to the transactions described herein and the 7,173,341 shares of Common Stock issued to Sorbie Europe BV as announced by the Company in a Form 8-K filed with the Securities and Exchange Commission on September 1, 2005.

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Interoute Communications Holdings SA

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			ý
		(b)			o

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) AF

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Luxembourg

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power

			8.	Shared Voting Power 63,083,536 shares

			9.	Sole Dispositive Power

			10.	Shared Dispositive Power 63,083,536 shares

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 63,083,536 shares

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 46.5%

	14.	Type of Reporting Person (See Instructions) HC

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Broad BMedia Investments AG

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			ý
		(b)			o

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) WC

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Switzerland

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power

			8.	Shared Voting Power 63,083,536 shares

			9.	Sole Dispositive Power

			10.	Shared Dispositive Power 63,083,536 shares

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 63,083,536 shares

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 46.5%

	14.	Type of Reporting Person (See Instructions) HC

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) The Sandoz Family Foundation.

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			ý
		(b)			o

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) AF

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization Liechtenstein

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power

			8.	Shared Voting Power 63,083,536 shares

			9.	Sole Dispositive Power

			10.	Shared Dispositive Power 63,083,536 shares

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 63,083,536 shares

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 46.5%

	14.	Type of Reporting Person (See Instructions) OO

Item 1. Security and Issuer

This statement on Schedule 13D relates to shares of voting common stock, par value $0.001 per share (the “Common Stock”), of VIA NET.WORKS, Inc., a Delaware corporation (the “Company”), whose principal executive offices are located at H. Walaardt Sacrestraat 401-403, 1117 BM Schipol, The Netherlands.

Item 2. Identity and Background

(a)-(e) This statement is being filed jointly by Mawlaw 660 Limited, a limited liability company organized under the laws of England and Wales (“Mawlaw 660”), Interoute Communications Holdings S.A., a société anonyme, organized under the laws of the Grand Duchy of Luxembourg (“Interoute SA”), Broad BMedia Investments AG, a company organized under the laws of Switzerland (“Broad BMedia”) and the Sandoz Family Foundation, a foundation organized under the laws of Liechtenstein (the “Foundation”). Mawlaw 660, Interoute SA, Broad BMedia and the Foundation are collectively referred to herein as the “Reporting Persons”.

(A) Mawlaw 660 is a recently formed limited liability company which was formed for the purpose of acquiring an equity interest holding in the Company. Mawlaw 660 is a wholly-owned subsidiary of Interoute SA. It’s principal executive offices are located at Walbrook Building, 195 Marsh Wall, London E14 9SG, England. The name and present principal occupation or employment of each executive officer and director of Mawlaw 660, and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth in Annex I hereto.

During the last five years, neither Mawlaw 660 nor, to the best knowledge of Mawlaw 600, any of the executive officers or directors of Mawlaw 660 named in Annex I hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

During the last five years, neither Mawlaw 660 nor, to the best knowledge of Mawlaw 600, any of the executive officers or directors of Mawlaw 660 named in Annex I hereto, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

(B) Interoute SA is the holding company for the Interoute Group which operates an advanced and densely connected voice and data network. Interoute SA is controlled by Broad BMedia. It’s principal executive offices are located at 9, Rue Schiller, L-2519, Luxembourg. The name and present principal occupation or employment of each executive officer and director of Interoute SA, and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth in Annex I hereto.

During the last five years, neither Interoute SA nor, to the best knowledge of Interoute SA, any of the executive officers or directors of Interoute SA named in Annex I hereto, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

(C) Broad BMedia is a holding company through which the Foundation holds its investment in Interoute. It is wholly-owned by the Foundation. It’s principal business address is Avenue Général – Guisan 85, CH-1009 Pully, Switzerland. The name and present principal occupation or employment of each executive officer and director of Broad BMedia, and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth in Annex I hereto.

During the last five years, neither Broad BMedia nor, to the best knowledge of Broad

BMedia, any of the executive officers or directors of Broad BMedia named in Annex I hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

During the last five years, neither Broad BMedia nor, to the best knowledge of Broad BMedia, any of the executive officers or directors of Broad BMedia named in Annex I hereto, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

(D) The Foundation is an entity that was formed to consolidate and to manage the Sandoz Family businesses and to encourage entrepreneurial commitment through long-term holdings in companies in a variety of sectors. The principal business address of the Foundation is Staedtle 36, Postfach 685, FL 9490, Vaduz, Liechtenstein. The name and present principal occupation or employment of each trustee and member of the executive committee of the Foundation, and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth in Annex I hereto.

During the last five years, neither the Foundation nor, to the best knowledge of the Foundation, any of the trustees or members of the executive committee of the Foundation named in Annex I hereto, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

Item 3. Source and Amount of Funds or Other Consideration

On or about August 26, 2005, the Company issued 10,810,811 shares of Common Stock and 5,454,545 shares of Series A Convertible Preferred Stock, par value $0.001 per share (“Preferred Stock”) to Mawlaw 660 in consideration for an aggregate payment of $2.8 million. Mawlaw 660 obtained the funds to acquire the Common Stock and Preferred Stock from its parent, Interoute SA. Interoute SA, in turn funded its contribution to Mawlaw 660 from loan capital provided by Broad BMedia from its working capital. In addition, concurrently therewith, the Company issued (i) 14,189,189 shares of Common Stock to Mawlaw 660 in satisfaction of a $525,000 commitment fee payable to an affiliate of Mawlaw 660 in connection with certain financing transactions described below, and (ii) 10,810,811 shares of Common Stock to Mawlaw 660 in satisfaction of a $400,000 management fee required to be paid to an affiliate of Mawlaw 660 in connection with certain management consulting services to be rendered to the Company as described below.

Item 4. Purpose of Transaction

(a)-(c)(e)-(f) On August 26, 2005, the Company, Interoute SA and Mawlaw 653 Limited, a subsidiary of Interoute SA, entered into a sale and purchase agreement (the “Sale Agreement”) pursuant to which Interoute agreed to purchase certain subsidiaries and substantially all of the assets, properties and rights of the Company (the “Asset Sale”) for a purchase price of $18.1 million in cash. In connection with the Sale Agreement, the Company and Interoute SA, and certain of their respective affiliates entered into a series of transactions each of which is described below which resulted in the issuance to Mawlaw 660 of 35,810,811 shares of Common Stock and 5,454,545 shares of Preferred Stock (which are convertible into 27,272,725 shares of Common Stock and carry voting rights on all matters on which holders of Common Stock are entitled to vote to the same extent as if such share had already been converted). As a result of the foregoing, Mawlaw 660 will be entitled to cast votes representing 63,083,536 shares of Common Stock (or approximately 46.5% of the vote) on all matters which are brought to a vote of the holders of the Company’s Common Stock.

Completion of the Asset Sale and adoption of the Sale Agreement requires the approval of shareholders holding a majority of the Company’s outstanding shares of voting stock as well as the satisfaction or waiver of

customary conditions set forth in the Sale Agreement. The Sale Agreement requires that the Company seek shareholder approval for the Asset Sale promptly following execution thereof. Interoute intends to (and indeed is contractually obligated to) vote in favor of the proposals related to the Asset Sale and Sale Agreement as and when the shareholders meeting of the Company is held to consider the proposals. Because Interoute controls approximately 46.5% of the Company’s outstanding voting stock, it is anticipated that the Asset Sale and Sale Agreement proposals will be approved by shareholders holding a majority of the Company’s outstanding voting stock. If the Asset Sale and Sale Agreement is approved and adopted by the Company’s shareholders and all other pre-closing conditions are satisfied, it is anticipated that the closing will take place promptly after the Company’s shareholder meeting. Upon consummation of the Asset Sale, the Company will no longer hold significant operating assets.

The Sale Agreement prohibits the Company from approaching or negotiating with any other potential purchaser, except that the Company’s board of directors may negotiate with a third party regarding an alternative offer (hereinafter an “Alternative Proposal”) if refusing to do so would, in the reasonable determination of the Company’s board, upon advice of counsel, be reasonably likely to constitute a breach of fiduciary duties. In the event that the board of directors of the Company elects to terminate the Sale Agreement and pursue an Alternative Proposal, certain limitations would apply to the voting rights of Mawlaw 660 in connection with the Alternative Proposal. In particular, in voting on an Alternative Proposal, Mawlaw 660 would be entitled to vote up to one third of the total outstanding shares entitled to vote on the Alternative Proposal for or against the Alternative Proposal, in its sole and absolute discretion, but would be required to vote its remaining shares in proportion to the manner in which all holders of voting securities (other than Mawlaw) vote their securities in respect of the Alternative Proposal. The foregoing limitation on Mawlaw’s exercise of its voting rights would not apply if, at the time of the vote for the Alternative Proposal, the Company had not (i) repaid all amounts outstanding under the Facility Agreement (defined below) and (ii) paid all amounts due and payable under the Purchase Agreement in connection with the termination of the Purchase Agreement.

The Sale Agreement may be terminated by the Company or Interoute in a number of circumstances, in which case, the Asset Sale will not be completed. If the Company’s shareholders do not approve the Asset Sale, the Company will be required to (a) pay a break fee of $500,000, (b) reimburse the costs and expenses incurred by Interoute in connection with the transaction up to $250,000, and (c) pay back the amounts drawn against the $7.2 million financing facility provided by the certain affiliates of Interoute to the Company as more fully described below. In such event, at the election of Mawlaw 660, the Company would also be required to redeem the Preferred Stock at its original issue price ($2.4 million) plus accrued dividends.

At the same time that the Company seeks shareholder approval for the Asset Sale, it will also seek approval of shareholders to effect the dissolution of the Company, either after the Asset Sale or in the event it is not approved, and adopt a plan of dissolution (the “Plan of Dissolution”). It is the understanding of the Reporting Persons that the Company’s current intention is that the dissolution would take place following the Asset Sale. Interoute has agreed to vote in favor of the proposal related to the Plan of Dissolution, unless the Plan of Dissolution does not respect the liquidation preference applicable to the Preferred Stock. Because Interoute controls approximately 46% of the Company’s outstanding voting stock, it is anticipated that the Plan of Dissolution will be approved.

Reference is made to the full text of the Sale Agreement, which is filed as an exhibit to this Schedule 13D, and is incorporated in this Schedule 13D by this reference.

(d) Mawlaw 660 does not have any current intention to seek to change the composition of the Company’s board of directors. Pursuant to the Subscription Agreement (defined below), Mawlaw 660 agreed that so long as the board of directors of the Company has not accepted or recommended an Alternative Proposal, neither it, nor its affiliates will directly or indirectly, alone or in concert with other persons (i) acquire or agree to acquire additional securities of the Company, (ii) solicit or participate in the solicitation of proxies in opposition to a recommendation of the board of directors or participate in an election contest with respect to the election of directors of the Company, (iii) form, join or participate in a group or enter into any contract, arrangement, understanding or relationship or otherwise act in concert with any other person for the purpose of acquiring, holding, voting or disposing of securities of Company, (iv) seek to appoint, elect or remove any member of the board or make any public statements proposing or suggesting any change in the board or management of Company or (v) disclose any intention, plan or arrangement to take any of the foregoing actions or encourage any other person to take any of the foregoing actions. Pursuant to the Subscription Agreement, Mawlaw 660 does have certain observer rights in connection with meetings of the Company’s board of directors.

Reference is made to the full text of the Subscription Agreement, which is filed as an exhibit to this Schedule 13D, and is incorporated in this Schedule 13D by this reference.

(g) In connection with the issuance of the Preferred Stock to Mawlaw 660 pursuant to the Subscription Agreement, the Company amended its Certificate of Incorporation by adopting the Certificate of Designations, Preferences, and Rights of Series A Convertible Preferred Stock (the “Certificate of Designations”). Under the Certificate of Designations, the holders of Preferred Stock, except as restricted by law, are entitled to vote on all matters submitted to a vote of the holders of Common Stock and are entitled to cast that number of votes into which their shares are convertible. The Certificate of Designations provides that each share of Preferred Stock is convertible into five (5) shares of Common Stock. As a result, Mawlaw 660 will be entitled to vote its 5,545,545 shares of Preferred Stock to the same extent as if it held 27,272,725 shares of Common Stock, which together with the additional 35,810,811 shares of Common Stock of Mawlaw 660 will allow it to control approximately 46.5% of the outstanding vote on all matters submitted to a vote of the holders of Common Stock. Under the terms of the Subscription Agreement, the Company also granted Mawlaw 660 certain pre-emptive rights which would allow Mawlaw 660 to purchase that portion of any future securities offerings effected by the Company that allows it to maintain its current voting percentage. The Certificate of Designations also provides holders of Preferred Stock a liquidation preference over holders of Common Stock.

Reference is made to the full text of such Certificate of Designations, which is filed as an exhibit to the subscription agreement and which is included as an exhibit to this Schedule 13D, and is incorporated in this Schedule 13D by this reference.

(h)-(j) Not applicable.

Item 5. Interest in Securities of the Issuer

(a)-(b) Based on information provided to the Reporting Persons by the Company and other publicly available information, the Reporting Persons believe that there are currently 72,457,992 shares of Common Stock outstanding (excluding any shares held in treasury). As a result of the transactions described above, Mawlaw 660 currently is the record holder of 35,810,811 shares of Common Stock and 5,454,545 shares of Preferred Stock (which shares of Preferred Stock, whether or not converted to Common Stock, are entitled to the same voting rights as 27,272,725 shares of Common Stock on all matters that are put to a vote of the holders of Common Stock). This ownership by Mawlaw 660 represents approximately 46.5% of the voting power on matters submitted to the holders of Common Stock.

By virtue of the relationships described in Item 2 of this Schedule 13D, each of Interoute SA, Broad BMedia and the Foundation may be deemed to beneficially own the shares of Common Stock and Preferred Stock held by Mawlaw 660. As a result, each of the Reporting Persons may be deemed to have shared voting power with respect to all of the shares of Common Stock and Preferred Stock held by Mawlaw 660.

(c) Reference is made to Item 4 of this Schedule 13D for the dates on which the Reporting Persons acquired beneficial ownership of the Common Stock and Preferred Stock of the Company. To the best of the knowledge of the Reporting Persons, none of the persons or entities identified in Item 2 beneficially owns (or during the past 60 days has beneficially owned) any securities of the Company not identified herein.

(d) Not applicable.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Reference is made to the discussion in Item 4 of this Schedule 13D which is incorporated into this Item 6 by this reference.

Pursuant to a Sale and Purchase Agreement, dated as of August 26, 2005 (the “Sale Agreement”) between the Company, Mawlaw 653 Limited and Interoute SA, the Company agreed to sell substantially all of its assets (consisting of its PSINet Europe operations in Germany, France, Belgium, Switzerland and the Netherlands and its VIA.NET.WORKS’ operations in France, Germany and Spain, as well as certain assets pertaining to the Company’s centralized back office and technical support systems, including employee contracts of certain headquarters personnel), for $18.1 million in cash and the assumption by Interoute SA of certain liabilities (collectively, the “Asset Sale”). In accordance with Delaware law, the Asset Sale is subject to the approval of the holders of a majority of the outstanding shares of voting securities of the Company.

In connection with the Sale Agreement, Mawlaw 653 Limited, VIA.NET.WORKS HOLDCO, INC. and the Company entered into a Facility Agreement, dated August 26, 2005 (the “Facility Agreement”) pursuant to which Mawlaw 653 Limited agreed to advance to the Company and certain of its subsidiaries up to $7.2 million. The Facility Agreement provides two separate facilities to the Company and its subsidiaries; a $2.2 million facility which can be advanced to fund certain operations of the Company’s subsidiaries, and a $5.0 million facility which may be advanced to the Company. The portion of the $5.0 million facility that is outstanding as of the Closing of the Asset Sale will be offset to reduce the purchase price. Advances to the Company’s subsidiaries under the $2.2 million facility will not affect the purchase price. The borrowings of the Company under the Facility Agreement are secured by, among other things, pledges of the capital stock of the Company’s principal European operating subsidiaries. Interest on amounts advanced under the Facility Agreement bear interest of 12% per annum. A termination of the Sale Agreement would give Interoute the right by notice to the Company to terminate the Facility Agreement and accelerate amounts outstanding thereunder. Pursuant to the Facility Agreement, the Company agreed to pay Mawlaw 653 Limited a commitment fee of $525,000 which, at the election of the Company, was paid by the issuance of 14,189,189 shares of Common Stock to Mawlaw 660.

Concurrently with the execution of the Sale Agreement, on August 26, 2005, the Company and Mawlaw 660 entered into a subscription agreement (the “Subscription Agreement”) pursuant to which Mawlaw 660 purchased 10,810,811 shares of Common Stock and 5,454,545 shares of Preferred Stock for an aggregate purchase price of $2.8 million. Under the Subscription Agreement, Mawlaw 660 was also issued (i) 14,189,189 shares of Common Stock in satisfaction of a $525,000 commitment fee payable by the Company pursuant to the Facility Agreement in consideration for the agreement of Mawlaw 653 Limited to advance up to $7.2 million to the Company and certain of its subsidiaries, and (ii) 10,810,811 shares of Common Stock in satisfaction of a $400,000 management fee payable by the Company to Mawlaw 653 Limited pursuant to the Management Agreement (defined below).

Pursuant to the Subscription Agreement, Mawlaw 660 agreed to vote all of its shares of Common Stock and Preferred Stock in favor of the Sale Agreement and the Plan of Dissolution at any meeting of the shareholders of the Company called for the purpose of considering those matters. Under the Subscription Agreement, Mawlaw 660 also agreed that it would not seek to remove any directors from or otherwise take control of the board of directors of the Company unless the Company sought to pursue an Alternative Proposal. Pursuant to the Subscription Agreement, the Company also granted Mawlaw 660 certain pre-emptive rights which would allow Mawlaw 660 to purchase that portion of any future securities offerings of the Company that would enable it to maintain its current voting power.

Concurrently with entering into the Sale Agreement, on August 26, 2005, the Company and Mawlaw 653 Limited, a wholly-owned subsidiary of Interoute (“Mawlaw 653”) entered into a management consultancy services agreement (the “Management Agreement”) pursuant to which Mawlaw 653 Limited will provide advice and assistance in connection with the Company’s day to day operations until the closing of the transactions contemplated under the Sale Agreement or earlier termination of the Sale Agreement. Under the Management Agreement, the Company has retained the right to make all decisions about the management of the business. Under the Management Agreement, the Company agreed to pay Mawlaw 653 Limited a management fee of $400,000, or at the election of the Company, 10,810,811 shares of Common Stock.

In connection with the transactions described herein, the Company modified its rights plan to carve out from its scope, the issuance to Mawlaw 660 of the shares of Common Stock and Preferred Stock (and the conversion of the Preferred Stock into Common Stock) pursuant to the Subscription Agreement. The foregoing was accomplished pursuant to Amendment No. 1 to Rights Agreement, dated August 26, 2005 (“Amendment No. 1 to Rights Agreement”) between the Company and Continental Stock Transfer & Trust Company, as rights agent.

References to, and descriptions of, the Sale Agreement, Subscription Agreement, Management Agreement, Facility Agreement and Amendment No. 1 to Rights Agreement in this Item 6 are summaries of certain principal terms and do not purport to be complete. Reference is made to the full text of such agreements which are filed as exhibits to this Schedule 13D and are incorporated in this Schedule 13D by this reference.

Item 7. Material to Be Filed as Exhibits

Exhibit No.		Description

1		Sale and Purchase Agreement, dated August 26, 2005, between VIA NET.WORKS, INC., Mawlaw 653 Limited and Interoute Communications Holdings SA

2		Subscription Agreement, dated August 26, 2005, by and among VIA NET.WORKS, INC. and Mawlaw 660 Limited

3		Management Consultancy Agreement, dated August 26, 2005 by and between Mawlaw 653 Limited and VIA NET.WORKS, INC.

4		Facility Agreement, dated August 26, 2005, between VIA NET.WORKS, INC, VIA.NET.WORKS HOLDCO, INC. and Mawlaw 653 Limited

5.		Amendment No. 1 to Rights Agreement, dated August 26, 2005 between VIA.NET.WORKS, INC. and Continental Stock Transfer & Trust Company

24		Joint Filing Agreement and Power of Attorney

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: September 6, 2005
	MAWLAW 660 LIMITED


	By:	/s/ Maurice Woolf
	Name: Maurice Woolf
	Title: General Counsel


	INTEROUTE COMMUNICATIONS HOLDINGS SA


	By:	/s/ Maurice Woolf
	Name: Maurice Woolf
	Title: General Counsel


	BROAD BMEDIA INVESTMENTS AG


	By:	/s/ Gabriel Prêtre
	Name: Gabriel Prêtre
	Title: President


	SANDOZ FAMILY FOUNDATION


	By:	/s/ Olivier Verrey
	Name: Olivier Verrey
	Title: Trustee/Executive Committee Member

ANNEX I

Information Concerning Executive Officers and Directors of Mawlaw 660 Limited

Executive Officers

Name and Business Address	Present Position	Citizenship

James Michael Kinsella Walbrook Building 195 Marsh Wall London E14 9SG, England	Executive Director	American

Robert Kirk McNeal Walbrook Building 195 Marsh Wall London E14 9SG, England	Executive Director	American

Maurice Woolf Walbrook Building 195 Marsh Wall London E14 9SG, England	General Counsel	British

Catherine Birkett Walbrook Building 195 Marsh Wall London E14 9SG, England	Financial Officer	British

Directors

Name and Business Address	Present Position/Present Principal Occupation or Employment	Citizenship

James Michael Kinsella Walbrook Building 195 Marsh Wall London E14 9SG, England	Executive Director of Interoute Group Companies	American

Robert Kirk McNeal Walbrook Building 195 Marsh Wall London E14 9SG, England	Executive Director of Interoute Group Companies	American

Information Concerning Executive Officers and Directors of Interoute Communications Holdings S.A.

Executive Officers

Name and Business Address	Present Position	Citizenship

James Michael Kinsella Walbrook Building 195 Marsh Wall London E14 9SG, England	Executive Director	American

Robert Kirk Walbrook Building 195 Marsh Wall London E14 9SG, England	Executive Director	American

Maurice Woolf Walbrook Building 195 Marsh Wall London E14 9SG, England	General Counsel	British

Catherine Birkett Walbrook Building 195 Marsh Wall London E14 9SG, England	Financial Officer	British

Directors

Name and Business Address	Present Position/Present Principal Occupation or Employment	Citizenship
Gabriel Prêtre Avenue Général-Guisan 85 CH-1009 Pully, Switzerland	Member of Executive Committee of the Sandoz Family Foundation	Swiss

Victor Bischoff Avenue Général–Guisan 85 CH-1009 Pully, Switzerland	Consultant to the Sandoz Family Foundation Director of Citco Group Limited Director of ATP Capital LP	Swiss

James Michael Kinsella Walbrook Building 195 Marsh Wall London EC4 9SG	Executive Director of Interoute Group Companies	American

Robert Kirk Walbrook Building 195 Marsh Wall London EC4 9SG	Executive Director of Interoute Group Companies	American

Farid Faraidooni TECOM P.O. Box 73000 Dubai, United Arab Emirates	Deputy General Manager, Telecom, TECOM Investments	United Arab Emirates

Deepak Padmanabhan TECOM P.O. Box 73000 Dubai, United Arab Emirates	Chief Planning and Business Development Officer, TECOM Investments	Indian

Information Concerning Executive Officers and Directors of Broad BMedia Investments AG

Executive Officers

Name and Business Address

Present Position/Present Principal Occupation or
Employment

Citizenship

Gabriel Prêtre

Avenue Général–Guisan 85

CH-1009 Pully, Switzerland

President

Swiss

Directors

Name and Business Address	Present Position/Present Principal Occupation or Employment	Citizenship

Gabriel Prêtre Avenue Général–Guisan 85 CH-1009 Pully, Switzerland	Member of Executive Committee of the Sandoz Family Foundation	Swiss

Olivier Verrey Avenue Général–Guisan 85 CH-1009 Pully, Switzerland	Member of Executive Committee of the Sandoz Family Foundation	Swiss

Information Concerning the Trustees and Executive Committee Members of the Sandoz Family Foundation

Trustees

Name and Business Address	Present Position/Present Principal Occupation or Employment	Citizenship

Hans Brunhart Staedtle 36 Postfash 685 FL 9490 Vaduz Liechtenstein	Trustee of the Sandoz Family Foundation Chairman of VPB Bank	Liechtenstein

Karlheinz Ritter Staedtle 36 Postfash 685 FL 9490 Vaduz Liechtenstein	Trustee of the Sandoz Family Foundation Lawyer, Law Office Dr. Iur Karlheinz Ritter Lic. Inv. Cornelia Ritter	Liechtenstein

Olivier Verrey

Avenue Général – Guisan 85

CH-1009 Pully

Switzerland

Trustee of the Sandoz Family Foundation

Member of the Executive Committee of the Sandoz Family Foundation

Swiss

Executive Committee Members

Name and Business Address	Present Position/Present Principal Occupation or Employment	Citizenship

Pierre Landolt Avenue General–Guisan 85 CH-1009 Pully Switzerland	Chairman of the Sandoz Family Foundation Director of Novartis AG Director of Syngentia Director of Parmigiani Fleurier Chairman of Vaucher Manufacture Fleurier S.A. Limited Partner Private Bank Landolt & Cie.	Swiss

Olivier Verrey Avenue Général – Guisan 85 CH-1009 Pully Switzerland	Member of Executive Committee of the Sandoz Family Foundation	Swiss

Gabriel Prêtre Avenue Général – Guisan 85 CH-1009 Pully Switzerland	Member of Executive Committee of the Sandoz Family Foundation	Swiss

EX-1 2 a05-15832_1ex1.htm EX-1

Exhibit 1

Dated 26 August 2005

VIA NET.WORKS, INC.

and

MAWLAW 653 LIMITED

and

INTEROUTE COMMUNICATIONS HOLDINGS SA

SALE AND PURCHASE AGREEMENT

relating to the operating subsidiaries and certain assets and liabilities of VIA NET.WORKS, Inc.

One Angel Court

London EC2R 7HJ

+44 20 7367 0200

Sale and Purchase Agreement

This DEED is made 26 August 2005

between:

(1) VIA NET.WORKS, Inc., a company incorporated in Delaware, the United States whose registered office is at 1013 Centre Road, Wilmington, Delaware 19805, United States (“VIA Inc.” or the “Seller”);

(2) MAWLAW 653 LIMITED a company organised under the laws of England & Wales (registered number 5391411) whose registered office is at Walbrook Building, 195 Marsh Wall, London E14 9SG, United Kingdom (the “Purchaser”); and

(3) INTEROUTE COMMUNICATIONS HOLDINGS SA a company organised under the laws of Luxembourg (registered number RCS Luxembourg B109.435) whose registered office is at 9, Rue Schiller, L-2519 Luxembourg (“Interoute” and, together with the Purchaser, the “Purchasers” or the “Relevant Purchasers”).

Whereas:

(A) The Seller has agreed to sell the Group (as defined below) and to assume the obligations imposed on the Seller under this Agreement.

(B) The Relevant Purchasers have agreed to purchase the Group and to assume the obligations imposed on the Relevant Purchasers under this Agreement.

It is agreed as follows:

1 Interpretation

In this Agreement, unless the context expressly otherwise requires, the provisions in this Clause 1 apply:

1.1 Definitions

“Accounts Date” means 31 December 2004;

“affiliate” means in relation to a person, any entity controlled, directly or indirectly, by that person, any entity that controls, directly or indirectly, that person or any entity directly or indirectly under common control with that person;

“Aggregate Purchaser Liability” means the sum of US$2,000,000;

“Agreed Terms” means, in relation to a document, such document in the terms agreed between VIA Inc. and the Purchaser and signed for identification by the Seller’s Lawyers and the Purchasers’ Lawyers with such alterations as may be agreed in writing between VIA Inc. and the Purchaser from time to time;

“Assumed Liabilities” means the liabilities of the Seller (other than the Excluded Liabilities) to be assumed by the Relevant Purchasers under or pursuant to Clause 2.3.1 and “Assumed Liability” means any one of them;

“Back Stop Date” means 15 November 2005 or, only in the event of any delays caused by the SEC in relation to Clause 4.2, such number of additional days as the SEC may take to

respond or come to a final determination on any matter in respect thereof, provided that, in any case, such Back Stop Date shall not go beyond 15 December 2005;

“Blocked Account” means the blocked account at ING Bank N.V. in the name of PSINet Netherlands currently in credit to the amount of €283,716;

“Blocked Amount” means the amount in Euro standing to credit in the Blocked Account, converted to U.S. dollars at the Euro/U.S. dollar exchange rate at Closing as quoted by the Financial Times, London edition or, if no such rate is quoted on that date, on the preceding date on which such rates are quoted;

“Business Assets” means all the property, rights and assets (including the Seller’s Computer Systems) agreed to be sold under Clause 2.3.1 of this Agreement or any relevant Local Transfer Document;

“Business Day” means a day which is not a Saturday, a Sunday or a public holiday in London or Amsterdam;

“Business Intellectual Property” means all rights and interests of the Seller in Intellectual Property which, at or immediately before Closing, is used or capable of use in the business of the Group, including the Registered Intellectual Property details of which are set out in the document entitled “Business Intellectual Property” contained in the Data Room;

“Cashflow” means the sum of any of the following to the extent they occur between the date of this Agreement and the Closing Date (inclusive):

(i) the aggregate amount of any dividend, or distribution declared, paid or made by a Group Company other than to another Group Company (expressed as a negative number); and

(ii) the aggregate amount of any redemption or purchase of shares or return of capital by a Group Company other than to another Group Company (expressed as a negative number); and

(iii) the aggregate amount of any cash payments made to (or the fair market value of assets transferred to or liabilities assumed, indemnified or incurred for the benefit of) any member of the VIA Group (including, without limitation, management fees and any payment of interest) by any Group Company (expressed as a negative number); and

(iv) the aggregate amount of any cash payments made to (or the fair market value of assets transferred to or liabilities assumed, indemnified or incurred for the benefit of) any Group Company (including, without limitation, management fees and any payment of interest) by any member of the VIA Group (expressed as a positive number); and

(v) any payment or incurrence by a Group Company of any third party costs and expenses in connection with the proposed sale of the Companies to the extent that the same have not been refunded to the relevant Group Company by the Seller or its agents prior to Closing (expressed as a negative number); and

(vi) any payment or incurrence by a Group Company of any material third party costs and expenses that should properly have been for the account of the VIA Group in connection with any litigation or potential litigation to the extent that the same have

not been refunded to the relevant Group Company by the Seller or its agents prior to Closing (expressed as a negative number); and

(vii) any indemnity or other contingent liability or obligation granted or assumed, other than pursuant to this Agreement, by a Group Company in connection with the proposed sale of the Companies (expressed as a negative number).

“Charged Asset” means any asset subject to an Encumbrance created pursuant to a Security Document;

“Claranet Agreement” means the sale and purchase agreement relating to the operating subsidiaries and certain assets and liabilities of VIA, between VIA Inc., VIA Net.Works Holdco Inc., VIA Net.Works NY Corp and Claranet Group Limited, dated 30 April 2005 (as amended by an amendment and restatement agreement dated 12 July 2005);

“Claranet Deed” means the deed of settlement (including all exhibits and side letters relating thereto) relating to the Claranet Agreement between VIA Inc., VIA Net.Works Holdco Inc., VIA Net.Works NY Corp, Claranet Group Limited and Clara.net Holdings Limited, dated 23 August 2005;

“Claranet Service Agreements” means all agreements to which the Seller and/or any Group Company is a party (including without limitation, the Claranet TSA, the Claranet Deed and the transition services agreement dated 28 September 2004 between VIA Inc., Claranet Limited and VIA Net.Works UK Limited) under which services are provided to and/or received by any of the Seller, Claranet Limited or any member of their respective group of companies;

“Claranet TSA” means the transition services agreement between VIA Inc., VIA Net.Works Holdco Inc., VIA Net.Works NY Corp, Claranet Group Limited and Clara.net Holdings Limited, dated 12 July 2005;

“Claranet Facility” means the facility agreement entered into between VIA Inc. and Clara.net Holdings Limited dated 30 April 2005 (as amended and restated on 12 July 2005);

“Claranet Group” means Claranet Group Limited and its subsidiaries from time to time;

“Claims” means all rights and claims of the Seller arising at any time whether before or after Closing primarily in relation to any of the Business Assets or any Assumed Liability (but excluding any rights or claims under insurance policies) and “Claim” means any one of them;

“Closing” means the completion of the sale of the Group pursuant to Clauses 6.1, 6.2 and 6.3 of this Agreement and any relevant Local Transfer Document;

“Closing Date” means, in respect of a Closing, the date on which such Closing takes place pursuant to Clause 6;

“Companies” means the companies, details of which are set out in paragraph 1 of Schedule 2 and “Company” means any one of them;

“Competing Proposals” means a proposal made by a Third Party to the Seller pursuant to which such Third Party will acquire equity or any material assets, or provide debt or equity funding to, the Seller or any Group Company. For the avoidance of doubt, “Competing Proposal” shall not include the disposal of any assets of the Seller or any Group Company

to the extent that such disposal is proposed by or otherwise agreed to in writing by Purchaser, pursuant to a Restructuring Action or otherwise;

“Computer Systems” means all computer systems, communications systems, hardware and software used by a Group Company and/or the Seller, as appropriate;

“Confidentiality Agreement” means the confidentiality agreement dated 8 March 2005 between VIA Inc. and Interoute pursuant to which VIA Inc. made available to the Purchasers certain confidential information relating to the Group;

“Consolidated Accounts” means the consolidated audited accounts of the VIA Group and the Group Companies taken as a whole, each comprising a balance sheet and a profit and loss account for the twelve month period ended on the Accounts Date;

“Contracts” means the Licence Agreements and all contracts, undertakings, arrangements and agreements listed in the document in the Data Room entitled “Revised Schedule of Contracts” (excluding the Claranet Service Agreements) or contained in the Data Room and “Contract” means any of them;

“Customer Premises Equipment” means equipment required by a customer for the provision of services to that customer and which is not located at the premises of a Group Company;

“Data Room” means the data room containing documents and information relating to the Group made available by the Seller at the website communicated by the Seller to the Purchasers on a CD ROM, the contents of which are listed in Appendix B to the Disclosure Letter;

“DebtCo” means the wholly owned subsidiary of VIA Inc. to be incorporated under the laws of Jersey by VIA Inc. as soon as practicable after the date of this Agreement;

“Deferred Amount” means the amount of rent payable under the Schiphol Lease from the date of Closing until the expiry of that lease;

“Disclosure Letter” means the letter dated on the same date as this Agreement from the Seller to the Purchasers, as updated on Closing, disclosing:

(i) information constituting exceptions to the Warranties; and

(ii) details of other matters referred to in this Agreement;

“Employee” means all employees of the Group Companies and all Relevant Employees who are or will be employed by a Group Company immediately prior to the Closing Date (other than any specifically excluded by agreement with the Purchaser);

“Encumbrance” means any claim, charge, mortgage, lien, option, equity, power of sale, hypothecation, usufruct, retention of title, right of pre-emption, right of first refusal or other third party rights or security interest of any kind or an agreement, arrangement or obligation to create any of the foregoing;

“Event of Default” has the meaning given to it in the Facility Agreement;

“Excluded Liabilities” means the liabilities referred to in Clause 2.3.3;

“Facility Agreement” means the agreement in the Agreed Terms to be entered into on the date hereof, pursuant to which the Purchaser will provide VIA Inc. with a working capital facility;

“Finance Documents” has the meaning given to it in the Facility Agreement;

“Financial Indebtedness” means any indebtedness for or in respect of:

(a) moneys borrowed;

(b) any amount raised by acceptance under any acceptance credit facility;

(c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(d) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the relevant accounting standard in the jurisdiction of the relevant Group Company, be treated as a finance or capital lease;

(e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

(f) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

(g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

(h) shares which are expressed to be redeemable;

(i) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

(j) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above.

