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
1
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 (1)
