Ertischek V Viewpoint

4/8/2016 2:01:17 PM
16CV11760
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
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BENJAMIN ERTISCHEK, an individual,
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Plaintiff,
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v.
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VIEWPOINT, INC., A CORPORATION OF
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DELAWARE, a Delaware corporation, MANOLIS )
KOTZABASAKIS., an individual, and KELLY
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LANG, an individual,
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Defendants.
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Case No.
PLAINTIFFS COMPLAINT
(Breach of Contract; Breach of
Covenant of Nondisparagement; Breach
of Covenant of Good Faith and Fair
Dealing; Rescission; Defamation;
Intentional Interference with Economic
Relations)
Over $10,000
Amount Claimed: $4,356,000
Not Subject to Mandatory Arbitration
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Plaintiffs allegations are based upon information and belief, except for those allegations
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pertaining to Plaintiff that are based on his personal knowledge. Plaintiff alleges:
PARTIES
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1.
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Plaintiff Benjamin Ertischek was employed by defendants Viewpoint, Inc., A Corporation of
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Delaware (Viewpoint) in Portland, Oregon in Multnomah County. Plaintiff is a resident of Portland,
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Oregon in Multnomah County.
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NORTHWEST LAWFIRM
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SUITE 1220
PORTLAND, OREGON 97204
503.242.1122
FAX 503.242.0099
2.
At all material times, defendant Viewpoint was and is now a Delaware corporation registered
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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
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5.
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Venue is proper in this Court because defendants conduct business and employed Plaintiff
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within Multnomah County, and are within the jurisdiction of this Court for service of process
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purposes.
BACKGROUND ALLEGATIONS
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6.
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Plaintiff Ben Ertischek was the CFO of Viewpoint (formerly Coaxis) from August 2009 until
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September 2015. He earned a bachelors degree from Princeton University and an MBA from New
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York Universitys Stern Business School. After working for two years at Deloitte Touche he worked
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for Xerox for fourteen years. Mr. Ertischek met Coaxis owner and CEO Jay Haladay in August of
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2009 and took the job as CFO of Coaxis at that time. In 2012 Mr. Ertischek was the recipient of the
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Portland Business Journals award for CFO of the year. He has served as president of the Portland
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chapter of Financial Executives International, chair of the Finance Committee for the Technology
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Association of Oregon, and was a Governance Fellow with the National Association of Corporate
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Directors. Mr. Ertischek is a well-known and respected CFO.
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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.

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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.
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At the time of purchase, Viewpoint had about 800 employees and fourteen offices. The intent was to
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cut the number of offices down to three, and to reduce the number of employees by at least fifteen to
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twenty-five percent through significant layoffs, terminations and attrition.

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Bain typically drives a Blueprint process to define these cuts and the clear path to
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substantial growth in profits, while also extracting a sizable cash management fee from the company.
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In August 2015 Mr. Kotzabasakis, formerly of AspenTech in Boston became the CEO of Viewpoint
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replacing Jay Haladay. In November 2015 Kelly Lang, formerly Tripwires CFO, became
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Viewpoints CFO.
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10.
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Mr. Kotzabasakis advised Mr. Ertischek that Viewpoint would double its profits within a
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year. Mr. Ertischek objected to taking any action that was not intended to build long-term value of
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the business, especially ones that might be unethical or inappropriate under third-party scrutiny. Mr.
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Kotzabasakis advised Mr. Ertischek that he was going to get his bonus and would take actions that
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he felt necessary to achieve that goal. Mr. Kotzabasakis had a substantial seven-figure signing bonus
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that was tied to the doubling of company profits in 2016.
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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. Ertischeks 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. Kotzabasakiss 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
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resignation for Good Reason under his employment agreement on September 19, 2015 to both the
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Board of Directors and Mr. Kotzabasakis. The negotiated Separation Letter Agreement and General
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Release with Viewpoint was the conclusion of his employment on September 25, 2015.
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After Mr. Ertischek left, Mr. Lewis Rife was the interim CFO. He told Mr. Kotzabasakis that
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he wanted to apply for the CFO position after Mr. Ertischek left Viewpoint. Mr. Kotzabasakis did
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not allow Mr. Rife to apply but instead hired Mr. Lang from Tripwire.
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Mr. Lang advised Mr. Rife that Viewpoint was going to take a massive increase in the
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accounts receivable reserve for doubtful collections in the fourth quarter of 2015. Mr. Lang intended
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to write off a large portion of the 2015 receivables as uncollectable despite knowing that some of the
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debts had already been collected. Mr. Lang stated Viewpoint would reverse the write-offs sometime
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in 2016. This type of activity would result in a significant shift in profits from 2015 into 2016,
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thereby increasing 2016 executive bonus opportunities. Mr. Rife objected to this accounting
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maneuver and expressed his view that it would be illegal to report the adjusted results to Viewpoints
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banks in accordance with Viewpoints debt covenant agreements. He refused to participate. Mr. Rife
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then provided his notice to Viewpoint that he was leaving Viewpoint. After negotiations Mr. Rife
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agreed to consult with Viewpoint to help assist management and the employees in his group make a
transition.
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Mr. Lang hired Tripwire employees to work at Viewpoint. He demanded that collection
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specialists 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
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management as CFO. One or more Viewpoint employees complained to Viewpoint management
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about the use of Tripwires confidential corporate information.