“Finance Leasing Arrangement” means any arrangement or transaction pursuant to which a Group Company:

(a) sells, transfers or otherwise disposes of any of its assets on terms whereby they are or may be leased to or re-acquired by that or any other Group Company;

(b) sells transfers or otherwise disposes of any of its receivables on recourse terms;

(c) agrees that money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts, save in the ordinary course of its banking arrangements for the purposes of netting debit and credit balances; or

(d) enters into any other preferential arrangement having a similar effect;

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset

“First Payables Assignment Agreement” means the assignment agreement in the Agreed Terms to be entered into in accordance with the terms of clause 5.4.2;

“First Relevant Subsidiaries” shall have the meaning given in the First Payables Assignment Agreement;

“Goodwill” means the goodwill of the Seller in relation to the business of the Group as at Closing;

“Group” means the Group Companies and the VIA Operations, taken as a whole;

“Group Companies” means the Companies and the Subsidiaries and “Group Company” means any one of them;

“Group Intellectual Property” means all rights and interests held by the Group Companies in Intellectual Property as at the date of Closing (whether as owner or licensee);

“Insolvency Proceedings” means:

(i) any statutory procedure involving a suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Group Company or any member of the VIA Group;

(ii) a composition, assignment or arrangement with the majority by value of its unsecured creditors of any Group Company or any member of the VIA Group;

(iii) the appointment of a custodian, liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Group Company or any of its assets of any Group Company or any member of the VIA Group;

(iv) the enforcement of any Security over any assets of any Group Company or any member of the VIA Group and which if not discharged within ten Business Days would have a material adverse effect on the business of the Group Companies and the VIA Group taken as a whole;

(v) the expropriation, attachment, sequestration, distress or execution which affects any asset or assets of a Group Company or any member of the VIA Group and which if not discharged within ten Business Days would have a material adverse effect on the business of the Group Companies and the VIA Group taken as a whole; or

(vi) any resolution by the directors of any Group Company or member of the VIA Group or any application or petition to a court in respect of any of the processes or events listed in paragraphs (i) to (v) above,

or any analogous statutory procedure or enforcement step in any jurisdiction,

BUT EXCLUDING any step taken by a third party that:

(y) does not actually result in one of the processes or events described in paragraphs (i) to (v) above being commenced or occurring in respect of that Group Company or member of the VIA Group and is dismissed or withdrawn within ten Business Days of presentation; and

(z) is made in respect of a debt with a value purported (by the third party) to be less than $500,000.

“Intellectual Property” means trade marks, domain names, get-up, logos, patents, design rights, copyrights (including copyrights in software), database rights, Know-how and all

other similar rights in any part of the world, including any registration of such rights and applications and rights to apply for such registrations;

“Intra-Group Payables” shall have the meaning given in the First Payables Assignment Agreement;

“Know-how” means confidential and/or proprietary industrial and commercial information and techniques in any form including (without limitation) drawings, formulae, test results, reports, project reports and testing procedures, instruction and training manuals, tables of operating conditions, market forecasts, lists and particulars of customers and suppliers;

“Liabilities” means all liabilities, duties and obligations of every description, whether deriving from contract, common law, statute or otherwise, whether present or future, actual or contingent, ascertained or unascertained or disputed and whether owed or incurred severally or jointly or as principal or surety;

“Licence Agreements” means those Intellectual Property licence agreements listed in the document entitled “Revised Schedule of Contracts” contained in the “VIA Inc.” folder in the Data Room and copies of which are included in the Data Room;

“Local Transfer Document” has the meaning given to it in Clause 2.5.1;

“Losses” means all losses, liabilities, costs (including without limitation legal costs and experts’ and consultants’ fees), charges, expenses, actions, proceedings, claims and demands but excluding consequential, incidental, special or punitive damages including loss of profits or revenues;

“Management Agreement” means the agreement in the Agreed Terms to be entered into on the date hereof, pursuant to which the Purchaser shall provide Management Consultancy Services (as defined in the Management Agreement) to VIA Inc. and the Group Companies;

“Material Contracts” means contracts to which the Seller or a Group Company is a party and which account for, in the case of customers, in excess of €150,000 of revenue per annum and, in the case of suppliers, in excess of €100,000;

“Material Group IP” means such of the Group Intellectual Property as is material to the business of the Group;

“Moveable Assets” means all existing applications and/or systems used in the operations of the Group Companies immediately prior to Closing, including all IT, communications, network management, back office and financial software applications or systems (Inovaware, Coda, etc.) and network management systems;

“Payables Release Agreement” means the release agreement in the Agreed Terms to be entered into in accordance with the terms of clause 5.4.3;

“Permitted Encumbrance” means:

(i) any lien arising by operation of law and in the ordinary course of trading; or

(ii) any Encumbrance in existence as at the date of this Agreement or coming into existence pursuant to an agreement existing as of the date of this Agreement; or

(iii) any Encumbrance created pursuant to the Finance Documents;

“Properties” means the leasehold properties, listed in the document entitled “Real Property Leasehold Interest Summary Relating to Office and Datacentres” contained in the Data Room, and “Property” means any one of them;

“Purchase Price” has the meaning given in Clause 3.1;

“Purchasers’ Group” means Interoute Communications Holdings S.A. (a Luxembourg incorporated company) and its subsidiaries from time to time;

“Purchasers’ Lawyers” means Mayer, Brown, Rowe & Maw LLP, of 11 Pilgrim Street, London EC4V 6RW, United Kingdom;

“Quarterly Lease Payment Amount” means the quarterly rent payment specified in the Schiphol Lease, payable in advance;

“Registered Intellectual Property” means Intellectual Property which is registered or the subject of an application for registration in any patent, trade mark or other Intellectual Property registry anywhere in the world;

“Relevant Employees” means those employees listed in the document entitled “Relevant Employees” contained in the Data Room;

“Relevant Purchasers’ Warranties” has the meaning given to it in Clause 8.1;

“Restructuring Action” means an action to restructure the business of any Group Company or the VIA Operations which restructuring is carried out prior to Closing by agreement between VIA Inc. and the Purchaser;

“Schiphol Assignment” each full or partial assignment of the rights and obligations of VIA Nederland under the Schiphol Lease which has the effect of releasing VIA Nederland from any and all rights and obligations under the Schiphol Lease;

“Schiphol Lease” means the lease dated 14 April 2003 by and among VIA Nederland and the Schiphol Lessor over the premises at H. Walaardt Sacrestraat 401-403, 1017BM Schiphol, The Netherlands, to be assigned to PSINet Netherlands;

“Schiphol Lessor” means Bouwfonds Property Finance N.V., a private company with limited liability, duly incorporated under the laws of The Netherlands, having its registered office at Hoevelaken, Westerdorpstraat 66, The Netherlands;

“SEC” has the meaning given to it in Clause 4.12;

“Second Payables Assignment Agreement” means the assignment agreement in the Agreed Terms to be entered into in accordance with clause 5.4.3;

“Security” has the meaning given to it in the Facility Agreement;

“Security Assignment Agreement” means the security assignment agreement in the Agreed Terms entered into in accordance with the terms of clause 5.4.1;

“Security Document” has the meaning given to it in the Facility Agreement;

“Seller’s Lawyers” means Hogan & Hartson of One Angel Court, London EC2R 7HJ, United Kingdom;

“Senior Employee” means any Employee employed or engaged in relation to the Group on an annual salary (on the basis of full-time employment) in excess of €100,000 or local equivalent;

“Shares” means the shares in the capital of the Companies specified in Part 1 of Schedule 1;

“Solus Accounts” means the audited accounts of PSINet Germany GmbH, VIA NET.WORKS France S.A., VIA NET.WORKS España SL, VIA NET.WORKS France Holding SAS and VIA NET.WORKS UK Holding Limited comprising a balance sheet and a profit and loss account for the twelve month period ended on 31 December 2003;

“Subscription Agreement” has the meaning given to it in the Facility Agreement;

“Subsidiaries” means the companies listed in paragraph 2 of Schedule 2 together with any other subsidiaries of the Companies and “Subsidiary” means any one of them;

“Taxation” or “Tax” means all forms of taxation whether direct or indirect and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference and statutory, governmental, state, provincial, local governmental or municipal impositions, duties, contributions, rates and levies (including without limitation social security contributions and any other payroll taxes), whenever and wherever imposed (whether imposed by way of a withholding or deduction for or on account of tax or otherwise) and in respect of any person and all penalties, charges, costs and interest relating thereto;

“Taxation Benefit” means any Taxation benefit or advantage, including any loss, relief, allowance, exemption, set-off, deduction or credit available in the computation of any liability to Taxation;

“Tax Authority” means any taxing or other authority competent to impose any liability in respect of Taxation or responsible for the administration and/or collection of Taxation or enforcement of any law in relation to Taxation;

“Third Party” means persons other than the Purchasers or any member of the Purchasers’ Group;

“Third Party Consents” means all consents, licences, approvals, permits, authorisations or waivers required from third parties for the assignment or transfer to the Relevant Purchasers or a Group Company of any of the Contracts and “Third Party Consent” means any one of them;

“Transaction Documents” means the Finance Documents, the Subscription Agreement, the Management Agreement, the Assignment Agreement, this Agreement and all documents contemplated by this Agreement;

“VAT” means within the European Union such Tax as may be levied in accordance with (but subject to derogations from) the Directive 77/338/EEC and outside the European Union any Taxation levied by reference to added value or sales;

“VIA Group “ means VIA Inc. and its subsidiaries from time to time excluding the Group Companies;

“VIA Group Drawdown Schedule” has the meaning given in the Facility Agreement;

“VIA Inc. Board” means the board of directors of VIA Inc.;

“VIA Operations” means the activities carried on by the Seller in relation to or in connection with the business of the Group Companies and being sold under this Agreement pursuant to Clause 2.3 and the Local Transfer Documents;

“VIA Shareholders” means the holders of VIA Inc.’s common stock from time to time;

“VIA Termination Event” has the meaning given to it in the Facility Agreement; and

“Warranties” means the warranties given by the Seller pursuant to Clause 8 and Schedule 7 and “Warranty” means any one of them. and

1.2 Shares

References to shares shall include, where relevant, quotas.

1.3 Singular, plural, gender

References to one gender include all genders and references to the singular include the plural and vice versa.

1.4 References to persons and companies

References to:

1.4.1 a person include any company, partnership or unincorporated association (whether or not having separate legal personality); and

1.4.2 a company include any company, corporation or any body corporate, wherever incorporated.

1.5 References to subsidiaries and holding companies

A company is a “subsidiary” of another company (its “holding company”) if that other company, directly or indirectly, through one or more subsidiaries:

1.5.1 holds a majority of the voting rights in it;

1.5.2 is a member or shareholder of it and has the right to appoint or remove a majority of its board of directors or equivalent managing body;

1.5.3 is a member or shareholder of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; or

1.5.4 has the right to exercise a dominant influence over it, for example by having the right to give directions with respect to its operating and financial policies, with which directions its directors are obliged to comply.

1.6 Schedules etc.

References to this Agreement shall include any Recitals and Schedules to it and references to Clauses and Schedules are to Clauses of, and Schedules to, this Agreement. References to paragraphs and Parts are to paragraphs and Parts of the Schedules.

1.7 Information

References to books, records or other information mean books, records or other information in any form including paper, electronically stored data, magnetic media, film and microfilm.

1.8 Currency Conversion

Any amount to be converted from one currency into another currency for the purposes of this Agreement shall be converted into an equivalent amount at the Conversion Rate prevailing at the Relevant Date. For the purposes of this Clause:

“Conversion Rate” means the spot closing mid-point rate for a transaction between the two currencies in question on the date immediately preceding the Relevant Date as quoted by the Financial Times, London edition, or, if no such rate is quoted on that date, on the preceding date on which such rates are quoted;

“Relevant Date” means, save as otherwise provided in this Agreement, the date on which a payment or an assessment is to be made, save that, for the following purposes, the date shall mean:

(i) for the purposes of Clause 5.1, the date of this Agreement;

(ii) for the purposes of Clause 9, the date a claim is made in accordance with Clause 9.1; and

(iii) for the purposes of Schedule 7, the date at which the relevant Warranty is expressed to be true and accurate.

1.9 Rights of the Seller and the Purchaser

1.9.1 The Purchaser and the Relevant Purchasers agree that where any right is given to a Purchaser under this Agreement, such right shall be exercisable exclusively by the Purchaser and any such exercise shall be binding on the Relevant Purchasers.

1.10 Joint and Several Liability

1.10.1 The obligations of the Purchasers under this Agreement shall be joint and several.

2 Agreement to Sell the Group

2.1 Sale and Purchase of the Group

On and subject to the terms of this Agreement and the Local Transfer Documents:

2.1.1 the Seller agrees to sell or procure the sale of, and

2.1.2 the Relevant Purchasers agree (each as to the Shares set out against its name in Schedule 1 and the VIA Operations) to purchase,

except as otherwise expressly provided in this Agreement, the Group as a going concern.

2.2 Sale of the Shares

2.2.1 The Shares shall be sold free from Encumbrances and the Seller shall sell the entire legal and beneficial ownership in the Shares together with all rights and advantages attaching to them as at the date of this Agreement (including, without limitation, the right to receive all dividends or distributions declared, made or paid on or after Closing).

2.2.2 The Seller shall procure that on or prior to Closing any and all rights of pre-emption over the Shares are waived irrevocably by the persons entitled thereto.

2.3 Sale of the VIA Operations

2.3.1 There shall be as the Relevant Purchaser may elect: (a) transferred to such Group Company with effect from Closing or (b) included in the sale of the VIA Operations under this Agreement or, where relevant, the Local Transfer Documents, which shall be sold free from Encumbrances (including the entire legal and beneficial ownership) except for Permitted Encumbrances:

(i) the Business Intellectual Property;

(ii) the Goodwill;

(iii) the Moveable Assets;

(iv) the rights of the Seller arising under the Contracts (on the terms set out in Schedule 3);

(v) the benefit (so far as the same can lawfully be assigned or transferred to the Relevant Purchasers) of the Claims; and

(vi) the benefit (so far as the same can lawfully be assigned or transferred to the Relevant Purchasers) of any claim under an insurance policy to the extent such claim relates exclusively to any Business Asset or Assumed Liability.

2.3.2 Subject to Clause 2.3.3, with effect from Closing the Seller agrees to transfer, or to procure the transfer (to the extent it is able so to do), and the Relevant Purchaser or such Group Company as the Relevant Purchasers may elect, agrees to accept the transfer of, and to assume, duly and punctually pay, satisfy, discharge, perform or fulfil, all Liabilities incurred by the Seller in relation to the Relevant Employees (in accordance with and subject to the provisions of Schedule 4) and the Contracts. The Seller agrees with the Relevant Purchasers that such Liabilities shall be transferred to and assumed by the Relevant Purchasers or a member of the Purchasers’ Group (including the Group Companies) so that the Relevant Purchasers shall have such Liabilities (so far as the same can be lawfully transferred) and so that the Relevant Purchasers or the Group Company, as the case may be, shall have and be entitled to the benefit of the same rights, powers, remedies, claims, defences, obligations and conditions (including, without limitation, rights of set-off and counterclaim) as the Seller enjoyed.

2.3.3 Clause 2.3.2 shall not apply to, and the Relevant Purchasers shall not be obliged to, and the Seller shall procure that no Group Company shall, accept the transfer of and to assume, duly and punctually pay, satisfy, discharge, perform or fulfil:

(i) any Liability of the Seller or the VIA Group falling due for performance, or which should have been performed, prior to Closing;

(ii) any Liability of the Seller or the VIA Group except for the Liabilities referred to in Clause 2.3.2;

(iii) any Liability of the Seller or the VIA Group owed to any member of the Claranet Group (other than in respect of the obligations assumed pursuant to Clause 2.3.4 and those aspects of the Claranet Deed associated with the Claranet TSA).

2.3.4 With effect from Closing and to the extent permitted by law, the Seller agrees to subcontract to the Purchaser the obligations of the Seller and/or any Group Company to provide, as well as the benefit of receipt by the Seller and/or any Group Company of, services under the terms of the Claranet Service Agreements.

2.3.5 The Purchaser agrees to being the Seller’s sub-contractor under the Claranet Service Agreements and hereby agrees to indemnify the Seller against all costs, fees, charges, expenses and liabilities incurred by the Seller to any third party (including any member of the Claranet Group) arising from or in connection with the negligent performance of the Claranet Service Agreements sub-contracted to it pursuant to Clause 2.3.4 by the Purchaser.

2.4 Relevant Employees

The provisions of Schedule 4 shall apply in respect of the Relevant Employees.

2.5 Local Transfer Documents

2.5.1 At Closing the Seller and the Relevant Purchasers shall execute such agreements, transfers, conveyances and other documents (subject to the relevant local law and otherwise as may be agreed between the Seller and the Purchaser) to implement the transfer of (i) the Shares and (ii) the VIA Operations (the “Local Transfer Documents” and each, a “Local Transfer Document”).

2.5.2 To the extent that the provisions of a Local Transfer Document are inconsistent with or (except to the extent they implement a transfer in accordance with this Agreement) additional to the provisions of this Agreement:

(i) the provisions of this Agreement shall prevail; and

(ii) so far as permissible under the laws of the relevant jurisdiction, the Seller and the Purchaser shall procure that the provisions of the relevant Local Transfer Document are adjusted, to the extent necessary to give effect to the provisions of this Agreement or, to the extent this is not permissible, the Seller shall indemnify the Purchaser against all Losses suffered by the Relevant Purchasers or, as the case may be, the Purchaser shall indemnify the Seller against all Losses suffered by the Seller, in either case through or arising from the inconsistency between the Local Transfer Document and the Agreement or the additional provisions (except to the extent they implement a transfer in accordance with this Agreement).

2.5.3 No Seller shall bring any claim against the Relevant Purchasers in respect of or based upon the Local Transfer Documents save to the extent necessary to implement any transfer of the Shares or VIA Operations in accordance with this Agreement.

2.5.4 No Purchaser shall bring any claim against the Seller in respect of or based upon the Local Transfer Documents save to the extent necessary to implement any transfer of the Shares or VIA Operations in accordance with this Agreement.

3 Consideration

3.1 Amount

The aggregate consideration for the purchase at Closing of the Shares and the Business Assets under this Agreement and the Local Transfer Documents shall be an amount in cash equal to $18,100,000.00 (the “Purchase Price”).

3.2 Allocation of Purchase Price

The parties shall co-operate in good faith prior to Closing to allocate the consideration between the Shares and the Business Assets being acquired with a view to ensuring that such allocation is made in a mutually beneficial manner (and in accordance with applicable laws).

3.3 VAT

The Seller and Purchaser agree that the Purchase Price is exclusive of VAT. If any VAT is found to be chargeable in respect of this Agreement, it shall be payable in addition to the Purchase Price, against delivery of a valid VAT invoice (or equivalent, if any), where appropriate, in respect of which the provisions of Schedule 5 shall apply.

3.4 Reduction of the Purchase Price

3.4.1 If any payment is to be made by the Seller to the Relevant Purchasers in respect of any claim for any breach of this Agreement or any Local Transfer Document or pursuant to an indemnity under this Agreement, the payment shall be made by way of adjustment of the consideration paid by the Relevant Purchasers for the particular category of Business Asset or Shares (if any) to which the payment and/or claim relates under this Agreement and the Purchase Price shall be deemed to be reduced by the amount of such payment.

3.4.2 If:

(i) the payment and/or claim relates to more than one category of Business Asset or Shares, it shall be allocated in a manner which reflects the impact of the matter to which the payment and/or claim relates, failing which it shall be allocated rateably to the relevant Business Assets or Shares by reference to the proportions in which the Purchase Price is allocated in accordance with Clause 3.2; or

(ii) the payment and/or claim relates to no particular category of Business Asset or Shares, it shall be allocated rateably to all Business Assets and Shares by reference to the proportions in which the Purchase Price is allocated in accordance with Clause 3.2,

and in each case the Purchase Price shall be deemed to have been reduced by the amount of such payment.

4 Conditions

4.1 Conditions Precedent

The agreement contained in Clause 2.1 to purchase and sell the Shares and the Business Assets is conditional upon each of the following:

(i) the approval of the VIA Shareholders in accordance with s271 of the Delaware General Corporation Law of the transactions contemplated by this Agreement;

(ii) incorporation of DebtCo;

(iii) no dispute in relation to the Claranet Deed arising prior to Closing which dispute relates to those assets, shares and liabilities to be transferred to the Relevant Purchasers pursuant to Clause 2 and the Transaction Documents;

(iv) the release and discharge pursuant to the Claranet Deed of the security interests granted to Clara.net Holdings Limited under the Claranet Facility remaining effective; and

(v) fulfilment of the obligations set out in Clause 5.4.

4.2 Responsibility for Satisfaction

VIA Inc. shall use its best endeavours to ensure the satisfaction of the conditions set out in Clause 4.1 as soon as possible and shall as soon as reasonably practical following the date of this Agreement file requisite proxy materials with the US Securities and Exchange Commission (“SEC”) and proceed to a vote of VIA Shareholders, such vote to take place no later than the Back Stop Date and, subject to the provisions of Clause 5.6, VIA Inc. Board’s recommendation that VIA Shareholders approve the transactions contemplated by this Agreement shall be included in the materials sent to VIA Shareholders in relation to such vote. The Purchaser shall provide a reasonable level of cooperation to VIA Inc. in connection with the preparation of the proxy statement and shall provide the Seller with such information as it may reasonably request from time to time. VIA Inc. shall respond promptly to any enquiries or requests for further information raised by the SEC in respect of the matters raised by the SEC pursuant to or in connection with this Agreement.

4.3 Non-Satisfaction/Waiver

4.3.1 VIA Inc. shall give notice to the Purchaser of the satisfaction of the condition in Clause 4.1 within one Business Day of becoming aware of the same.

4.3.2 VIA Inc. may at any time, to the extent permitted by law, waive in whole or in part and conditionally or unconditionally the condition set out in Clause 4.1 by notice in writing to the Purchaser.

4.3.3 If the condition in Clause 4.1 is not satisfied or waived on or before the Back Stop Date, save as expressly provided, this Agreement (other than Clauses 1, 5.5.2, 11 and 12.2 to 12.15) shall lapse and no party shall have any claim against any other under it, save for any claim arising from breach of the obligation contained in Clause 4.2, provided that the terms of Clause 5.5.2 shall apply and the amounts referred to in Clauses 5.5.2(x) and (y) shall become payable to Interoute.

4.4 Approval

The Seller shall provide suitable evidence of (on or prior to the date of this Agreement) the unanimous approval by VIA Inc.’s Board of this Agreement, the Subscription Agreement, the Management Agreement and the Facility Agreement, including for purposes of Section 203 of the Delaware General Corporation Law.

The Purchasers shall each provide suitable evidence of (on or prior to the date of this Agreement) the unanimous approval by each of its board of directors for the entering into and the performance of the transactions contemplated by this Agreement.

5 Pre-Closing

5.1 The Seller’s Obligations in Relation to the Conduct of the Group

Except (w) as contemplated and expressly permitted under the terms of the Management Agreement, (x) as may be required by law, (y) as may be required by any securities exchange or regulatory or governmental body to which the Seller or any Group Company is subject (including without limitation, Euronext, the SEC) or (z) as may be required under this Agreement between the date of this Agreement and Closing the Seller:

5.1.1 shall carry on the business of the Group as a going concern in the ordinary and usual course as carried on since 1 January 2005;

5.1.2 shall use commercially reasonable efforts to maintain in force all existing insurance policies in all material respects on the same terms and similar level of cover prevailing at the date of this Agreement for the benefit of the Group Companies and the Seller;

5.1.3 without prejudice to the generality of Clause 5.1.1, shall not without the prior written consent of the Purchaser (such consent not to be unreasonably withheld delayed or conditioned) do any of the following in relation to any of the Group Companies or the VIA Operations:

(i) enter into any agreement or incur any commitment involving any capital expenditure in excess of $50,000 per item and $1,000,000 in aggregate save in respect of agreements of a revenue nature, in which case no such limit or consent shall apply, in each case exclusive of VAT;

(ii) enter into or amend any agreement or commitment (save in respect of agreements of a revenue nature) (a) which is not capable of being terminated without compensation at any time with three months’ notice or less or that is not in the ordinary and usual course of business and (b) which involves or may involve total annual expenditure in excess of $100,000 per agreement or commitment and $1,000,000 in the aggregate, exclusive of VAT;

(iii) enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of any asset (including any present or future revenues and rights of every description);

(iv) create any Encumbrance over any of its assets except for a Permitted Encumbrance;

(v) enter into any new Finance Leasing Arrangement;

(vi) make any loan, or provide any form of credit or financial accommodation, to any other person other than in the ordinary course of the business of the relevant Group Company;

(vii) other than the late or non-payment of monies owing to the extent consistent with the practice adopted by the Group since 1 January 2005 breach any of its material contractual or other obligations with a person other than another Group Company;

(viii) acquire or agree to acquire any share, shares or other interest in any company, partnership or other venture (other than the DebtCo);

(ix) incur or assume any Financial Indebtedness other than pursuant to the Facility Agreement or equipment leases entered into prior to the date of this Agreement;

(x) create, allot or issue, or grant an option to subscribe for, any share capital of any Group Company;

(xi) repay, redeem or repurchase any share capital of any Group Company;

(xii) declare, make or pay any dividend or other distribution to shareholders;

(xiii) save as required by law:

(a) make any amendment to the terms and conditions of employment (including, without limitation, remuneration and pension entitlements and other benefits) of any Senior Employee;

(b) provide or agree to provide any gratuitous payment or benefit to any Senior Employee or any of his dependants otherwise than in the ordinary course of business;

(d) engage or appoint any additional Senior Employee;

(xiv) save as expressly provided by the Facility Agreement, enter into any guarantee, indemnity or other agreement to secure any obligation of a third party other than on arm’s length terms or in the ordinary and usual course of business of that Group Company; and

(xv) make any change to its accounting practices or policies (except as required by generally accepted accounting principles) or amend its constitutional documents;

(xvi) take any step or commit any act which might materially affect the adequacy and sufficiency of the Group’s Computer Systems;

5.1.4 shall comply with the provisions of Schedule 4, paragraph 1.

5.2 Seller’s notification requirements

From the date of this Agreement until Closing, the Seller shall notify the Purchaser forthwith upon becoming aware that any of the following has occurred, is reasonably likely to occur or has been threatened in writing:

5.2.1 any Insolvency Proceedings occur in respect of the Seller;

5.2.2 the occurrence of any fact or matter which would have resulted in a material breach of any Warranty had the fact or matter been known to Matt Stuart Nydell, Raymond Walsh or Joe Correia at the date of this Agreement.

5.3 The Seller’s obligations in relation to inter-company financing

5.3.1 The Seller undertakes that, between the date of this Agreement and Closing, it will procure that there is no Cashflow in relation to any Group Company other than as set out in the accounting books and records of the relevant Group Company or by such other means to which the Purchaser has consented in advance, such consent to be in writing and not to be unreasonably withheld or delayed or conditioned.

5.4 Assignment Agreements, Security Assignment Agreements and Release Agreements

5.4.1 In accordance with the terms of the Facility Agreement, after the date hereof, the Purchaser, the Seller and DebtCo (upon the procurement of Seller) shall execute the Security Assignment Agreement.

5.4.2 In order to effect the execution of the Security Assignment Agreement in accordance with the terms of the Facility Agreement, Seller shall (and shall procure that DebtCo shall) execute the First Payables Assignment Agreement.

5.4.3 Immediately prior to Closing Seller shall execute and shall procure that DebtCo shall execute:

(i) the Second Payables Assignment Agreement; and

(ii) the Payables Release Agreement.

5.5 Termination

5.5.1 The Purchaser shall be entitled, prior to Closing, by notice in writing to the Seller, to terminate this Agreement (other than Clauses 1, 5.5.2, 11 and 12.2 to 12.15) in the event:

(i) any actual or pending claims or proceedings against the Seller or any Group Company in excess of $50,000, which has not been disclosed in the Data Room on or before 25 August 2005, and which exceed $1,500,000 in aggregate, but excluding any claim or proceeding arising from, or relating to any action taken or omitted to be taken by the Seller, any Group Company or the Purchasers (and its affiliates) pursuant to the Management Agreement, provided that if the Seller, acting reasonably, believes that any claim(s) received is without merit or that the likely quantum of such claim(s) is less than $1,500,000 in aggregate, the Seller and the Purchaser shall refer the claim(s) in question to a leading counsel of not less than ten years standing (or equivalent in overseas jurisdictions) agreed between the parties (and in absence of agreement appointed at the election of either party by the Chairman for the time being of the Bar Council of England and Wales (or equivalent in overseas jurisdictions)) to determine whether the claim(s) has merit and, if so, whether the quantum of the claim is reasonably expected to exceed $1,500,000. The costs of such leading counsel (or equivalent in overseas jurisdictions) shall be borne by the Purchaser. In such circumstances, the Purchaser shall not be allowed to

exercise its rights pursuant to this Clause 5.5.1(i) unless the determination of leading counsel (or equivalent overseas) is that the claim(s) has merit and is reasonably expected to exceed $1,500,000 in aggregate;

(ii) prior to Closing the Seller enters into Insolvency Proceedings;

(iii) breach(es) known to Matt Stuart Nydell, Raymond Walsh or Joe Correia, of any Warranties where the aggregate Loss to the Purchasers resulting from such breach(es) would exceed $1,000,000;

(iv) an Event of Default, as defined under the Facility Agreement occurs;

(v) a VIA Termination Event occurs;

(vi) there is a failure by the Seller to proceed to Closing in breach of this Agreement;

(vii) the conditions set out in Clause 4.1 not being satisfied in time to allow Closing to take place prior to the Back Stop Date (provided that the Purchaser shall have no right to terminate this Agreement unless it and each of its affiliates, as a VIA Stockholder, shall have voted each share of VIA Inc. held by it in favour of the transactions contemplated by this Agreement); or

(viii) the Seller and/or any other Group Company suffers Losses to one or more of their assets which would not have otherwise occurred had all existing insurance policies prevailing at the date of this Agreement been maintained in all material respects and on the same terms and similar level of cover and further provided that such Losses exceed US$2,000,000.

5.5.2 In the event of:

(i) a termination by the Purchaser pursuant to Clause 5.5.1 or Clause 6.6.1; or

(ii) a termination by the Purchaser by notice in writing to the Seller following the Seller failing, in time for the VIA Shareholder meeting to take place no later than 15 December 2005:

(a) to convene a meeting of VIA Shareholders to approve the transaction provided for by this Agreement; or

(b) to send to VIA Shareholders materials containing a recommendation of the VIA Inc. Board in the Agreed Terms that the transactions provided for by this Agreement be approved or, having sent such a recommendation, the VIA Inc. Board adversely modifies or changes its recommendation with respect to such transaction,

the Seller shall pay to the Purchaser in same day funds:

(x) within two Business Days of receipt of the termination notice (or, in the case of Clause 5.5.2(x)(b) below, within two Business Days of being notified of the relevant amount):

(a) a break fee in the amount of $500,000; and

(b) the Purchaser’s actual and incurred costs and expenses (including legal fees) in connection with the transactions provided for by this Agreement up to a maximum amount of $250,000;

(y) in accordance with the terms of the Facility Agreement, all sums due and outstanding under the terms of the Facility Agreement.

5.5.3 In the event of a material breach by a Purchaser of the Facility Agreement or failure by the Purchasers to proceed to Closing in breach of this Agreement (including, for the avoidance of doubt, Purchaser or any of its affiliates, as a VIA Stockholder, failing to vote each share of VIA Inc. held by it in favour of the transactions contemplated by this Agreement), the Seller shall be entitled, at any time prior to Closing, by notice in writing to the Purchaser, to terminate this Agreement (other than Clauses 1, 5.5.3, 11 and 12.2 to 12.15), and upon receiving such notice (as applicable) or following a termination of this Agreement by the Seller pursuant to Clause 6.6.1:

(i) the Purchaser shall pay to the Seller in same day funds within two Business Days a break fee in the amount of $500,000; and

(ii) the Seller shall pay to the Purchaser within 40 days of written demand from the Purchaser in accordance with the terms of the Facility Agreement, all amounts outstanding under the terms thereof.

5.6 Exclusivity

The Seller undertakes that:

5.6.1 it, and members of the VIA Group and the Group Companies and its or their respective agents, shall not make any initial or further approach to, or enter into or continue negotiations with, any other person with a view to a Competing Proposal taking place, provided that the VIA Inc. Board or its agents may negotiate with a Third Party in relation to a Competing Proposal if refusing to do so would, in the reasonable determination of the VIA Inc. Board based on advice of external counsel of the Seller, be reasonably likely to constitute a breach of its fiduciary duties to VIA Shareholders;

5.6.2 it shall not enter into any binding agreement in relation to a Competing Proposal and the VIA Inc. Board shall not recommend a Competing Proposal to VIA Shareholders unless:

(i) to the extent permitted by any duties of confidentiality or legal obligations to which the Seller was subject on or prior to 8 March 2005, the Purchasers have first been given the opportunity, including reasonable time in the circumstances, to at least match, to the reasonable satisfaction of the VIA Inc. Board, any such Competing Proposal; and

(ii) the VIA Inc. Board has determined that the terms of the Competing Proposal are more favourable to VIA Shareholders, taking into account all relevant factors, including conditions and likelihood of closing,

provided that, for the avoidance of doubt VIA Inc. is under no obligation to inform the Purchasers of any unsolicited offers it may receive in relation to any Competing Proposal save as required in order for the Seller to comply with Clause 5.6.2(i).

