ertischek v viewpoint

8/18/2019 Ertischek v Viewpoint

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Page 1 - PLAINTIFF’S COMPLAINT NORTHWEST LAWFIRM1001 SW F IFTH A VENUE

S UITE 1220P ORTLAND , O REGON 97204

503.242.1122F AX 503.242.0099

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

BENJAMIN ERTISCHEK, an individual,

Plaintiff,

v.

VIEWPOINT, INC., A CORPORATION OFDELAWARE, a Delaware corporation, MANOLISKOTZABASAKIS., an individual, and KELLYLANG, an individual,

Defendants.

)))))))))))))))

Case No.

PLAINTIFF’S COMPLAINT(Breach of Contract; Breach ofCovenant of Nondisparagement; Breachof Covenant of Good Faith and FairDealing; Rescission; Defamation;Intentional Interference with EconomicRelations)

Over $10,000

Amount Claimed: $4,356,000

Not Subject to Mandatory Arbitration

Plaintiff’s allegations are based upon information and belief, except for those allegations

pertaining to Plaintiff that are based on his personal knowledge. Plaintiff alleges:

PARTIES

1.

Plaintiff Benjamin Ertischek was employed by defendants Viewpoint, Inc., A Corporation ofDelaware (“Viewpoint”) in Portland, Oregon in Multnomah County. Plaintiff is a resident of Portland,

Oregon in Multnomah County.

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4/8/2016 2:01:17 PM16CV11760


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503.242.1122F AX 503.242.0099

2.

At all material times, defendant Viewpoint was and is now a Delaware corporation registered

to do business in Oregon, with its principal place of business in Portland, Oregon in Multnomah

County.3.

At all material times, defendant Manolis Kotzabasakis was and is now a resident of Oregon.

4.

At all material times, defendant Kelly Lang was and is now a resident of Oregon.

VENUE

5.

Venue is proper in this Court because defendants conduct business and employed Plaintiff

within Multnomah County, and are within the jurisdiction of this Court for service of process

purposes.

BACKGROUND ALLEGATIONS

6.

Plaintiff Ben Ertischek was the CFO of Viewpoint (formerly Coaxis) from August 2009 until

September 2015. He earned a bachelor’s degree from Princeton University and an MBA from New

York University’s Stern Business School. After working for two years at Deloitte Touche he worked

for Xerox for fourteen years. Mr. Ertischek met Coaxis owner and CEO Jay Haladay in August of

2009 and took the job as CFO of Coaxis at that time. In 2012 Mr. Ertischek was the recipient of the

Portland Business Journal’s award for CFO of the year. He has served as president of the Portland

chapter of Financial Executives International, chair of the Finance Committee for the Technology

Association of Oregon, and was a Governance Fellow with the National Association of Corporate

Directors. Mr. Ertischek is a well-known and respected CFO.

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503.242.1122F AX 503.242.0099

7.

In April 2014 Bain Capital, a private equity firm from Boston, Massachusetts, paid $230

million dollars for a controlling interest in Viewpoint. Viewpoint is a construction software company

that the Haladay family owned for about 28 years. Viewpoint has its headquarters and primary business operations in Portland, Oregon.

8.

After Bain acquired Viewpoint, as is its practice in many of its acquisitions, management was

directed to generate significant increases in the profit level of Viewpoint. Efforts to materially boost

profits centered around substantial cost cutting and significant reduction in the number of employees.

At the time of purchase, Viewpoint had about 800 employees and fourteen offices. The intent was to

cut the number of offices down to three, and to reduce the number of employees by at least fifteen to

twenty-five percent through significant layoffs, terminations and attrition.

9.

Bain typically drives a “Blueprint” process to define these cuts and the clear path to

substantial growth in profits, while also extracting a sizable cash management fee from the company.

In August 2015 Mr. Kotzabasakis, formerly of AspenTech in Boston became the CEO of Viewpoint

replacing Jay Haladay. In November 2015 Kelly Lang, formerly Tripwire’s CFO, became

Viewpoint’s CFO.

10.

Mr. Kotzabasakis advised Mr. Ertischek that Viewpoint would double its profits within a

year. Mr. Ertischek objected to taking any action that was not intended to build long-term value of

the business, especially ones that might be unethical or inappropriate under third-party scrutiny. Mr.

Kotzabasakis advised Mr. Ertischek that “he was going to get his bonus” and would take actions that

he felt necessary to achieve that goal. Mr. Kotzabasakis had a substantial seven-figure signing bonus

that was tied to the doubling of company profits in 2016.

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503.242.1122F AX 503.242.0099

11.