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Most of the remaining senior management and personnel hired prior to the arrival of Mr.
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Kotzabasakis and Mr. Lang left Viewpoint over the next ninety to one hundred twenty days,
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including the VP of Marketing, VP/GM of EMEA, VP/GM NA, VP/General Counsel, VP Product
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Management, VP Development, VP Mid Market Sales, VP Professional Services, VP Customer
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Support, Director of Finance, Corporate Controller, Assistant Corporate Controller, and a material
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number of managers and other employees of Viewpoint. Only two former senior managers, the VP
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of Sales and SVP of Strategy, ended up staying but in very different job capacities. Many of the
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senior management departures were directly tied to the activities and direction provided by Mr.
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Kotzabasakis and Mr. Lang, including downsizing of groups of employees that made performing the
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work of the company impossible or being required to be part of illegal or unethical conduct.
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FIRST CLAIM FOR RELIEF
(Breach of Contract; Defendant Viewpoint)

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Plaintiff realleges paragraphs 1 through 15 as part of this claim.
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Plaintiff began working for Coaxis, Inc. the predecessor to Viewpoint, in August 2009 as its
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Chief Financial Officer (CFO).

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In April 2014, Viewpoint acquired Coaxis, Inc. and changed the business name to Viewpoint,
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Inc., A Corporation of Delaware.

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On or about September 25, 2015, Plaintiff signed a Separation Letter Agreement and General
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Release (Viewpoint SAR) with Viewpoint, attached hereto as Exhibit A. The Viewpoint SAR
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included twenty-four bi-monthly severance payments to Plaintiff totaling $382,800.00, to be paid in
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October 2015 through September 2016. The Viewpoint SAR also included payment of Plaintiffs
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COBRA health insurance premiums for up to twelve months.

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Plaintiff performed all of his obligations under the Viewpoint SAR.
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21.
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On or about February 23, 2016, Viewpoint informed Plaintiff that as of that date it would not
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make any more severance payments to Plaintiff, claiming he breached a non-solicitation covenant.
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Defendant Viewpoint ceased making COBRA payments in April 2016.
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22.
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Plaintiff did not solicit, directly or indirectly, any employee or independent contractor of
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Viewpoint to reduce or terminate their relationship with Viewpoint.
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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.
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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 Plaintiffs COBRA health
insurance premiums from April through September 2016.

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Plaintiff made a written demand on Viewpoint to pay the remaining severance payments and
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COBRA health premiums, but Viewpoint refused and continues to refuse to make payments as
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required under the Viewpoint SAR.

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Viewpoint breached the Viewpoint SAR with Plaintiff when it refused to make and failed to
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make any further severance payments due under the Viewpoint SAR.
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27.
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Viewpoint breached the Viewpoint SAR with Plaintiff when it stopped paying Plaintiffs
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COBRA health insurance premiums.
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28.
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The liability period for breach of contract claims is six years pursuant to ORS 12.080(1).
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29.
Plaintiff seeks compensatory damages in the amount of no less than $260,000 plus the value
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of six months of COBRA health insurance premiums, pre and post-judgement interest, plus his costs
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and disbursements in bringing this claim.
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SECOND CLAIM FOR RELIEF
(Breach of Covenant of Nondisparagement; Defendant Viewpoint)

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

31.
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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
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limited to KPMG, Wells Fargo and FTI Consulting.