5.6.3 If the VIA Inc. Board accepts or recommends a Competing Proposal to VIA Shareholders, the Seller or the Purchaser may terminate this Agreement (other than Clauses 1, 5.5.2, 11 and 12.2 to 12.15) and no party shall have any claim against any other under this Agreement.

6 Closing

6.1 Date and Place

Subject to Clause 4, Closing shall take place at such time and place and on such date as the parties may agree being no earlier than five Business Days following notification by the Seller of satisfaction of the condition set out in Clause 4.1 or at such other location, time or date as may be agreed between the Purchaser and the Seller.

6.2 Closing Events

On each Closing, the parties shall comply with their respective obligations specified in Schedule 6. The Seller may waive some or all of the obligations of the Purchasers as set out in Schedule 6 and the Purchaser may waive some or all of the obligations of the Seller as set out in Schedule 6.

6.3 Payment on Closing

6.3.1 On Closing the Relevant Purchasers shall pay an amount in cash to the Seller which is equal to the aggregate of:

(i) the Purchase Price;

minus

(ii) the Deferred Amount;

minus

(iii) all amounts, including accrued interest, payable or repayable to the Purchaser under Facility A of the Facility Agreement (as defined therein) at the Closing Date.

6.3.2 The Deferred Amount shall be paid (if applicable) by the Purchasers to the Seller in accordance with Clause 6.8.

6.4 Intra-Group Balances

The parties hereby undertake that, in addition to the actions taken pursuant to clause 5.4, they shall perform (or procure the performance of) such further acts and execute (or procure the execution of) such further documents, as may reasonably be necessary to carry out and give full effect to the parties’ intention that, save as expressly provided by or pursuant to this Agreement, at Closing no sums shall be owed by the VIA Group to the Group Companies or vice versa and any sums owing by the VIA Group or the Group Companies to the Group Companies or vice versa at Closing shall be assigned, subordinated, forgiven or otherwise written off or capitalised by the relevant entity in each case without any of the Purchasers, the Seller or the Group Companies incurring any cash cost. The Parties shall co-operate in good faith (or procure such co-operation) with a view to ensuring that such action is taken in a mutually beneficial tax efficient manner and in taking such action the Seller shall procure that the relevant members of the VIA Group use

applicable reliefs and any available accumulated tax losses to the extent reasonably agreed by VIA Inc.

6.5 Mutual Release

6.5.1 The Seller undertakes that on and after Closing no member of the VIA Group will except as expressly permitted under the terms of this Agreement make any claim on any Group Company or any of its officers or directors in respect of any transactions, acts or omissions occurring before Closing (and, if requested by the Purchaser, VIA Inc. shall or shall procure that the relevant member of the VIA Group shall waive any such claim) such that no Group Company shall have any Liability to any member of the VIA Group save as otherwise provided by this Agreement.

6.5.2 The Purchasers undertake that on and after Closing no Group Company will (except as expressly permitted under the terms of this Agreement) make any claim against any member of the VIA Group or any of its officers or directors in respect of any transactions, act or omissions occurring before Closing (and, if requested by VIA Inc., the Purchasers shall procure that the relevant Group Companies shall waive any such claim) such that no member of the VIA Group shall have any Liability to any Group Company save as otherwise provided by this Agreement.

6.5.3 Confirmation of no claims

(i) The Seller confirms that with effect from Closing the Seller and each of the Group Companies shall have no claim (whether in respect of any breach of contract, compensation for loss of office or monies due to it or on any account whatsoever) outstanding against any of those directors of the Group Companies who are to resign with effect from Closing.

(ii) To the extent that any such claim or obligation exists or may exist in relation to any fact, matter or circumstance arising on or before Closing, the Seller (in relation to the period from the date of this Agreement until Closing) and the Purchasers (from Closing) shall, other than in the case of fraud, procure the waiver by each of the Group Companies of such claim or obligation and, other than in the case of fraud, shall procure the release of such directors of the Group Companies from any liability whatsoever in respect of such claim or obligation.

6.6 Breach of Closing Obligations

If any party fails to comply with any material obligation in Schedule 6, the Purchaser, in the case of non-compliance by the Seller (which has not been remedied to the reasonable satisfaction of the Purchaser within five Business Days), or the Seller, in the case of non-compliance by the Purchasers (which has not been remedied to the reasonable satisfaction of the Seller within five Business Days), shall be entitled by written notice to the Seller or the Purchasers, as the case may be:

6.6.1 to terminate this Agreement (other than Clauses 1, 5.5, 11 and 12.2 to 12.15) without liability on its part or on the part of those on whose behalf notice is served whereupon in the case of such non-compliance by the Seller, the amount referred to in Clauses 5.5.2(x) and (y) shall become payable; or

6.6.2 to effect the Closing so far as practicable having regard to the defaults which have occurred, provided that the Seller shall not be required to sell the Shares and the VIA Operations unless all of the Shares and the VIA Operations are purchased simultaneously and, provided further, that the Relevant Purchasers shall not be required to purchase the Shares and the VIA Operations unless all of the Shares and the VIA Operations are sold simultaneously; or

6.6.3 to fix a new date for Closing (not being more than 20 Business Days after the agreed date for Closing) in which case the provisions of Schedule 6 shall apply to Closing as so deferred, but provided such deferral may only occur once.

6.7 Books and Records

The Purchasers shall and shall procure that the Group Companies shall, retain for a period of twelve months from Closing or such longer period as is necessary for the Seller to close its books and file its tax returns for 2004 and 2005 and allow the Seller or the Seller’s representatives to have reasonable access (at all reasonable times during normal business hours and on reasonable advance notice) to (and at the Seller’s expense, copies of) the books, records and documents relating to the Group, to the extent that they relate to the period prior to Closing and to the extent reasonably required by the Seller to comply with any relevant law or regulations or in connection with the preparation and agreement of any accounting, tax or other records.

6.8 Schiphol Lease

6.8.1 From the date of this Agreement, the Seller shall use its reasonable endeavours to procure the assignment of the rights and obligations under the Schiphol Lease to a third party, such assignment to constitute a full release of the relevant Group Company from all rights and obligations under the Schiphol Lease. The Seller shall keep the Purchasers informed as to efforts undertaken pursuant to this Clause 6.8.1 and shall promptly provide notice to the Purchasers of each Schiphol Assignment. The Purchasers shall provide all such reasonable assistance and information as the Seller may reasonably require in connection with any proposed Schiphol Assignment. The Seller shall indemnify and keep indemnified the Purchasers against all Losses incurred by the Purchasers or the relevant Group Company in relation to the Schiphol Lease or any Schiphol Assignment.

6.8.2 At all times prior to the assignment of all of the rights and obligations of the relevant Group Company under the Schiphol Lease in accordance with Clause 6.8.1, the Seller shall on the quarterly due date for such payment pay (or procure the timely payment of) the Quarterly Lease Payment Amount, less all amounts payable by a third party pursuant to a Schiphol Assignment. Such amounts shall be paid to the Schiphol Lessor in accordance with the terms of the Schiphol Lease.

6.8.3 Upon any third party entering into a Schiphol Assignment, the Purchasers shall promptly pay to the Seller (or procure the payment of) an amount equal to the Deferred Amount multiplied by a fraction, the numerator of which is aggregate value of all rent payments to be made pursuant to the terms of the Schiphol Assignment to the expiration date of the Schiphol Lease and the denominator of which is the aggregate value of all rent payments to be made pursuant to the terms of the Schiphol Lease until its expiration date.

6.8.4 Any such payment by the Purchasers shall be made in US dollars. Any such payment shall be treated as a reduction of the Deferred Amount, until the Deferred Amount shall have been reduced to zero. At such time, subject to release of all restrictions over the Blocked Account, the Purchasers shall cooperate with and, at the Sellers cost, provide all such reasonable assistance as the Seller may reasonably require in connection with the release of the Blocked Amount from the Blocked Account by the Schiphol Lessor to the order of the Seller.

7 Post-Closing Obligations

7.1 Indemnities

7.1.1 Indemnity by Relevant Purchasers against Assumed Liabilities

The Relevant Purchasers shall indemnify and keep indemnified the Seller against:

(i) all Assumed Liabilities and any Liability of the Relevant Purchasers and/or any other person incurred in the course of carrying on the business of the Group after Closing including, for the avoidance of doubt, any such Liability which is or is deemed to be or becomes a Liability of the Seller by virtue of any applicable law; and

(ii) any Losses which the Seller may suffer by reason of the Seller taking any reasonable action to avoid, resist or defend against any Liability referred to in Clause 7.1.1(i),

provided that the Relevant Purchasers shall not be liable under this Clause 7.1.1 to the extent the Relevant Purchasers have a valid claim against the Seller under this Agreement in respect of the Liability in question.

7.1.2 Indemnity by Seller against Excluded Liabilities

The Seller shall indemnify and keep indemnified the Relevant Purchasers against:

(i) any Liability of the Seller which is not an Assumed Liability including any such Liability which is deemed to be, or becomes, a Liability of the Relevant Purchasers by virtue of any applicable law and which is not otherwise assumed by the Relevant Purchasers under this Agreement or any Local Transfer Document; and

(ii) any Losses which the Relevant Purchasers may suffer by reason of either of the Purchasers taking any reasonable action to avoid, resist or defend against any Liability referred to in Clause 7.1.1(i).

Provided that the Seller shall not be liable under this Clause 7.1.2 to the extent that the Seller has a valid claim against the Relevant Purchasers under this Agreement in respect of the Liability in question.

7.2 Conduct of Claims

7.2.1 Assumed Liabilities

(i) If the Seller becomes aware after Closing of any claim against it which constitutes or may constitute an Assumed Liability, the Seller shall as soon as reasonably practicable (but in any event within such period as will afford the Relevant Purchasers reasonable opportunity of requiring the Seller in

question to lodge a timely appeal) give written notice thereof to the Relevant Purchasers and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior agreement of the Relevant Purchasers.

(ii) The Seller shall take such action as the Relevant Purchasers may reasonably request to avoid, dispute, resist, appeal, compromise, defend or mitigate any claim which constitutes or may constitute an Assumed Liability subject to the Seller being indemnified and secured to its reasonable satisfaction by the Relevant Purchasers against all Losses which may thereby be incurred. In connection therewith the Seller shall make or procure to be made available to the Relevant Purchasers or their duly authorised agents on reasonable notice during normal business hours all relevant books of account, records and correspondence relating to the Group which have been retained by the Seller (and shall permit the Relevant Purchasers to take copies thereof at the Relevant Purchasers’ expense) for the purposes of enabling the Relevant Purchasers to ascertain or extract any information relevant to the claim.

7.2.2 Excluded Liabilities etc.

(i) If the Relevant Purchasers become aware after Closing of any claim which constitutes or may constitute an Excluded Liability or which could give rise to a liability for a member of the Purchasers’ Group in respect of which it is entitled to be indemnified by the Seller, the Relevant Purchasers shall as soon as reasonably practicable (but in any event within such period as will afford the Seller reasonable opportunity of requiring the Relevant Purchasers to lodge a timely appeal) give written notice thereof to VIA Inc. and shall not admit, compromise, settle, discharge or otherwise deal with such claim without the prior agreement of VIA Inc.

(ii) The Relevant Purchasers shall take such action as VIA Inc. may reasonably request to avoid, dispute, resist, appeal, compromise, defend or mitigate any claim which constitutes or may constitute an Excluded Liability or other liability in respect of which the Relevant Purchasers are entitled to be indemnified subject to the Relevant Purchasers being indemnified and secured to their reasonable satisfaction by the Seller against all Losses which may thereby be incurred. In connection therewith the Relevant Purchasers shall make or procure to be made available to the Seller or its duly authorised agents on reasonable notice during normal business hours all relevant books of account, records and correspondence relating to the Group which are in the possession of the Relevant Purchasers (and shall permit the Seller to take copies thereof at the Seller’s expense) for the purposes of enabling the Seller to ascertain or extract any information relevant to the claim.

7.3 Release of Guarantees etc.

The provisions of Schedule 8 shall apply.

7.4 The Seller’s Continuing Obligations

Notwithstanding Closing, the Seller shall so far as reasonably practicable and for a period not exceeding three months after Closing:

7.4.1 procure that senior executives of VIA Inc. respond to inquiries and provide reasonable assistance and information as they may reasonably require relating to the Group, its employees (including for the avoidance of doubt, the Relevant Employees), customers and suppliers, its current contracts and engagements and its trade debtors and trade creditors and pass on any trade enquiry which the Seller receives, provided that such requests do not impose a material burden on such individual’s working time;

7.4.2 subject to Schedule 5, retain or procure the retention of, records and documents of the Group to the extent they relate to the Group for the period prior to Closing and allow the Relevant Purchasers reasonable access on reasonable prior written notice to such books, records and documents, including the right to take copies at the Relevant Purchasers’ expense;

7.4.3 in addition to the Seller’s obligations in Schedule 3, if any right or asset used in the business of the Group immediately prior to Closing (other than any right or asset expressly excluded from the sale under this Agreement) has not been transferred to the Relevant Purchasers, transfer such right or asset (and any related liability which is an Assumed Liability) to the extent legally possible and at the Relevant Purchasers’ cost as soon as practicable to a member of the Purchasers’ Group nominated by the Relevant Purchasers and reasonably acceptable to the Seller.

7.5 The Purchaser’s Continuing Obligations

Notwithstanding Closing, the Purchaser shall so far as reasonably practicable and for a period not exceeding six months after Closing:

7.5.1 permit the Sellers’ staff to continue to use, as currently configured, Microsoft Exchange e-mail server functionality and storage capacity and, where applicable, network file and print server functionality for the Seller’s headquarters in The Netherlands; and

7.5.2 procure that the Group Companies provide such reasonable assistance and information as the Sellers may reasonably require for the purpose of closing the Sellers’ financial books and filing its final tax returns,

provided that nothing in this Clause 7.5 shall require the Purchasers or any Group Company to incur external costs in relation thereto.

8 Warranties

8.1 Seller’s Warranties

8.1.1 The Seller warrants to the Relevant Purchasers that the statements set out in Schedule 7 are true and accurate as of the date of this Agreement.

8.1.2 Each of the Warranties shall be separate and independent and shall not be limited by reference to any other paragraph of Schedule 7. The Warranties shall not in any respect be extinguished or affected by Closing.

8.1.3 Each Warranty, except for those set out in paragraphs 1.1, 2, 4.3, 5.1.1 and 15 in Schedule 7, shall be deemed to be qualified by reference to the actual knowledge of Matt Stuart Nydell, Raymond Walsh and Joe Correia, having made reasonable enquiries of the managing directors and the finance directors of each of the Group Companies with regard to the subject matter of the relevant Warranty.

8.2 Seller’s Disclosures

8.2.1 The Warranties are subject to the matters which are fully and fairly disclosed in this Agreement, the Disclosure Letter or the Data Room, provided that such matters are disclosed in sufficient detail to enable a reasonable purchaser to identify the nature of the matter disclosed and provided that the Seller is under no obligation to have brought to the Relevant Purchasers’ attention any specific matter documented in the Data Room. For the avoidance of doubt, the Purchasers acknowledge that disclosure of a document in the Data Room shall not be regarded as not fairly disclosed by reason of such document being written in a language other than English.

8.2.2 The parties agree that each document in the Data Room at the date of this Agreement shall be considered to be disclosed against each of the Warranties provided that such matters are fully and fairly disclosed in sufficient detail to enable a reasonable purchaser to identify the nature of the matter disclosed.

8.3 Updating of the Warranties to Closing

Subject to Clause 8.2, including without limitation the Disclosure Letter and the Data Room as updated as at Closing, the Seller further warrants to the Relevant Purchasers that the Warranties will be true and accurate at Closing as if they had been repeated at Closing by reference to the facts and circumstances then existing and on the basis that any reference in the Warranties, whether express or implied, to the date of this Agreement is substituted by a reference to the Closing Date provided always that the Purchasers’ sole remedy for any breach of any such Warranties shall be as set out in Clause 5.5.1.

8.4 The Seller’s Waiver of Rights against the Group

8.4.1 Save in the case of fraud, the Seller undertakes to the Relevant Purchasers and to the Group Companies and their respective directors, officers and agents and to the Relevant Employees to waive any rights, remedies or claims which it may have in respect of any misrepresentation, inaccuracy or omission in or from any information or advice supplied or given by the Group Companies or their respective directors, officers or agents or the Relevant Employees in connection with assisting the Seller in the giving of any Warranty or the preparation of the Disclosure Letter.

8.4.2 Save in the case of fraud after Closing, the Seller (on behalf of itself and all its group companies not being transferred to the Purchasers under this Agreement) hereby irrevocably waives any and all claims, rights and entitlements however and whensoever arising it may have against any of the Group Companies.

8.5 Relevant Purchasers’ Warranties

8.5.1 The Relevant Purchasers warrant to the Seller that each of the following warranties (the “Relevant Purchasers’ Warranties”) is true and accurate in all

respects on the date of this Agreement and shall continue to remain true and accurate in all respects up to and including the Closing Date as if they had been repeated at Closing by reference to the facts and circumstances then existing and on the basis that any reference in the Relevant Purchasers’ Warranties, whether express or implied, to the date of this Agreement is substituted by a reference to the Closing Date:

(i) Mawlaw 653 Limited is duly organised, validly existing and duly incorporated under the laws of England and Wales;

(ii) Interoute Communications Holdings SA is duly organised, validly existing and duly incorporated under the laws of Luxembourg;

(iii) the Relevant Purchasers have full corporate power and authority to enter into and perform their obligations under this Agreement and each document to be entered into pursuant hereto and all actions have been taken by them which are necessary for them to execute and perform their obligations under this Agreement and each document to be entered into pursuant hereto;

(iv) the execution of and performance by the Relevant Purchasers of their obligations under this Agreement and each document to be entered into pursuant hereto have been duly authorised by their boards of directors and by all other necessary corporate action; and

(v) the Relevant Purchasers’ obligations under this Agreement and each document to be executed by them at or before each Closing are, or when the relevant document is executed, will be valid and binding on the Relevant Purchasers in accordance with its terms; and

(vi) the Relevant Purchasers have or will have at each Closing sufficient funds to pay the Purchase Price attributable to such Closing.

8.5.2 The Relevant Purchasers’ Warranties shall not in any respect be extinguished or affected by Closing.

8.5.3 Each of the Relevant Purchasers’ Warranties shall be construed as a separate and independent Warranty and shall not be limited or restricted in its scope by reference to, or inference from any other term of another Relevant Purchasers’ Warranty or any term of this Agreement.

8.6 Purchaser’s Confirmation and Waiver

8.6.1 Each of the Relevant Purchasers warrants to the Seller that as at the time of execution of this Agreement with regard to the Group Companies, it is not aware of any fact or matter falling within those events set out in Clause 5.5.1 or Clause 6.6.1 having occurred and continuing in respect of a Group Company.

8.6.2 Without prejudice to any of the rights of the Purchasers arising under any of the Transaction Documents, and save in the case of fraud, the Purchasers (on behalf of the Group Companies being transferred under this Agreement) hereby irrevocably waive any and all claims, rights and entitlements however and wheresoever arising any such Group Companies may have against the Seller.

9 Limitation of Seller’s Liability

9.1 Time Limitation for Claims

Notwithstanding any other provisions of this Agreement or the Facility Agreement to the contrary, the Seller shall not be liable for breach of any Warranty in respect of any claim:

9.1.1 unless a notice of the claim is given by the Relevant Purchaser to VIA Inc. including reasonable details of the claim and so far as practicable an estimate of the amount of any claim within three months following Closing; and

9.1.2 which claim is not satisfied, settled or withdrawn within six months of the date of notification of the claim under this Clause 9.1.1 unless proceedings in respect of it have been commenced by being both issued and served on the Seller,

except that there shall be no time limitation for giving notice of any claim under paragraphs 1.1 and 4.3 of Schedule 7.

9.2 Aggregate Minimum Claims

9.2.1 The Seller shall not be liable under this Agreement for breach of any Warranty in respect of any claim unless the aggregate amount of all claims for which the Seller would otherwise be liable under this Agreement for breach of any Warranty (disregarding the provisions of this Clause 9.2) exceeds $1,000,000.

9.2.2 Where the liability agreed or determined in respect of all claims exceeds $1,000,000 subject as provided elsewhere in this Clause 9, the Seller shall be liable for the aggregate amount of all claims as agreed or determined.

9.3 Maximum Liability

The aggregate liability of the Seller in respect of any claim under this Agreement and all documents to be entered into pursuant hereto shall not exceed 33 per cent. of the Purchase Price.

9.4 Matters Arising Subsequent to this Agreement

9.4.1 The Seller shall not be liable under this Agreement for breach of any Warranty in respect of any matter, act, omission or circumstance (or any combination thereof), including the aggravation of a matter or circumstance, to the extent that the same would not have occurred but for:

(i) Agreed matters

any matter or thing done or omitted to be done pursuant to and in compliance with this Agreement or any Local Transfer Document or otherwise at the request in writing or with the approval in writing of the Purchaser;

(ii) Changes in legislation

(a) the passing of, or any change in, after Closing of any law, rule, regulation or administrative practice of any government, governmental department, agency or regulatory body including (without prejudice to the generality of the foregoing) any increase in the rates of Taxation or any imposition of Taxation or any withdrawal

of relief from Taxation not actually (or prospectively) in effect at the date of Closing; or

(b) any change after Closing of any generally accepted interpretation or application of any legislation.

9.5 Insurance

The Seller shall not be liable under this Agreement or any Local Transfer Document for breach of any Warranty to the extent that the Losses in respect of which such claim is made (i) are covered by a policy of insurance and payment is made by the insurer to a Group Company or (ii) would have been covered under a policy of insurance of a Group Company in force at the date of this Agreement.

9.6 Mitigation

Nothing in this Agreement shall restrict or limit the Purchasers’ general obligation at law to mitigate a loss which it may incur as a result of a matter giving rise to or which may give rise to a claim under this Agreement.

9.7 Double Claims

The Purchasers shall not be entitled to recover from the Seller under this Agreement more than once in respect of the same Losses suffered.

10 Intellectual Property

10.1 Prohibition on Use

Subject to Clause 10.2, the Seller shall not, from Closing, use or authorise any third party to use:

10.1.1 any Business Intellectual Property transferred to the Relevant Purchaser or a Group Company; or

10.1.2 any Group Intellectual Property owned by a Group Company,

in relation to or in connection with any activities of the Seller.

10.2 Seller’s Name

Notwithstanding Clause 10.1, the Seller shall be permitted to continue using the VIA NET.WORKS trade mark until the earlier to occur of (i) the date on which trading of VIA Inc.’s common stock ceases and (ii) VIA Inc. having completed a distribution to the VIA Shareholders. Within 20 days of the expiry of such period, the Seller shall change its name so that it does not incorporate VIA NET.WORKS, any other trade mark or name belonging to a Relevant Purchaser or a Group Company or anything confusingly similar thereto.

10.3 Power of attorney

The Seller hereby appoints the Purchaser from the Closing Date as its attorney for the purposes of executing all documents and performing all acts necessary to give full effect to the assignment of the Business Intellectual Property to the Relevant Purchaser or a Group Company pursuant to Clause 2.3.1.

11 Confidentiality

11.1 Announcements and confidentiality

11.1.1 Subject to Clauses 4.2 and 11.1, no press or public announcements, circulars or communications relating to this Agreement or the subject matter of it shall be made or sent by any of the parties without the prior written approval of the other parties.

11.1.2 Any party may make press or public announcements or issue a circular or communication concerning this Agreement or the subject matter of it if required by law or by any securities exchange or regulatory or governmental body to which that party is subject provided that the party making it shall use all reasonable endeavours to consult with the other parties prior to its making or despatch and shall, so far as may be reasonable, take account of the comments of the other parties with respect to its content and the timing and manner of its making or despatch.

11.1.3 Subject to Clause 11.1.4, all of the parties shall treat as strictly confidential all information received or obtained as a result of entering into or performing this Agreement which relates to:

(i) the provisions of this Agreement, or any document or agreement entered into pursuant to this Agreement;

(ii) the negotiations relating to this Agreement; or

(iii) any of the other parties.

11.1.4 Any of the parties may disclose information referred to in Clause 11.1.3 which would otherwise be confidential if and to the extent the disclosure is:

(i) required by the law of any relevant jurisdiction;

(ii) required by any securities exchange or regulatory or governmental body to which any of the parties is subject or reasonably submits, wherever situated, (including, without limitation, Euronext or the SEC), whether or not the requirement for disclosure has the force of law (the parties acknowledging that the rules of the SEC will require disclosure of the events leading up to this Agreement and all of its terms, that this Agreement will be filed with the SEC and that this Agreement will be available to members of the public following its filing with the SEC (including, for the avoidance of doubt, the proxy statement to be filed);

(iii) disclosed to the professional advisers, auditors or bankers of that party or any other member of the VIA Group (in the case of the Seller) or any other member of the Purchaser’s Group (in the case of the Purchaser) who need to know the information for the purposes of the transaction contemplated by this Agreement subject to the condition that the party making the disclosure shall procure that those persons comply with Clause 11.1.3 as if they were parties to this Agreement;

(iv) disclosed to the officers or employees of that party or any other member of the VIA Group (in the case of the Seller) or any other member of the Purchaser’s Group (in the case of the Purchaser) who need to know the information for the purposes of the transactions effected or contemplated

by this Agreement subject to the condition that the party making the disclosure shall procure that those persons comply with Clause 11.1.3 as if they were parties to this Agreement;

(v) of information that has already come into the public domain through no fault of that party;

(vi) of information of the kind referred to in Clause 11.1.4(i) and (ii) which is already lawfully in the possession of that party as evidenced by its or its professional advisers’ written records and which was not acquired directly or indirectly from the other party to whom it relates in breach of Clause 11.1.3; or

(vii) approved by all of the other parties in writing in advance,

provided that any information disclosed pursuant to Clause 11.1.4(i) or (ii) shall be disclosed only after notice to the other parties and the disclosing party shall take reasonable steps to co-operate with the other parties regarding the manner of that disclosure.

The restrictions contained in this Clause shall continue to apply after the rescission or termination of this Agreement and, following Closing, shall continue to apply without limit in time.

11.2 Confidentiality Agreement

The Confidentiality Agreement shall cease to have any force or effect from the date of this Agreement.

12 Other Provisions

12.1 Further Assurances

Each of the parties shall at its own cost from time to time execute such documents and perform such acts and things as any party may reasonably require to transfer the Shares and VIA Operations to the Relevant Purchaser and to give any party the full benefit of this Agreement and any Local Transfer Document.

12.2 Whole Agreement

12.2.1 This Agreement contains the whole agreement between the parties relating to the subject matter of this Agreement at the date hereof to the exclusion of any terms implied by law which may be excluded by contract and supersedes any previous written or oral agreement between the parties in relation to the matters dealt with in this Agreement.

12.2.2 In Clauses 12.2.1, 12.3 and 12.7.2, “this Agreement” includes the Disclosure Letter, the Local Transfer Documents, the Finance Documents and all documents entered into pursuant to this Agreement.

12.3 Relevant Purchasers’ Liability

The maximum aggregate liability of the Purchasers for all and any breaches of this Agreement and/or the Transaction Documents shall in total not exceed the Aggregate Purchaser Liability.

12.4 Reasonableness

Each of the parties confirms that it has received independent legal advice relating to all the matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable.

12.5 Third Party Rights

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of, or enjoy any benefit under, this Agreement.

12.6 Variation

No variation of this Agreement shall be effective unless in writing and signed by or on behalf of each of the parties.

12.7 Costs

Except as otherwise expressly provided in this Agreement:

12.7.1 the Seller shall bear all costs incurred by it in connection with the preparation, negotiation and execution of this Agreement and the Finance Documents and the sale of the Group;

12.7.2 the Purchasers shall bear all such costs incurred by them in connection with the preparation, negotiation and execution of this Agreement and the purchase of the Group.

12.8 Interest

If any party defaults in the payment when due of any sum payable under this Agreement, (howsoever determined) the liability of that party shall, save as otherwise expressly provided, be increased to include interest on such sum from the date when such payment is due until the date of actual payment (as well after as before judgment) at a rate per annum of two per cent above the base rate of LIBOR for monthly deposits. Such interest shall accrue from day to day.

12.9 Grossing-up of Indemnity Payments, VAT

12.9.1 All sums payable under this Agreement pursuant to an indemnity, compensation or reimbursement provision shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by law. If any deductions or withholdings are required by law the party making the payment shall (except to the extent such sums comprise interest) be obliged to pay to the other party such sum as will after such deduction or withholding has been made leave the other party with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.

12.9.2 Where any payment is made under this Agreement pursuant to an indemnity, compensation or reimbursement provision and that sum is subject to a charge to Taxation in the hands of the recipient (other than Taxation attributable to a payment being properly treated as an adjustment to the consideration paid by the Relevant Purchaser for the Group) the sum payable shall be increased to such sum as will ensure that after payment of such Taxation (and after giving credit for any tax relief

available to the recipient in respect of the matter giving rise to the payment) the recipient shall be left with a sum equal to the sum that it would have received in the absence of such a charge to taxation.

12.9.3 Where any sum constituting an indemnity, compensation or reimbursement to any party to this Agreement (the “Party”) is paid to a person other than the Party but is treated as taxable in the hands of the Party, the payer shall promptly pay to the Party such sum as shall reimburse the Party for all Taxation suffered by it in respect of the payment (after giving credit for any tax relief available to the Party in respect of the matter giving rise to the payment).

12.10 Permitted assignment and nomination of Purchasers

12.10.1 Except as otherwise expressly provided in this Agreement, the Relevant Purchasers may, with the prior written consent of the Seller (such consent not to be unreasonably withheld, delayed or conditioned), assign to a third party purchaser of any of the Group Companies, and without the consent of the Seller assign to a wholly-owned member of the Purchaser’s Group, the benefit of all or any of the Seller’s obligations under this Agreement provided that the maximum liability of any of any party hereunder for breach of any obligation under this Agreement or under any indemnity contained in or entered into pursuant to this Agreement shall be limited to the liability which would have arisen in the absence of any such assignment by the Relevant Purchasers.

12.10.2 The Purchaser shall be entitled by giving not less than two Business Days’ notice before the Closing to nominate a wholly-owned subsidiary or holding company to assume the rights and obligations of a Relevant Purchaser under this Agreement provided that the Purchaser shall remain jointly and severally liable under this Agreement.

12.11 Notices

12.11.1 Any notice or other communication in connection with this Agreement (each, a “Notice”) shall be:

(i) in writing in English;

(ii) delivered by hand, fax, registered post or by courier using an internationally recognised courier company.

12.11.2 A Notice to the Seller shall be sent to the following address, or such other person or address as the Seller may notify to the Relevant Purchasers from time to time:

VIA NET.WORKS Inc
H. Walaardt Sacrestraat 401-403
1117 BM Schiphol
The Netherlands

Fax:	+31 205 020 0001

Attention:	Matt Stuart Nydell (Senior Vice President and General Counsel
	and Secretary)

with a copy to:

Hogan & Hartson
One Angel Court
London EC2R 7HJ
United Kingdom

Fax:	+44 20 7367 0220

Attention:	John M. Basnage

12.11.3 A Notice to the Relevant Purchasers shall be sent to the following address, or such other person or address as the Relevant Purchasers may notify to the Seller from time to time:

Interoute Communications Holdings SA
Walbrook Building,
195 Marsh Wall,
London E14 9SG
United Kingdom

Fax:	+44 20 7025 9855

Attention:	General Counsel

12.11.4 A Notice shall be effective upon receipt and shall be deemed to have been received:

(i) at the time of delivery, if delivered by hand, registered post or courier;

(ii) at the time of transmission in legible form, if delivered by fax.

12.12 Invalidity

12.12.1 If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the parties.

12.12.2 To the extent it is not possible to delete or modify the provision, in whole or in part, under Clause 12.12.1, then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall, subject to any deletion or modification made under Clause 12.12.1, not be affected.

12.13 Counterparts

This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart.

12.14 Governing Law and Submission to Jurisdiction

12.14.1 This Agreement and the documents to be entered into pursuant to it, save as expressly referred to therein, shall be governed by and construed in accordance with English law.

12.14.2 Each of the parties irrevocably agrees that the courts of England are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection

with this Agreement and the documents to be entered into pursuant to it and that accordingly any proceedings arising out of or in connection with this Agreement and the documents to be entered into pursuant to it shall be brought in such courts. Each of the parties irrevocably submits to the jurisdiction of such courts and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum.

12.15 Appointment of Process Agent

12.15.1 The Seller hereby irrevocably appoints Hogan & Hartson Corporate Services Limited as its agent to accept service of process in England in any legal action or proceedings arising out of this Agreement, service upon whom shall be deemed completed whether or not forwarded to or received by the Seller.

12.15.2 The Seller agrees to inform the Purchasers in writing of any change of address of such process agent within 28 days of such change.

12.15.3 If such process agent ceases to be able to act as such or to have an address in England, the Seller irrevocably agrees to appoint a new process agent in England acceptable to the Purchasers and to deliver to the Purchasers within 14 days a copy of a written acceptance of appointment by the process agent.

12.15.4 Nothing in this Agreement shall affect the right to serve process in any other manner permitted by law or the right to bring proceedings in any other jurisdiction for the purposes of the enforcement or execution of any judgment or other settlement in any other courts.

In witness whereof the parties hereto have signed this Agreement as of the date set forth above.