After Mr. Ertischek made it clear that he would not participate in harming the business or

taking any inappropriate steps in the rush to make massive changes to the company structure,

accounting practices and layoffs, his duties were quickly and methodically eliminated.Mr. Kotzabasakis began to have “secret” conversations with Mr. Ertischek’s direct reports, including

the General Counsel of Viewpoint, indicating that Mr. Kotzabasakis wanted them to work directly for

him. Mr. Ertischek was excluded from meetings regarding significant financial planning and

fiduciary matters that previous to Mr. Kotzabasakis’s arrival were managed by the CFO as is normal

for a company the size of Viewpoint. Mr. Ertischek felt he had no choice but to provide his notice of

resignation for Good Reason under his employment agreement on September 19, 2015 to both the

Board of Directors and Mr. Kotzabasakis. The negotiated Separation Letter Agreement and General

Release with Viewpoint was the conclusion of his employment on September 25, 2015.

12.

After Mr. Ertischek left, Mr. Lewis Rife was the interim CFO. He told Mr. Kotzabasakis that

he wanted to apply for the CFO position after Mr. Ertischek left Viewpoint. Mr. Kotzabasakis did

not allow Mr. Rife to apply but instead hired Mr. Lang from Tripwire.

13.

Mr. Lang advised Mr. Rife that Viewpoint was going to take a massive increase in the

accounts receivable reserve for doubtful collections in the fourth quarter of 2015. Mr. Lang intended

to write off a large portion of the 2015 receivables as uncollectable despite knowing that some of the

debts had already been collected. Mr. Lang stated Viewpoint would reverse the write-offs sometime

in 2016. This type of activity would result in a significant shift in profits from 2015 into 2016,

thereby increasing 2016 executive bonus opportunities. Mr. Rife objected to this accounting

maneuver and expressed his view that it would be illegal to report the adjusted results to Viewpoint’s

banks in accordance with Viewpoint’s debt covenant agreements. He refused to participate. Mr. Rife

then provided his notice to Viewpoint that he was leaving Viewpoint. After negotiations Mr. Rife


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503.242.1122F AX 503.242.0099

agreed to consult with Viewpoint to help assist management and the employees in his group make a

transition.

14.

Mr. Lang hired Tripwire employees to work at Viewpoint. He demanded that collectionspecialists be hired in 2016 to collect the receivables that were part of the write-offs in 2015.

Mr. Lang had confidential materials from Tripwire that were developed by Thoma Brava, a

competitor of Bain Capital. These materials outlined confidential methods and strategies used by

Tripwire and other companies owned by Thoma Brava. Mr. Lang used these materials to drive the

strategies and operational execution plans of the Company to be taken at Viewpoint under his

management as CFO. One or more Viewpoint employees complained to Viewpoint management

about the use of Tripwire’s confidential corporate information.

15.

Most of the remaining senior management and personnel hired prior to the arrival of Mr.

Kotzabasakis and Mr. Lang left Viewpoint over the next ninety to one hundred twenty days,

including the VP of Marketing, VP/GM of EMEA, VP/GM NA, VP/General Counsel, VP Product

Management, VP Development, VP Mid Market Sales, VP Professional Services, VP Customer

Support, Director of Finance, Corporate Controller, Assistant Corporate Controller, and a material

number of managers and other employees of Viewpoint. Only two former senior managers, the VP

of Sales and SVP of Strategy, ended up staying but in very different job capacities. Many of the

senior management departures were directly tied to the activities and direction provided by Mr.

Kotzabasakis and Mr. Lang, including downsizing of groups of employees that made performing the

work of the company impossible or being required to be part of illegal or unethical conduct.

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503.242.1122F AX 503.242.0099

FIRST CLAIM FOR RELIEF

(Breach of Contract; Defendant Viewpoint)

16.

Plaintiff realleges paragraphs 1 through 15 as part of this claim.17.

Plaintiff began working for Coaxis, Inc. the predecessor to Viewpoint, in August 2009 as its

Chief Financial Officer (“CFO”).

18.

In April 2014, Viewpoint acquired Coaxis, Inc. and changed the business name to Viewpoint,

Inc., A Corporation of Delaware.

19.

On or about September 25, 2015, Plaintiff signed a Separation Letter Agreement and General

Release (“Viewpoint SAR”) with Viewpoint, attached hereto as Exhibit A. The Viewpoint SAR

included twenty-four bi-monthly severance payments to Plaintiff totaling $382,800.00, to be paid in

October 2015 through September 2016. The Viewpoint SAR also included payment of Plaintiff’s

COBRA health insurance premiums for up to twelve months.

20.

Plaintiff performed all of his obligations under the Viewpoint SAR.

21.

On or about February 23, 2016, Viewpoint informed Plaintiff that as of that date it would not

make any more severance payments to Plaintiff, claiming he breached a non-solicitation covenant.

Defendant Viewpoint ceased making COBRA payments in April 2016.

22.

Plaintiff did not solicit, directly or indirectly, any employee or independent contractor of

Viewpoint to reduce or terminate their relationship with Viewpoint.