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After Mr. Ertischeks resignation from Viewpoint, defendant Lang made a number of
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harmful, defamatory statements that impugned Mr. Ertischeks competence in his profession as an
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executive, financial officer, and businessman. Those statements include and are not limited to:
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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.
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Telling Mr. Rife, both in private and in front of other Viewpoint employees, that Mr.
Ertischek had fucked me, screwed me, and shafted me.
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33.
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Defendants Kotzabasakis and Lang engaged FTI Consulting, a forensic accounting firm to
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investigate Mr. Ertischeks financial department and transactions. Despite the fact that FTI did not
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find any financial wrongdoing, defendants Kotzabasakis and Lang asked FTI to continue an
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investigation of Mr. Ertischek. FTI was discharged by Viewpoint on or about January 2016.
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However, despite FTIs report to management that there was no financial wrongdoing the attorney
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for Viewpoint threatened Mr. Ertischek on March 14, 2016 stating, Please be aware that we are
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investigating certain accounting matters at Viewpoint that occurred during the time period preceding
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Mr. Ertischeks departure. This is the type of information defendants have intentionally
disseminated inside and outside of Viewpoint to potential employers.
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Defendant Lang also made presentations using PowerPoint slides to Viewpoint employees
that purported to show financial misconduct by Plaintiff.

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Viewpoints statements about Plaintiff breached Viewpoints express promise in the
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Viewpoint SAR that it would not disparage or make derogatory comments about Plaintiff.
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Plaintiff seeks compensatory damages in the amount of $2,846,000, plus his costs and
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disbursements in bringing this claim.
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THIRD CLAIM FOR RELIEF
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(Breach of Covenant of Good Faith and Fair Dealing; Defendant Viewpoint)
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37.
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Plaintiff realleges paragraphs 1 through 15, 17 through 28 and 31 through 35 as part of this
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claim.
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When Viewpoint unilaterally decided to stop making Plaintiffs severance and COBRA health
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insurance payments, Viewpoint breached its duty to at all times act in good faith and deal fairly with
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Plaintiff in regard to performance of the Viewpoint SAR.
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39.
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When Viewpoint made disparaging and derogatory statements about Plaintiff to potential
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employers of Plaintiff, Viewpoint breached its duty to at all times act in good faith and deal fairly
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with Plaintiff in regard to performance of the Viewpoint SAR.
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40.
Defendants continue to breach the duty of good of good faith by defaming and slandering Mr.
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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 by
threatening Plaintiff with further investigations.

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Plaintiff seeks compensatory damages in the amount of no less than $260,000 plus the value
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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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FOURTH CLAIM FOR RELIEF
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(Rescission; Defendant Viewpoint)

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Plaintiff realleges paragraphs 1 through 15, 17 through 28, 31 through 35 and 38 through 40
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as part of this claim.
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43.
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Viewpoint materially breached the Viewpoint SAR by stopping Plaintiffs severance and
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COBRA health insurance payments, by refusing to at all times act in good faith and deal fairly with
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Plaintiff in regard to performance of the Viewpoint SAR, and by disparaging Plaintiff to the Portland
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financial community.
44.
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In the alternate, Plaintiff seeks rescission of the Viewpoint SAR, plus his costs and
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disbursements in bringing this claim.
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FIFTH CLAIM FOR RELIEF
(Defamation; All Defendants)
45.
Plaintiff realleges paragraphs 1 through 15, 17 through 27 and 31 through 35 as part of this
claim.
46.
After Plaintiff left his employment with Viewpoint, defendants Kotzabasakis and Lang made
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false and defamatory statements about Plaintiffs financial management of Viewpoint to their
employees and at company meetings.

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After Plaintiff left his employment with Viewpoint, defendants Kotzabasakis and Lang made
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false and defamatory statements about Plaintiffs financial management of Viewpoint at meetings
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with third-party companies including KPMG, Wells Fargo and FTI. Those companies are part of the
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relatively small Portland business community and routinely make or are advisors for credit and
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investment decisions affecting software and services businesses in the Portland area.
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The false and defamatory statements made by defendants Kotzabasakis and Lang were
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injurious to Plaintiff in his business or profession.

49.
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Defendants Kotzabasakis and Lang were acting within the scope of their employment and as
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agents of Viewpoint when they made the false and defamatory statements, and Viewpoint is
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vicariously liable for their actions.

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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.
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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.
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Since termination of his employment with Viewpoint, Plaintiff has been working to establish
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a business. In the course of his new business, Plaintiff will need access to funding from the financial
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community in Portland, including companies such as KPMG and Wells Fargo; obtaining such
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funding will rely heavily on Plaintiffs personal reputation.