SIGNED as a DEED by and
on behalf of VIA NET.WORKS, Inc.:	/s/


SIGNED by and
on behalf of MAWLAW 653 Limited	/s/


SIGNED by and
on behalf of Interoute Communications Holdings SA:	/s/

Schedule 1
Part 1
Details of the Shares etc.
(Clause 1.1)

(1)	(2)	(3)	(4)
Name of Share Seller	Name of Company	Shares	Name of Share Purchaser
VIA NET.WORKS, Inc.	VIA NET.WORKS Holdco, Inc.	1,000 shares	MAWLAW 653 Limited

VIA NET.WORKS, Inc	DebtCo	1 share	MAWLAW 653 Limited

Schedule 2
Companies and Subsidiaries

1	Particulars of the Companies

	Name of Company:	VIA NET.WORKS Holdco, Inc.
	Registered Number:	n/a
	Registered Office:	1013 Centre Road, Wilmington, Delaware 19805, United States
	Date and place of incorporation:	9 July 1999; the State of Delaware, United States.
	Issued share capital:	1000 shares
	Shareholder and shares held:	VIA NET.WORKS, Inc.: 1000 shares.
	Directors:	Matt Stuart Nydell and Raymond Walsh

	Name of Company:	VIA Jersey DebtCo 2 Limited
	Registered Office:	c/o Professional Trust Company Limited, PO Box 274, 36 Hilgrove Street, St. Helier, Jersey, JE4 8TR
	Date and place of incorporation:	to be incorporated on or about 30 August 2005, Jersey
	Issued share capital:	1
	Shareholder and shares held:	VIA NET.WORKS Inc. – 1 share
	Director:	Matt Nydell
	Secretary:	Professional Trust Company Limited

2	Particulars of Subsidiaries

	Name of Company:	VIA NET.WORKS Europe Holding B.V.
	Registered Number:	34115551
	Registered Office:	H Walaardt Sacrestraat 401, 1117 BM Schiphol-Oost, The Netherlands.
	Date and place of incorporation:	5 May 1999; The Netherlands
	Issued share capital:	€22,100 divided into 221 shares with a par value of €100 each.
	Authorised share capital:	€100,000 divided into 1,000 shares with a par value of €100 each
	Shareholder and shares held:	VIA NET.WORKS Holdco, Inc.: 221 shares with a par value of €100 per share
	Director:	VIA NET.WORKS, Inc.
	Proxy Holders:	Mike McTighe, John Steele, Jan Gesmar-Larsen, Malcolm Bell, Karen Slatford
	Authorised Signatories:	Rebecca Markovits

	Name of Company:	PSINet Netherlands B.V.
	Registered Number:	33294922
	Registered Office:	Siriusdreef 30-36 2132 WT HOOFDDORP The Netherlands
	Date and place of incorporation:	13 August 1997; The Netherlands
	Issued share capital:	NLG 40,000 divided into 40 ordinary shares of NLG 1,000 each
	Authorised share capital:	NLG 200,000 divided into 200 ordinary shares of NLG 1,000 each
	Shareholder and shares held:	VIA NET.WORKS Holdco, Inc: 40 shares
	Director:	VIA NET.WORKS Europe Holding B.V.
	Proxy Holder:	Alexander Johan Marie Scholten (resigned effective 1 September 2005)

	Name of Company:	PSINet Belgium BVBA/SPRL
	Registered Number:	0460.461.275
	Registered Office:	Medialaan 32, bus 3, 1800 Vilvoorde, Belgium
	Date and place of incorporation:	27 March 1997; Belgium

	Issued share capital:	€18,550 dividend into 750 shares without nominal value
	Authorised share capital:	€18,550 dividend into 750 shares without nominal value
	Shareholder and shares held:	VIA NET.WORKS Holdco, Inc: 745 shares held VIA NET.WORKS UK Holding Limited: 5 shares held
	Director:	James Joseph Henry Demaeght (resigned effective 30 September 2005)

	Name of Company:	PSINet Germany GmbH
	Registered Number:	Local Court of Munich, HRB 117930
	Registered Office:	Munich
	Date and place of incorporation:	10 April 1997; Germany
	Issued share capital:	One share in the nominal amount of DM 50,000
	Shareholder and shares held:	VIA NET.WORKS Holdco, Inc: one share held
	Director:	Fred Seibl

	Name of Company:	PSINet Datacenter Germany GmbH
	Registered Number:	Local Court of Berlin-Charlottenburg, HRB 76192
	Registered Office:	Berlin
	Date and place of incorporation:	10 December 1999; Germany
	Issued share capital:	One share in the nominal amount of €25,000
	Shareholder and shares held:	VIA NET.WORKS Holdco, Inc.: one share held
	Director	Fred Seibl

	Name of Company:	bART HOLDING B.V.
	Registered Number:	24270496
	Registered Office:	Science Park Eindhoven 5630 5692 EN Son; The Netherlands
	Date and place of incorporation:	27 August 1996; The Netherlands
	Issued share capital:	€340,355.16
	Authorised share capital:	€453,780.22
	Shareholder and shares held:	VIA NET.WORKS Europe Holding B.V.: 340,355.16 shares
	Director:	VIA NET.WORKS Europe Holding B.V.

	Name of Company:	Xenovic Holding B.V.
	Registered Number:	24271927
	Registered Office:	Science Park Eindhoven 5630, 5692 En Son, The Netherlands
	Date and place of incorporation:	15 March 1996; The Netherlands
	Issued share capital:	€18,241.96
	Authorised share capital:	€90,756.04
	Shareholders and shares held:	Bart Holding B.V.: 100% shares
	Director:	bART Holding B.V.

	Name of Company:	bART Noord Nederland B.V.
	Registered Number:	020564446
	Registered Office:	Science Park 5630, 5692 En Son, The Netherlands
	Date and place of incorporation:	21 December 1996; The Netherlands
	Issued share capital:	€18,151.21
	Authorised share capital:	€90,756.04
	Shareholders and shares held:	bART Holding B.V.: 100% shares
	Director:	bART Holding B.V.

	Name of Company:	bART Midden Nederland B.V.
	Registered Number:	24274849 (B-ART Midden Nederland)

	Registered Office:	Science Park 5630, 5692 En Son, The Netherlands
	Date and place of incorporation:	14 May 1996; The Netherlands
	Issued share capital:	€18,151.21
	Authorised share capital:	€90,756.04
	Shareholder and shares held:	bART Holding B.V.: 100% shares
	Director:	bART Holding B.V.

	Name of Company:	Arameta B.V.
	Registered Number:	24272259
	Registered Office:	Science Park Eindhoven 5630, 5692 En Son, The Netherlands
	Date and place of incorporation:	28 January 1997; The Netherlands
	Issued share capital:	€18,151.21
	Authorised share capital:	€90,756.04
	Shareholder and shares held:	bART Holding B.V.: sole shareholder
	Director:	bART Holding B.V.

	Name of Company:	VIA NET.WORKS España S.L.
	Registration Details:	Volume 3, 082, Page 186, Section 8, Sheet SE 40,794; entry number 1
	Date and place of incorporation:	13 August 1999; Spain
	Issued share capital:	€672,150 divided into 67,215 shares of €10 each
	Shareholder and shares held:	VIA NET.WORKS Europe Holding B.V.: 67,215 shares
	Directors (Joint and Several):	Mr. Nathan Wajsman Mr. Louis Bonnet

	Name of Company:	VIA NET.WORKS IRU Co. Ltd
	Registered Number:	306317
	Registered Office:	Arthur Cox Building, Earlsfort Terrace, Dublin 2
	Date and place of incorporation:	6 May 1999: Republic of Ireland
	Issued share capital:	IR£1.25 divided into 1 share of IR£1.25
	Authorised share capital:	IR£125,000 euro divided into 100,000 Ordinary

shares of IR£1.25 euro each

Shareholder and shares held:

VIA NET.WORKS Europe Holding B.V.; 1 share

Directors:

Alexander French

Matt Stuart Nydell

	Name of Company:	VIA NET.WORKS UK Holding Limited
	Registered Number:	03690730
	Registered Office:	c/o Hogan & Hartson One Angel Court, London EC2R 7HJ
	Date and place of incorporation:	31 December 1998; England and Wales
	Issued share capital:	£10 divided into 10 ordinary shares of £1.00 each
	Authorised share capital:	£1,000.00 divided into 1,000 shares of £1.00 each
	Shareholder and shares held:	VIA NET.WORKS Europe Holding B.V.; 10 shares
	Directors:	Matt Stuart Nydell VIA NET.WORKS Europe Holding B.V.

	Name of Company:	VIA NET.WORKS France Holding SAS
	Registered Number:	433 596 228 RCS Paris
	Registered Office:	127, rue Amelot, 75011 Paris, France
	Date and place of incorporation:	27 November 2000; Paris
	Share capital:	17,326,400 euros divided into 1,732,640 shares of €10 each
	Members:	VIA NET.WORKS Europe Holding B.V.; 1,555,800 shares VIA NET.WORKS UK Holdings Limited: 176,840 shares
	Chairman (Président):	Nathan Wajsman

	Name of Company:	VIA NET.WORKS Jersey Ltd
	Registered Number:	88289
	Registered Office:	c/o Jordans (C.I.) Limited, PO Box 456, Postman House, Hue Street, St Helier, Jersey JE4 5RP
	Date and place of incorporation:	9 August 2004; Jersey

	Issued share capital:	£1000 divided into 100 shares of £1 each
	Authorised share capital:	£10,000 divided into 10,000 shares of £1 each
	Shareholders and shares held:	VIA NET.WORKS UK Holding Limited; 1000 shares held
	Directors:	Matt Stuart Nydell

	Name of Company:	VIA NET.WORKS Deutschland GmbH
	Registered Number:	Local Court of Duisburg, HRB 7472
	Registered Office:	Duisburg
	Date and place of incorporation:	2 April 1993; Germany
	Issued share capital:	DEM 18,822,000.00: divided into one share of DEM 18,822,000.00
	Authorised share capital:	DEM 18,822,000.00: divided into one share of DEM 18,822,000.00
	Shareholder and shares held:	VIA NET.WORKS Europe Holding B.V.; one share
	Director:	Fred Seibl

	Name of Company:	VIA NET.WORKS Holdco Italy S.r.L.
	Registered Number:	13200500158
	Registered Office:	Via Turati Filippo 40 Milan
	Date and place of incorporation:	28 July 2000
	Issued share capital:	€500,000
	Authorised share capital:	€500,000
	Shareholders and shares held:	VIA NET.WORKS Europe Holding B.V.; 1 quota valued at €495,000 VIA NET.WORKS UK Limited: 1 quota valued at €5,000
	Directors:	Matt Stuart Nydell

	Name of Company:	PSINet France Sarl
	Registered Number:	394 332 118 RCS Nanterre
	Registered Office:	Tour Atlantique - 13^ème étage, Place de la Pyramide - 92911 Paris La Défense Cedex
	Date and place of incorporation:	17 March 1994; Paris

	Share capital:	373,552.84 euros divided into 144,138 shares
	Member and shares held:	VIA NET.WORKS, France Holdings SAS; 144,138 shares held
	Manager (Gérant):	Nathan Wasjman

	Name of Company:	VIA NET.WORKS France S.A.
	Registered Number:	408 236 990 RCS Nanterre
	Registered Office:	Tour Atlantique - 13^ème étage, Place de la Pyramide - 92911 Paris La Défense Cedex
	Date and place of incorporation:	17 July 1996; Pontoise
	Share capital:	485,412.92 euros divided into 31,841 shares
	Shareholders and shares held:	VIA NET.WORKS Europe Holding B.V.; 2 shares Matt Stuart Nydell: 1 share Paulo Baptista: 1 share VIA NET.WORKS, France Holding SAS; 31,837 shares
	Chairman of the Board:	Paulo Baptista Gomes Carneiro
	Directors:	Nathan Wajsman Matt Stuart Nydell

	Name of Company:	PSINet Switzerland Sarl
	Registered Number:	CH-660-2323998-1
	Registered Office:	Chemin de l’Epinglier 2, CH-1217 Meyrin GE.
	Date and place of incorporation:	18 December 1998; Switzerland
	Issued quota capital:	CHF 200,000 (no division)

	Shareholder and shares held:	VIA NET.WORKS Europe Holding B.V.; All quota
	Managers:	Gérard Cauderay James John McCartan

	Name of Company:	VIA NET.WORKS Deutsche Holding GmbH
	Registered Number:	Local Court of Duisburg, HRB 9349
	Registered Office:	Duisburg
	Date and place of incorporation:	29 September 2000; Germany
	Issued share capital:	€25,000; one share

	Shareholder and shares held:	VIA NET.WORKS Europe Holding B.V.; one share
	Director:	Fred Seibl

	Name of Company:	VIA NET.WORKS Express B.V.
	Registered Number:	34208904
	Registered Office:	H. Walaardt Sacrestraat 401, 1117 BM Schiphol, The Netherlands
	Date and place of incorporation:	30 November 2004; The Netherlands
	Issued share capital:	€18,000 divided into 18,000 ordinary shares of €1 each
	Authorised share capital:	€90,000
	Shareholder and shares held:	VIA NET.WORKS Europe Holding B.V.; 18,000 shares
	Director:	VIA NET.WORKS Europe Holding B.V.

	Name of Company:	Unix Support Nederland B.V.
	Registered Number:	27152479
	Registered Office:	Paul van Vlissingenstraat 16, 1096 BK Amsterdam, The Netherlands
	Date and place of incorporation:	12 February 1996; The Netherlands
	Issued share capital:	NLG 40,000 divided into 40 ordinary shares of NLG 1,000 each
	Authorised share capital:	NLG 200,000 divided into 200 ordinary shares of NLG 1,000 each
	Shareholders and shares held:	PSINet Netherlands B.V.; 40 shares
	Director:	VIA NET.WORKS Europe Holding B.V.
	Proxy Holder:	Alexander Johan Marie Scholten

Schedule 3
Contracts

1 Obligation to obtain Third Party Consents

In relation to any Contract which is not assignable or transferable (whether by sub-contracting or otherwise) without a Third Party Consent, this Agreement shall not be construed as an assignment or an attempted assignment and the Seller and the Relevant Purchasers shall each use reasonable endeavours both before and after Closing to obtain all necessary Third Party Consents on terms reasonably acceptable to the Relevant Purchasers and the Seller as soon as possible and shall keep each other informed of progress in obtaining such Third Party Consents. The Seller shall deliver to the Relevant Purchasers, on Closing or, if later, as soon as possible after receipt, any Third Party Consent and an assignment duly executed by the appropriate parties.

2 Obligations until Third Party Consents are obtained/where Third Party Consents are refused

2.1 Subject to paragraph 2.2, the Relevant Purchasers shall, from Closing, assume, carry out, perform and discharge the Seller’s obligations under the Contracts and shall indemnify and keep indemnified the Seller against any Liability incurred by that Seller or any member of the VIA Group arising from the failure by the Relevant Purchaser to assume, carry out, perform or discharge such obligations and against any Losses which that Seller may suffer by reason of that Seller taking any reasonable action to avoid, resist or defend any Liability referred to in this paragraph and provided that the Relevant Purchaser shall only be liable to the extent such Liability incurred by that Seller is a Liability which is intended to be assumed by the Relevant Purchaser pursuant to Clause 2.3.2.

2.2 In respect of any Contract, from Closing until the relevant Third Party Consent has been obtained, as contemplated by paragraph 1.1, or where the Third Party Consent has been refused, then until the expiry of 6 months from the date of Closing:

2.2.1 the Seller shall hold on trust such Contract and any monies, goods or other benefits received under such Contract to the extent it is lawfully able to do so or, where it is not lawfully able to do so or where holding on trust is not possible under local law, that Seller and the Relevant Purchaser shall make such other arrangements between themselves to provide to the Relevant Purchaser the benefits of the Contract, including the enforcement at the cost and for the account of the Relevant Purchaser of all rights of the relevant Seller against any other party thereto;

2.2.2 to the extent that the Relevant Purchasers are lawfully able to do so, and subject to the Relevant Purchasers receiving the benefits of the Contract, the Relevant Purchasers shall at their own expense perform the Seller’s obligations under the Contract as agent or sub-contractor and shall indemnify the Seller in respect thereof. To the extent that the Relevant Purchasers are not lawfully able to do so, the Seller shall, at the Relevant Purchasers’ cost do all such things as the Relevant Purchasers may reasonably require to enable due performance of the Contract;

provided that, in each case, the Relevant Purchasers shall indemnify and keep indemnified the Seller or member of the VIA Group against any liability incurred by the Seller or any member of the VIA Group as a result of this paragraph 2.2.

3 Failure to Obtain Third Party Consents

If a Third Party Consent is refused or otherwise not obtained on terms reasonably acceptable to the Relevant Purchasers within three (3) months of Closing, references in this Agreement to the Contracts and the VIA Operations (other than in this paragraph 3) shall be construed as excluding such Contract.

4 Novation

To the extent that the Seller requests the novation of any Contract to a Group Company or a member of the Purchaser’s Group, the parties shall use their reasonable endeavours to novate such Contract pursuant to Clause 2.3 and pending such novation, the provisions of this Schedule 3 shall apply.

Schedule 4
Employees

1 Transfer of Employees

1.1 The Seller shall and shall procure that the VIA Group shall:

1.1.1 transfer the employment of each Relevant Employee to a Group Company prior to the Closing Date; and

1.1.2 not offer employment to, employ or otherwise engage any Relevant Employee whose employment is transferred pursuant to paragraph 1.1.1 above prior to the Closing Date.

1.2 If any employee other than a Relevant Employee is transferred to a Group Company pursuant to paragraph 1.1 of this Schedule 4:

1.2.1 the Relevant Purchaser shall upon becoming aware of the transfer of such employee at any time after the Closing Date immediately or as soon as possible under applicable law terminate such employee’s employment on terms agreed with the Seller (acting reasonably); and

1.2.2 the Seller shall indemnify the Relevant Purchasers and keep the Relevant Purchasers indemnified against all Liabilities relating to or arising out of such termination and reimburse the Relevant Purchasers for all costs, expenses and emoluments (including, without limitation, any taxation and employer’s national insurance contributions) reasonably and properly incurred in employing such employee in respect of his employment on or after the Closing Date until such employee is terminated pursuant to paragraph 1.2.1 above.

1.3 The Relevant Purchasers shall be responsible for all wages, salaries, emoluments and other amounts due or accruing and taxation and employer’s national insurance contributions payable in respect of the Relevant Employees with effect from the Closing Date.

1.4 The Seller shall be responsible for all wages, salaries, emoluments and other amounts due and accruing and taxation and employer’s National Insurance contributions payable in respect of the Employees prior to the Closing Date.

1.5 The Seller using its reasonable endeavours (without cost to the Seller) undertakes that it shall not and shall procure that no other member of the VIA Group and each Group Company shall not do or knowingly omit to do anything prior to the Closing Date unless agreed by the Relevant Purchasers which would cause any Relevant Employee to terminate their employment with the Seller or any other company in the VIA Group or any Group Company before the Closing Date or with the Relevant Purchasers on or after the Closing Date.

2 Application of Transfer Provisions

2.1 If any contract of employment, employment relationship or collective agreement in relation to any employee (other than a Relevant Employee) employed by the Seller, the other members of the VIA Group or any Group Company shall have effect as if originally made between the Relevant Purchasers and such employee (a “Transferred

Employee”) as a result of the Transfer Provisions (without prejudice to any other rights or remedies which may be available to the Relevant Purchasers):

2.1.1 the Relevant Purchaser shall, upon becoming aware of the application of the Transfer Provisions to any such contract of employment or collective agreement, notify the Seller forthwith and the Seller or any other member of the VIA Group shall procure that such employees enter into settlement agreements with the Seller and the Relevant Purchaser on termination of the Transferred Employee’s employment (on terms that the Seller is liable for all payments due to such Transferred Employees). The Relevant Purchaser shall co-operate with the Seller and take all reasonable steps to assist the Seller in procuring that such Transferred Employees enter into termination agreements as soon as reasonably practicable following Closing; and

2.1.2 the Seller shall indemnify the Relevant Purchasers and keep the Relevant Purchasers indemnified against all Liabilities relating to or arising out of such termination or the transfer of Transferred Employees (including any Liability arising out of a failure by the Seller but excluding any Liability arising out of a failure by the Purchasers to comply with their obligations under the Transfer Provisions) and shall reimburse the Relevant Purchasers for all costs, emoluments and expenses (including, without limitation, any taxation and employer’s national insurance contributions) reasonably and properly incurred in employing such Transferred Employee in respect of his employment on or after Closing Date; and

2.1.3 irrespective of whether the Transferred Employee’s employment is terminated in accordance with paragraph 2.1.1 above, the Seller will indemnify the Relevant Purchasers and keep the Relevant Purchasers indemnified against any Liabilities which relate to, arise out of or are connected with any claims brought against the Relevant Purchaser by any Transferred Employee other than in each case as a result of breach by the Relevant Purchaser of its obligations under paragraph 2.1.1 above which are due solely to any act or omission by the Seller, any other member of the VIA Group or any Group Company or any event, matter or any other occurrence having its origin prior to Closing Date and which the Relevant Purchasers incurs in relation to any contract of employment, or the employment relationship or collective agreement of one or more of the Transferred Employees pursuant to the Transfer Provisions and/or in respect of this Agreement.

2.2 The Seller shall indemnify the Relevant Purchasers and keep the Relevant Purchasers indemnified against all Liabilities which relate to or arise out of any dismissal by the Seller, the VIA Group or any Group Company of any employee (not being a Relevant Employee) and which the Relevant Purchasers may incur pursuant to the provisions of the Transfer Provisions and this Agreement.

3 Definitions

3.1 For the purposes of this provision the terms:

“contract of employment” and “collective agreement” shall have the same meanings respectively as in the Transfer Provisions;

“Transfer Provisions” means the Transfer Regulations and Council Directive 2001/23/EC; and

“Transfer Regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 1981 (as amended or replaced).

Schedule 5
VAT

1 The Seller and the Purchasers shall use all reasonable endeavours (including, where appropriate, the making of an election or application in respect of VAT to any Tax Authority or entering into a written agreement) to secure that the sale of the Group so far as carried on in the European Union is treated as neither a supply of goods nor a supply of services for the purposes of the laws governing VAT in the relevant member state.

2 To the extent that any state outside the European Union provides for relief or exemption from VAT (or any similar tax on turnover or added value) on the transfer of a business or a company or treats such a transaction as being non-taxable for VAT purposes, the Seller and the Purchasers shall use all reasonable endeavours (including, where appropriate, the making of an election or application in respect of VAT (or any similar tax on turnover or added value) to any Tax Authority or entering into a written agreement) to secure such treatment as regards the sale of the Group (insofar as the business of the Group is carried on in the relevant state) under this Agreement.

Schedule 6
Closing Obligations

1 General Obligations

1.1 The Seller’s Obligations

On Closing, the Seller shall deliver or make available to the Purchasers the following:

1.1.1 evidence of the due fulfilment of the conditions set out in Clause 4;

1.1.2 evidence that the Seller is authorised to execute this Agreement and the Local Transfer Documents (including, where relevant, any notarial deeds referred to in this Schedule); and

1.1.3 deliver to the Purchaser the duly executed Second Payables Assignment Agreement and the Payables Release Agreement.

1.2 The Purchaser’s Obligations

On Closing, the Purchasers shall deliver or make available to the Seller:

1.2.1 evidence that the Purchasers are authorised to execute this Agreement and the Local Transfer Documents (including, where relevant, any notarial deeds referred to in this Schedule);

1.2.2 immediately following the execution of the Local Transfer Documents, the Relevant Purchaser shall resolve to appoint or procure the appointment of those individuals identified by the Purchaser as Directors of the Group Companies; and

1.2.3 a document in a form reasonably acceptable to the Seller that the guarantee given by VIA Inc. pursuant to the Facility Agreement shall have been discharged and shall cease to have any force and effect and that the Seller shall have no liability whatsoever arising thereunder.

2 Transfer of the Shares and VIA Operations

2.1 General Transfer Obligations

On Closing, the Seller and the Relevant Purchasers shall execute and/or deliver and/or make available Local Transfer Documents and take such steps as are required to transfer the Shares and the Business Assets, including but not limited to: an asset transfer agreement in the Agreed Terms between the Seller and VIA NET.WORKS HOLDCO, Inc.; a business intellectual property assignment between the Seller and VIA NET.WORKS HOLDCO, Inc.; and certain assignments of trademarks and trademark applications in the Agreed Terms.

2.2 Specific Transfer Obligations

For the purposes of compliance with paragraph 2.1, the Seller and Relevant Purchaser shall do the following, in relation to any Companies and VIA Operations that are incorporated or located in the jurisdictions listed below:

2.2.1 Belgium

(i) No Business Assets are in Belgium.

2.2.2 Germany

(i) In case the transfer of the Business Assets, liabilities and Contracts requires further acts, notifications or filings, Seller shall support the Relevant Purchaser upon reasonable request and at the costs of the Relevant Purchaser. To the extent that any required consent by the other contractual party to the assignments of the Contracts referred to in the preceding paragraph will not have been obtained within four weeks of Closing, the relevant VIA GmbH Company shall have the right to terminate such Contract in accordance with its terms or by any mutual agreement with the other contractual party.

2.2.3 Netherlands

(i) The Seller shall transfer to the Relevant Purchaser all property (other than Intellectual Property) forming part of the Business Assets by execution by the Seller and Relevant Purchaser before a civil law notary of notarial deeds of transfer of registered property on terms reasonably satisfactory to the parties.

(ii) To the extent that they are not held by third parties at Closing (the foregoing not detracting from any warranty contained in this Agreement), the Moveable Assets (including Computer Systems where appropriate) shall be transferred to the Relevant Purchaser on the Closing Date by the Seller delivering the assets to the Relevant Purchaser or giving the Relevant Purchaser access or the keys to the locations where the aforesaid Business Assets are situated, whereupon the aforesaid Business Assets shall be at the Relevant Purchaser’s full disposal. The Seller shall also deliver to the Relevant Purchaser all evidence of ownership of the Business Assets referred to in paragraph (iv).

(iii) Those Business Assets referred to in paragraph (ii) above which are held by third parties at Closing (the foregoing not detracting from any warranty contained in this Agreement), shall be transferred to the Relevant Purchaser on the Closing Date by virtue of this Agreement (which shall constitute a deed as required under Dutch law) and by written notices from the Seller, given also on behalf of the Relevant Purchaser, to the said third parties that the latter shall from then on hold the said Business Assets for the Relevant Purchaser, such notices to be delivered to the third parties by the Seller on or before the Closing Date.

(iv) The Business Intellectual Property shall be transferred to the Relevant Purchaser by assignments in respect of Registered Intellectual Property and an assignment in Agreed Terms in respect of all other Intellectual Property.

(v) The benefit of the Claims (other than Claims in order or bearer form) and all other rights referred to in the Agreement (other than rights in order or bearer form), including without limitation all licences, consents, authorisations, orders, warrants, confirmations, permissions, certificates, approvals, registrations and authorities, shall, to the extent permitted by law, be transferred on the Closing Date to the Relevant Purchaser by virtue

of this Agreement. The Seller shall give written notice to the affected third parties of the foregoing transfer on or before the Closing Date.

(vi) Those Claims and other rights referred to in the Agreement that are in order or bearer form shall be transferred by the Seller to the Relevant Purchaser by delivery and, where required, endorsement, to the Relevant Purchaser of the documents in which such Claims and other rights are established.

(vii) The rights and obligations of the VIA Group arising under the Contracts which require Third Party Consents that have not been obtained by the Closing Date (the foregoing not detracting from any obligation of the Seller or right of the Relevant Purchaser under this Agreement), shall be transferred to the Relevant Purchaser on the terms set out in Schedule 3.

(viii) In respect of any Contract in respect of which the required Third Party Consent was obtained prior to signature of this Agreement, the rights and obligations of the VIA Group under such Contract shall, to the extent permitted by law, be transferred by the Seller to the Relevant Purchaser on the Closing Date by virtue of this Agreement which shall constitute a deed of assignment as required under Dutch law. The Seller and the Relevant Purchaser shall jointly notify the affected third parties of this assignment by written notice delivered on the Closing Date.

(ix) The rights and obligations of the VIA Group under the Contracts in respect of which the required Third Party Consents are obtained after signature of this Agreement but prior to Closing, shall, to the extent permitted by law, be transferred by the Seller to the Relevant Purchaser on the Closing Date by the Seller and the Relevant Purchaser executing Local Transfer Documents in the form of a deed of assignment on terms reasonably satisfactory to the parties. The Seller and the Relevant Purchaser shall jointly notify the affected third parties of the foregoing transfer by written notice delivered on the Closing Date.

3 Further Obligations in Addition to Transfer

3.1 General Obligations

The Seller shall deliver or make available to the Relevant Purchasers the following in each case to the extent applicable and required under the laws of the respective jurisdiction of the Group Companies:

3.1.1 the written resignations on terms reasonably satisfactory to the parties (and legalised by a notary where required) of each of the persons named in Schedule 2 from the office or position specified in Schedule 2, to take effect on Closing;

3.1.2 evidence that all persons referred to in paragraph 3.1.1 above holding share(s) in any Group Company under a nominee-type arrangement or any arrangement having a similar effect have transferred such share(s) to such other persons as the Relevant Purchasers may specify, to take effect on Closing;

3.1.3 if practicable, the Seller, having used reasonable endeavours to obtain the same, the written resignations of the auditors of the Group Companies concerned to take effect on the Closing Date, with acknowledgements signed by each of them in a form satisfactory to the Relevant Purchasers to the effect that they have no claim

against any Group Company or otherwise complying with any relevant law or regulation;

3.1.4 irrevocable powers of attorney or such other appropriate document (in such form and terms as the Relevant Purchasers may reasonably require) executed by each of the holders of the Shares which are the subject of Closing in favour of the Relevant Purchasers or as it may direct to enable it (pending registration of the relevant transfers) to exercise post Closing all voting and other rights attaching to such Shares and to appoint proxies for this purpose with an express undertaking of the holder of such Shares not to exercise such voting and other rights attached to such Shares;

3.1.5 written waivers or consents in relation to pre-emption rights as the Relevant Purchasers may reasonably require signed by shareholders of the Companies which are the subject of Closing to enable the Relevant Purchasers or its nominees to be registered as holder of the Shares;

3.1.6 releases or waivers on terms reasonably satisfactory to the parties in respect of the Encumbrances affecting any of the Shares, or any of the Business Assets which are the subject of Closing;

3.1.7 any releases which the parties have obtained under Clause 7.3 of the Sale and Purchase Agreement;

3.1.8 in each case where the said information is not in the possession of the relevant Group Company, the corporate books and records, duly written (up-to-date), including the shareholders’ register and share certificates in respect of the Subsidiaries, and all other books and records, all to the extent required to be kept by each Group Company under the law of its jurisdiction of incorporation;

3.1.9 in each case where the said information is not at the Properties all other books, records and other information relating primarily to the Group Companies or the VIA Operations (save for books, records and other information which the Seller is required by law to retain) and all information relating to customers, suppliers, agents and distributors and other information relating primarily to the Group Companies or the VIA Operations (including the Relevant Employees) as the Relevant Purchasers may reasonably require and copies, or, at the Seller’s option, originals of any such books, records, documents or other information in the possession or control of the Seller which relate only in part to the Group Companies or the VIA Operations and which the Relevant Purchasers may reasonably require;

3.1.10 evidence as to:

(i) the acceptance by shareholders or the directors of each of the relevant Group Companies of the resignations referred to in paragraph 3.1.1;

(ii) the acceptance by shareholders of the relevant Group Companies of the resignation of the auditors referred to in paragraph 3.1.3; and

(iii) the approval by the shareholders or the directors of the transfer of the Shares or the sale of the VIA Operations to the Relevant Purchasers,

where such acceptance or approval is required by law or under the constitutional documents of the Group Company concerned;

3.1.11 evidence reasonably satisfactory to the Relevant Purchasers of the revocation of existing authorities given by the Group Company to banks (in respect of the operation of its bank accounts);

3.1.12 other requirements, e.g. certified copies of board resolutions changing registered office, changing accounting reference date, changing constitutional documents; and

3.1.13 all original deeds and documents relating to any Group Company’s interests in or title to the Properties to the extent the same are not in the possession or under the control of the relevant Group Company.

Schedule 7
Warranties

1 Corporate Information

1.1 The Shares and the Group Companies

1.1.1 The Seller listed in Schedule 1:

(i) is the sole legal and beneficial owner of the Shares listed opposite the name of that Seller in Schedule 1; and

(ii) has the right to exercise all voting and other rights over the Shares.

1.1.2 The Shares comprise the whole of the issued share capital of the Companies, have been properly and validly issued and are each fully paid.

1.1.3 The shareholders specified in paragraph 2 of Schedule 2:

(i) are the sole legal and beneficial owners of the shares in the Subsidiaries; and

(ii) have the right to exercise all voting and other rights over such shares.

1.1.4 The shares in the Subsidiaries comprise the whole of the issued and allotted share capital of the Subsidiaries, have been properly and validly issued and allotted and each are fully paid.

1.1.5 No person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer, amortisation or repayment of any share capital or any other security giving rise to a right over, or an interest in, the capital of any Group Company under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).

1.1.6 There are no Encumbrances on the shares in any Group Company.

1.1.7 No third party consents are required for the transfer of the Shares pursuant to this Agreement other than the approval of VIA Stockholders as referred to in Clause 4.1.

1.1.8 No Group Company has any interest in, or has agreed to acquire, any share capital or other security referred to in paragraph 1.1.5 of any other company (wherever incorporated) other than the Subsidiaries set out in Schedule 2.

1.1.9 The particulars contained in Schedule 2 are true and accurate.

1.2 Constitutional Documents, Corporate registers and minute books

1.2.1 The constitutional documents in the Data Room are true and accurate copies of the constitutional documents of the Group Companies and there have not been and are not any breaches by any Group Company of its constitutional documents which would have a material adverse effect on the business of the Group.

1.2.2 The register of members and minute books for meetings of members required to be maintained by each Group Company under the law of the jurisdiction of its incorporation:

(i) are up-to-date;

(ii) are maintained in accordance with applicable law; and

(iii) contain complete and accurate records of all matters required to be dealt with in such books and register,

in each case in all material respects.

1.2.3 All registers of members and minute books of the Group Companies are in the possession (or under the control) of the Seller, the relevant Group Company or legal counsel to the relevant Group Company and no written notice or allegation that any of such books and records is incorrect or should be rectified has been received.

2 Accounts

2.1 Consolidated Accounts

The Consolidated Accounts have been prepared in accordance with applicable law and with US GAAP at the Accounts Date so as to give a true and fair view of the state of affairs of the VIA Group and the Group Companies taken as a whole at the Accounts Date and of the profits or losses for the period concerned.

2.2 Solus Accounts

The Solus Accounts have been prepared in accordance with applicable law and with the accounting principles, standards and practices generally accepted at 31 December 2003 in the jurisdiction in which the relevant Group Company is incorporated so as to give a true and fair view of the state of affairs of each Group Company for which Solus Accounts have been prepared at 31 December 2003 and of the profits or losses for the period concerned.

2.3 Management Accounts

2.3.1 The unaudited management accounts (including the updated management reports) relating to the Group Companies for the two (2) month period ended 30 June 2005 (the “Management Accounts” and the “Management Accounts Date”, respectively), as filed with the SEC by the Seller in its 10-Q report and a copy of which is included in the Data Room under the folder entitled “VIA Inc.”, have been prepared on bases consistent in all material respects with those employed in the preparation of the Consolidated Accounts, as adjusted for US GAAP.

2.3.2 The Management Accounts do not materially misstate the assets and liabilities of the Group as at the Management Accounts Date nor the profits or losses of the Group for the period concerned having regard to the purposes for which they have been prepared.