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503.242.1122F AX 503.242.0099

23.

Viewpoint knew that Plaintiff had not solicited any employees or contractors to reduce or

termination their relationship with Viewpoint. Viewpoint had already systematically terminated most

of its management personnel as alleged in paragraph 15 above.24.

Viewpoint owes Plaintiff unpaid severance payments due and unpaid after March 17, 2016

through September 2017 of no less than $260,000 , plus the value of Plaintiff’s COBRA health

insurance premiums from April through September 2016.

25.

Plaintiff made a written demand on Viewpoint to pay the remaining severance payments and

COBRA health premiums, but Viewpoint refused and continues to refuse to make payments as

required under the Viewpoint SAR.

26.

Viewpoint breached the Viewpoint SAR with Plaintiff when it refused to make and failed to

make any further severance payments due under the Viewpoint SAR.

27.

Viewpoint breached the Viewpoint SAR with Plaintiff when it stopped paying Plaintiff’s

COBRA health insurance premiums.

28.

The liability period for breach of contract claims is six years pursuant to ORS 12.080(1).

29.

Plaintiff seeks compensatory damages in the amount of no less than $260,000 plus the value

of six months of COBRA health insurance premiums, pre and post-judgement interest, plus his costs

and disbursements in bringing this claim.

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503.242.1122F AX 503.242.0099

SECOND CLAIM FOR RELIEF

(Breach of Covenant of Nondisparagement; Defendant Viewpoint)

30.

Plaintiff realleges paragraphs 1 through 15 and 17 through 28 as part of this claim.31.

After Plaintiff left his employment with Viewpoint, Viewpoint executives including

defendants Kotzabasakis and Lang made disparaging and derogatory statements about Plaintiff,

including but not limited to the statement that Mr. Ertischek was incompetent in his profession, to

employees of companies and to parties who were potential employers for Plaintiff, including but not

limited to KPMG, Wells Fargo and FTI Consulting.

32.

After Mr. Ertischek’s resignation from Viewpoint, defendant Lang made a number of

harmful, defamatory statements that impugned Mr. Ertischek’s competence in his profession as an

executive, financial officer, and businessman. Those statements include and are not limited to:

Telling Mr. Rife, both in private and in front of other Viewpoint employees, that Mr.Ertischek had “screwed up the entire accounting and finance department” and how Mr.Ertischek was “worthless.”

Telling Mr. Rife, both in private and in front of other Viewpoint employees, that Mr.Ertischek had “fucked me,” “screwed me,” and “shafted me.”

33.

Defendants Kotzabasakis and Lang engaged FTI Consulting, a forensic accounting firm to

investigate Mr. Ertischek’s financial department and transactions. Despite the fact that FTI did not

find any financial wrongdoing, defendants Kotzabasakis and Lang asked FTI to continue an

investigation of Mr. Ertischek. FTI was discharged by Viewpoint on or about January 2016.

However, despite FTI’s report to management that there was no financial wrongdoing the attorney

for Viewpoint threatened Mr. Ertischek on March 14, 2016 stating, “Please be aware that we are

investigating certain accounting matters at Viewpoint that occurred during the time period preceding


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503.242.1122F AX 503.242.0099

Mr. Ertischek’s departure.” This is the type of information defendants have intentionally

disseminated inside and outside of Viewpoint to potential employers.

34.

Defendant Lang also made presentations using PowerPoint slides to Viewpoint employeesthat purported to show financial misconduct by Plaintiff.

35.

Viewpoint’s statements about Plaintiff breached Viewpoint’s express promise in the

Viewpoint SAR that it would not disparage or make derogatory comments about Plaintiff.

36.

Plaintiff seeks compensatory damages in the amount of $2,846,000, plus his costs and

disbursements in bringing this claim.

THIRD CLAIM FOR RELIEF

(Breach of Covenant of Good Faith and Fair Dealing; Defendant Viewpoint)

37.

Plaintiff realleges paragraphs 1 through 15, 17 through 28 and 31 through 35 as part of this

claim.

38.

When Viewpoint unilaterally decided to stop making Plaintiff’s severance and COBRA health

insurance payments, Viewpoint breached its duty to at all times act in good faith and deal fairly with

Plaintiff in regard to performance of the Viewpoint SAR.

39.

When Viewpoint made disparaging and derogatory statements about Plaintiff to potential

employers of Plaintiff, Viewpoint breached its duty to at all times act in good faith and deal fairly

with Plaintiff in regard to performance of the Viewpoint SAR.

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503.242.1122F AX 503.242.0099

40.

Defendants continue to breach the duty of good of good faith by defaming and slandering Mr.

Ertischek in the business community to potential employers and business contacts and to employees

at Viewpoint. Defendants have used their attorneys to continue to harass and intimidate Plaintiff bythreatening Plaintiff with further “investigations.”

41.

