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Exhibit 10.28
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of May
24, 2005, is entered into between Viewpoint Corporation, a Delaware
Corporation with its principal office at 498 Seventh Avenue, New
York, N.Y. 10018 ("Viewpoint"), and Andrew J. Graf
("Executive").
WHEREAS, Viewpoint desires to retain Executive’s services
as General Counsel, and Executive desires to be retained by
Viewpoint to serve as General Counsel of Viewpoint.
NOW THEREFORE, for good and valuable consideration, the
sufficiency of which is hereby acknowledged by the parties, the
parties hereto hereby agree as follows:
1. Employment; Term.
(a) Duties and Responsibilities. Subject to the terms and
conditions of this Agreement, Viewpoint hereby employs Executive,
and Executive hereby accepts employment with Viewpoint, as General
Counsel. Executive shall have all authorities, duties and
responsibilities customarily exercised by an individual serving in
his position in a corporation of the size and nature of Viewpoint
and shall be assigned no duties or responsibilities without his
consent that are materially inconsistent with, or that materially
impair his ability to discharge the foregoing duties and
responsibilities. The Executive in carrying out his duties under
this Agreement shall report directly to the Chief Executive
Officer. Executive shall devote his full business time and
attention to the business and affairs of Viewpoint and its
subsidiaries. Executive shall observe and comply with
Viewpoint’s material policies, rules and regulations
regarding the performance of his duties, shall use his reasonable
best efforts, skills and abilities to promote Viewpoint’s
interests and shall perform his duties faithfully, competently and
in such manner as Viewpoint’s Chief Executive Officer and
Board of Directors (the "Board") may from time to time reasonably
direct.
(b) Duty of Loyalty. Executive will execute the "Duty of
Loyalty Agreement" that is annexed hereto as Exhibit A and is made
a part of this Agreement.
(c) Principal Place of Employment. Executive’s
principal place of employment shall be at Viewpoint’s
headquarters in New York, New York, or at such other location as
shall be mutually acceptable to Executive and the Board.
(d) Representations. Executive affirms and represents
that he is under no obligation to any former employer or other
party which is in any way inconsistent with, or which imposes any
restriction upon, Executive’s acceptance of employment
hereunder, the employment of Executive by Viewpoint, or
Executive’s undertakings under this Agreement.
(e) Executive’s employment hereunder shall commence on
June 6, 2005 (the "Commencement Date"), and subject to Section 3
hereof, shall continue until terminated by either party (the "Term
of Employment").
2. Compensation and Benefits . Viewpoint shall pay the
following compensation and provide the following benefits to
Executive during the Term of Employment:
(a) Base Salary. Executive shall receive a base salary of
$200,000 per annum (the "Base Salary"), payable in approximately
equal installments in accordance with the customary payroll
practices of Viewpoint. Viewpoint will review Executive’s
Base Salary on an annual basis. If the rate of Base Salary per
annum paid to Executive is increased during the Term of Employment,
such increased rate shall thereafter constitute the Base Salary for
all purposes of this Agreement. Executive’s Base Salary shall
not be decreased during the Term of Employment without the mutual
consent of Executive and Company.
(b) Option to Acquire Viewpoint Common Stock. Viewpoint
will grant to Executive an option (the "Option") to acquire 200,000
shares of Viewpoint common stock at an exercise price equal to the
opening price of Viewpoint’s common stock on the Nasdaq
National Market on the Commencement Date. Sixteen and two-thirds
percent (16 2/3%) of the shares subject to the Option will vest six
months following the Commencement Date and one-thirtieth (1/30th)
of the remaining
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shares will vest monthly thereafter. The Option will be subject
to the terms of an award agreement in the form of Exhibit B annexed
hereto to be executed by Viewpoint and Executive.
(c) Benefit Programs and Benefit Plans; Vacation.
Executive shall be entitled to participate in all benefit programs
and benefit plans maintained for Viewpoint employees, and Viewpoint
shall pay for Executive’s participation in such plans to the
same extent that Viewpoint makes payments for other executive
officers’ participation. If Viewpoint determines to establish
a management incentive compensation bonus plan (the "Bonus Plan"),
Executive shall be entitled to participate therein. The extent of
Executive’s participation in the Bonus Plan will be
determined by the Board of Directors (or a committee thereof) in
its sole discretion. Executive shall be entitled to four (4) weeks
of paid vacation per annum, to be accrued and used in accordance
with Viewpoint’s policies.
(d) Withholdings and Deductions. The payment of any Base
Salary or other compensation hereunder shall be subject to income
tax, social security and other applicable withholdings, as well as
such deductions as may be required under Viewpoint’s employee
benefit plans.
3. Termination; Severance; Change in Control.
(a) Termination Without Cause or With Good Reason. If,
during the Term of Employment, Viewpoint terminates
Executive’s employment without Cause (as defined below), or
if Executive terminates his employment with Viewpoint for Good
Reason (as defined below), Viewpoint will pay to Executive in an
amount equal to his Base Salary (such payment to be made in
approximately equal semi-monthly installments concurrently with the
customary payroll practices of Viewpoint over the one year period
following such termination) plus any payments under applicable
plans or programs, any accrued and unpaid vacation, any earned but
unpaid Base Salary or bonuses and any unreimbursed business expense
in accordance with Company policy and one hundred percent (100%) of
the unvested portion of the Option and any other options granted to
Executive at any time before such termination will immediately vest
and will remain exercisable by Executive for three (3) months
following the effective date of termination (the "Termination
Date").
(b) Termination Without Cause or With Good Reason Following a
Change in Control of Viewpoint.
If, (i) Viewpoint enters into an agreement that leads to a
Change in Control (as defined below), and (ii) Executive’s
employment is terminated by Viewpoint without Cause, or by
Executive for Good Reason, at any time within one (1) year
following the Change in Control, then
(A) Executive shall be entitled to a lump sum amount, in cash
and payable within ten (10) days following the Termination Date,
equal to one
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