3 Financial Obligations

3.1 Financial Facilities

Details of all financial facilities (including loans, derivatives and hedging arrangements outstanding or available to the Group Companies are given in the Disclosure Letter and/or the Data Room.

3.2 Guarantees

Other than in the ordinary and usual course of business or pursuant to this Agreement or the Finance Documents, there is no outstanding guarantee, indemnity, suretyship or security given:

3.2.1 by any Group Company; or

3.2.2 for the benefit of any Group Company.

4 Assets

4.1 The Properties

4.1.1 No Group Company owns any real property.

4.1.2 True and complete copies of all leases with a rental cost in excess of €75,000 per lease relating to office and data centres relevant to any Group Company’s are contained in the Data Room.

4.1.3 Each Property has the benefit of such rights in the document entitled “Real Property Leasehold Interest Summary Relating to Offices and Data Centres” and easements as are necessary for the existing use of the Property.

4.1.4 There is no outstanding notice or dispute involving the relevant Group Company and any third party as to the occupation or use of any Property which would, if implemented or enforced, have a material adverse effect on the business of the Group carried out at that Property.

4.2 Leases

Where any Property is leased by a Group Company:

4.2.1 there is no subsisting breach (other than non or late payment of rent and no non-observance of any covenant, condition or agreement contained in the lease under which the Group Company holds its interest in the Property, on the part of the relevant landlord or the Group Company, which would have a material adverse effect on the business of the relevant Group Company carried on at the Property.

4.2.2 there is no right for the landlord to terminate the lease before the expiry of the contractual term other than by breach of the lease by the lessee.

4.3 Ownership of Assets

All tangible assets included in the Accounts or acquired by any of the Group Companies since the Accounts Date, excepting rights and retention of title arrangements arising by operation of law or in the ordinary and usual course of business (such as leasing arrangements):

4.3.1 are legally and beneficially owned by the Group Companies;

4.3.2 are, where capable of possession, in the possession or under the control of the relevant Group Company except Customer Premises Equipment, situated at customer sites or physical points of presence and assets owned by the Group Companies at physical points of presence;

4.3.3 are free from Encumbrances other than Permitted Encumbrances (save for Permitted Encumbrances of the type described in paragraph (b) of the definition of Permitted Encumbrances);

4.3.4 are not the subject of any factoring arrangement, conditional sale or credit agreement.

4.4 Sufficiency of Assets

The assets owned and used by the Companies and/or Subsidiaries as at Closing, including without limitation, Intellectual Property, will be sufficient for the Companies and/or Subsidiaries to continue their business in the manner in which it is currently conducted.

5 Intellectual Property and Information Technology

5.1 Ownership etc.

5.1.1 All of the Business Intellectual Property and the Material Group IP is:

(i) legally owned, licensed to or used under the authority of the owner by the Seller, in the case of the Business Intellectual Property; or

(ii) legally owned by, licensed to or used under the authority of the owner by the Group Companies, in the case of the Material Group IP.

Copies of all such licences and authorities (excluding any shrink-wrap licences for computer software and domain names) are included in the Data Room.

5.1.2 The Material Group IP and the Business Intellectual Property in each case owned by the Group Companies or the Seller as the case may be is:

(i) not being infringed, attacked or opposed by any person;

(ii) not licensed to a third party other than pursuant to an agreement identified in the Data Room, to end users in the ordinary course of business under end user license agreements or except as set out in the Disclosure Letter; and

(iii) not subject to any Encumbrance other than a Permitted Encumbrance (save for Permitted Encumbrances of the type described in paragraph (b) of the definition of Permitted Encumbrances).

5.1.3 The Data Room lists all Registered Intellectual Property:

(i) forming part of the Business Intellectual Property; or

(ii) owned by a Group Company and forming part of the Group Intellectual Property.

5.1.4 The document entitled “Business Intellectual Property” contained in the Data Room lists all unregistered trade marks:

(i) forming part of the Business Intellectual Property; or

(ii) owned by a Group Company and forming part of the Group Intellectual Property and which in each case is, material to the business of the Group.

5.2 Licences

The:

5.2.1 Licence Agreements; and

5.2.2 all licences and agreements relating to the Material Group IP are included in the Data Room,

(including all amendments, novations, supplements or replacements to those licences and agreements) are in full force and effect, no notice having been given on either side to terminate them and the obligations of all parties have been fully complied with.

5.3 Employee Rights

Except as set out in the Data Room, there are no outstanding claims against any Group Company or the Seller under any contract or under any law providing for employee compensation in respect of any rights or interests in Intellectual Property.

5.4 Infringement

5.4.1 Excluding patents and similar rights, the processes employed and the products and services dealt in by:

(i) the Seller in relation to or in connection with the business of the Group; and

(ii) each Group Company,

do not use, embody or infringe any rights or interests of any third party in Intellectual Property (other than those licensed to the Seller or the Group Companies pursuant to the agreements described at paragraph 5.2 above) which would have a material adverse effect on the business of the Group.

5.4.2 Excluding patents and similar rights, no written notice of any claims of infringement of rights or interests, in each case of the nature referred to in 5.5.1, has been received by any Group Company or member of the VIA Group.

5.5 Sufficiency

The Business Intellectual Property and the Group Intellectual Property comprise sufficient rights and interests in Intellectual Property reasonably necessary for the carrying on of the business of the Group in the manner and to the extent carried on as at the date hereof.

5.6 Other Provisions

5.6.1 The Data Room contains a full list of domain names under the folder entitled “Domain Names” which are:

(i) included in the Business Intellectual Property; or

(ii) registered in the name of any Group Company and included in the Group Intellectual Property.

5.6.2 No action has been knowingly taken by the Seller or any Group Company to damage or otherwise adversely affect the reputation or goodwill associated with any unregistered trade mark identified in set out in the document entitled “Business Intellectual Property” contained in the Data Room.

5.7 Computer Systems

5.7.1 In relation to the Seller’s Computer Systems and the Group Companies’ Computer Systems:

(i) the present capacity, capability, functionality and performance of the Computer Systems are sufficient to satisfy the business requirements of the Group Companies as at the date hereof;

(ii) there are no performance reductions or breakdowns of, or logical or physical intrusions to, any Computer Systems or losses of data which are having a material adverse effect on the business of the Group;

(iii) each of the Computer Systems are owned by, leased by or licensed to the relevant Group Company;

(iv) the Data Room contains accurate details of the Group’s current procedures with a view to security of the Computer Systems and data stored on them;

(v) the data storage capability, functionality and performance of the Computer Systems are sufficient in all material respects to conduct the Group’s business (as it is now conducted);

(vi) the Group Companies have full and unrestricted access to and use of the Computer Systems and no third party agreements or consents are required to enable the Group Companies to continue such access and use following Closing; and

(vii) all material services relating to, and licences of, Computer Services are provided under written contracts with the Group (including maintenance and support, security, disaster recovery, management and utilisation (including escrow arrangements relating to the deposit of source codes, facilities management and computer bureau services agreements)) and true copies of which are included in the Data Room.

5.7.2 The Computer Systems are sufficient for the purposes of carrying on the business of the Group in the manner and to the extent carried on as at the date hereof.

5.7.3 All the operating data of the Group Companies (being data materially required for the Group Companies to be able to provide services to their customers, to bill such customers, pay their suppliers, manage and compensate their employees and maintain internal and external e-mail communications systems for their employees) has been regularly archived in soft copy form.

5.7.4 The Group Company has in its unencumbered possession or has unrestricted access to up-to-date and accurate source code for all material bespoke software which has been written or produced in-house by the Group.

5.7.5 Copies of all licences and escrow agreements relating to software material to the Group, either individually or in the aggregate, are included in the Data Room. The licences of such software have been complied with by the relevant Group Company in all material respects in the operation of the business of the Group and any restrictions in those licences do not materially and adversely affect the present conduct of the business of the Group.

5.8 Data Protection

5.8.1 No written notice alleging non-compliance with any applicable data protection legislation (including any enforcement notice, deregistration notice, transfer prohibition notice or any equivalent notice) has been received by any of the Group Companies or the Seller from any competent data protection authority.

5.8.2 No Group Company or the Seller is involved in a dispute with an individual in respect of any infringement or alleged infringement of any applicable data protection legislation and no Group Company or the Seller has received a written claim for compensation from any individual in respect of any such infringement or alleged infringement in the previous 12 months.

5.8.3 There is no outstanding court order against any Group Company or the Seller in respect of the rectification or erasure of personal data.

6 Contracts

6.1 Contracts

No Group Company is a party to or subject to any Material Contract which:

6.1.1 is not in the ordinary and usual course of business;

6.1.2 is not on an arm’s length basis;

6.1.3 is of a long term nature that is, unlikely to have been fully performed, in accordance with its terms, more than 36 months after the date on which it was entered into or undertaken;

6.1.4 restricts its freedom to carry on its business in any part of the world in such manner as it thinks fit so as to have a material adverse effect on the Group.

6.2 Joint Ventures etc.

Except as disclosed in the Data Room, no Group Company is, or has agreed to become, a member of any joint venture, consortium, partnership or other association (other than a recognised trade association in relation to which the Group Company has no liability or obligation except for the payment of annual subscription or membership fees).

6.3 Agreements with Connected Parties

6.3.1 There are no existing contracts, and have not been since 1 January 2004 any contracts, between, on the one hand, any Group Company and, on the other hand, the Seller or any other member of the VIA Group other than on normal commercial terms in the ordinary and usual course of business or which cannot be terminated on less than 30 days notice and other than those contracts included in the Data Room.

6.3.2 The Seller is not nor is any Group Company party to any contract material to the business of the Group, with any current or former employee or current or former director or officer of any such Group Company or the Seller or in which any such person is interested (whether directly or indirectly), other than on normal commercial terms in the ordinary and usual course of business.

6.4 Material Contracts

6.4.1 All the Material Contracts to which a Group Company is party are in full force and effect and other than the late or non-payment of monies owing, have been duly complied with by the relevant Group Company in all material respects and nothing has occurred whereby any of them is subject to early termination or which has given rise to a material claim in damages under any of them by any party to any of them.

6.4.2 Copies of all Contracts and Material Contracts are contained in the Data Room.

6.4.3 The transactions contemplated by this Agreement will not result in a material breach of, or give any third party a right to terminate any Material Contract.

7 Employees and Employee Benefits

7.1 Employees and Terms of Employment

7.1.1 The Data Room contains details, in relation to each Group Company and the VIA Operations, of:

(i) the total number of the Employees;

(ii) the salary and other benefits, period of continuous employment, location, grade, age and notice period of each Employee; and

(iii) the terms of the contract of employment of each Senior Employee.

7.2 Termination of Employment

7.2.1 Since 31 December 2004 no Senior Employee has given or received notice terminating his or her employment.

7.2.2 In relation to any claim received by a Group Company, no liability which remains undischarged has been incurred by any Group Company or the Seller for:

(i) breach of any contract of employment with any Employee; or

(ii) breach of any statutory employment right.

7.2.3 Except as provided, reflected or noted in Management Accounts, neither the Seller nor any Group Company has made or agreed to make any payment or provided or agreed to provide any benefit to any Employee or former employee employed by the Group Company or the Seller with regard to the VIA Operations since 31 December 2004 or any dependant of such Employee or former employee in connection with the proposed termination or suspension of employment of any such Employee or former employee.

7.3 Works Councils and Employee Representative Bodies

The Data Room contains details of all work councils and employee representative bodies which by law or any collective bargaining agreement have the right to be informed and/or consulted on matters which affect the Employees.

7.4 Collective Bargaining Agreements etc.

Other than national collective bargaining agreements or industry wide collective agreements, the union recognition agreements, collective agreements and European Works Council agreements contained in the Data Room are all the agreements between the Group Companies and the Seller and trade unions or representative bodies.

7.5 Bonus or other Profit-related Schemes

There are contained in the Data Room the rules and other documentation relating to all share incentive, share option, profit sharing, bonus or other incentive arrangements for or affecting any Employees or other workers or former employees or other former workers of the Group Companies or the Seller since 31 December 2003 together with details of all awards allocated and options granted by each Group Company.

As at the date of this Agreement, the Seller has paid of procured that the Group Companies have paid all Employee bonuses due in respect of 2004, including all Taxation in relation thereto.

7.6 Group Retirement Benefit Arrangements

The Group Companies are in compliance with the terms of any retirement, death, disability or life assurance benefits provided to Employees in all material respects and the Data Room contains copies of all such forms as are material in the context of the Group.

8 Legal Compliance

8.1 Licences and Consents

To the extent that the Seller or any Group Company is solely responsible for obtaining them, all licences, consents, authorisations, orders, warrants, confirmations, permissions, certificates, approvals, registrations and authorities material to the business of the Group as carried on at the date hereof have been obtained, are in force and are being complied with in all material respects.

8.2 Compliance with Laws

8.2.1 Each Group Company and the Seller is conducting, and during the two year period prior to Closing or, if shorter, the period since the relevant Group Company was acquired by the VIA Group, has conducted, the business of the Group in material compliance with applicable laws and regulations in each country in which the business of the Group is carried on except where such non-compliance does not materially and adversely effect the present conduct of the business of the Group.

8.2.2 There is no investigation, disciplinary proceeding or enquiry by, or order, decree, decision or judgment of, any court, tribunal, arbitrator, governmental agency or regulatory body outstanding against any Group Company or the Seller or any person for whose acts or defaults it may be vicariously liable which would have a material adverse effect upon the business of the Group.

8.2.3 No Group Company or the Seller has received any written notice during the past 12 months from any court, tribunal, arbitrator, governmental agency or regulatory body with respect to a violation and/or failure to comply with any applicable law or

regulation or requiring it to take or omit any action which in any case would have a material adverse effect on the business of the Group.

9 Litigation

9.1 Current Proceedings

Except as set out in the Data Room, no Group Company nor either Seller is involved whether as claimant or defendant or other party in any claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry or arbitration (other than as claimant in the collection of debts arising in the ordinary and usual course of its business none of which exceeds $20,000) which would have a material adverse effect on the business of the Group.

9.2 Threatened Proceedings

No such claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry or arbitration of material importance has been threatened in writing by or against any Group Company or the Seller (or any person for whose acts or defaults a Group Company or the Seller may be vicariously liable) which would have a material adverse effect on the business of the Group.

9.3 Circumstances likely to lead to claims

The Seller has not received any written notice of any investigation, disciplinary proceeding or other circumstances likely to lead to any such claim or legal action, proceeding, suit, litigation, prosecution, investigation, enquiry or arbitration which would have a material adverse effect on the business of the Group.

9.4 Disputes with Creditors

Material particulars of all disputes (other than those relating solely to the late payment or non-payment of monies due) between each Group Company and its creditors in respect of amounts of $100,000 or more due to such creditors are set out in the Disclosure Letter or in the Data Room.

10 Insurance

10.1 Particulars of Insurances

Copies of all documentation relating to the insurance policies of the Group Companies in the possession of the Seller and material to the business of the Group are contained in the Data Room.

10.2 Insurance Claims

10.2.1 Details of all outstanding insurance claims in excess of $100,000 made during the past twelve (12) months are contained in the Disclosure Letter or the Data Room.

10.2.2 No circumstances exist which are likely to give rise to any insurance claim in excess of $100,000.

11 Tax

11.1 Company Residence

Each Group Company has been resident for tax purposes in its country of incorporation and has not been resident anywhere else at any time since its incorporation and will be so resident at Closing. For the avoidance of doubt, references to residence in this paragraph shall be construed as references to residence as determined by the local law of the jurisdiction or jurisdictions concerned and not by reference to the provisions of any relevant double taxation treaty or convention.

11.2 Returns and Information

11.2.1 All registrations, returns, computations, notices and information which are or have been required to be made or given in the previous twelve months by each Group Company for any Taxation purpose (i) have been made or given on a proper basis and are up-to-date and correct and (ii) no written notice has been received by any Group Company of any dispute with any Tax Authority.

11.2.2 Each Group Company has maintained all records required to be maintained for Taxation purposes or which may be required to calculate any Taxation payable or the amount of any Taxation Benefit.

11.3 Payment of Taxation

11.3.1 In the two years prior to the date hereof, each Group Company has paid all Taxation which it is or has been liable to pay or account for and the due date for payment of which has fallen prior to the date hereof and has not received any written notice that it is liable to any fine, penalty, surcharge or interest in connection with Taxation that remains outstanding.

11.3.2 In the two years prior to the date hereof, each Group Company has deducted or withheld all Taxation which it has been obliged by law to deduct or withhold from payments made by it and has properly accounted to the relevant Tax Authority for the Taxation so deducted or withheld.

11.4 Special Regimes/Elections/Rulings

There are set out in the Disclosure Letter, with express reference to this paragraph, full particulars of any agreement, arrangement or election between any Group Company and any Tax Authority pursuant to which the relevant Group Company is authorised not to comply with, but for such agreement or arrangement, would be its statutory obligations.

11.5 Tax Equalisation Payments

11.5.1 No Group Company is under any obligation to surrender or otherwise transfer any Taxation Benefit.

11.5.2 No Group Company is liable to make a payment for utilisation, surrender or other transfer of any Taxation Benefit (“Taxation Equalisation Payment”), nor is any Taxation Equalisation Payment received by any Group Company liable to be refunded.

11.5.3 There are set out in the Disclosure Letter, with express reference to this paragraph, or the Data Room, full particulars of all surrenders or other transfers of any Taxation Benefit made by any Group Company since the Accounts Date.

12 Important Business Issues since the Accounts Date

12.1 Since 31 December 2004:

12.1.1 there has been no material adverse change in the financial or trading position or prospects of the Group taken as a whole (other than (i) in connection with the current financial position of the Group to the extent disclosed to the Relevant Purchasers in the Data Room in writing or otherwise publicly available (including without limitation the liquidity of the Group and the individual Group Companies); (ii) a change affecting or likely to affect all companies carrying on business in similar countries in which the Group carries on business); (iii) a material adverse change in stock or other financial markets, interest rates, exchange rates or other general economic conditions; (iv) any matter contained in the Disclosure Letter or the Data Room; or (v) any matter effected pursuant to or in accordance with this Agreement including the change in control of the Group Companies resulting from the sale and purchase of the Shares) and no event, fact or matter has occurred which will give rise to any such change;

12.1.2 no Group Company has acquired, or agreed to acquire, any single capital asset having a value in excess of $100,000;

12.1.3 no Group Company has disposed of, written off, or agreed to dispose of or write off, any capital asset having a value reflected in the Accounts in excess of $100,000 or acquired since the Accounts Date;

12.1.4 except as provided in the Finance Documents, no Group Company has borrowed or raised any money or taken up any financial facilities and no Group Company has repaid any borrowing or indebtedness in advance of its stated maturity;

12.1.5 no dividend or other payment which is, or could be treated as, a distribution has been declared, paid or made by any Group Company;

12.1.6 except in connection with the transaction contemplated by this Agreement or in the ordinary course of business, no resolution of the shareholders of any Group Company has been passed;

12.1.7 no Group Company has changed its accounting reference date;

12.1.8 no share or loan capital has been allotted, issued, repaid or redeemed or agreed to be allotted, issued, repaid or redeemed by any Group Company; and

12.1.9 no Group Company has redeemed or purchased or agreed to redeem or purchase any of its share capital.

12.16 Since the Management Accounts Date no Group Company has sold or agreed to sell a debt at less than its value in the Management Accounts and no debt has been released, deferred, subordinated or written off by any Group Company other than between Group Companies or between Group Companies and the VIA Group.

13 Disclosure of Information

13.1 The Data Room has been collated by the Seller in good faith and the Seller has not knowingly included any matter which is untrue or knowingly omitted any matter the omission of which is material to the business of the Group.

13.2 Each document in the Data Room is a true and complete copy of the original of such document.

14 Authority and Capacity

14.1.1 The Seller and each Group Company is validly existing and is a company duly incorporated under the law of its jurisdiction of incorporation.

14.1.2 The Seller has the legal right and full power and authority to enter into and subject to the approval of the VIA Shareholders, perform this Agreement, any Local Transfer Document to which it is a party and any other documents to be executed by it pursuant to or in connection with this Agreement or any Local Transfer.

14.1.3 The documents referred to in paragraph 16.1.2 will, when executed, constitute valid and binding obligations on the Seller, in accordance with their respective terms.

14.1.4 The Seller has taken or will have taken by Closing all corporate action required by it to authorise it to enter into and to perform this Agreement, any Local Transfer Document to which it is a party and any other documents to be executed by it pursuant to or in connection with this Agreement or any Local Transfer Document.

15 Insolvency etc.

15.1.1 No Group Company or the Seller will be rendered insolvent by any of the transactions contemplated herein or in connection with the Facility Agreement and any related documents (the “Contemplated Transactions”), under the laws of its jurisdiction of incorporation or rendered unable to pay its debts as they fall due.

15.1.2 Immediately after giving effect to the consummation of the Contemplated Transactions, including the receipt of the amounts payable by the Relevant Purchasers under this Agreement for the sale of the Shares (i) the Seller will be able to pay its Liabilities as they become due in the usual course of its business, (ii) the Seller will not have unreasonably small capital with which to conduct its present or proposed business, (iii) the Seller will have assets (calculated at fair market value) that exceed its Liabilities and (iv) taking into account all pending and threatened litigation, final judgments against the Seller in actions for money damages are not reasonably anticipated to be rendered at a time when, or in amounts such that, the Seller will be unable to satisfy any such judgments promptly in accordance with their terms (taking into account the maximum probable amount of such judgments in any such actions and the earliest reasonable time at which such judgments might be rendered) as well as all other obligations of the Seller. The cash available to the Seller, after taking into account all other anticipated uses

of the cash, will be sufficient to pay all such debts and judgments promptly in accordance with their terms.

15.1.3 For the purposes of paragraph 15.1.2 above:

“Governmental Body” means any:

(i) nation, state, county, city, town, borough, village, district, or other jurisdiction;

(ii) federal, state, local, municipal, foreign, or other government;

(iii) governmental or quasi-governmental authority of any nature (including any agency, branch, department, board, commission, court, tribunal or other entity exercising governmental or quasi-governmental powers); or

(iv) body exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power;

“insolvent” means that the sum of the present fair saleable value of Seller’s assets does not and will not exceed its debts and other probable Liabilities;

“Liability” means with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or invested, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of such Person; and

“Person” means an individual, partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture or other entity, or a Governmental Body.

15.1.4 In the twelve month period prior to the date hereof, no Group Company or the Seller has been held in material default by lenders under any debt financing.

15.1.5 No order for the winding up of any Group Company has been made.

15.1.6 No administrator or administrative receiver has been appointed in respect of the assets of the Group Companies.

15.1.7 No steps have been taken to enforce any security over any assets of any Group Company or the Seller and no event has occurred to give the right to enforce such security.

Schedule 8
Guarantees

PART A

GROUP COMPANY GUARANTEES:

The Seller shall use its reasonable endeavours to procure on or prior to Closing the release of each relevant Group Company from any guarantees or indemnities (other than any guarantee or indemnity which is an Assumed Liability) given by or binding upon the Group Company in respect of any liability of the Seller. Pending such release, the Seller shall indemnify the Relevant Purchasers and any such Group Companies against all amounts paid by any such Group Company pursuant to any such securities, guarantees and indemnities in respect of such liability of the Seller.

PART B

VIA GUARANTEES (NON-CASH COLLATERALIZED):

The Relevant Purchasers shall use their reasonable endeavours to procure on or as soon as reasonably practicable following Closing the release of each relevant member of the VIA Group from the guarantees or indemnities given by or binding upon any member of the VIA Group in respect of any liability of the Group Companies which are the subject of that Closing including without limitation those set out below. Pending such release, the Relevant Purchasers shall indemnify the Seller against all amounts paid by any member of the VIA Group pursuant to any such securities, guarantees and indemnities in respect of such liability of such Group Companies.

(a) Guaranty from VIA Inc. dated 21 May 2004 in favour of Schuberg Philis B.V. in respect of the obligations of VIA NET.WORKS Europe Holding B.V. under the Master Services Agreement with Schuberg Philis dated 19 May 2004.

(b) Guarantee from VIA Inc. dated 10 December 2004 in favour of Metrolinx Sarl in respect of the obligations of PSINet Switzerland Sarl under the lease agreement dated 17 October 2003.

(c) Declaration dated as of 1 April 2005 in favour of VIA NET.WORKS (Schweiz) A.G. in relation to the Amendment Number Three and the related existing agreements between PSINet Switzerland Sarl and TDC Switzerland AG dated 29 December 2004, with guarantees extended by VIA Inc. and VIA NET.WORKS Europe Holding B.V.

(d) Amendment Number Three between PSINet Switzerland Sarl and TDC Switzerland AG dated 29 December 2004

(e) Guarantee, indemnity and/or joint liability by VIA Inc. of obligations of Group Companies arising under agreements between VIA Inc. and each of the following entities: (i) Watchguard Technologies, Inc., (ii) GRIC Communications, Inc. and (iii) Melbourne IT Ltd. (IMWW), which shall be released upon novation or assignment of the agreements pursuant to Clause 2.3.1(iv) and Schedule 3 of this Agreement.

VIA SUPPORT AND COMFORT LETTERS

At the Closing, in relation to the relevant Group Company, the Relevant Purchasers shall deliver a letter of support to the directors of

VIA NET.WORKS France SAS,

VIA NET.WORKS France Holding SA,

PSINet Germany GmbH

PSINet Datacenter Germany GmbH

VIA NET.WORKS Deutschland GmbH

PSINet Switzerland Sarl

VIA NET.WORKS España S.L.

in respect of the present and future liabilities of those companies in replacement and substitution of letters of support and comfort from the Seller.

Table of Contents

Contents

1	Interpretation

2	Agreement to Sell the Group

3	Consideration

4	Conditions

5	Pre-Closing

6	Closing

7	Post-Closing Obligations

8	Warranties

9	Limitation of Seller’s Liability

10	Intellectual Property

11	Confidentiality

12	Other Provisions

Schedule 1 Part 1 Details of the Shares etc. (Clause 1.1)

Schedule 2 Companies and Subsidiaries

Schedule 3 Contracts

Schedule 4 Employees

Schedule 5 VAT

Schedule 6 Closing Obligations

Schedule 7 Warranties

Schedule 8 Guarantees

EX-2 3 a05-15832_1ex2.htm EX-2

Exhibit 2

Execution Copy

SUBSCRIPTION AGREEMENT

THIS AGREEMENT is made as of 26 August 2005 by and among VIA NET.WORKS, INC., a company incorporated in Delaware, the United States whose registered office is at 1013 Centre Road, Wilmington, Delaware 19805, United States (“Company”) and Mawlaw 660 Limited, a company organized under the laws of England and Wales (registered number 5396159), whose registered office is at Walbrook Building, 195 Marsh Wall, London E14 9SG, United Kingdom (“Investor”).

WHEREAS, Mawlaw 653 Limited (“Mawlaw”), Interoute Communications Holdings SA (“Interoute”), and Company are concurrently entering into the Sale and Purchase Agreement dated as of the date hereof (the “Purchase Agreement”), pursuant to which Mawlaw and Interoute (collectively, the “Purchasers”) will purchase certain subsidiaries and substantially all the assets of Company on the terms and subject to the conditions set forth in the Purchase Agreement;

WHEREAS, in connection with the Purchase Agreement, (i) Mawlaw has committed to lend to Company and certain of its subsidiaries up to $7,200,000 under a Facility Agreement (the “Facility Agreement”) upon the terms and conditions contained therein, in connection with which Company has agreed to pay to Mawlaw a commitment fee of $525,000 (the “Commitment Fee”), payable in cash, or at the election of Company, 14,189,189 shares (the “Commitment Shares”) of common stock, par value $0.001 per share of Company (“Common Stock”), (ii) Mawlaw and Company have entered into Management Consultancy Services Agreement (the “Management Agreement”) pursuant to which Mawlaw will provide certain management consultancy services in connection with the day-to-day operational activities of Company and its subsidiaries upon the terms and conditions contained therein, in connection with which Company has agreed to pay Mawlaw a fee of $400,000 (the “Management Fee”), payable in cash, or at the election of Company, 10,810,811 shares (the “Management Service Shares”) of Common Stock and (iii) Investor has agreed to provide $400,000 of funding (the “Common Purchase Price”) to Company in consideration for the issuance to Investor of 10,810,811 shares of Common Stock and on the terms and conditions set forth in this Agreement (the “Common Investment Shares”, and together with the Commitment Shares and the Management Services Shares, the “Aggregate Common Shares”);

WHEREAS, Company has elected to pay the Commitment Fee and the Management Fee by the issuance of the Commitment Shares and the Management Services Shares on the terms and conditions set forth herein, and Mawlaw has requested that Company issue such shares to and in the name of Investor;

WHEREAS, Investor desires to subscribe for and purchase from Company, and Company desires to issue and sell to Investor, 5,454,545 shares (the “Preferred Shares”) of a new class of preferred stock of Company to be designated Series A Convertible Preferred Stock, par value $0.001 per share (the “Preferred Stock”), for an aggregate purchase price of $2,400,000 (the “Preferred Purchase Price”) and on the terms and conditions set forth in this Agreement; and

WHEREAS, in consideration of the issuance of the Preferred Stock and the Aggregate Common Shares to Investor, Investor is willing to accept the Aggregate Common Shares and the Preferred Shares provided for in this Agreement and is willing to abide by the obligations imposed on Investor by this Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto do hereby agree as follows:

1. Issuance of the Shares.

(a) Upon the terms and subject to the conditions set forth in this Agreement and upon the representations made herein, Company shall issue and sell to Investor and Investor shall purchase from Company the Preferred Shares for an aggregate purchase price equal to the Preferred Purchase Price. Company has filed or shall file promptly after execution of this Agreement, a certificate of designations in substantially the form set forth on Exhibit A attached hereto (the “Certificate of Designations”), which contains the rights, powers, preferences and other terms of the Preferred Stock.

(b) Upon the terms and subject to the conditions set forth in this Agreement and upon the representations made herein, Company shall issue to Investor the Common Investment Shares for an aggregate purchase price equal to the Common Purchase Price.

(c) Upon the terms and subject to the conditions set forth in this Agreement and upon the representations made herein, Company shall issue to Investor the Commitment Shares and the Management Services Shares.

(d) The purchase and sale of the Preferred Shares and the issuance of the Aggregate Common Shares shall take place on a date promptly following the execution and delivery of this Agreement, the Purchase Agreement, the Facility Agreement and the Management Agreement, and the filing and effectiveness of the Certificate of Designations (the “Subscription Date”), expected to occur on 26 August 2005. All payments by Investor shall be by means of a wire transfer of immediately available funds to an account previously designated by Company to Investor in writing. Company shall deliver to Investor, on the Subscription Date, (x) a certificate in the name of Investor or its designee representing the Preferred Shares, (y) one or more certificates in the name of Investor or its designee representing the Aggregate Common Shares and (z) a opinion of counsel to Company in substantially the form of Exhibit B attached hereto. The certificates will bear the legends described below in Section 3 and such other legends required by the Delaware General Corporation Law (the “DGCL”) and the United States Securities Act of 1933, as amended (“Securities Act”).

2. Representations and Warranties. Each party hereto represents and warrants to the other party hereto that:

(a) Such party (i) is a corporation or private limited company, as the case may be, formed, and validly existing under the laws of jurisdiction noted in the introductory paragraph above, (ii) has the requisite corporate power and corporate authority to own its properties and carry

on its business as now being conducted and currently proposed to be conducted and to execute, deliver and perform its obligations under this Agreement, and (iii) is qualified to do business in every jurisdiction in which failure so to qualify would be reasonably likely to have a material adverse effect on the business, operations or conditions (financial or otherwise) of the party.

(b) Such party has taken all action necessary to authorize it to execute, deliver and perform under this Agreement. This Agreement constitutes a legal, valid and binding obligation of the party enforceable in accordance with its terms, subject to bankruptcy, reorganization, moratorium or other similar laws affecting the enforcement of the rights of creditors generally and subject to general principles of equity.

(c) The execution, delivery and performance by such party of this Agreement does not and will not (i) violate in any material respect any legal requirements applicable to the party, (ii) result in any material breach of the party’s constituent documents, or (iii) conflict with, violate or result in a breach of or constitute a default under any agreement or instrument to which the party or any of its properties or assets are bound or result in the imposition or creation of any lien or security interest in or with respect to any of the party’s property or assets.

(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (other than those which have been obtained) is required for the due execution, delivery and performance by such party of this Agreement.

(e) Such party is not a party to any legal, administrative, arbitration, or other proceeding, or, to the party’s knowledge, is such a proceeding threatened, which, if decided adversely to the party, would materially and adversely affect the party’s ability to perform under this Agreement.

3. Additional Investor Representations. In connection with the issuance of the Preferred Shares and the Aggregate Common Shares (collectively, the “Securities”) hereunder and under the Management Agreement and Facility Agreement, Investor represents and warrants to Company that:

(a) Investor is acquiring the Securities for its own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act.

(b) Investor is an accredited investor, as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

(c) Investor has sufficient investment knowledge and experience of Company’s business and companies similar in size and financial condition as Company to enable Investor to evaluate the risks and merits of its investment in Company, and Investor is able financially to bear the risks thereof. Investor is a sophisticated investor for purposes of applicable foreign and U.S. federal and state securities laws and regulations and is able to evaluate the risks and benefits of the investment in the Securities.

(d) Investor is able to bear the economic risk of its investment in the Securities for an indefinite period of time. Investor understands that the Securities have not been registered under the Securities Act by reason of its issuance in a transaction exempt from the

registration requirements of the Securities Act pursuant to Section 4(2) thereof or Rule 506 promulgated under the Securities Act, and that Company’s reliance on such exemption is predicated on Investor’s representations set forth herein. Investor understands that Investor may have to bear the risk of holding the Securities until such time as they are tradable under the Securities Act and the rules and regulations promulgated thereunder.

(e) Investor understands that (i) because the Securities have not been registered under the Securities Act, they cannot be sold unless subsequently registered under the Securities Act or unless an exemption from the requirement for such registration is available, (ii) the Securities will bear a legend to such effect, and (iii) Company will make a notation on its transfer books to such effect.

(f) Investor agrees not to sell, transfer, or otherwise dispose of the Securities in violation of the Securities Act.

(g) Investor has had an opportunity to ask questions and receive answers concerning the business, operations and financial condition of Company and the terms and conditions of the offering of the Securities and has had full access to such other information concerning Company as Investor has requested.