Plaintiff seeks compensatory damages in the amount of no less than $260,000 plus the value

of six months of COBRA health insurance premiums, pre and post-judgement interest, plus his costs

and disbursements in bringing this claim.

FOURTH CLAIM FOR RELIEF

(Rescission; Defendant Viewpoint)

42.

Plaintiff realleges paragraphs 1 through 15, 17 through 28, 31 through 35 and 38 through 40

as part of this claim.

43.

Viewpoint materially breached the Viewpoint SAR by stopping Plaintiff’s severance and

COBRA health insurance payments, by refusing to at all times act in good faith and deal fairly with

Plaintiff in regard to performance of the Viewpoint SAR, and by disparaging Plaintiff to the Portland

financial community.

44.

In the alternate, Plaintiff seeks rescission of the Viewpoint SAR, plus his costs and

disbursements in bringing this claim.

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503.242.1122F AX 503.242.0099

FIFTH CLAIM FOR RELIEF

(Defamation; All Defendants)

45.

Plaintiff realleges paragraphs 1 through 15, 17 through 27 and 31 through 35 as part of thisclaim.

46.

After Plaintiff left his employment with Viewpoint, defendants Kotzabasakis and Lang made

false and defamatory statements about Plaintiff’s financial management of Viewpoint to their

employees and at company meetings.

47.

After Plaintiff left his employment with Viewpoint, defendants Kotzabasakis and Lang made

false and defamatory statements about Plaintiff’s financial management of Viewpoint at meetings

with third-party companies including KPMG, Wells Fargo and FTI. Those companies are part of the

relatively small Portland business community and routinely make or are advisors for credit and

investment decisions affecting software and services businesses in the Portland area.

48.

The false and defamatory statements made by defendants Kotzabasakis and Lang were

injurious to Plaintiff in his business or profession.

49.

Defendants Kotzabasakis and Lang were acting within the scope of their employment and as

agents of Viewpoint when they made the false and defamatory statements, and Viewpoint is

vicariously liable for their actions.

50.

The liability period for defamation is one year pursuant to ORS 12.120(2).

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51.


disbursements in bringing this claim. Plaintiff will file a motion to amend pursuant to ORS 31.725.

SIXTH CLAIM FOR RELIEF(Intentional Interference with Economic Relations; All Defendants)

52.

Plaintiff realleges paragraphs 1 through 15, 17 through 27, 31 through 35, 39 through 40 and

46 through 49 as part of this claim.

53.

Since termination of his employment with Viewpoint, Plaintiff has been working to establish

a business. In the course of his new business, Plaintiff will need access to funding from the financial

community in Portland, including companies such as KPMG and Wells Fargo; obtaining such

funding will rely heavily on Plaintiff’s personal reputation.

54.

The false and defamatory statements made by defendants Kotzabasakis and Lang about

Plaintiff were injurious to his reputation in the Portland financial community.

55.

Defendants Kotzabasakis and Lang intended to interfere with Plaintiff’s prospective economic

relations or were substantially certain that such interference would result from their statements.

56.

Defendants Kotzabasakis and Lang interfered with Plaintiff’s prospective economic relations

out of animus for Plaintiff and for an improper purpose, to cause him harm in his future business

dealings.

57.

Defendants Kotzabasakis and Lang caused a reduction in the value of Plaintiff’s new business

by making it difficult for Plaintiff to secure needed funding for his business.


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58.

As a result of defendants Kotzabasakis’s and Lang’s actions, the value of Plaintiff’s new

business was reduced by $1,250.000.

59.

Defendants Kotzabasakis and Lang were acting within the scope of their employment and as

agents of Viewpoint when they made the false and defamatory statements, and Viewpoint is

vicariously liable for their actions.

60.

The liability period for intentional interference with economic relations is two years pursuant

to ORS 12.110(1).

61.


disbursements in bringing this claim. Plaintiff will file a motion to amend pursuant to ORS 31.725.

JURY TRIAL REQUEST

62.

Plaintiff requests a jury trial for his Claims.

WHEREFORE, Plaintiff prays for judgment in his favor and against Defendant:

1) Compensatory damages in the amount of not less than $260,000, plus the value of six

months of COBRA health insurance premiums Plaintiff’s First and Third claims;

2) Compensatory damages in the amount of $2,846,000 for Plaintiff’s Second and Fifth

claims;

3) Compensatory damages in the amount of $1,250,000 for Plaintiff’s Sixth claims;

3) In the alternate, rescission of the Separation Letter Agreement and General Release;

4) Costs and disbursements;

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503.242.1122F AX 503.242.0099

5) Prejudgment interest from the date of accrual of Plaintiff’s First and Third claims;

6) Post judgment interest on all amounts due to Plaintiff as a result of this action; and

7) SUCH OTHER AND FURTHER RELIEF AS IS JUST.

DATED this 8 th day of April 2016.

