Vistula Communications Services, Inc Suite 801, 405 Park Avenue New York, NY 10022
Vistula
Communications Services, Inc
▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
May
16,
2007
Mr.
▇▇▇▇
▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Dear
▇▇▇▇:
This
letter agreement (“Agreement”) is to confirm our agreement in connection with
the engagement of you (referred to in this letter agreement as “Consultant”) by
Vistula Communications Services, Inc. (the “Company”). The parties to this
Agreement agree as follows:
1.
Services.
Subject
to the terms and conditions of this Agreement, the Company hereby engages
Consultant to serve as the Company’s Chief Operating Officer, reporting to the
Chief Executive Officer of the Company. In this capacity, Consultant will manage
all operations of the Company with particular emphasis on assisting the launch
of the Company’s distribution relationship with Northamber plc and undertake
such other services on behalf of the Company as shall be agreed from time to
time by the Company and Consultant (the “Services”). Consultant
shall devote his full business and professional time, attention, energy,
loyalty, and skill to performance of the Services and shall perform such
executive or administrative tasks and responsibilities in connection with the
performance of Services as may be reasonably requested from time to time by
the
Company’s Chief Executive Officer; provided, however, that notwithstanding
anything to the contrary in this Agreement or in the Confidentiality Agreement
(as defined below) executed by the Consultant, Consultant shall be permitted
to
serve as a director of Narrangansett Brewing Company during the term of this
Agreement. Consultant shall provide the Company with such information relating
to the performance of the Services as the Company shall reasonably request
from
time to time and
shall
execute the Company’s standard form of Confidentiality and Non-Competition
Agreement (the “Confidentiality Agreement”). Consultant shall primarily perform
the Services in the United States but may be required to travel to the United
Kingdom and other countries outside the United States in connection with the
performance of the Services if deemed necessary in the reasonable determination
of the Chief Executive Officer of the Company.
2.
Compensation;
Expenses.
2.1. Fees.
In
consideration for the performance of the Services, the Company shall pay to
Consultant an initial fee of $15,000 for Services performed during the period
from the date of this Agreement through May 31, 2007 which shall be payable
on
June 1, 2007 and additional fees at the rate of $10,000 per month which shall
be
payable in arrears in bi-monthly instalments on the dates on which the Company
makes its payroll payments
during
the term of this Agreement. The fees payable by the Company to Consultant
hereunder shall be payable by wire transfer to a bank account designated by
Consultant. Notwithstanding anything to the contrary herein, the payment of
such
fees shall not affect Consultant’s right to receive director fees in his
capacity as a director of the Company.
2.2 Option.
In
addition to the payment of fees to Consultant pursuant to Section 2.1, the
Company shall grant to Consultant a non-statutory option (the “Option”) to
purchase 250,000 shares of common stock of the Company (“Common Stock”) promptly
following execution of this Agreement. The exercise price of the Option shall
be
the fair market value of the Common Stock of the Company on the date of grant.
The Option shall be exercisable for a period of five (5) years from the date
of
grant and shall vest and become exercisable for 150,000 shares of Common Stock
on December 31, 2007 and an additional 100,000 shares of Common Stock on
December 31, 2008 provided in each case that the Consultant is an officer or
director of the Company on such vesting date. The Option shall be granted under
the Company’s 2004 Amended and Restated Stock Incentive Plan.
2.3 Expenses.
During
the term of Consultant's engagement hereunder, the Company shall reimburse
Consultant for all reasonable expenses incurred by Consultant in connection
with
the performance of the Services hereunder in accordance with the Company's
regular reimbursement policies as in effect from time to time and upon receipt
of itemized vouchers or receipts therefor and such other supporting information
as the Company may reasonably require; provided that all expenses exceeding
$2,000 shall be subject to prior written approval of the Company.
3. Status
of Consultant.
Consultant is not and shall not be deemed to be the legal agent or
representative of the Company for any purpose whatsoever, except as specifically
provided for in this Agreement. The parties agree that Consultant shall act
as
an independent contractor and Consultant shall not be an employee of the Company
under the meaning or application of any applicable law.
4. Term
and Termination.
4.1 Term.
This
Agreement shall be effective on the date of this Agreement and shall continue
until December 31, 2007 unless earlier terminated as otherwise provided in
this
Agreement and may be extended only upon mutual written agreement of both
parties.
4.2 Termination
by the Company.
The
Company may terminate this Agreement at any time upon thirty (30) days prior
written notice to Consultant.
4.3 Termination
for Default.
Either
party may, at its option, terminate this Agreement upon notice to the other
party if the other party has materially breached any provision of this Agreement
and has failed to cure said breach within fifteen (15) days of written notice
specifying the breach in reasonable detail.
5. General
Provisions.
5.1 Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
with respect to the subject matter hereof and supersedes all oral and written
agreements and understandings relating thereto.
-2-
5.2 Modification/Waiver.
No
waiver, alteration, modification, or cancellation of any of the provisions
of
this Agreement shall be binding unless made in writing and signed by the
Company. The Company’s failure at any time or times to require performance of
any provision hereof shall in no manner affect its right at a later time to
enforce such provision. No remedy referred to in this Agreement is intended
to
be exclusive, but each shall be cumulative and in addition to any other remedy
referred to herein or otherwise available at law, in equity or
otherwise.
5.3 Assignment.
This
Agreement shall be binding upon, and inure to the benefit of, the Company and
the Consultant and their respective legal successors and assigns. Consultant
shall not assign any of its rights or delegate any of its duties hereunder,
in
whole or in part, to any third party, without the prior written consent of
the
Company.
5.4 Severability.
If any
of the provisions of this Agreement are determined to be invalid, illegal,
or
unenforceable by a court of competent jurisdiction, such provisions shall be
severed from the Agreement, and the remaining provisions shall remain in full
force and effect; provided, however, that with respect to any material provision
so severed, the parties shall negotiate in good faith to achieve the original
intent of such provision.
5.5 Applicable
law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without regard to its principles of conflicts
of
laws. All litigation arising from or relating to this Agreement shall be filed
and prosecuted before any court of competent subject matter jurisdiction in
New
York, New York. The parties hereby consent to the jurisdiction of such courts
over them, stipulate to the convenience, efficiency and fairness of proceeding
in such courts, and covenant not to allege or assert the inconvenience,
inefficiency or unfairness of proceeding in such courts.
5.6 Notices.
Any
notices required or permitted under this Agreement shall be in writing and
shall
be sufficiently given if (i) personally delivered, (ii) sent by first class
mail, proper postage pre-paid, or (iii) sent by facsimile (to the Company at
▇▇▇-▇▇▇-▇▇▇▇ and to the Consultant at [Fax number]. Any such notice shall be
addressed to the party entitled or required to receive such notice at the
addresses for the parties included in this Agreement or at such other address
as
either party may specify from time-to-time by written notice in accordance
herewith. Any notices given hereunder shall be deemed to have been received
as
of the date of actual receipt, or, if mailed, as of the earlier of actual
receipt or three (3) days after depositing in the mail or with the courier
service.
5.7 Counterparts.
This
Agreement may be executed by facsimile signature and in counterparts, each
of
which shall be an original and all of which when taken together shall constitute
one and the same instrument.
| Vistula Communications Services, Inc. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ | |
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ |
||
| Chief Executive Officer | ||
Accepted
and Agreed:
By: /s/
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
-3-