4. Additional Company Representations. In connection with the issuance of the Securities hereunder, Company represents and warrants to the Investor that:

(a) Upon issuance of the Securities in accordance with the terms of this Agreement, the Securities shall be validly issued, fully paid and nonassessable, and free from all liens, encumbrances and preemptive rights. Upon conversion of the Preferred Shares into Common Stock in accordance with the Certificate of Designations, the shares of Common Stock so issued shall be validly issued, fully paid and nonassessable, and free and clear from all liens, encumbrances and preemptive rights.

(b) Without giving effect to the share issuances contemplated by the Section 1 of this Agreement, the authorized capital stock of Company consists of 142,500,000 shares of capital stock, which consists of (i) 125,000,000 shares of Common Stock, of which 65,284,651 shares are issued and outstanding (excluding 1,520,789 shares held by the Company as treasury shares) as of August 26, 2005, (ii) 7,500,000 shares of non voting common stock, par value $0.001 per share, of which no shares are issued and outstanding as of the date hereof, and (iii) 10,000,000 shares of preferred stock, par value $0.001, of which no shares are issued and outstanding as of the date hereof, but of which 125,000 shares have been designated Series A junior participating preferred stock. All of the issued and outstanding shares of Company’s capital stock were validly issued and are fully paid and nonassessable, were issued in compliance with all applicable state and federal laws concerning the issuance of securities and are free from all taxes, liens and charges with respect to the issuance thereof. Other than options to purchase 7,444,133 shares of Common Stock outstanding as of the date hereof issued under Company’s incentive stock option and equity incentive plans, no options, warrants, subscriptions, convertible securities, phantom stock, stock appreciation rights or other rights to acquire any shares of capital stock of Company or other securities are authorized, issued or outstanding, nor is Company obligated in any other manner to issue

shares of its capital stock or other securities, except as contemplated by this Agreement, the Facility Agreement, the Management Agreement and the Sorbie Release.

(c) All reports, statements, schedules, forms and other documents required to have been filed by Company with the Securities and Exchange Commission (the “SEC”) since January 1, 2004 have been so filed (the “SEC Filings”). As of their respective dates (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such amendment or superseding filing): (i) each of the SEC Filings complied in all material respects with the applicable requirements of the Securities Act or the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”) (as the case may be); and (ii) none of the SEC Filings contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except as to information concerning or relating to (y) the proposed transaction with Claranet Group Limited which was not consummated, the (z) the proposal to approve and adopt the dissolution and plan of complete liquidation and dissolution of Company which was not approved or adopted).

(d) As of their respective dates, the financial statements of Company included in the SEC Filings complied as to form (and will comply as to form) in all material respects with GAAP and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with GAAP, consistently applied, during the periods involved (except in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements or as otherwise, in each case, may be permitted by the SEC on Form 10-Q under the Exchange Act) and fairly present in all material respects the consolidated financial position of Company as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).

(e) The board of directors of Company (the “Board”) has approved the Purchase Agreement, this Agreement, the Facility Agreement, the Management Agreement and the transactions contemplated hereby and thereby, and in connection with such approval has taken steps sufficient to render inapplicable to the transactions contemplated hereby and thereby, the restrictions contained in Section 203 of the DGCL, and the rights of holders of Common Stock to acquire Common Stock or any shares of capital stock of Company under Company’s Rights Agreement dated January 29, 2004, and no other antitakeover or similar statute or regulation of the State of Delaware or any other state or jurisdiction restricts or would give rise to any adverse consequences to Investor with respect to any such transactions.

(f) Company hereby confirms the Warranties set forth in Article 8.1 of the Purchase Agreement, subject to the qualifications set forth in Articles 8.1 and 8.2 of the Purchase Agreement.

(g) Subject to the accuracy of the representations and warranties of Investor set forth herein, the Securities will be issued in accordance with the registration or qualification provisions of the Securities Act and any relevant state securities laws, or pursuant to valid exemptions therefrom.

5. Additional Investor and Company Agreements.

(a) During the term of this Agreement, at any meeting of the stockholders of Company called to consider and vote upon the adoption or approval of the Purchase Agreement (and at any and all postponements and adjournments thereof), and in connection with any action to be taken in respect of the adoption or approval of the Purchase Agreement by written consent of the stockholders of Company, Investor will vote or cause to be voted (including by written consent, if applicable) all Securities (i) in favor of the adoption and approval of the Purchase Agreement and the transactions contemplated thereby; and (ii) against any action or agreement that would result in a breach of any representation, warranty, covenant or agreement or any other obligation of Company under the Purchase Agreement or of Investor under this Agreement. Notwithstanding the prior sentence, if the Board accepts or recommends a Competing Proposal (as defined in the Purchase Agreement) to Company’s stockholders in compliance with clauses 5.5.2 and 5.5.3 of the Purchase Agreement, the obligation of Investor to vote the Securities in the manner set forth in the prior sentence shall not apply, and instead Investor may cast in any manner determined by Investor the votes with respect to the Securities aggregating not more than one third (1/3) of the total number of votes eligible to be voted at the stockholders meeting (or counted for purposes of a written consent) and Investor shall cause all remaining Securities to be voted in a manner that is proportionate to the manner in which all holders of shares of voting securities (other than Investor) vote in respect of such matter; provided, however, that the foregoing limitation on Investor’s voting rights shall apply only if, at the time of the vote for the Competing Proposal, all amounts outstanding under the Facility Agreement and all amounts due and payable to the Purchasers in connection with the termination of the Purchase Agreement shall have been paid in full in accordance with the terms of the Purchase Agreement.

(b) During the term of this Agreement and so long as the Board has not accepted or recommended a Competing Proposal, Investor agrees that neither it nor any of its affiliates shall, directly or indirectly, without the prior written consent of Company: (i) in any manner acquire or offer to acquire or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities of Company; (ii) ”solicit,” or participate in the “solicitation” of, “proxies” (as such terms are defined or used in Rule 14a-1 under the Exchange Act, and such terms to have such meanings throughout this Agreement) in opposition to the recommendation of the Board or become a participant in an election contest with respect to the election of directors or other similar elected persons of Company, or otherwise seek to influence or affect the vote of any stockholder of Company; (iii) form, join or participate in a partnership, limited liability company, syndicate or other group or enter into any contract, arrangement, understanding or relationship or otherwise act in concert with any other person for the purpose of acquiring, holding, voting or disposing of securities of Company; (iv) seek to appoint, elect or remove any member of the Board or make any public statements proposing or suggesting any change in the Board or management of Company; or (v) disclose any intention, plan or arrangement to take any of the actions enumerated in clauses (i) through (iv) above or participate in, aid or abet or otherwise induce or attempt to induce or encourage any person to take any of the actions enumerated in clauses (i) through (iv) above.

(c) Other than the share issuances contemplated by the Section 1 of this Agreement, from the date hereof until after the record date set by the Board for the special meeting of the Company’s stockholders to be called to approve the transactions provided for in the Purchase Agreement, Company shall not issue any additional shares of Common Stock or

shares of other securities convertible into Common Stock or have voting rights on any matter submitted to a vote of holders of Common Stock other than pursuant to agreements or instruments in effect as of the date hereof; provided, however, that Company may issue up to 7,173,341 shares of Common Stock to Sorbie Europe B.V. or one of its affiliates pursuant to the Cancellation and Release Agreement by and between Company and Sorbie Europe B.V. entered into as of June 29, 2005 (the “Sorbie Release”).

6. Preemptive Rights.

(a) Investor shall have a right of first refusal to purchase its pro rata share of any Equity Securities (as defined below) that Company may, from time to time, propose to sell and issue after the date of this Agreement, other than the Equity Securities excluded by Section 6(e) hereof. Investor’s pro rata share is equal to the ratio of (a) the total number of votes attributable to all shares of Common Stock and Preferred Stock held by Investor immediately prior to the issuance of such Equity Securities to (b) the total number of votes attributable to all shares of the Common Stock, Preferred Stock and any other security of Company that votes together with the Common Stock that are outstanding immediately prior to the issuance of the Equity Securities. “Equity Securities” means all shares of Common Stock, Preferred Stock or other security of Company convertible into or exercisable or exchangeable for, any shares of Common Stock, Preferred Stock or other security of Company that votes together with the Common Stock (including any option, warrant or right to subscribe for or purchase such a security or instrument).

(b) If Company proposes to issue any Equity Securities, it shall give Investor written notice of its intention, describing the Equity Securities, the price and the terms and conditions upon which Company proposes to issue the same. Investor shall have ten (10) days from the giving of such notice to agree to purchase its pro rata share of the Equity Securities for the price and upon the terms and conditions specified in the notice by giving written notice to Company and stating therein the quantity of Equity Securities to be purchased.

(c) If Investor fails to exercise in full its rights under Section 6(a), Company shall have ninety (90) days thereafter to sell the Equity Securities in respect of which Investor’s rights were not exercised, at a price and upon general terms and conditions materially no more favorable to the purchasers thereof than specified in Company’s notice to Investor pursuant to Section 6(b) hereof. If Company has not sold such Equity Securities within ninety (90) days of the notice provided pursuant to Section 6(b), Company shall not thereafter issue or sell any Equity Securities without first offering such securities to Investor in the manner provided above.

(d) The rights of first refusal established by this Section 6 shall not apply to, and shall terminate upon Investor’s sale, disposition or other transfer of shares of Common Stock and/or Preferred Stock representing, in the aggregate (taking into account all prior sales, dispositions or other transfers), twenty-five (25%) or more of the total votes attributable to the shares of Common Stock and Preferred Stock issued to Investor on the Subscription Date.

(e) The rights of Investor established by this Section 6 shall have no application to the issuance of any of the following Equity Securities: (i) shares of Common Stock issuable pursuant to the conversion or exercise of convertible or exercisable securities that are outstanding as of the date hereof (including shares of Common Stock issuable upon conversion of the Preferred Stock); (ii) options, restricted stock or other securities issued pursuant to an employee incentive plan or similar plan primarily designed for the compensation of directors, officers, employees or consultants of Company and that is approved by the Board (and any shares of Common Stock issuable pursuant to the conversion or exercise of such options or other securities), (iii) shares of Common Stock issued other than in connection with a Competing Proposal for consideration other than cash pursuant to any merger, consolidation or similar business combination, any of which must have been approved by the Board, and (iv) shares of

Common Stock issued in connection with any stock split, stock dividend or recapitalization by Company.

7. Right to Designate an Observer.

(a) Company shall invite and shall allow one designee of Investor (the “Observer”), which Observer shall be reasonably acceptable to Company, to attend all meetings of the Board in a non-voting observer capacity. In furtherance hereof, Company shall give the Observer copies of all notices, minutes, consents and other materials that it provides to all of the members of the Board.

(b) Investor agrees, and Investor will cause the Observer to agree, to hold in confidence with respect to all information so provided and not use or disclose any confidential information provided to or learned by it in connection with its rights under this Section 6 other than for purposes reasonably related to the Investor’s interests as a stockholder of Company and as a party to the Transaction Documents. Upon the reasonable request of Company, Investor agrees that it will cause its Observer to enter into a confidentiality agreement with Company on reasonable and customary terms. The provisions thereof will survive any termination of this Agreement.

8. No Third Party Rights. Nothing in this Agreement, express or implied is intended to confer upon any person, other than Company and Investor or their successors, any rights or remedies under or by reason of this Agreement.

9. Entire Agreement; Amendment; Termination. This Agreement, together with the Purchase Agreement, the Facility Agreement and the Management Agreement, sets forth the entire agreement of the parties with respect to the transactions contemplated hereby and thereby. This Agreement may be amended only by a written instrument signed by each of the parties hereto. This Agreement will terminate on the earliest to occur of (a) the Closing (as defined in the Purchase Agreement), (b) the date the Purchase Agreement is terminated in accordance with its terms or (c) the date on which Investor ceases to hold any Securities; provided that the representations and warranties in the parties set forth in Sections 2, 3 and 4 shall survive the termination hereof. No such termination shall affect the rights of Investor under the Certificate of Designation. This Agreement may be earlier terminated by the mutual written consent of Company and Investor. Except as set forth herein, in the event of termination of this Agreement pursuant to this Section 9, this Agreement will become null and void and of no effect with no liability on the part of any party hereto; provided, however, that no such termination will relieve any party hereto from any liability for any breach of this Agreement occurring prior to such termination.

10. Assignment. Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Investor may assign this Agreement or assign or delegate its rights and obligations under this Agreement to (a) a successor to all or substantially all of its business or assets relating to this Agreement whether by sale, merger, operation of law or otherwise, or (b) a wholly owned subsidiary.

11. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.

12. Enforcement. Irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the parties will be entitled to an injunction or injunctions (without the necessity of a bond or other security) to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which they are entitled at law or in equity.

13. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability or the other provisions of this Agreement. If any provision of this Agreement, or the application of that provision to any person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted for that provision in order to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and (b) the remainder of this Agreement and the application of the provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of the provision, or the application of that provision, in any other jurisdiction.

14. Headings. The descriptive headings contained herein are for convenience and reference only and will not affect in any way the meaning or interpretation of this Agreement.

15. Remedies Not Exclusive. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity will be cumulative and not alternative, and the exercise of any thereof by either party will not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.

16. Jurisdiction; Consent to Service of Process.

(a) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of the Chancery or other courts of the State of Delaware (a “Delaware Court”), and any appellate court from any such court, in any suit, action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment resulting from any suit, action or proceeding, and each party hereby irrevocably and unconditionally agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in a Delaware Court.

(b) Each party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, (i) any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in a Delaware Court, (ii) the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court, and (iii) the right to object, with respect to such suit, action or proceeding, that such court does not have jurisdiction over such party. Each party irrevocably consents to service of process in any manner permitted by law.

17. Beneficial Ownership. For purposes of this Agreement, the term “beneficial owner” shall have the meaning ascribed to such term under Rule 13d-3 under the Exchange Act and the terms “beneficially own” and “beneficial ownership” shall have correlative meanings therewith.

18. Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

				VIA NET.WORKS, INC.


				By:	/s/
				Name:
				Title:


				MAWLAW 660 LIMITED


				By:	/s/
				Name:
				Title:

Exhibit A

Form of Certificate of Designations

CERTIFICATE OF DESIGNATIONS, PREFERENCES, AND

RIGHTS OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
VIA NET.WORKS, INC.

Pursuant to Section 151 of the
General Corporation Law of the State of Delaware

I, Matt S. Nydell, Senior Vice President, General Counsel and Secretary of VIA NET.WORKS, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY:

That pursuant to the authority conferred upon the Board of Directors by the Amended and Restated Certificate of Incorporation of the said Corporation, the said Board of Directors on August 23, 2005 adopted the following resolution creating a series of Preferred Stock designated as Series A Convertible Preferred Stock:

RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of this Corporation (the “Board”) in accordance with the provisions of its Amended and Restated Certificate of Incorporation, a series of Preferred Stock of the Corporation be and it hereby is created, and that the designation and amount thereof and the voting rights or powers, preferences and relative, participating, optional and other special rights of the shares of such series, and the qualifications, limitations or restrictions thereof are as follows:

Section 1. Designation and Amount. The shares of such series, par value $0.001 per share, shall be designated as “Series A Convertible Preferred Stock” and the number of shares constituting such series shall be 5,454,545. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Convertible Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Convertible Preferred Stock.

A-1

Section 2. Dividends and Distributions.

(A) The holders of shares of Series A Convertible Preferred Stock shall be entitled to receive with respect to each share of Series A Convertible Preferred Stock, when, as and if declared by the Board of Directors, out of funds legally available for the payment of dividends, dividends at the rate of 12% per annum of the Original Purchase Price thereof (the “Preferred Dividend”). Preferred Dividends on a share of Series A Convertible Preferred Stock shall accrue and shall be cumulative whether or not declared from the date of issue of such share of Series A Convertible Preferred Stock.

(B) The amount of Preferred Dividends payable on the Series A Convertible Preferred Stock shall be computed on the basis of a 365-day year. No interest, or sum or money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series A Convertible Preferred Stock that may be in arrears.

(C) No dividends on the Series A Convertible Preferred Stock shall be declared by the Board of Directors or paid or set apart for payment by the Corporation if at such time the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law.

(D) Notwithstanding anything contained herein to the contrary, dividends on the Series A Convertible Preferred Stock shall accrue whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends, and whether or not such dividends are declared.

(E) So long as any Series A Preferred Stock remains outstanding, the Corporation shall not pay any dividend (cash or otherwise) on any other class of equity security without the consent of at least a majority of the holders of the outstanding shares of Series A Preferred Stock.

Section 3. Voting Rights. The holders of shares of Series A Convertible Preferred Stock shall have the following voting rights:

(A) Except as otherwise expressly required by law, and as long as the Sale and Purchase Agreement, dated 26 August 2005 among Mawlaw 653 Limited (“Mawlaw”), Interoute Communications Holdings SA “Interoute” and together with Mawlaw, the “Purchasers”) and the Corporation (the “Purchase Agreement”) has not been terminated pursuant to Section 5.4.3 of the Purchase Agreement or, if the Corporation has purported to terminate the same, legal proceedings have not been initiated by the Purchasers (or any one of them) challenging such termination, each holder of Series A Convertible Preferred Stock shall be entitled to vote on all matters submitted to a vote of the holders of shares of Common Stock and shall be entitled to that number of votes equal to the number of whole shares of Common Stock into which such holder’s Series A Convertible Preferred Stock is convertible (whether or not shares of unissued common stock are available for such conversion) pursuant to the provisions of Section 5 on the

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record date for the determination of stockholders entitled to vote on such matter or, if no record date is established, on the date such vote is taken or any written consent of stockholders is first executed. Except as otherwise expressly provided below in this Section 3 or as required by law, the holders of Series A Convertible Preferred Stock and Common Stock shall vote together as a single class on all matters, and neither the Common Stock nor the Series A Convertible Preferred Stock shall be entitled to vote as a separate class on any matter to be voted on by stockholders of the Corporation.

(B) So long as the Series A Convertible Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote of the holders of at least a majority of the outstanding Series A Convertible Preferred Stock, authorize or designate, whether by reclassification or otherwise, any new class or series of shares or any other securities convertible into equity securities of the Corporation that has rights, preferences, or privileges senior to or pari passu with the Series A Convertible Preferred Stock.

(C) Except as set forth herein or as required by law, holders of Series A Convertible Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.

Section 4. Reacquired Shares. Any shares of Series A Convertible Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein.

Section 5. Conversion.

(A) Each holder of the Series A Convertible Preferred Stock may at any time, subject to the provisions of paragraphs (B) and (C) below, upon surrender of the certificates therefor, convert all or any portion of his or its Series A Convertible Preferred Stock into fully paid and nonassessable Common Stock of the Corporation at the Conversion Ratio set forth below, plus declared and unpaid dividends thereon.

(B) The holders acknowledge that at the time of issuance of the Series A Convertible Preferred Stock the Corporation does not have a sufficient number of shares of Common Stock authorized and available for issuance to effect the conversion of the shares of the Series A Convertible Preferred Stock. If, at the time any holder of Series A Convertible Preferred Stock requests a conversion of any shares of Series A Convertible Preferred Stock in compliance with this Section 5 and the Corporation does not have available a sufficient number of authorized but unissued shares of Common Stock to effect such conversion, as soon as practicable thereafter, the Corporation will issue such number of shares of Common Stock as are available for issuance, and take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite

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stockholder approval of any necessary amendment to the Corporation’s Amended and Restated Certificate of Incorporation.

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(C) Before any holder of Convertible Preferred Stock shall be entitled to convert the same into full shares of Common Stock, such holder shall surrender the certificate or certificates therefor, endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing, at the office of the Corporation or of any transfer agent for the Series A Convertible Preferred Stock, and shall give written notice to the Corporation at its office that the holder elects to convert the same and shall state therein the holder’s name or the names of the nominees in which the holder wishes the certificate or certificates for shares of Common Stock to be issued. As soon as practicable thereafter, the Corporation shall issue and deliver at its office to the holder of the Series A Convertible Preferred Stock, or to the holders nominee or nominees, a certificate or certificates for the number of shares of Common Stock to which the holder shall be entitled as aforesaid, together with cash in lieu of any fraction of a share. A conversion shall be deemed to have been made immediately prior to the close of business on the date of the surrender of the shares of Series A Convertible Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of the shares of Common Stock at the close of business on that date. From and after that date, all rights of the holder with respect to the Series A Convertible Preferred Stock so converted shall terminate, except only the right of the holder to receive certificates for the number of shares of Common Stock issuable-upon conversion thereof and cash for fractional shares.

(D) Conversion Ratio. Subject to adjustment as provided in paragraph (E) below, each share of the Series A Convertible Preferred Stock may be converted into five shares of Common Stock or, in case any adjustment of such conversion ratio has taken place pursuant to the provisions of this Section 5, by the conversion ratio as last adjusted and in effect on the date any shares of Series A Convertible Preferred Stock are surrendered for conversion (such conversion ratio, or such conversion ratio as last adjusted, being referred to herein as the “Conversion Ratio”).

(E) Adjustments. The Conversion Ratio at which the Series A Convertible Preferred Stock may or shall be converted into Common Stock shall be subject to adjustment from time to time in certain cases as follows:

(i) In case the Corporation shall (a) pay a dividend on its Common Stock in shares of its capital stock, (b) subdivide its outstanding Common Stock, (c) combine its outstanding Common Stock into a smaller number of shares, or (d) issue in any recapitalization, reorganization or reclassification of its Common Stock (including any such reclassification in connection with a consolidation or merger in which the Corporation is the continuing corporation) any shares of its capital stock, the Conversion Ratio in effect immediately prior thereto shall be adjusted proportionately so that the holder of any Series A Convertible Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number and kind of shares of capital stock of the Corporation which such holder would have owed or have been entitled to receive after the occurrence of such event, had such Series A Convertible Preferred Stock been converted immediately prior to the occurrence of such event. Such adjustment shall be made whenever any of such events shall occur. An adjustment made pursuant to this paragraph (i) shall become effective, retroactively to the record date, immediately after the payment date in the case of a stock dividend and shall become effective immediately after the

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effective date in the case of a subdivision, combination, recapitalization, reorganization, or reclassification.

(ii) In the event that, at any time, as a result of an adjustment made pursuant to paragraph (i) above, the holder of any Series A Convertible Preferred Stock thereafter surrendered for conversion shall become entitled to receive any shares of capital stock of the Corporation other than its Common Stock, thereafter the number of such other shares so receivable upon conversion shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in paragraph (i) above.

(iii) Whenever the amount of Common Stock or other securities deliverable upon the conversion of the Series A Convertible Preferred Stock shall be adjusted pursuant to the provisions hereof, the Corporation shall forthwith file, at its principal office and with any transfer agent or agents for the Series A Convertible Preferred Stock and for Common Stock, and with any stock exchange on which such Series A Convertible Preferred Stock or Common Stock are listed, a statement, signed by its President or one of its Vice Presidents or its Secretary or Treasurer, stating the adjusted number of its Common Stock or other securities deliverable per share of Series A Convertible Preferred Stock upon conversion thereof calculated to the nearest share and setting forth in reasonable detail the method of calculation and the facts requiring such adjustment and upon which such calculation is based, and shall give notice thereof by mail, postage prepaid, to the holders of record of the Series A Convertible Preferred Stock. Each adjustment shall remain in effect until a subsequent adjustment hereunder is required.

(F) No fractional Common Stock shall be issued upon a conversion of the Series A Convertible Preferred Stock. If any fractional interest in a Common Stock share would be deliverable upon the conversion of any Series A Convertible Preferred Stock, the Corporation shall round such fractional interest to the nearest whole share, in lieu of delivering the fractional share therefor.

Section 6. Liquidation, Dissolution or Winding Up.

(A) In the event of any liquidation (voluntary or otherwise), dissolution, or winding up of the Corporation or any Sale Event (each a “Liquidation Event”), each holder of Series A Convertible Preferred Stock shall be entitled to be paid out of the assets of the Corporation available for distribution to holders of the Corporation’s capital stock, before any payment or declaration and setting apart for payment of any amount shall be made in respect of any of the Corporation’s shares of capital stock (other than the Series A Convertible Preferred Stock), a per share amount equal to the Original Purchase Price (as adjusted to reflect any share split, combination, reclassification, or similar event involving the Series A Convertible Preferred Stock), plus all accrued but unpaid dividends thereon (whether or not declared), to and including the date full payment shall be tendered to the holders of the Series A Convertible Preferred Stock with respect to such Liquidation Event (the “Liquidation Preference”).

(B) If the assets of the Corporation shall be insufficient to permit the payment in full to the holders of the Series A Convertible Preferred Stock of the amounts thus distributable, then the entire assets of the Corporation available for such distribution shall

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be distributed ratably among the holders of the Series A Convertible Preferred Stock in proportion to the preferential amount that each such holder is otherwise entitled to receive based upon the aggregate Liquidation Preference of the Series A Convertible Preferred Stock held by each such holder and the aggregate Liquidation Preference of all Series A Convertible Preferred Stock. After such payment shall have been made in full to the holders of the Series A Convertible Preferred Stock or funds necessary for such payment shall have been set aside by the Corporation in trust for the account of holders of the Series A Convertible Preferred Stock so as to be available for such payment, the holders of Series A Convertible Preferred Stock shall not have any right to participate in the remaining distributions on the Corporation’s capital stock.

(C) For purposes of this Section 6, a Liquidation Event of this Corporation shall be deemed to be occasioned by, or to include, by means of any transaction or series of related transactions (each a “Sale Event”): (i) the acquisition of the Corporation by another entity (including, without limitation, any reorganization, merger, or consolidation but, excluding any merger effected exclusively for the purpose of changing the domicile of the Corporation); or (ii) the sale of all or substantially all of the capital stock or assets of the Corporation, unless the Corporation’s stockholders of record, as constituted immediately prior to such acquisition or sale will, immediately after such acquisition or sale (by virtue of securities issued as consideration for the Corporation’s acquisition or sale or otherwise), hold at least 50% of the voting power of the surviving or acquiring entity.

Section 7. Optional Redemption.

(A) The Series A Convertible Preferred Stock may be redeemed for cash, in whole or in part, at the option of the Corporation, at any time after the Purchase Agreement has been terminated pursuant to Section 5.4.3 thereof so long as at the time that the redemption thereof is scheduled to occur in accordance with this Section 7, no legal proceedings shall be pending pursuant to which the Purchasers (or any one of them) has challenged such termination, at a redemption price equal to the Original Purchase Price per share, plus any dividends accrued but unpaid thereon (whether or not declared) (the “Redemption Price”).

(B) Not less than ten (10) days nor more than thirty (30) days prior to the date on which the Series A Convertible Preferred Stock is to be redeemed (the “Redemption Date”), the Corporation shall mail written notice (a “Redemption Notice”), postage prepaid, to each holder of record of Series A Convertible Preferred Stock at the holder’s post office address last shown on the records of the Corporation. Each Redemption Notice shall state:

(i) the number of outstanding shares of Series Convertible A Preferred Stock to be redeemed on such Redemption Date;

(ii) the number of shares of the Series A Convertible Preferred Stock held by the holder which the Corporation shall redeem on such Redemption Date in accordance with the provisions hereof;

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(iii) that the shares of Series A Convertible Preferred Stock, as applicable, to be redeemed by the Corporation shall be redeemed on such Redemption Date, which shall be specified as a calendar date and shall be a business day; and

(iv) the time and manner in, and place at, which the holder is to surrender to the Corporation the certificate or certificates representing the shares of Series A Convertible Preferred Stock to be redeemed on the Redemption Date.

(C) On or before each Redemption Date, each holder of Series A Convertible Preferred Stock to be redeemed pursuant to this Section 7 shall surrender to the Corporation the certificate or certificates representing the shares to be redeemed on such Redemption Date, in the manner and at the place designated in the Redemption Notice, and upon each such Redemption Date the Redemption Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof, or to such payee as such owner may designate in writing to the Corporation prior to each such Redemption Date, and each surrendered certificate shall be canceled and retired. If the applicable redemption is for less than all of the shares of Series A Preferred Stock represented by the certificate or certificates, the Corporation shall issue and deliver to the holder a new certificate representing the balance of the shares of Series A Preferred Stock not subject to redemption.

Section 8. Mandatory Redemption.

(A) The Corporation will, at the option of the holders of the Series A Preferred Stock, redeem for cash any or all of the Series A Preferred Stock held by such holder at the Redemption Price upon termination of the Purchase Agreement in accordance with the terms thereof, other than as a result of the termination thereof by the Corporation resulting from Purchasers’ (as defined in the Purchase Agreement) material breach of its obligations thereunder or under the other Transaction Documents. Notice of mandatory redemption (the “Mandatory Redemption Notice”) under this Section 8 shall be given to the Corporation not less than ten (10) days prior to the date designated by a holder of Series A Preferred Stock for redemption (the “Mandatory Redemption Date”). Any such notice of redemption shall specify the number of shares of Series A Preferred Stock to be redeemed.

(B) On or before the Mandatory Redemption Date, each holder of Series A Preferred Stock who has elected to have shares redeemed under this Section 8 shall surrender to the Corporation the certificate or certificates representing the shares to be redeemed on the Mandatory Redemption Date in the manner and place designated in the Mandatory Redemption Notice, and upon such Mandatory Redemption Date the Redemption Price for such shares shall be payable to the order of the person whose name appears on the certificate as the owner thereof, or to such payee as such owner may designate in writing to the Corporation prior to the Mandatory Redemption Date, and each surrendered certificate shall be canceled and retired. If the applicable redemption is for less than all of the shares of Series A Preferred Stock represented by the certificate or certificates, the Corporation shall issue and deliver a new certificate representing the balance of the shares of Series A Preferred Stock not subject to redemption.

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Section 9. Amendment. The Amended and Restated Certificate of Incorporation of the Corporation shall not be further amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Convertible Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least a majority of the outstanding shares of Series A Convertible Preferred Stock, voting separately as a class.

Section 10. Fractional Shares. Series A Convertible Preferred Stock may be issued in fractions of a share which shall entitle the holders, in proportion to such holders fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series A Convertible Preferred Stock.

Section 11. Definitions. Unless the context otherwise requires, when used herein the following terms shall have the meaning indicated.

“Common Stock” means any shares of the common stock, par value $.001 per share, of the Corporation now or hereafter authorized to be issued, and any and all securities of any kind whatsoever of the Corporation which may be exchanged for or converted into Common Stock, any and all securities of any kind whatsoever of the Corporation which may be issued on or after the date hereof in respect of, in exchange for, or upon conversion of shares of Common Stock pursuant to a merger, consolidation, stock split, stock dividend, recapitalization of the Corporation or otherwise.

“Original Purchase Price” means, with respect to a share of Series A Convertible Preferred Stock, U.S. $0.44.

“Transaction Documents” means (i) the Purchase Agreement, (ii) the Facility Agreement, dated as of August 26, 2005, between the Corporation and Mawlaw 653 Limited, (iii) the Management Agreement, dated as of August 26, 2005, between the Corporation and Mawlaw 653 Limited, and (iv) the Subscription Agreement, dated as of August 26, 2005, between the Corporation and Mawlaw 660 Limited.

IN WITNESS WHEREOF, I have executed and subscribed this Certificate and do affirm the foregoing as true under the penalties of perjury this day of August 2005.

		VIA NET.WORKS, INC.

		By:
			Matt S. Nydell
			Senior Vice President, General
			Counsel and Secretary

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Exhibit B

Opinion of Counsel

See Attached.

B-1

EX-3 4 a05-15832_1ex3.htm EX-3

Exhibit 3

EXECUTION COPY

MANAGEMENT CONSULTANCY SERVICES AGREEMENT

This MANAGEMENT CONSULTANCY SERVICES AGREEMENT (“Agreement”), dated August 26, 2005 (the “Effective Date”), is made by and between Mawlaw 653 Limited, a company organised under the laws of England & Wales (registered number 05391411) whose registered office is at Walbrook Building, 195 Marsh Wall, London E14 9SG, United Kingdom (“Provider”), and VIA NET.WORKS, Inc., a company incorporated in Delaware, the United States whose registered office is at 1013 Centre Road, Wilmington, Delaware 19805, United States (“Recipient”).

W I T N E S S E T H

WHEREAS, Provider and Recipient, along with certain subsidiaries of Recipient, have entered into an Sale and Purchase Agreement, dated as of the date hereof (the “Purchase Agreement”), pursuant to which Provider will purchase substantially all the assets of Recipient on the terms and subject to the conditions set forth in the Purchase Agreement. Capitalized terms and expression used in this Agreement shall, unless expressly stated otherwise, have the meanings set out in the Purchase Agreement.

WHEREAS, Provider and Recipient, along with certain subsidiaries of Recipient have entered into a Facility Agreement, dated as of the date hereof (the “Facility Agreement”), pursuant to which Provider has agreed to provide two facilities, Facility A and Facility B (as defined in the Facility Agreement), on the terms and subject to the conditions set forth in the Facility Agreement.

WHEREAS, Provider desires to begin integration of Recipient’s business into Provider’s business and to provide advice and assistance in relation to the day to day operational activities of Recipient’s operating subsidiaries (the “Subs” and, individually, each a “Sub”) on the terms and conditions contained herein;

WHEREAS, in connection therewith, Recipient desires that Provider provide, and Provider is willing to provide to Recipient, certain services during the term of this Agreement as provided herein; and

NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants of the parties hereinafter set forth, Recipient and Provider hereby agree as follows:

1. Services to be Rendered. From and after the date hereof until this Agreement expires or terminates in accordance with Section 8 hereof, Provider shall provide management consultancy services to Recipient and the Subs. Such management consultancy services, including the integration activities described in Section 1(b) below (the “Integration Services”), are referred to herein as the “Management Consultancy Services” and shall be as more fully set out in Sections 1(a) and 1(b).

(a) Provider shall provide the services set out in Schedule 1 hereto to Recipient and Subs. It shall also provide advice, support and assistance to the boards of directors (which term, for the purposes of this Agreement, in relation to entities which are not English companies, shall be deemed to include all bodies and boards constituted in relation to those entities with

analogous or similar rights and duties) of Recipient and the Subs in relation to (i) the management of the business and business relationships of the Subs, including maintaining relationships with, providing services to or receiving services from and making payments to and receiving payments from customers, vendors, suppliers and other persons with whom the Subs do business, (ii) continuing the operations of Recipient’s and the Subs’ network, facilities, “back office” operations and technical personnel, (iii) overseeing the Subs’ sales force, distributors, marketing and similar matters, and (iv) continuing the other aspects of the Subs’ business and operations. Provider shall provide such personnel as are necessary in order to properly conduct and provide the Management Consultancy Services. In performing the Management Consultancy Services, Provider shall give consideration as to whether it would be appropriate for the Subs or any of them to enter into new or amended business arrangements with customers, vendors, suppliers and other persons with whom such entity does business (always having regard to the importance of maintaining the Subs’ business and relationships in good and proper standing in the ordinary course). Provider shall also give consideration as to whether it would be appropriate for the Subs or any of them to outsource any part of Recipient’s or the Subs’ business operations to Provider or another third party provider pursuant to a written contract on commercially reasonable terms and conditions.