NORTHWEST LAWFIRM

By: s/Jennifer L. Palmquist___________Jennifer L. Palmquist, OSB #793423

[email protected] Tracey, OSB #[email protected] Attorneys for Plaintiff


15/23

Privileged & Confidential

VIEWPOINT INC.1515 SE Water Avenue #300

Portland, OR 97214

September 25, 2015Ben Ertischek4111 SW Jerald WayPortland, Oregon 97221

Re: Separation Letter Agreement

Dear Mr. Ertischek:

This letter agreement (this "Letter Agreement") will confirm our understanding with

regard to your termination of employment with Viewpoint, Inc. (f/k/a Coaxis, Inc., the"Company").

1. Separation. Your last day of work with the Company and your employmenttermination date will be September 25 (the "Separation Date"). You will resign all of your

positions at the Company and its affiliates as of the Separation Date, and you will execute suchadditional documents as requested by the Company to evidence the foregoing. The SeparationDate will be the termination date of your employment for purposes of active participation in andcoverage under all benefit plans and programs sponsored by or through the Company or itsaffiliates. Your termination of employment is a termination by you other than for Good Reason,as such term is defined in that certain Employment Agreement by and between you and theCompany dated March 28, 2014 (the "Employment Agreement").

2. Severance Benefits . Due to the voluntary nature of your termination, you are notentitled to any severance pay pursuant to your Employment Agreement. Notwithstanding theforegoing, and in consideration for your execution of a general release of claims as provided in

paragraph 5 hereof, your continued compliance with your post-termination obligations under theEmployment Agreement, and the other promises contained herein and therein, you will receivethe following severance benefits.

(a) $382,800 payable in twenty-four (24) bi-monthly payments immediatelyfollowing the Separation Date, made on or around the 15th and the last day of the month inaccordance with the Company’s standard payroll practices. 1

(b) the Company will pay the premiums (the “COBRA Payments”) necessary tocontinue Executive’s health insurance coverage under the Company’s health insurance plan

pursuant to COBRA (provided that Executive timely elects COBRA coverage under the

1 Severance: equals 12 months of base salary totaling $282,800 plus the prior years’ bonus totaling $64,000 andthe stay bonus of $36,000.

EXHIBIT APage 1 of 9


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Company’s health insurance plan) until the earlier of twelve (12) months following theSeparation Date or the first date that Executive is eligible to be covered under another healthinsurance plan or program. Executive agrees to notify the Company at least seven (7) days inadvance of commencement of such coverage under another health insurance plan or program.The Company may modify its obligation under this paragraph 2(b) to the extent reasonably

necessary (and to the minimum extent necessary) to avoid any penalty or excise taxes imposedon it in connection with the continued payment of premiums by the Company under the PatientProtection and Affordable Care Act of 2010, as amended.

(c) Current iPhone, iPad and iPhone number.

(d) Accrued compensation through September 30 paid as normal pay on the regularCompany pay date less all lawful withholdings.

(e) Accrued PTO (31 days) less all lawful withholdings.

(f) Final typical and actual expenses arising in the course of your employment.

3. Equity Treatment.

(a) Stock Options. You have previously been granted 1,245,640 Stock Options (the"Options") in Waterfall Holdings, Inc. ("Holdings"), pursuant to a Notice of Stock Option Grantdated as of June 28, 2014 by and between you and the Company (the "Award Agreement")granted under the 2014 Stock Option Plan (the "Plan") of Holdings. As of the Separation Date,you will be vested in 20% of the Time-Vesting Options (as defined in the Plan) in accordancewith the vesting provisions applicable under the Award Agreement, for a total of 249,128 vestedOptions. All of the remaining Options issued under the Award Agreement will be unvested as ofthe Separation Date and, accordingly, all of such unvested Options will be immediately forfeited

and cancelled as of the Separation Date without any consideration being paid therefor andotherwise without any further action of the Company whatsoever in accordance with the AwardAgreement.

(b) No Other Equity Interests. Except for the foregoing equity securities of Companydescribed in this paragraph 3 and the 170,440 shares of Holdings' Class A Common Stock thatremain subject to the provisions of Holdings' Stockholders Agreement dated as of May 5, 2014(the "Stockholders Agreement"), you hereby acknowledge and agree that you do not have anyother rights or entitlements with respect to any compensatory equity award or other equityownership interest in the Company or its affiliates, and that following the Separation Date youwill have no rights or entitlements with respect to any compensatory equity award or equity

ownership interest in the Company or its affiliates.4. No Other Compensation or Benefits. You acknowledge that, except as

expressly provided in this Letter Agreement or as otherwise required by applicable law, you willnot receive any additional compensation, severance or other benefits of any kind following theSeparation Date.



