Exhibit 99.1
AGREEMENT AND GENERAL
RELEASE
This Agreement and General Release
(the “Agreement”) is entered into this 15th day
of December, 2006, by and between Vistula Communications Services,
Inc., a Delaware corporation (“Vistula”), and J. Keith
Markley (“Markley”). The parties hereto agree as
follows:
1.
Date of Termination
. Vistula and Markley agree
that Markley’s employment with the Company shall terminate on
December 15, 2006 (the “Termination Date”) and that
Markley shall cease to serve as, and hereby resigns as, President
of Vistula USA, Inc. and as a director of Vistula, in each case as
of the Termination Date.
2.
Payments
. As a
result of the resignation of Markley, pursuant to Section 7(d) of
the Employment Agreement dated as of April 11, 2006, between
Vistula and Markley, as amended by the Amendment to Employment
Agreement dated April 11, 2006 (the “Employment
Agreement”):
(a)
Vistula shall
be required to pay to Markley twelve (12) months of Base
Compensation (as defined in the Employment Agreement), which amount
shall be paid to Markley over time in accordance with
Vistula’s payroll practice, less all withholdings required
under then current Vistula policy and applicable law or regulation;
provided , that the parties agree that these amounts
constitute “nonqualified deferred compensation” within
the meaning of Section 409A of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder and/or
pursuant thereto and that they shall therefore be payable in
accordance with Section 7(g) of the Employment
Agreement.
(b)
Vistula shall
continue to carry Markley under Vistula’s medical plans and
pay Vistula’s portion of the costs associated with continuing
such coverage under the Plans (as defined in the Employment
Agreement) for a period of twelve (12) months following the
Termination Date); provided that Markley shall continue to
be responsible for his portion of such payments via applicable
withholdings, as per normal Vistula policies governing the
provision of medical benefits coverage to all employees of
Vistula.
3.
General
Release of All Claims . Markley knowingly and voluntarily releases and forever discharges Vistula,
its shareholders, affiliates, subsidiaries, divisions,
predecessors, insurers,
successors and assigns and their current and former employees,
attorneys, officers,
directors and agents thereof, both individually and in their
official capacities (collectively referred to throughout the
remainder of this Agreement as
“Releasees”), of and from any and all claims, known and
unknown, asserted or unasserted, which the Employee has or may
have against Releasees as of the date of execution of
this Agreement, including, but
not limited to, any alleged violation of Title VII of the Civil
Rights Act of 1964, Sections 1981 through 1988 of Title 42 of the
United States Code, t he
Employee Retirement
Income Security Act of
1974 (except for any
vested benefits under any tax qualified benefit plan), t
he Immigration Reform and Control Act, the Americans with
Disabilities Act of 1990, t he Age Discrimination in Employm
e nt Act of 1967, t
he Workers Adjustment
and Retraining
Notification Act, the Fair Credit
Reporting Act, any other federal, state or local law, rule,
regulation, or ordinance, any public policy, contract, tort, or
common law. Notwithstanding the foregoing, nothing in
this Agreement shall be construed to (a) in any way alter or
diminish Markley’s rights to
indemnification from Vistula in
connection with his former capacity as a director, officer,
employee or otherwise, in accordance with Vistula’s
Certificate of Incorporation, Bylaws, other applicable corporate
documents or resolutions, indemnification agreements, directors and
o