(b) Provider shall provide advice, support and assistance in relation to the actions required to reconfigure circuits and other network components; restructure “back office” operations; hire, reassign, or terminate employees and contractors; amend or otherwise alter customer agreements on behalf of a Sub as it considers reasonably necessary or desirable to reduce operating costs of Recipient or the Subs. In anticipation of the completion of the Purchase Agreement, Provider shall provide advice, support and assistance in relation to the actions required to make Recipient’s operations function more efficiently in conjunction with those of Provider whilst maintaining all existing critical or significant functions and the level of Recipient’s business and its customer relationships in good and proper standing in the ordinary course.

(c) For the avoidance of doubt, in performing Management Consultancy Services hereunder, Provider shall have no authority to make any decisions or take any action for and on behalf of Recipient or any Sub or to otherwise bind or commit Recipient or any Sub.

2. Standards. Provider shall provide the Management Consultancy Services in accordance with standards, practices, methods and procedures conforming with (a) all applicable laws and regulations, (b) the degree of care, skill, diligence, prudence and foresight which Provider employs in managing its own business (which shall not be less than reasonable care). In providing the Management Consultancy Services, Provider shall at all times act in good faith and shall have regard to Recipient’s overriding objectives to (i) preserve the goodwill, customers and business relationships of the Subs, and (ii) prevent any creditor of a Sub from filing an involuntary petition in bankruptcy or a petition seeking reorganization, composition, arrangement with creditors, liquidation or similar relief under any federal or state law or regulation with respect to a Sub, or appointing a receiver, trustee or liquidator for all or a substantial part of the assets of any Sub.

3. Payment for Management Consultancy Services.

(a) In consideration for the Management Consultancy Services to be provided by Provider and for all out of pocket expenses incurred by Provider in connection with providing such services Recipient shall pay $400,000, payable by the issue within seven (7) days of the Effective Date, of 10,810,811 shares of VIA.NETWORKS, Inc. common stock, par value $0.001 (“Stock”) of

Recipient to Provider (or to Mawlaw 660 Limited (registered number 5396159) at the discretion of Provider) (the “Management Fee”).

4. Management Consultancy Services Obligations. Nothing herein shall in any way preclude Provider or its officers, employees, agents, representatives, members or affiliates from engaging in any business activities or from performing services for its or their own account or for the account of others, including for companies that may be in competition with the business conducted by the Company; provided that the foregoing sentence shall in no way limit the obligations of Provider hereunder.

5. Access. To the extent reasonably necessary in order to provide the Management Consultancy Services, Recipient shall provide Provider and its representatives with reasonable access to Recipient, its properties and facilities (including, without limitation, access to the information technology systems and programmes). Recipient shall also provide Provider and its representatives with reasonable access to its books, records, information technology systems and programmes, and shall cooperate with Provider to provide any and all documents and take such actions reasonably requested by Provider to enable it to provide the Management Consultancy Services. All information of Recipient provided to or obtained by Provider pursuant to this Section 5 or otherwise in connection with the performance of the Management Consultancy Services shall be treated in accordance with the terms of confidentiality set forth in Section 12.

6. Representations and Warranties. Each party hereto represents and warrants to the other party hereto that:

(a) Due Formation. Such party (i) is a corporation formed, and validly existing under the laws of the jurisdiction noted in the introductory paragraph above, (ii) has the requisite corporate power and corporate authority to own its properties and carry on its business as now being conducted and currently proposed to be conducted and to execute, deliver and perform its obligations under this Agreement, and (iii) is qualified to do business in every jurisdiction in which failure so to qualify would be reasonably likely to have a material adverse effect on the business, operations or conditions (financial or otherwise) of the party.

(b) Authorization; Enforceability. Such party has taken all action necessary to authorize it to execute, deliver and perform under this Agreement. This Agreement constitutes a legal, valid and binding obligation of the party enforceable in accordance with its terms, subject to bankruptcy, reorganization, moratorium or other similar laws affecting the enforcement of the rights of creditors generally and subject to general principles of equity.

(c) No Conflict. The execution, delivery and performance by such party of this Agreement does not and will not (i) violate in any material respect any legal requirements applicable to the party, (ii) result in any material breach of the party’s constituent documents or (iii) conflict with, violate or result in a breach of or constitute a default under any agreement or instrument to which the party or any of its properties or assets are bound or result in the imposition or creation of any lien or security interest in or with respect to any of the party’s property or assets.

(d) No Authorization. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (other than those which have been obtained) is required for the due execution, delivery and performance by such party of this Agreement.

(e) Litigation. Such party is not a party to any legal, administrative, arbitration, or other proceeding, or, to the party’s knowledge, is such a proceeding threatened, which, if decided adversely to the party, would materially and adversely affect the party’s ability to perform under this Agreement.

7. Term and Termination.

(a) This Agreement shall commence on the date hereof and shall continue in full force and effect until the earliest to occur of any of the following events:

(i) the termination of the Purchase Agreement;

(ii) mutual written agreement duly authorized by the boards of directors of each of Provider and Recipient to terminate this Agreement; and

(iii) by Recipient, if Provider has breached any its covenants or agreements set forth in this Agreement, the Purchase Agreement, the Facility Agreement or any other related transaction documents, and such breach is not (where capable of cure) cured within 5 business days after written notice thereof.

(b) If this Agreement is terminated prior to Closing, then without prejudice to any other rights available to either party, Recipient shall be entitled to demand (and Provider shall promptly provide (or procure that Mawlaw 660 Limited shall promptly provide) a return of the portion of the Management Fee as follows:

Percentage of Management Fee (%)		Day (all dates inclusive)

100		Day of issue (“n”) to (n+30)

66.66		(n+31) to (n+60)

33.33		(n+61) to (n+90)

0		From (n+91)

(c) In the case that Provider (or Mawlaw 660 Limited) is obliged to return a portion of the Management Fee, Provider may fulfil such obligations either by delivering (or procuring that Mawlaw 660 Limited delivers) an equivalent portion of the Stock received or by Provider paying cash.

8. No Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of, or enjoy any benefit under, this Agreement. Mawlaw 660 Limited shall have no rights under this Agreement and in particular shall not have any rights of consultation or approval if the parties hereto agree to amend or waive any provision of this Agreement.

9. Amendment. This Agreement may be amended only by a written instrument signed by each of the parties hereto.

10. Assignment. Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Provider may assign this Agreement or

assign or delegate its rights and obligations under this Agreement to (i) a successor to all or substantially all of its business or assets relating to this Agreement whether by sale, merger, operation of law or otherwise, or (ii) a wholly owned subsidiary.

11. Independent Contractor. Nothing contained herein shall be construed or deemed to create a joint venture, contract of employment or partnership of any kind between the parties hereto. All debts and liabilities to and contracts or agreements incurred or entered into by Provider on behalf of Recipient consistent with the terms of this Agreement shall be the sole debt and liability of, and shall be binding upon Recipient. PROVIDER SHALL NOT BE LIABLE TO ANY PERSON FOR ANY DEBT, LIABILITY OR OBLIGATION OF RECIPIENT INCURRED OR CREATED PURSUANT TO AND IN ACCORDANCE WITH THE AUTHORITY GRANTED TO PROVIDER OR SOLELY BY REASON OF ITS PROVISION OF SERVICES HEREUNDER IN ACCORDANCE WITH THE TERMS HEREOF UNLESS PROVIDER, BY WRITTEN AGREEMENT, EXPRESSLY ASSUMES OR GUARANTEES ANY SUCH LIABILITY. PROVIDER SHALL NOT BE REQUIRED, UNDER ANY CIRCUMSTANCES, TO GUARANTEE OR ASSUME ANY OBLIGATION OR LIABILITY OF RECIPIENT.

12. Confidentiality. The terms of the Confidentiality Agreement shall be deemed, amended as appropriate, to apply to this Agreement as if set out in full herein.

13. Whole Agreement. This Agreement contains the whole agreement between the parties relating to the subject matter of this Agreement at the date hereof to the exclusion of any terms implied by law which may be excluded by contract and supersedes any previous written or oral agreement between the parties in relation to the matters dealt with in this Agreement. For the purposes of this Section 14, “this Agreement” shall be deemed to include the Purchase Agreement, the Facility Agreement and any agreements entered into pursuant to this Agreement.

14. Limitation of Liability. The maximum aggregate liability of Recipient for any breach of this Agreement and all or any of the Transaction Documents shall be the Aggregate Purchaser Liability.

15. Notices.

(a) Any notice or other communication in connection with this Agreement (each, a “Notice”) shall be:

(i) in writing in English;

(ii) delivered by hand, fax, registered post or by courier using an internationally recognised courier company.

(b) A Notice to the Sellers or to either of them shall be sent to the following address, or such other person or address as the Sellers or VIA Inc. may notify to the Relevant Purchasers from time to time:

VIA NET.WORKS Inc

H. Walaardt Sacrestraat 401-403

1117 BM Schiphol

The Netherlands

Fax: +31 205 020 0001

Attention: Matt Stuart Nydell (Senior Vice President and General Counsel and Secretary)

with a copy to:

Hogan & Hartson

One Angel Court

London EC2R 7HJ

United Kingdom

Fax: +44 20 7367 0220

Attention: John M. Basnage

(c) A Notice to the Relevant Purchasers shall be sent to the following address, or such other person or address as the Relevant Purchasers may notify to the Sellers from time to time:

Interoute Communications Holdings S.A.

Walbrook Building,

195 Marsh Wall,

London E14 9SG

United Kingdom

Fax: +44 20 7025 9855

Attention: General Counsel

(d) A Notice shall be effective upon receipt and shall be deemed to have been received:

(i) at the time of delivery, if delivered by hand, registered post or courier;

(ii) at the time of transmission in legible form, if delivered by fax.

16. Invalidity. If any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the parties. To the extent it is not possible to delete or modify the provision, in whole or in part, under the first part of this Section 16, then such provision or part of it shall, to the extent that it is illegal, invalid or unenforceable, be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall, subject to any deletion or modification made under this Section 16, not be affected.

17. Counterparts. This Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart.

18. Governing Law and Submission to Jurisdiction. This Agreement shall be governed by the laws of England and Wales.

Each of the parties irrevocably agrees that the courts of England are to have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this

Agreement and the documents to be entered into pursuant to it and that accordingly any proceedings arising out of or in connection with this Agreement and the documents to be entered into pursuant to it shall be brought in such courts. Each of the parties irrevocably submits to the jurisdiction of such courts and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum.

SCHEDULE 1

SERVICES

Service Title		Service Description

1. Resource Optimisation		Review Recipient’s business operational model, high level processes, day to day operations and associated organisational structure, headcount and resource skills. Provide Recipient with recommendations for operational and management structure restructuring, organisational restructuring and staff reallocation and termination to reduce operating cost while maintaining service quality. Provide advice on technical operational issues.

2. Services Optimisation		Review all major external service contracts including those for the provision of bandwidth services, IP transit, technical and office space lease and equipment maintenance. Utilise sector and industry knowledge and seek to leverage Interoute supplier relations in order to recommend changes to service providers and/or contract terms to minimise network and operating expenditure and provide advice in relation to service stabilisation with existing customers and suppliers. Provide Interoute upstream or other connectivity for no charge during the term of the Agreement where VIA or PSINet Europe can terminate existing relationships for no charge or penalty.

3. Market Expansion		Utilise Interoute customer relations and market knowledge to provide contact lists for Recipient’s sales organisation to assist with pipeline and revenue growth.

4. Accounts Payable Outsource		In light of Recipient’s plan to terminate its outsource contract for transaction processing of its Accounts Payable function and other basic General Ledger accounting for VIA Spain, VIA Germany, VIA France and VIA Inc. Advise Recipient concerning an alternative outsource service to manage such functions. Where available and as needed, support Recipient and the VIA companies with Provider personnel for no additional charge during the term of the Agreement.

5. Consolidated Reporting		In light of Recipient’s plan to close down its Netherlands corporate entity and terminate associated staff responsible for consolidated financial reporting at the group level, liaise with Recipient concerning capability to consolidate subsidiary financials necessary for statutory reporting requirements.

6. Billing Operations Support		Given the dependence of Recipient on a small number of staff and contractors in Warrington, UK (a country where Recipient has no other business) to execute billing for the group, there is a need to de-risk the billing process. Provider to review the billing process and systems and provide suggestions to support billing execution until established in Recipient’s Geneva office.

7. Business Systems Support		In conjunction with 6 above, and Recipient’s short term plan to migrate its system functions from its Warrington, UK site and its corporate Netherlands office to Geneva, provide migration advice and support in relation to this proposal.

8. Product Standardisation Program

In order to minimise operational resource and maximise potential business value in the international market, Recipient will benefit from an increased level of standardisation of it products and associated systems across Data Centres (DCs). Provider to review services being delivered from each of Recipient’s DCs and recommend a common DC product set and migration path.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

	Provider
	Mawlaw 653 Limited


	By:	/s/
		Name:
		Title:


	Recipient
	VIA NET.WORKS, Inc.


	By:	/s/
		Name:
		Title:

EX-4 5 a05-15832_1ex4.htm EX-4

Exhibit 4

Execution Copy

DATED 26 August 2005

VIA NET.WORKS, INC.

and

VIA NET.WORKS HOLDCO INC.

as Borrowers

with

MAWLAW 653 LIMITED

acting as Lender

$7,200,000

FACILITY AGREEMENT

CONTENTS

1.	DEFINITIONS AND INTERPRETATION

	1.1	Definitions
	1.2	Construction
	1.3	Third party rights

2.	THE FACILITY

3.	PURPOSE

	3.1	VIA Inc.
	3.2	VIA Holdco Inc.
	3.3	Monitoring

4.	CONDITIONS OF UTILISATION

	4.1	Initial conditions precedent
	4.2	Further conditions precedent

5.	UTILISATION

	5.1	Delivery of a Utilisation Request
	5.2	Completion of a Utilisation Request
	5.3	Currency and amount
	5.4	Availability of Loans

6.	REPAYMENT

	6.1	Repayment of Facility A
	6.2	Re-borrowing of Facility A
	6.3	Repayment of Facility B
	6.4	Re-borrowing of Facility B

7.	PREPAYMENT AND CANCELLATION

	7.1	Mandatory prepayment and cancellation
	7.2	Voluntary prepayment
	7.3	Restrictions

8.	INTEREST

	8.1	Accrual
	8.2	Default interest

9.	COMMITMENT FEE

10.	TAX GROSS UP AND INDEMNITIES

	10.1	Definitions
	10.2	Tax gross-up
	10.3	Tax indemnity
	10.4	Stamp taxes
	10.5	Value added tax

11.	OTHER INDEMNITIES

	11.1	Currency indemnity
	11.2	Other indemnities

12.	ENFORCEMENT COSTS

13.	GUARANTEE AND INDEMNITY

	13.1	Guarantee and Indemnity
	13.2	Continuing guarantee
	13.3	Reinstatement

	13.4	Waiver of defences
	13.5	Additional Security
	13.6	Release of guarantee

14.	REPRESENTATIONS

	14.1	Status
	14.2	Binding obligations
	14.3	Non-conflict with other obligations
	14.4	Power and authority
	14.5	Validity and admissibility in evidence
	14.6	Governing law and enforcement
	14.7	Pari passu ranking
	14.8	Pledged shares
	14.9	Margin regulation representations
	14.10	US regulation representations
	14.11	No breach
	14.12	Repetition

15.	ADDITIONAL UNDERTAKINGS

16.	MARGIN REGULATION UNDERTAKINGS

17.	ACCELERATION

	17.1	Acceleration by notice
	17.2	Automatic acceleration

18.	CHANGES TO THE PARTIES

19.	NO SET-OFF BY THE BORROWER

20.	BUSINESS DAYS

21.	CURRENCY OF ACCOUNT

22.	SET-OFF

23.	LIMITATION OF LIABILITY

24.	NOTICES

	24.1	Communications in writing
	24.2	Addresses
	24.3	Delivery

25.	PARTIAL INVALIDITY

26.	REMEDIES AND WAIVERS

27.	AMENDMENTS AND WAIVERS

28.	COUNTERPARTS

29.	GOVERNING LAW

30.	ENFORCEMENT

	30.2	Service of process

SCHEDULE 1

SCHEDULE 2

Utilisation Request

SCHEDULE 3

VIA Group Drawdown Schedule

SCHEDULE 4

Holdco Drawdown Schedule

iii

THIS AGREEMENT is dated 26 August 2005 and made between:

BETWEEN

(1) VIA NET.WORKS, INC. (“VIA Inc.”) and VIA NET.WORKS HOLDCO INC. (“VIA Holdco Inc.”) as borrowers (together the “Borrowers” and each a “Borrower”); and

(2) MAWLAW 653 LIMITED as lender (the “Lender”).

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

Unless a contrary indication appears herein, all terms in this Agreement shall have the same definition and construction as in the Acquisition Agreement, and:

“Acquisition Agreement” means the sale and purchase agreement dated on or about the date of this Agreement between VIA Inc., the Lender and Interoute Communications Holdings S.A. relating to the operating subsidiaries and certain assets and liabilities of the Obligors;

“Aggregate Purchaser Liability” has the meaning given to it in the Acquisition Agreement;

“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration;

“Availability Period” means the period from the date hereof to and including the day immediately before the Termination Date;

“Available Commitment” means the Commitment to the extent not cancelled, reduced or repaid under the terms of this Agreement, minus:

(a) the amount of any outstanding Loans; and

(b) in relation to any proposed Utilisation, the amount of any Loans that are due to be made on or before the proposed Utilisation Date;

“Belgian Share Pledges” means the Share Pledge Agreements in respect of the shares of PSINet Belgium BVBA/SPRL granted by each of the Pledgor and VIA NET.WORKS UK Holdings Ltd to the Lender on or about the date of this Agreement;

“Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor);

“Borrower Termination” means the termination of the Acquisition Agreement by VIA Inc. pursuant to clause 5.4.3 of the Acquisition Agreement;

“Break Costs” means the amount (if any) by which:

(a) the interest which the Lender should have received for the period from the date of receipt of all or any part of a Loan to the Termination Date in respect of that Loan, had the principal amount received been paid on the Termination Date;

exceeds:

(b) the amount which the Lender would be able to obtain by placing an amount equal to the principal amount received by it on deposit with a leading bank in London for a period starting on the Business Day following receipt or recovery and ending on the Termination Date;

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London and Amsterdam;

“Closing Date” has the meaning given to it in the Acquisition Agreement;

“Commitment” means up to and including $7,200,000;

“Dispute” shall have the meaning given to it in Clause 30.1.1;

“dollar” or “$” means the lawful currency of the United States of America;

“Dutch Share Pledge” means the Right of Pledge in respect of the shares of PSINet Netherlands B.V. granted by the Pledgor to the Lender on or about the date of this Agreement.

“Event of Default” means:

(a) any failure by an Obligor to meet any payment obligation under any Finance Documents; and/or

(b) any Security Document being not in full force and effect or not creating in favour of the Lender the Security which it is expressed to create with the ranking and priority it is expressed to have; and/or

(c) the Guarantee given by VIA Inc, under Clause 13 of this Agreement being not in full force and effect;

“Facility” means the term loan facilities described as Facility A and Facility B made available under this Agreement as described in Clause 2;

“Facility A” means the $5,000,000 facility provided in accordance with Clause 3.1;

“Facility B” means the $2,200,000 facility provided in accordance with Clause 3.2;

“Finance Document” means this Agreement, each Security Document and any other document designated as such by the Lender and the Borrowers;

“First Currency” shall have the meaning given to it in Clause 11.1.1;

“German Share Pledge” means the Share Pledge Agreement (Geschäftsanteilsverpfändung) in respect of the shares of PSINet Germany GmbH, granted by the Pledgor to the Lender on or about the date of this Agreement;

“Group Companies” has the meaning given to it in the Acquisition Agreement;

“Guarantor Release Date” means the earlier to occur of (i) the Closing Date and (ii) the date upon which all amounts due by VIA Holdco, Inc. to the Lender under this Agreement are satisfied or discharged;

“Holdco Drawdown Schedule” means the drawdown schedule based on cash funding requirements as set out in Schedule 4;

“Jersey Debtco” means a company to be incorporated in Jersey, which it is proposed will be called “Jersey Debtco 2 Limited” or such similar name as may be available and whose registered office address it is proposed will be c/o Professional Trust Company Limited, PO Box 274, 36 Hilgrove Street, St. Helier, Jersey JE4 8TR;

“Loan” means a loan made or to be made under either Facility A or Facility B or the principal amount outstanding for the time being of that loan;

“Margin Stock” means margin stock or margin security within the meaning of Regulation T, U or X;

“Maturity Date” means, in respect of Facility B, either:

(a) if a Closing does not take place, the Termination Date; or

(b) if a Closing has taken place, 30 November 2006 or such other date as VIA Holdco Inc. and the Lender shall agree in writing;

“Obligors” means the Borrowers and the Pledgor and “Obligor” means any one of them;

“Party” means a party to this Agreement;

“Pledged Companies” means collectively each of PSINet Netherlands B.V., PSINet Belgium BVBA/SPRL and PSINet Germany GmbH and “Pledged Company” means any one of them;

“Pledged Company Insolvency Event” means any of the following in respect of any Pledged Company:

(a) it makes a general assignment for the benefit of creditors;

(b) it commences a voluntary case or proceeding under its insolvency laws;

(c) an involuntary proceeding under any applicable insolvency law is commenced against it and is not challenged by appropriate means within ten (10) days and, if challenged (any such challenge to be made only if the relevant Pledged Company shall have reasonably determined on the basis of advice of local counsel that such challenge has a reasonable prospect of success and after consultation with the Lender) is not dismissed or stayed within sixty (60) days after commencement of such case;

(d) a custodian, conservator, receiver, liquidator, assignee, trustee, sequestrator or other similar official is appointed under its insolvency laws for, or takes charge of, all or a substantial part of the property of the relevant Pledged Company or any other VIA Group Company; or

(e) any corporate action is taken by the relevant Borrower or any other VIA Group Company for the purpose of effecting any of the foregoing;

“Pledgor” means VIA Holdco, Inc.;

“Regulation T”, “Regulation U” or “Regulation X” means Regulation T, U or, as the case may be, X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof;

“Repeating Representations” means each of the representations set out in Clauses 14.1 to 14.4 and 14.6 to 14.10;

“Second Currency” shall have the meaning given to it in Clause 11.1.1;

“Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect;

“Security Assignment” means the assignment by way of security deed to be entered into between Jersey Debtco (1) and the Lender (2);

“Security Document” means any of:

(a) the German Share Pledge;

(b) the Dutch Share Pledge;

(c) the Belgian Share Pledges;

(d) the Security Assignment; and

(e) any other document that may at any time be designated as such by the Lender and the Borrowers;

“Subscription Agreement” means the subscription agreement between VIA Inc. and MAWLAW 660 Limited relating to the subscription by MAWLAW 660 Limited for 10,810,811 shares of common stock and 5,405,405 shares of preferred stock of VIA Inc. dated the same date as this Agreement;

“Sum” shall have the meaning given to it in Clause 11.1.1;

“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same);

“Tax Credit” shall have the meaning given to it in Clause 10.1.1;

“Tax Deduction” shall have the meaning given to it in Clause 10.1.1;

“Tax Payment” shall have the meaning given to it in Clause 10.1.1;

“Termination Date” means the date which is the earlier of the Closing Date and 30 November 2005;

“Transaction Documents” has the meaning given to it in the Acquisition Agreement;

“Unpaid Sum” means any sum due and payable but unpaid by any Obligor under the Finance Documents;

“US” or “United States” means the United States of America and its territories and possessions;

“US Bankruptcy Law” means the United States Bankruptcy Code of 1978, as amended, or any other United States federal or state bankruptcy, liquidation, receivership, moratorium, conservatorship, assignment for the benefit of creditors, insolvency or similar law for the relief of debtors;

“US Insolvency Event” means any of the following in respect of either Borrower:

(a) it makes a general assignment for the benefit of creditors;

(b) it commences a voluntary case or proceeding under any US Bankruptcy Law;

(c) an involuntary proceeding under any US Bankruptcy Law is commenced against it and is not challenged by appropriate means within ten (10) days and, if challenged (any such challenge to be made only if the relevant Borrower shall have reasonably determined on the basis of advice of local counsel that such challenge has a reasonable prospect of success and after consultation with the Lender), is not dismissed or stayed within sixty (60) days after commencement of such case;

(d) a custodian, conservator, receiver, liquidator, assignee, trustee, sequestrator or other similar official is appointed under any US Bankruptcy Law for, or takes charge of, all or a substantial part of the property of the relevant Borrower or any other VIA Group Company; or

(e) any corporate action is taken by the relevant Borrower or any other VIA Group Company for the purpose of effecting any of the foregoing;

“Utilisation” means a utilisation of the Facility;

“Utilisation Date” means the date of a Utilisation, being the date on which the relevant Loan is to be made;

“Utilisation Request” means a notice substantially in the form set out in Schedule 2 (Utilisation Request);

“VAT” means value added tax as provided for in the United Kingdom Value Added Tax Act 1994 and any other tax of a similar nature;

“VIA Group Companies” means collectively the Obligors and the Group Companies and “VIA Group Company” means any of them; and

“VIA Group Drawdown Schedule” means the drawdown schedule based on cash funding requirements as set out in Schedule 3;

“VIA Termination Event” means any of:

(a) the Lender becoming entitled to terminate the Acquisition Agreement under clause 5.4.1 (but not, for the purpose of this definition, Clause 5.4.1(iv)) or clause 6.6.1 of the Acquisition Agreement;

(b) it being or becoming unlawful for an Obligor to perform any of its obligations under the Finance Documents;

6

1.2 Construction

1.2.1 Unless a contrary indication appears, any reference in this Agreement to:

(a) the “Lender” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

(b) “assets” includes present and future properties, revenues and rights of every description;

(c) a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;

(d) “indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

(e) a “person” includes any person, firm company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;

(f) a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; and

(g) a provision of law is a reference to that provision as amended or re-enacted.

Clause and Schedule headings are for ease of reference only, and a reference to a “Clause” or “Schedule” shall be a reference to a clause or schedule respectively of this Agreement where the context so permits.

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or that notice as in this Agreement.

1.3 Third party rights

A person who is not a Party has no right under the United Kingdom Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.

2. THE FACILITY

Subject to the terms of this Agreement, the Lender makes available to the Borrowers a term loan facility in an amount equal to the Commitment.

3. PURPOSE

3.1 VIA Inc.

VIA Inc. may borrow an amount of up to $5,000,000 (“Facility A”) and shall apply all amounts borrowed by it under the Facility in accordance with the VIA Group Drawdown Schedule or as otherwise agreed with the Lender. Notwithstanding the foregoing, before borrowing any amounts hereunder, VIA Inc. shall have regard to the anticipated completion date of the Acquisition Agreement (with the intention of ensuring that the Group Companies shall have sufficient working capital pursuant to Clause 3.2 so as to enable such Group Companies to continue in the ordinary course until completion of the Acquisition Agreement).

3.2 VIA Holdco Inc.

VIA Holdco Inc., only and not for the avoidance of doubt, VIA Inc., may borrow an amount of up to $2,200,000 (“Facility B”) and may also borrow all or any part of the portion (if any) of Facility A not borrowed by VIA Inc. pursuant to Clause 3.1. VIA Holdco Inc. shall apply all amounts borrowed under the Facility in accordance with the Holdco Drawdown Schedule or as otherwise agreed with the Lender.

3.3 Monitoring

Without prejudice to its rights under this Agreement, the Lender is not bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4. CONDITIONS OF UTILISATION

4.1 Initial conditions precedent

4.1.1 Neither Borrower may deliver a Utilisation Request unless the Lender has received all of the documents and other evidence listed in Schedule 1 (Conditions precedent) in form and substance reasonably satisfactory to the Lender. The Lender shall notify the Borrowers promptly in writing upon being so satisfied.

4.1.2 The Borrowers will procure that the conditions precedent are satisfied as soon as practicable on or after the date of this Agreement. The Lender will provide all reasonable assistance to the Borrowers for purposes of satisfying this Clause 4.1.2.

4.2 Further conditions precedent

4.2.1 The Lender will only be obliged to comply with Clause 5.4 if on the date of the Utilisation Request and on the proposed Utilisation Date:

(a) no Event of Default, VIA Termination Event or Borrower Termination has occurred or would result from the proposed Loan; and

8 (b) the Repeating Representations to be made by each Borrower are true in all material respects.

4.2.2 Without prejudice to the provisions of Clause 4.2.1, the Lender shall not be obliged to comply with Clause 5.4 if on the date of a Utilisation Request and on the proposed Utilisation Date a Pledged Company Insolvency Event and/or a US Insolvency Event has occurred that will not be extinguished in full by the making of the Loan on the Utilisation Date and the use of the proceeds of such Loan.

4.3 Conditions Subsequent

4.3.1 Subject to Clause 4.3.2, the Borrowers shall procure that on or before the expiry of five (5) Business Days from the date of this Agreement, the conditions subsequent set out in Schedule 1 (Conditions Subsequent) are satisfied. The Lender shall notify the Borrowers promptly in writing upon being so satisfied and will provide all reasonable assistance to the Borrowers for the purposes of satisfying this Clause 4.3.1.

4.3.2 For the purpose of Clause 4.3.1 only, “Business Day” shall mean a day (other than a Saturday or Sunday) on which banks are open for general business in Jersey, London and Amsterdam.

5. UTILISATION

5.1 Delivery of a Utilisation Request

Each Borrower may utilise the Facility by delivery to the Lender of a duly completed Utilisation Request not later than five (5), and no earlier than seven (7), Business Days before the Utilisation Date.

5.2 Completion of a Utilisation Request

5.2.1 Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

(a) the proposed Utilisation Date is within the Availability Period;

(b) the currency and amount of the Utilisation comply with Clause 5.3;

(c) the amounts requested do not exceed the amounts specified in the VIA Group Drawdown Schedule and Holdco Drawdown Schedule, as applicable; and

(d) it specifies the account and bank (which must be in Virginia, London or Amsterdam) to which the proceeds of the Utilisation are to be credited.

5.2.2 Only one (1) Loan for each of Facility A and Facility B may be requested in each Utilisation Request.

9

5.3 Currency and amount

5.3.1 The currency specified in a Utilisation Request must be dollars.

5.3.2 The amount of the proposed Loan must be less than or equal to the Available Commitment.

5.4 Availability of Loans

5.4.1 If the conditions set out in this Agreement have been met, the Lender shall make each Loan available by the Utilisation Date.

6. REPAYMENT

6.1 Repayment of Facility A

The Borrowers shall repay each Loan made under Facility A, together with accrued interest, on the Termination Date.

6.2 Re-borrowing of Facility A

The Borrowers may not re-borrow any part of Facility A which is repaid.

6.3 Repayment of Facility B

VIA Holdco Inc. shall repay each Loan made under Facility B, together with accrued interest, on the Maturity Date. Subject to Clause 13, VIA Holdco Inc. is solely responsible for all amounts due and payable under this Agreement in respect of Facility B.

6.4 Re-borrowing of Facility B

VIA Holdco Inc. may not re-borrow any part of Facility B which is repaid.

7. PREPAYMENT AND CANCELLATION

7.1 Mandatory prepayment and cancellation

If it becomes unlawful in any applicable jurisdiction for the Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain any Loan:

(a) the Lender shall promptly notify the relevant Borrower upon becoming aware of that event;

(b) upon the Lender notifying the Borrowers, the Commitment will be immediately cancelled; and

10 (c) the Borrowers shall repay the Loans, together with accrued interest, on the date specified by the Lender in the notice delivered to the Borrowers (being no earlier than fifteen (15) Business Days from the date of such notice or the last day of any applicable grace period permitted by law, whichever is later).

7.2 Voluntary prepayment

7.2.1 A Borrower may, if it gives the Lender not less than five (5) Business Days’ prior notice, prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of $50,000).

7.2.2 A Borrower shall, within three (3) Business Days of demand by the Lender, pay to the Lender its Break Costs attributable to all or any part of a Loan prepaid by that Borrower pursuant to Clause 7.2.1 above.

7.3 Restrictions

7.3.1 Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

7.3.2 Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs in the case of a prepayment under Clause 7.2, without premium or penalty.

7.3.3 The Borrowers may not re-borrow any part of the Facility which is prepaid, and accordingly the Commitment in respect of that part of the Facility which is prepaid shall be deemed to have been cancelled.

7.3.4 The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitment except at the times and in the manner expressly provided for in this Agreement.

7.3.5 No amount of the Commitment cancelled under this Agreement may be subsequently reinstated.

8. INTEREST

8.1 Accrual

8.1.1 Interest shall accrue daily on each Loan at the rate of 12.00 per cent. per annum.

8.1.2 Any interest accruing under Clause 8.1.1 above shall be compounded daily (and shall thereafter itself bear interest at the rate set out in Clause 8.1.1 above) and shall be payable in accordance with Clause 6, Clause 7 and Clause 17.

11

8.2 Default interest

8.2.1 Interest shall accrue on any Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which is the sum of 2.00 per cent. and the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a Loan. Any interest accruing under this Clause 8.2 shall be immediately payable by the relevant Borrower on demand by the Lender.

8.2.2 Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the overdue amount at the end of each day but will remain immediately due and payable.

9. COMMITMENT FEE

9.1.1 In consideration of the undertaking of the Lender to extend this facility to the Borrowers, the Borrowers shall pay a commitment fee in connection with the Facility of $525,000, payable by delivery within seven (7) calendar days of the date of this Agreement by the issuance to the Lender (or to MAWLAW 660 Limited (registered number 5396159) at the discretion of the Lender) of 14,189,189 shares of VIA Inc. common stock, par value $.001.

10. TAX GROSS UP AND INDEMNITIES

10.1 Definitions

10.1.1 In this Agreement:

(a) “Tax Credit” means a credit against, relief or remission for, or repayment of any Tax.

(b) “Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document.

(c) “Tax Payment” means either the increase in a payment made by a Borrower to the Lender under Clause 10.2 or a payment under Clause 10.3.

10.1.2 Unless a contrary indication appears, in this Clause 10 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

10.2 Tax gross-up

10.2.1 The Borrowers shall make all payments to be made by it under the Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.

10.2.2 Each Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Lender accordingly.

12 10.2.3 If a Tax Deduction is required by law to be made by a Borrower, the amount of the payment due from that Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

10.2.4 If a Borrower is required to make a Tax Deduction, that Borrower shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

10.2.5 Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the relevant Borrower shall deliver to the Lender evidence reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

10.3 Tax indemnity

10.3.1 If the Lender is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document, then the relevant Borrower shall (within three (3) Business Days of demand by the Lender) pay to the Lender an amount equal to the loss, liability or cost which the Lender determines will be or has been (directly or indirectly) suffered for or on account of Tax by it in respect of a Finance Document.