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5. Release. Any and all amounts payable and benefits or additional rightscontemplated by paragraph 2 hereof will only be payable if you deliver to the Company and donot revoke a general release of claims in favor of the Company in the form attached on Exhibit Ahereto. Such release must be executed and delivered (and no longer subject to revocation, ifapplicable) by you within thirty (30) days following the Separation Date.

6. Restrictive Covenants; Survival.

(a) You hereby (a) reaffirm the rights and obligations under Exhibit A of theEmployment Agreement, the Plan and the Stockholders Agreement, and (b) understand,acknowledge and agree that such rights and obligations will survive your termination ofemployment with the Company and remain in full force and effect in accordance with all of theterms and conditions thereof. In the event of a violation of any of your obligations described inthe preceding sentence or in this Letter Agreement, you will forfeit your right to receive the

payments and benefits described in paragraph 2 hereof, and to the extent previously paid or provided, you will be required to immediately refund or forfeit such payments and benefits to the

Company.(b) During the next (3) month period following the Separation Date, and upon the

receipt of reasonable notice from the Company (including outside counsel), you agree that youwill respond and provide information with regard to matters in which you have knowledge as aresult of your employment with the Company, and will provide reasonable assistance to theCompany, its affiliates and their respective representatives in defense of any claims that may bemade against the Company or its affiliates, and will provide reasonable assistance to theCompany and its affiliates in the prosecution of any claims that may be made by the Company orits affiliates, to the extent that such claims may relate to the period of your employment with theCompany (collectively, the “Claims”). You agree to promptly inform the Company if you

become aware of any lawsuits involving Claims that may be filed or threatened against theCompany or its affiliates. You also agree to promptly inform the Company (to the extent thatyou are legally permitted to do so) if you are asked to assist in any investigation of the Companyor its affiliates (or their actions) or another party attempts to obtain information or documentsfrom you with respect to matters you believe in good faith to relate to any investigation of theCompany or its affiliates, in each case, regardless of whether a lawsuit or other proceeding hasthen been filed against the Company or its affiliates with respect to such investigation, and shallnot do so unless legally required. During the pendency of any litigation or other proceedinginvolving Claims, you shall not communicate with anyone (other than your attorneys and taxand/or financial advisors) with respect to the facts or subject matter of any pending or potentiallitigation or regulatory or administrative proceeding involving the Company or any of itsaffiliates without giving prior written notice to the Company or the Company’s counsel.

7. Nondisparagement. You hereby agree not to make negative comments orotherwise disparage the Company or its affiliates or their respective officers, directors,employees, shareholders, agents, services or products at any time prior to or following theSeparation Date. The foregoing will not be violated by truthful statements in response to legal

process, required governmental testimony or filings, or administrative or arbitral proceedings(including, without limitation, depositions in connection with such proceedings). The Companyagrees that they will not intentionally disparage or make derogatory comments about you to



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potential employers prior to or following the Separation Date. The foregoing will not be violated by truthful statements in response to legal process, required governmental testimony or filings, oradministrative or arbitral proceedings (including, without limitation, depositions in connectionwith such proceedings). The Company agrees to provide to you a neutral reference during anemployment verification statement providing your date of hire and date of separation only.

8. Governing Law. This Letter Agreement will be governed by, and construedunder and in accordance with, the internal laws of the State of Oregon, courts of Multnomahcounty, without regard to the choice of law rules thereof.

9. Tax Matters. The Company may withhold from any and all amounts payableunder this Letter Agreement such federal, state, local or foreign taxes as may be required to bewithheld pursuant to any applicable law or regulation. The intent of the parties is that paymentsand benefits contemplated under this Letter Agreement either comply with, or be exempt from,the requirements of Internal Revenue Code Section 409A. To the extent that the payments and

benefits contemplated by this Letter Agreement are not exempt from the requirements of Internal

Revenue Code Section 409A, this Letter Agreement is intended to comply with the requirementsof Internal Revenue Code Section 409A to the maximum extent possible, and shall be limited,construed and interpreted in accordance with such intent. You and the Company hereby agreethat your termination of employment on the Separation Date will constitute a "separation fromservice" within the meaning of Internal Revenue Code Section 409A.

10. Entire Agreement. Except as otherwise expressly provided herein (including,without limitation, paragraph 6 hereof), this Letter Agreement and the exhibit attached heretoconstitute the entire agreement between you and the Company with respect to the subject matterhereof and supersede any and all prior agreements or understandings between you and theCompany with respect to the subject matter hereof, whether written or oral (including, withoutlimitation, the Employment Agreement). This Letter Agreement will bind the heirs, personalrepresentatives, successors and assigns of both you and the Company, and inure to the benefit of

both you and the Company, and their respective heirs, successors and assigns, provided that youmay not assign your rights or obligations hereunder. This Letter Agreement may be amended ormodified only by a written instrument executed by you and the Company.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



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If this Letter Agreement accurately reflects your understanding as to the terms andconditions of your termination of employment with the Company, please sign and date one copyof this Letter Agreement in the space provided below and return the same to me for theCompany's records.

