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.
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(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 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.
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(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.
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(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.
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(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.
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(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 ”).
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2. Compensation and Benefits. Viewpoint shall pay the following compensation and
provide the following benefits to Executive during the Term of
Employment:
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(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.
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(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
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will vest six months
following the Commencement Date and one-thirtieth (1/30th) of the
remaining shares will vest monthly thereafter. The Option will be
subject to the terms of an award agreement to be executed by
Viewpoint and Executive.
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(c) Benefit Programs and Benefit
Plans; Vacation. Executive shall be entitled to participate in
all benefit programs and benefit plans maintained for Viewpoint
employees, including, without limitation, benefits available to
executive officers of the Company, such as life insurance, pension
benefit programs and executive bonus programs and Viewpoint shall
pay for Executive's participation in such plans to the same extent
that Viewpoint makes payments for other executive officers'
participation. Executive shall be entitled to four (4) weeks of
paid vacation per annum, to be accrued and used in accordance with
Viewpoint's policies.
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(b) 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.
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3. Termination; Severance; Change in
Control.
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(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 a lump
sum cash payment in an amount equal to his Base Salary 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
”).
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(b) Termination Without Cause or With
Good Reason Following a Change in Control of
Viewpoint.
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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
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(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) times Executive's Base Salary
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;
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(B) One hundred percent (100%) of the
unvested portion of the Option or any other options granted to
Executive at any time before such termination will
immediatel
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