10.3.2 Clause 10.3.1 above shall not apply:

(a) with respect to any Tax assessed on the Lender under the law of the jurisdiction in which the Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which the Lender is treated as resident for tax purposes if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by the Lender; or

(b) to the extent a loss, liability or cost is compensated for by an increased payment under Clause 10.2.

(c) If the Lender makes, or intends to make, a claim under Clause 10.3.1 above, it shall promptly notify the relevant Borrower of the event which will give, or has given, rise to the claim.

10.4 Stamp taxes

The Borrowers shall pay and, within three (3) Business Days of demand, indemnify the Lender against any cost, loss or liability the Lender incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.

10.5 Value added tax

10.5.1 All consideration expressed to be payable under a Finance Document by the Borrowers to the Lender shall be deemed to be exclusive of any VAT. If VAT is chargeable on any supply made by the Lender to any Party in connection with a Finance Document, the Borrowers shall pay to the Lender (in addition to and at the same time as paying the consideration) an amount equal to the amount of the VAT.

10.5.2 Where a Finance Document requires a Borrower to reimburse the Lender for any costs or expenses, that Borrower shall also at the same time pay and indemnify the Lender against all VAT incurred by the Lender in respect of the costs or expenses.

11. OTHER INDEMNITIES

11.1 Currency indemnity

11.1.1 If any sum due from either Borrower under the Finance Documents (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

(a) making or filing a claim or proof against that Borrower; or

(b) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Borrower shall as an independent obligation, within three (3) Business Days of demand, indemnify the Lender against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

11.1.2 Each Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

11.2 Other indemnities

The Borrowers shall, within three (3) Business Days of demand, indemnify the Lender against any cost, loss or liability incurred by the Lender as a result of:

(a) a failure by a Borrower to pay any amount due under a Finance Document on its due date; or

(b) funding, or making arrangements to fund, a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the

provisions of this Agreement (other than by reason of default or negligence by the Lender alone).

12. ENFORCEMENT COSTS

The Borrowers shall, within three (3) Business Days of demand, pay to the Lender the amount of all costs and expenses (including legal fees) reasonably incurred by the Lender in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

13. GUARANTEE AND INDEMNITY

13.1 Guarantee and Indemnity

VIA Inc. irrevocably and unconditionally:

(a) guarantees to the Lender due and punctual performance by VIA Holdco, Inc. of all VIA Holdco, Inc.’s obligations under the Finance Documents;

(b) undertakes to the Lender that whenever VIA Holdco, Inc. does not pay any amount when due under or in connection with any Finance Document, that VIA Inc. shall immediately on demand pay that amount as if it was the principal obligor; and

(c) indemnifies the Lender immediately on demand against any cost, loss or liability suffered by the Lender if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal. The amount of the cost, loss or liability shall be equal to the amount which the Lender would otherwise have been entitled to recover.

13.2 Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by VIA Holdco, Inc. under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

13.3 Reinstatement

If any payment by VIA Holdco, Inc. or any discharge given by the Lender (whether in respect of the obligations of VIA Holdco, Inc. or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event:

(a) the liability of VIA Holdco, Inc. shall continue as if the payment, discharge, avoidance or reduction had not occurred; and

(b) the Lender shall be entitled to recover the value or amount of that security or payment from VIA Holdco, Inc., as if the payment, discharge, avoidance or reduction had not occurred.

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13.4 Waiver of defences

The obligations of VIA Inc. under this Clause 13 will not be affected by an act, omission, matter or thing which, but for this Clause 13, would reduce, release or prejudice any of its obligations under this Clause 13 (without limitation and whether or not known to it or the Lender) including:

(a) any time, waiver or consent granted to, or composition with, VIA Holdco, Inc. or other person;

(b) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of VIA Holdco, Inc. or any other person;

(c) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

(d) any insolvency or similar proceedings.

13.5 Additional Security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by the Lender.

13.6 Release of guarantee

VIA Inc. shall be released and discharged from all of its obligations and liabilities to the Lender in respect of this Clause 13 on the Guarantor Release Date.

14. REPRESENTATIONS

Each Borrower makes the representations and warranties set out in this Clause 14 to the Lender on the date of this Agreement.

14.1 Status

14.1.1 Each Obligor is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

14.1.2 It and each other VIA Group Company has the power to own its assets and carry on its business as it is being conducted.

14.2 Binding obligations

The obligations expressed to be assumed by each Obligor in each Finance Document are legal, valid, binding and enforceable obligations.

14.3 Non-conflict with other obligations

The entry into and performance by each Obligor of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:

(a) any law or regulation applicable to it;

(b) its or any other VIA Group Company’s constitutional documents; or

(c) any agreement or instrument binding upon it or any other VIA Group Company or any of its or any other VIA Group Company’s assets;

nor (except as provided in any Security Document) result in the existence of, or oblige it to create, any Security over any of its assets

14.4 Power and authority

Each Obligor has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

14.5 Validity and admissibility in evidence

All Authorisations required or desirable:

(a) to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

(b) to make the Finance Documents to which an Obligor is a party admissible in evidence in its jurisdiction of incorporation,

have been obtained or effected and are in full force and effect.

14.6 Governing law and enforcement

14.6.1 The choice of English law as the governing law of this Agreement will be recognised and enforced in its jurisdiction of incorporation.

14.6.2 Any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.

14.7 Pari passu ranking

Each Obligor’s payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

14.8 Pledged shares

14.8.1 The shares which are expressed to be subject to any Security under any Security Document are issued, fully paid, non-assessable, solely owned by the Pledgor, free of all Encumbrances other than the Security created under the Security Documents, and freely transferable and pledgeable, and there are no moneys or liabilities outstanding or payable in respect of any such share.

14.8.2 No person has or is entitled to any conditional or unconditional option, warrant or other right to call for the issue or allotment of, subscribe for, purchase or otherwise acquire any share capital of any Pledged Company (including any right of pre-emption, conversion or exchange).

14.8.3 There are no agreements in force or corporate resolutions passed which require or might require the present or future issue or allotment of any share capital of any Pledged Company (including any option or right of pre-emption, conversion or exchange).

14.8.4 The shares subject to the Security created by the Security Documents constitute all of the issued share capital of the Pledged Companies and there are no depository receipts issued with the cooperation of the Pledged Company.

14.8.5 There are no silent partnership agreements, profit and loss pooling agreements or equivalent arrangements by which a third party is entitled to a participation in the profits or revenue of a Pledged Company.

14.8.6 Each Security Document validly creates the Security which it purports to create and each such Security is a first priority Security over the shares of the relevant Pledged Company.

14.9 Margin regulation representations

14.9.1 No Obligor is engaged principally, or as one of its important activities, in the business of owning or extending credit for the purpose of purchasing or carrying any Margin Stock.

14.9.2 The proceeds of the Loans will not be used, directly or indirectly, in whole or in part, for “purchasing” or “carrying” Margin Stock or for any purpose which might (whether immediately, incidentally or ultimately) cause all or any part of the Loans to be a “purpose credit” within the meaning of Regulation U or Regulation X.

14.9.3 Neither an Obligor nor any agent acting on its behalf has taken or will take any action which might cause any Finance Document or any document delivered under or in connection with any Finance Document to violate any regulation of the Board (including Regulation T, U or X) or violate the United States Securities Exchange Act of 1934 or any applicable US federal or state securities law.

14.10 US regulation representations

No Obligor is or (in the case of paragraph (e) below) has:

(a) a “holding company”, an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” within the meaning of, or subject to regulation under, the United States Public Utility Holding Company Act of 1935;

(b) a “public utility” within the meaning of, or subject to regulation under, the United States Federal Power Act of 1920;

(c) an “investment company” or a company “controlled” by an “investment company” within the meaning of the United States Investment Company Act of 1940;

(d) subject to regulation under any United States federal or state law or regulation that limits its ability to incur or guarantee indebtedness; or

(e) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds, or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.

14.11 No breach

Each Obligor has complied with all of the provisions of the Finance Documents that are applicable to it.

14.12 Repetition

The Repeating Representations are deemed to be made by each Borrower by reference to the facts and circumstances then existing on the date of each Utilisation Request.

15. ADDITIONAL UNDERTAKINGS

Each Borrower gives the same undertakings to the Lender as given by the Sellers to the Purchasers in clause 5.1 and clause 5.2 of the Acquisition Agreement.

16. MARGIN REGULATION UNDERTAKINGS

16.1.1 The Borrowers shall use the proceeds of the Loans without violating Regulation T, U or X or any other applicable US federal or state laws or regulations.

16.1.2 If requested by the Lender and necessary to permit the Lender to comply with applicable law, a Borrower shall, upon written request, furnish to the Lender a statement in conformity with the requirements of FR Form U-1 referred to in Regulation U.

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17. ACCELERATION

17.1 Acceleration by notice

17.1.1 On and at any time after the occurrence of an Event of Default which is continuing, the Lender may immediately:

(a) cancel the Commitment whereupon it shall immediately be cancelled; and

(b) by written notice to the Borrowers, declare that all Loans outstanding, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents, be immediately due and payable, whereupon they shall become immediately due and payable.

17.1.2 On and at any time after the occurrence of a VIA Termination Event or Borrower Termination, the Lender may immediately cancel the Commitment whereupon it shall immediately be cancelled, and by twenty (20) (in the case of a VIA Termination Event) or forty (40) (in the case of a Borrower Termination) days’ notice to the Borrowers:

(a) declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become due and payable on the expiry of such twenty (20) or forty (40) day period (as the case may be); or

(b) declare that all or part of the Loans be payable on demand, whereupon they, together with accrued interest and all other amounts accrued or outstanding under the Finance Documents, shall become payable on demand by the Lender made after such twenty (20) or forty (40) day period (as the case may be).

17.2 Automatic acceleration

If any US Insolvency Event occurs in relation to a Borrower or if any Pledged Company Insolvency Event occurs:

(a) the Commitment shall immediately be cancelled; and

(b) all of the Loans, together with accrued interest, and all other amounts accrued under the Finance Documents shall become immediately due and payable,

in each case automatically and without any direction, notice, declaration or other act.

18. CHANGES TO THE PARTIES

No Party may assign any of its rights or transfer any of its rights or obligations under the Finance Documents, save that the Lender may assign any or all of its rights under this Agreement without the Borrowers’ consent following the occurrence of a VIA Termination Event.

19. NO SET-OFF BY THE BORROWER

All payments to be made by the Borrowers under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

20. BUSINESS DAYS

20.1.1 Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

20.1.2 During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

21. CURRENCY OF ACCOUNT

21.1.1 Subject to Clause 21.1.2 below, United States dollars is the currency of account and payment for any sum due from the Borrowers under any Finance Document.

21.1.2 Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

22. SET-OFF

22.1.1 The Lender may set off any obligation due from either Borrower under the Finance Documents against any obligation owed by the Lender to that Borrower, regardless of the place of payment or currency of either obligation. If the obligations are in different currencies, the Lender may convert either obligation at a market rate of exchange determined by the Lender (acting reasonably) for the purpose of the set-off.

22.1.2 Without prejudice to the generality of Clause 22.1.1 above, the Lender and each Borrower acknowledge that all amounts (including the Purchase Price (as defined in the Acquisition Agreement)), if any, payable by the Purchaser ( as defined in the Acquisition Agreement) to VIA Inc. under the Acquisition Agreement shall be paid net of all amounts owing by VIA Inc. to the Lender under the Finance Documents, provided that, for the avoidance of doubt, there shall be no deduction from the Purchase Price for any payments, including principal and interest payable by VIA Holdco Inc. in respect of Facility A and/or Facility B.

23. LIMITATION OF LIABILITY

The Lender’s aggregate liability for all or any breaches of any of the Transaction Documents is limited to the Aggregate Purchaser Liability, save that the Borrowers may, subject to Clause 30 (Enforcement), commence proceedings in which the sole remedy

which it may seek is specific performance of the Lender’s obligations (if any) to make Loans available in accordance with Clause 5.4 (Availability of Loans), and the Lender shall in particular not be liable for any loss, liability or cost incurred by the Borrowers or any other person resulting from any failure by the Lender to comply with the terms of the Finance Documents above the Aggregate Purchaser Liability.

24. NOTICES

24.1 Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.

24.2 Addresses

24.2.1 A notice to an Obligor shall be sent to the following address, or such other person or address as the Borrowers may notify to the Lender from time to time:

VIA NET.WORKS Inc
H. Walaardt Sacrestraat 401-403
1117 BM Schiphol
The Netherlands

Fax: +31 20 5020 0001

Attention: Matt Stuart Nydell (Senior Vice President and General Counsel
and Secretary)

with a copy to:

Hogan & Hartson
One Angel Court
London EC2R 7HJ
United Kingdom

Fax: +44 20 7367 0220

Attention: John M. Basnage

24.2.2 A notice to the Lender shall be sent to the following address, or such other person or address as the Lender may notify to the Obligors from time to time:

MAWLAW 653 Limited
Walbrook Building,
195 Marsh Wall,

London E14 9SG
United Kingdom

Fax: +44 20 7025 9855

Attention: General Counsel

24.3 Delivery

24.3.1 Any communication or document made or delivered by the Lender to a Borrower under or in connection with the Finance Documents will only be effective:

(a) if by way of fax, when received in legible form; or

(b) if by way of letter, when it has been left at the relevant address or two (2) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address,

and, if a particular officer is specified as part of its address details provided under Clause 24.2, if addressed to that officer.

24.3.2 Any communication or document to be made or delivered to the Lender will be effective only when actually received by the Lender and then only if it is expressly marked for the attention of the officer identified with the Lender’s signature below (or any substitute officer as the Lender shall specify for this purpose).

25. PARTIAL INVALIDITY

If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

26. REMEDIES AND WAIVERS

No failure to exercise, nor any delay in exercising, on the part of the Lender, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

27. AMENDMENTS AND WAIVERS

No term of any of the Finance Documents may be amended or waived without the prior written consent of the Lender and the Borrowers.

28. COUNTERPARTS

Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

29. GOVERNING LAW

This Agreement is governed by English law.

30. ENFORCEMENT

30.1.1 Jurisdiction

(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a “Dispute”).

(b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

30.2 Service of process

Without prejudice to any other mode of service allowed under any relevant law, each Borrower:

(a) irrevocably appoints Hogan & Hartson Corporate Services Company Limited, One Angel Court, London EC2R 7HJ as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and

(b) agrees that failure by a process agent to notify either Borrower of the process will not invalidate the proceedings concerned.

24

In witness whereof this Agreement has been duly executed as a Deed on the date first above written.

SIGNED as a Deed by and on behalf of VIA NET.WORKS, Inc.:		/s/



SIGNED as a Deed by and on behalf of VIA NET.WORKS HOLDCO Inc.:		/s/


SIGNED as a Deed by and on behalf of MAWLAW 653 LIMITED:		/s/

SCHEDULE 1

1. CONDITIONS PRECEDENT

1.1 Obligors

(a) A copy of the constitutional documents of each Obligor.

(b) A copy of a resolution of the board of directors of each Obligor:

(i) approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;

(ii) authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and

(iii) authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.

(d) A copy of a resolution signed by all the holders of the issued shares in the Pledgor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Pledgor is a party.

(e) A certificate of each Borrower (signed by a director) confirming that borrowing the Commitment would not cause any borrowing or similar limit binding on the relevant Borrower to be exceeded.

(f) A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

1.2 Documents

(a) A copy of the Acquisition Agreement, Management Agreement, Subscription Agreement and each Finance Document, in a form agreed by the Lender and duly executed by all parties thereto (together with any notarisations required in connection such execution).

(b) In respect of the Belgian Share Pledges:

(i) a copy of each of the Belgian Share Pledges; and

(ii) a copy of the share register of PSINet Belgium BVBA/SPRL evidencing the record of the pledge in accordance with the Belgian Share Pledge.

(iii) a copy of the shareholders’ resolutions of PSINet Belgium BVBA/SPRL permitting the transfer of its shares in the context of the Belgian Share Pledges.

(i) a notarial copy of the Right of Pledge; and

(ii) a copy of the share register of the PSINet Netherlands B.V. evidencing the record of the pledge in accordance with the Dutch Share Pledge.

(d) In respect of the German Share Pledge:

(i) certified copy of the Share Pledge Agreement;

(ii) copies of the declarations of consent to be sent to the pledgee and the pledgor and the public notary including the respective evidences of receipt; and

(iii) copy of the notification letter to PSINET Germany GmbH including acknowledgement or evidence of receipt.

1.3 Legal Opinions

In respect of each of the Security Documents, a legal opinion of the legal advisers to the Obligors in the relevant jurisdiction.

2. CONDITIONS SUBSEQUENT

2.1 Security Assignment

(a) In respect of the Security Assignment:

(i) A copy of the Security Assignment;

(ii) A copy of the documents transferring the benefit of the intra-group receivables in relation to the Pledged Companies to Jersey Debtco;

(iii) A copy of the board resolutions of Jersey Debtco in relation to the Security Assignment and financial assistance; and

(iv) A copy of the shareholder resolutions of Jersey Debtco in relation to the Security Assignment and financial assistance (as referred to in the board resolutions of Jersey Debtco).

SCHEDULE 2

Utilisation Request

From:	[VIA NET.WORKS, INC./VIA NET.WORKS HOLDCO INC.]
	H. Walaardt Sacrestraat 401-403
	1117 BM Schiphol
	The Netherlands

To:	[Lender]

Dated:	2005

Ladies and Gentlemen:

VIA NET.WORKS INC./VIA NET.WORKS HOLDCO INC. – $7,200,000 Facility Agreement
dated 2005 (the “Acquisition Agreement”)

We refer to the Acquisition Agreement. This is a Utilisation Request. Terms defined in the Acquisition Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.

We shall apply all amounts borrowed under [Facility A] [Facility B]* for the purposes specified in [Clause 3.1] [Clause 3.2]* of the Acquisition Agreement.

We wish to borrow a Loan under Facility [A/B]* on the following terms:

Proposed Utilisation Date: [ ]

Amount: [ ] or, if less, the Available Commitment

We confirm that each condition specified in Clause 4.2 of the Acquisition Agreement is satisfied on the date of this Utilisation Request.

The proceeds of this Loan should be credited to :

Bank Name and Address:
Account Name:
Account Number:
Sort Code:
Swift Address:

This Utilisation Request is irrevocable.

Yours faithfully

authorised signatory for VIA NET.WORKS, Inc.

* delete as appropriate

SCHEDULE 3

VIA Group Drawdown Schedule

Facility A

Aug 29 to Sep 2		Sep 5 to 9		Sep 19 to 23		Oct 10 to14
$	2,430,000	$	750,000	$	750,000	$	1,070,000

SCHEDULE 4

Holdco Drawdown Schedule

Facility B

Aug 29 to Sep 2		Sep 12 to 16		Oct 10 to 14
$	275,900	$	843,900	$	1,075,900

EX-5 6 a05-15832_1ex5.htm EX-5

Exhibit 5

AMENDMENT NO. 1

RIGHTS AGREEMENT

THIS AMENDMENT NO. 1 (this “Amendment”) to the Rights Agreement (the “Rights Agreement”) dated as of January 29, 2004 between VIA NET.WORKS, INC., a Delaware corporation (the “Company”), and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a banking corporation organized under the laws of New York, as rights agent (the “Rights Agent”), is entered into this 26^th day of August, 2005.

WHEREAS, the Company and the Rights Agent are currently parties to the Rights Agreement and desire to amend the Rights Agreement on the terms and conditions hereinafter set forth;

WHEREAS, Mawlaw 653 Limited (“Mawlaw 653”), Interoute Communications Holdings SA (“Interoute”), and Company have entered into a Sale and Purchase Agreement dated as of the date hereof (the “Purchase Agreement”), pursuant to which Mawlaw 653 and Interoute will purchase certain subsidiaries and substantially all the assets of Company on the terms and subject to the conditions set forth in the Purchase Agreement;

WHEREAS, in connection with the Purchase Agreement, (i) Mawlaw 653 has committed to lend to the Company and certain of its subsidiaries monies under a Facility Agreement (the “Facility Agreement”) upon the terms and conditions contained therein, in connection with which the Company has agreed to pay to the commitment fee payable thereunder by issuing 14,189,189 shares (the “Commitment Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), to Mawlaw 660 Limited (“Mawlaw 660,” and together with Mawlaw 653 and Interoute, the “Purchasers”), (ii) Mawlaw 653 and the Company have entered into a Management Consultancy Services Agreement (the “Management Agreement”) pursuant to which Mawlaw 653 will provide certain management consultancy services in connection with the day-to-day operational activities of Company and its subsidiaries upon the terms and conditions contained therein, in connection with which the Company has agreed to pay to the management fee payable thereunder by issuing 10,810,811 shares (the “Management Service Shares”) to Mawlaw 660; and Mawlaw 660 has agreed to purchase 10,810,811 shares of Common Stock (the “Common Investment Shares”, and together with the Commitment Shares and the Management Services Shares, the “Aggregate Common Shares”) on the terms and conditions set forth in a Subscription Agreement between the Company and Mawlaw 660 (the “Subscription Agreement,” and together with the Purchase Agreement, the Facility Agreement and the Management Agreement, the “Transaction Documents”);

WHEREAS, pursuant to the Subscription Agreement, Mawlaw 660 has agreed to purchase 5,405,405 shares (the “Preferred Shares”) of a new class of preferred stock of the Company designated Series A Convertible Preferred Stock, par value $0.001 per share (the “Preferred Shares” and together with the Aggregate Common Shares, the “Shares”) on the terms and conditions set forth in the Subscription Agreement; and

WHEREAS, on August 23, 2005, the Board of Directors of the Company resolved to amend the Rights Agreement to render it inapplicable to the (i) Transaction Documents and (ii) the issuance of the Shares and the other transactions contemplated by the Transaction Documents (collectively, the “Transactions”); and

WHEREAS, for purposes of this Amendment, capitalized terms not otherwise defined herein shall have the respective meanings set forth in the Rights Agreement, as amended by this Amendment;

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:

1. Amendment to Section 1.

(a) Section 1(a) of the Rights Agreement is hereby amended by adding the following new paragraph to the end of Section 1(a):

“Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, none of the Purchasers nor any of their respective Affiliates or Associates shall be deemed to be an Acquiring Person by reason of the consummation of any of the transactions contemplated by the Transaction Documents, including the issuance of the Shares.”

(b) Section 1(i) of the Rights Agreement is hereby amended by adding the following new paragraph to the end of Section 1(i):

“Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, no Distribution Date shall be deemed to have occurred by reason of the consummation of the transactions contemplated by the Transaction Documents, including the issuance of the Shares.”

(c) Section 1 of the Rights Agreement is hereby amended by inserting the following text after section 1(l) but before Section 1(m):

“(l-1) “Facility Agreement” shall mean the Facility Agreement by and between the Company and Mawlaw 653 Limited, dated as of August , 2005.”

(d) Section 1 of the Rights Agreement is hereby amended by inserting the following text after section 1(m) but before Section 1(n):

“(m-1) “Management Services Agreement” shall mean the Management Services Agreement by and between the Company and Mawlaw 653 Limited, dated as of August , 2005.”

(e) Section 1 of the Rights Agreement is hereby amended by inserting the following text after 1(r) but before 1(s):

“(r-1) “Purchasers” shall mean Interoute Communications Holdings SA, Mawlaw 653 Limited and Mawlaw 660 Limited.”

(f) Section 1 of the Rights Agreement is hereby amended by inserting the following text after Section 1(w) but before Section 1(x):

“(w-1) “Sale Agreement” shall mean the Sale and Purchase Agreement by and among VIA NET.WORKS, Inc., Mawlaw 653 Limited and Interoute Communications Holdings SA, dated as of August , 2005.”

(g) Section 1 of the Rights Agreement is hereby amended by inserting the following text after Section 1(z) but before Section 1(aa):

“(z-1) “Shares” shall mean the shares of the Company’s Series A Convertible Preferred Stock, par value $0.001 per share, and Common Stock issued to Mawlaw 660 Limited pursuant to Facility Agreement, the Management Services Agreement and the Subscription Agreement.”

(h) Section 1(aa) of the Rights Agreement is hereby amended by adding the following new paragraph to the end of Section 1(aa):

“Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, no Stock Acquisition Date shall be deemed to have occurred by reason of the consummation of the transactions contemplated by the Transaction Documents, including the issuance of the Shares.”

(i) Section 1 of the Rights Agreement is hereby amended by inserting the following text after Section 1(aa) but before Section 1(bb):

“(aa-1) “Subscription Agreement” shall mean the Subscription Agreement by and between the Company and Mawlaw 660 Limited, dated as of August , 2005.”

(j) Section 1 of the Rights Agreement is hereby amended by inserting the following text after Section 1(bb) but before Section 1(cc):

“(bb-1) “Transaction Documents” shall mean the Sale Agreement, the Facility Agreement, the Management Services Agreement, and the Subscription Agreement.”

(k) Section 1(cc) of the Rights Agreement is hereby amended by adding the following new paragraph to the end of Section 1(cc):

“Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, no Triggering Event shall be deemed to have occurred by reason of the consummation of the transactions contemplated by the Transaction Documents, including the issuance of the Shares.”

2. Amendment to Section 11(a)(ii). Section 11(a)(ii) of the Rights Agreement is amended by adding the following sentence at the end thereof:

“Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, the consummation of the transactions contemplated by the Transaction Documents, including the issuance of the Shares, shall not cause the Rights to be adjusted or become exercisable in accordance with this Section 11(a)(ii).”

3. Amendment to Section 13(e). Section 13(e) of the Rights Agreement is amended by adding the following sentence at the end thereof:

“Notwithstanding anything in this Agreement that might otherwise be deemed to the contrary, the provisions of this Section 13 shall not be applicable to the transactions contemplated by the Transaction Documents, including the issuance of the Shares.”

4. Effective Date. This Amendment shall become effective as of the date first above written.

5. Other Terms Unchanged. The Rights Agreement, as amended by this Amendment, shall remain and continue in full force and effect and is in all respects agreed to, ratified and confirmed hereby. Any reference to the Rights Agreement after the date first set forth above shall be deemed to be a reference to the Rights Agreement, as amended by this Amendment.

6. Benefits. Nothing in the Rights Agreement, as amended by this Amendment, shall be construed to give to any Person other than the Company, the Rights Agent and the registered holders of the Rights Certificates (and, prior to the Distribution Date, the registered holders of the Common Stock) any legal or equitable right, remedy or claim under the Rights Agreement, as amended by this Amendment; but the Rights Agreement, as amended by this Amendment, shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered holders of the Rights Certificates (and, prior to the Distribution Date, registered holders of the Common Stock).

7. Descriptive Headings. Descriptive headings of the several Sections of this Amendment are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.

8. Governing Law. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of such State.

9. Counterparts. This Amendment may be executed in any number of counterparts. It shall not be necessary that the signature of or on behalf of each party appears on each counterpart, but it shall be sufficient that the signature of or on behalf of each party appears on one or more of the counterparts. All counterparts shall collectively constitute a single agreement.

It shall not be necessary in any proof of this Amendment to produce or account for more than a number of counterparts containing the respective signatures of or on behalf of all of the parties.

10. Fax Transmission. A facsimile, telecopy or other reproduction of this Amendment may be executed by one or more parties hereto, and an executed copy of this Amendment may be delivered by one or more parties hereto by facsimile or similar instantaneous electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties agree to execute an original of the Amendment as well as any facsimile, telecopy or other reproduction thereof.

[Signatures on Next Page]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and attested, all as of the day and year first above written.

			VIA NET.WORKS, INC.


			By:	/s/ Matt S. Nydell
			Name: Matt S. Nydell
			Title: SVP, General Counsel and Secretary


			CONTINENTAL STOCK TRANSFER &
			TRUST COMPANY, as Rights Agent


			By:	/s/ Roger Bernhammes
			Name: Roger Bernhammes
			Title: Rights Agent

EX-24 7 a05-15832_1ex24.htm EX-24

EXHIBIT 24

JOINT FILING AGREEMENT AND POWER OF ATTORNEY

The undersigned parties hereby agree that the Schedule 13D filed herewith (and any amendments thereto) relating to the common stock of VIA NET.WORKS, Inc. is being filed jointly on behalf of each of them with the Securities and Exchange Commission pursuant to Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended. The undersigned hereby further authorize and appoint Maurice Woolf as attorney in fact and agent of the undersigned, to execute such Schedule 13D and any amendments thereto as may be required to be filed as a result of the undersigned direct or indirect beneficial ownership of shares of common stock of VIA NET.WORK, Inc. This Agreement may be executed in any number of counterparts all of which when taken together shall be deemed one and the same instrument.

September 6, 2005

	MAWLAW 660 LIMITED


	By:	/s/ Maurice Woolf
	Name: Maurice Woolf
	Title: General Counsel

	INTEROUTE COMMUNICATIONS HOLDINGS SA


	By:	/s/ Maurice Woolf
	Name: Maurice Woolf
	Title: General Counsel

	BROAD BMEDIA INVESTMENTS AG


	By:	/s/ Gabriel Prêtre
	Name: Gabriel Prêtre
	Title: President

	SANDOZ FAMILY FOUNDATION


	By:	/s/ Olivier Verrey
	Name: Olivier Verrey
	Title: Trustee/Executive Committee Member

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Under the Securities Exchange Act of 1934 (Amendment No. )*

17. Beneficial Ownership. For purposes of this Agreement, the term “beneficial owner” shall have the meaning ascribed to such term under Rule 13d-3 under the Exchange Act and the terms “beneficially own” and “beneficial ownership” shall have correlative meanings therewith.

(c) For the avoidance of doubt, in performing Management Consultancy Services hereunder, Provider shall have no authority to make any decisions or take any action for and on behalf of Recipient or any Sub or to otherwise bind or commit Recipient or any Sub.

(d) No Authorization. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (other than those which have been obtained) is required for the due execution, delivery and performance by such party of this Agreement.

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

(a) the amount of any outstanding Loans; and

(b) in relation to any proposed Utilisation, the amount of any Loans that are due to be made on or before the proposed Utilisation Date;

(a) the interest which the Lender should have received for the period from the date of receipt of all or any part of a Loan to the Termination Date in respect of that Loan, had the principal amount received been paid on the Termination Date;

exceeds:

(b) the amount which the Lender would be able to obtain by placing an amount equal to the principal amount received by it on deposit with a leading bank in London for a period starting on the Business Day following receipt or recovery and ending on the Termination Date;

(a) any failure by an Obligor to meet any payment obligation under any Finance Documents; and/or

(b) any Security Document being not in full force and effect or not creating in favour of the Lender the Security which it is expressed to create with the ranking and priority it is expressed to have; and/or

(c) the Guarantee given by VIA Inc, under Clause 13 of this Agreement being not in full force and effect;

(a) if a Closing does not take place, the Termination Date; or

(b) if a Closing has taken place, 30 November 2006 or such other date as VIA Holdco Inc. and the Lender shall agree in writing;

(a) it makes a general assignment for the benefit of creditors;

(b) it commences a voluntary case or proceeding under its insolvency laws;

(d) a custodian, conservator, receiver, liquidator, assignee, trustee, sequestrator or other similar official is appointed under its insolvency laws for, or takes charge of, all or a substantial part of the property of the relevant Pledged Company or any other VIA Group Company; or

(e) any corporate action is taken by the relevant Borrower or any other VIA Group Company for the purpose of effecting any of the foregoing;

(a) the German Share Pledge;

(b) the Dutch Share Pledge;

(c) the Belgian Share Pledges;

(d) the Security Assignment; and

(e) any other document that may at any time be designated as such by the Lender and the Borrowers;

(a) it makes a general assignment for the benefit of creditors;

(b) it commences a voluntary case or proceeding under any US Bankruptcy Law;

(d) a custodian, conservator, receiver, liquidator, assignee, trustee, sequestrator or other similar official is appointed under any US Bankruptcy Law for, or takes charge of, all or a substantial part of the property of the relevant Borrower or any other VIA Group Company; or

(e) any corporate action is taken by the relevant Borrower or any other VIA Group Company for the purpose of effecting any of the foregoing;

(a) the Lender becoming entitled to terminate the Acquisition Agreement under clause 5.4.1 (but not, for the purpose of this definition, Clause 5.4.1(iv)) or clause 6.6.1 of the Acquisition Agreement;

(b) it being or becoming unlawful for an Obligor to perform any of its obligations under the Finance Documents;

6

1.2 Construction

1.2.1 Unless a contrary indication appears, any reference in this Agreement to:

(a) the “Lender” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

(b) “assets” includes present and future properties, revenues and rights of every description;

(c) a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;

(d) “indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

(e) a “person” includes any person, firm company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;

(f) a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; and

(g) a provision of law is a reference to that provision as amended or re-enacted.

1.3 Third party rights

2. THE FACILITY

3. PURPOSE

3.1 VIA Inc.

3.2 VIA Holdco Inc.

3.3 Monitoring

4. CONDITIONS OF UTILISATION

4.1 Initial conditions precedent

4.1.2 The Borrowers will procure that the conditions precedent are satisfied as soon as practicable on or after the date of this Agreement. The Lender will provide all reasonable assistance to the Borrowers for purposes of satisfying this Clause 4.1.2.

4.2 Further conditions precedent

4.2.1 The Lender will only be obliged to comply with Clause 5.4 if on the date of the Utilisation Request and on the proposed Utilisation Date:

(a) no Event of Default, VIA Termination Event or Borrower Termination has occurred or would result from the proposed Loan; and

8

(b) the Repeating Representations to be made by each Borrower are true in all material respects.

4.3.2 For the purpose of Clause 4.3.1 only, “Business Day” shall mean a day (other than a Saturday or Sunday) on which banks are open for general business in Jersey, London and Amsterdam.

5. UTILISATION

5.1 Delivery of a Utilisation Request

5.2 Completion of a Utilisation Request

5.2.1 Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

(a) the proposed Utilisation Date is within the Availability Period;

(b) the currency and amount of the Utilisation comply with Clause 5.3;

(c) the amounts requested do not exceed the amounts specified in the VIA Group Drawdown Schedule and Holdco Drawdown Schedule, as applicable; and

(d) it specifies the account and bank (which must be in Virginia, London or Amsterdam) to which the proceeds of the Utilisation are to be credited.

5.2.2 Only one (1) Loan for each of Facility A and Facility B may be requested in each Utilisation Request.

9

5.3 Currency and amount

5.3.1 The currency specified in a Utilisation Request must be dollars.

Under the Securities Exchange Act of 1934
(Amendment No. )*