Very truly yours,

VIEWPOINT, INC.

By:

Name:

Title:

The above terms and conditions accurately reflect our understanding regarding the termsand conditions of my termination of employment with the Company, and I hereby confirm myagreement to the same.

Dated: , 2015Ben Ertischek

Benjamin Ertischek (Sep 25, 2015) Benjamin Ertischek Sep 25, 2015

September 25, 2015

Jennifer Yruegas


https://viewpoint.echosign.com/verifier?tx=XTA2MJU7G5T2Z3Bhttps://viewpoint.echosign.com/verifier?tx=XTA2MJU7G5T2Z3Bhttps://viewpoint.echosign.com/verifier?tx=XTA2MJU7G5T2Z3B


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EXHIBIT A

GENERAL RELEASE

I, Ben Ertischek, in consideration of and subject to the performance by Viewpoint, Inc.

(f/k/a Coaxis, Inc., and together with its subsidiaries, the "Company"), of its obligations underthe Separation Letter Agreement by and between the Company and me dated as of September25, 2015 (the "Agreement"), do hereby release and forever discharge as of the date hereof theCompany and its respective affiliates, subsidiaries, shareholders and direct or indirect parententities and all present, former and future directors, officers, agents, representatives, employees,successors and assigns of the Company and/or its respective affiliates, subsidiaries and direct orindirect parent entities (collectively, the "Released Parties") to the extent provided below (this"General Release"). The Released Parties are intended to be third-party beneficiaries of thisGeneral Release, and this General Release may be enforced by each of them in accordance withthe terms hereof in respect of the rights granted to such Released Parties hereunder. Terms usedherein but not otherwise defined shall have the meanings given to them in the Agreement.

1. I understand that any payments or benefits paid or granted to me under paragraph2 of the Agreement represent, in part, consideration for signing this General Release and are notsalary, wages or benefits to which I was already entitled. I understand and agree that I will notreceive the payments and benefits specified in paragraph 2 of the Agreement unless I executethis General Release and do not revoke this General Release within the time period permittedhereafter. Such payments and benefits will not be considered compensation for purposes of anyemployee benefit plan, program, policy or arrangement maintained or hereafter established bythe Company or its affiliates.

2. Except as provided in paragraphs 4 and 5 below and except for the provisions ofthe Agreement which expressly survive the termination of my employment with the Company, Iknowingly and voluntarily (for myself, my heirs, executors, administrators and assigns) releaseand forever discharge the Company and the other Released Parties from any and all claims, suits,controversies, actions, causes of action, cross-claims, counter-claims, demands, debts,compensatory damages, liquidated damages, punitive or exemplary damages, other damages,claims for costs and attorneys' fees, or liabilities of any nature whatsoever in law and in equity,

both past and present (through the date that this General Release becomes effective andenforceable) and whether known or unknown, suspected, or claimed against the Company or anyof the Released Parties which I, my spouse, or any of my heirs, executors, administrators orassigns, may have, by reason of any matter, cause, or thing whatsoever, from the beginning ofmy initial dealings with the Company to the date of this General Release, and particularly, butwithout limitation of the foregoing general terms, any claims arising from or relating in any wayto my employment relationship with the Company, the terms and conditions of that employmentrelationship, and the termination of that employment relationship (including, but not limited to,any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, asamended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, asamended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, asamended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement IncomeSecurity Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act;



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or their state or local counterparts; invocation of the Oregon Family Leave Act, the OregonMilitary Family Leave Act, and any other laws prohibiting employment discrimination,including Chapter 659A of the Oregon Revised Statutes; or under any other federal, state or localcivil or human rights law, or under any other local, state, or federal law, regulation or ordinance;or under any public policy, contract or tort, or under common law; or any other claim arising

under any policies, practices or procedures of the Company; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, orother expenses, including attorneys' fees incurred in these matters) (all of the foregoingcollectively referred to herein as the "Claims").

3. I represent that I have made no assignment or transfer of any right, claim,demand, cause of action, or other matter covered by paragraph 2 above.

4. I agree that this General Release does not waive or release any rights or claimsthat I may have under the Age Discrimination in Employment Act of 1967 which arise after thedate I execute this General Release. I acknowledge and agree that my separation fromemployment with the Company in compliance with the terms of the Agreement shall not serve asthe basis for any claim or action (including, without limitation, any claim under the AgeDiscrimination in Employment Act of 1967).

5. I agree that I hereby waive all rights to sue or obtain equitable, remedial or punitive relief from any or all Released Parties of any kind whatsoever in respect of any Claim,including, without limitation, reinstatement, back pay, front pay, and any form of injunctiverelief. Notwithstanding the above, I further acknowledge that I am not waiving and am not beingrequired to waive any right that cannot be waived under law, including the right to file anadministrative charge or participate in an administrative investigation or proceeding; provided,however, that I disclaim and waive any right to share or participate in any monetary awardresulting from the prosecution of such charge or investigation or proceeding. Additionally, I amnot waiving (i) any right to the severance or related benefits to which I am entitled under theAgreement, (ii) any claim relating to existing directors' and officers' liability insurance coverage,or (iii) subject to the provisions of the Agreement, any remaining rights I may have as an equityholder of the Company or its affiliates.

6. In signing this General Release, I acknowledge and intend that it shall be effectiveas a bar to each and every one of the Claims hereinabove mentioned or implied. I expresslyconsent that this General Release shall be given full force and effect according to each and all ofits express terms and provisions, including those relating to unknown and unsuspected Claims(notwithstanding any state or local statute that expressly limits the effectiveness of a generalrelease of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to

any other Claims hereinabove mentioned or implied. I acknowledge and agree that this waiver isan essential and material term of this General Release and that without such waiver the Companywould not have agreed to the terms of the Agreement. I further agree that in the event I should

bring a Claim seeking damages against the Company, or in the event I should seek to recoveragainst the Company in any Claim brought by a governmental agency on my behalf, this GeneralRelease shall serve as a complete defense to such Claims to the maximum extent permitted bylaw. I further agree that I am not aware of any pending claim of the type described in paragraph2 above as of the execution of this General Release.



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7. I agree that neither this General Release, nor the furnishing of the considerationfor this General Release, shall be deemed or construed at any time to be an admission by theCompany, any Released Party or myself of any improper or unlawful conduct.

8. I agree that if I violate this General Release by suing the Company or the otherReleased Parties related to any Claims, I will pay all reasonable costs and expenses of defendingagainst the suit incurred by the Released Parties, including reasonable attorneys' fees.

9. I agree that this General Release and the Agreement are confidential and agree notto disclose any information regarding the terms of this General Release or the Agreement, exceptto my immediate family and any tax, legal or other counsel that I have consulted regarding themeaning or effect hereof or as required by law, and I will instruct each of the foregoing not todisclose the same to anyone.

10. Any non-disclosure provision in this General Release does not prohibit or restrictme (or my attorney) from responding to any inquiry about this General Release or its underlyingfacts and circumstances by the Securities and Exchange Commission (SEC), the FinancialIndustry Regulatory Authority (FINRA), any other self-regulatory organization or anygovernmental entity.

11. I represent that I am not aware of any claim by me other than the claims that arereleased by this General Release. I acknowledge that I may hereafter discover claims or facts inaddition to or different than those which I now know or believe to exist with respect to thesubject matter of the release set forth in paragraph 2 above and which, if known or suspected atthe time of entering into this General Release, may have materially affected this General Releaseand my decision to enter into it.

12. Notwithstanding anything in this General Release to the contrary, this General

Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company or by any Released Party of the Agreement after the date hereof.

13. Whenever possible, each provision of this General Release shall be interpreted insuch manner as to be effective and valid under applicable law, but if any provision of thisGeneral Release is held to be invalid, illegal or unenforceable in any respect under anyapplicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall notaffect any other provision or any other jurisdiction, but this General Release shall be reformed,construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provisionhad never been contained herein.

BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:

1. I HAVE READ IT CAREFULLY;

2. I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UPIMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTSUNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, ASAMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, ASAMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH



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DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENTINCOME SECURITY ACT OF 1974, AS AMENDED;

3. I VOLUNTARILY CONSENT TO EVERYTHING IN IT;

4.

I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFOREEXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READINGAND CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWNVOLITION;

5. I HAVE HAD THE OPPORTUNITY BUT DID NOT TAKE AT LEAST 21DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE TOCONSIDER IT, AND THE CHANGES MADE SINCE MY RECEIPT OF THISRELEASE ARE NOT MATERIAL OR WERE MADE AT MY REQUEST ANDWILL NOT RESTART THE REQUIRED 21-DAY PERIOD;

6.

I UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THEEXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THISRELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTILTHE REVOCATION PERIOD HAS EXPIRED;

7. I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY ANDVOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINEDTO ADVISE ME WITH RESPECT TO IT; AND

8. I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY ANINSTRUMENT IN WRITING SIGNED BY AN AUTHORIZEDREPRESENTATIVE OF THE COMPANY AND BY ME.

SIGNED: DATED:Ben Ertischek

Benjamin Ertischek (Sep 25, 2015) Benjamin Ertischek Sep 25, 2015
https://viewpoint.echosign.com/verifier?tx=XTA2MJU7G5T2Z3Bhttps://viewpoint.echosign.com/verifier?tx=XTA2MJU7G5T2Z3Bhttps://viewpoint.echosign.com/verifier?tx=XTA2MJU7G5T2Z3B

ertischek v viewpoint

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