54.
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The false and defamatory statements made by defendants Kotzabasakis and Lang about
Plaintiff were injurious to his reputation in the Portland financial community.
55.
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Defendants Kotzabasakis and Lang intended to interfere with Plaintiffs prospective economic
relations or were substantially certain that such interference would result from their statements.
56.
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Defendants Kotzabasakis and Lang interfered with Plaintiffs prospective economic relations
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out of animus for Plaintiff and for an improper purpose, to cause him harm in his future business
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dealings.
57.
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Defendants Kotzabasakis and Lang caused a reduction in the value of Plaintiffs 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 Kotzabasakiss and Langs actions, the value of Plaintiffs new
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business was reduced by $1,250.000.

59.
Defendants Kotzabasakis and Lang were acting within the scope of their employment and as
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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
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to ORS 12.110(1).
61.
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disbursements in bringing this claim. Plaintiff will file a motion to amend pursuant to ORS 31.725.
JURY TRIAL REQUEST
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62.
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Plaintiff requests a jury trial for his Claims.
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WHEREFORE, Plaintiff prays for judgment in his favor and against Defendant:
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1) Compensatory damages in the amount of not less than $260,000, plus the value of six
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months of COBRA health insurance premiums Plaintiffs First and Third claims;
2) Compensatory damages in the amount of $2,846,000 for Plaintiffs Second and Fifth
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claims;
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3) Compensatory damages in the amount of $1,250,000 for Plaintiffs Sixth claims;
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3) In the alternate, rescission of the Separation Letter Agreement and General Release;
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4) Costs and disbursements;
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5) Prejudgment interest from the date of accrual of Plaintiffs 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 8th day of April 2016.
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By: s/Jennifer L. Palmquist___________

Jennifer L. Palmquist, OSB #793423
jpalmquist@nwlawfirm.com
Christine Tracey, OSB #014372
ctracey@nwlawfirm.com
Of Attorneys for Plaintiff
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Privileged & Confidential
VIEWPOINT, INC.
1515 SE Water Avenue #300
Portland, OR 97214
September 25, 2015
Ben Ertischek
4111 SW Jerald Way
Portland, 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 employment
termination 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 such
additional documents as requested by the Company to evidence the foregoing. The Separation
Date will be the termination date of your employment for purposes of active participation in and
coverage under all benefit plans and programs sponsored by or through the Company or its
affiliates. 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 the
Company dated March 28, 2014 (the "Employment Agreement").
2.
Severance Benefits. Due to the voluntary nature of your termination, you are not
entitled to any severance pay pursuant to your Employment Agreement. Notwithstanding the
foregoing, 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 the
Employment Agreement, and the other promises contained herein and therein, you will receive
the following severance benefits.
(a)
$382,800 payable in twenty-four (24) bi-monthly payments immediately
following the Separation Date, made on or around the 15th and the last day of the month in
accordance with the Companys standard payroll practices.1
(b)
the Company will pay the premiums (the COBRA Payments) necessary to
continue Executives health insurance coverage under the Companys health insurance plan
pursuant to COBRA (provided that Executive timely elects COBRA coverage under the
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Severance: equals 12 months of base salary totaling $282,800 plus the prior years bonus totaling $64,000 and
the stay bonus of $36,000.
EXHIBIT A
Page 1 of 9
Companys health insurance plan) until the earlier of twelve (12) months following the
Separation Date or the first date that Executive is eligible to be covered under another health
insurance plan or program. Executive agrees to notify the Company at least seven (7) days in
advance 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 imposed
on it in connection with the continued payment of premiums by the Company under the Patient
Protection 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 regular
Company 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 Grant
dated 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 accordance
with the vesting provisions applicable under the Award Agreement, for a total of 249,128 vested
Options. All of the remaining Options issued under the Award Agreement will be unvested as of
the 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 and
otherwise without any further action of the Company whatsoever in accordance with the Award
Agreement.
(b)
No Other Equity Interests. Except for the foregoing equity securities of Company
described in this paragraph 3 and the 170,440 shares of Holdings' Class A Common Stock that
remain 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 any
other rights or entitlements with respect to any compensatory equity award or other equity
ownership interest in the Company or its affiliates, and that following the Separation Date you
will 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 will
not receive any additional compensation, severance or other benefits of any kind following the
Separation Date.
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EXHIBIT A
Page 2 of 9
5.
Release. Any and all amounts payable and benefits or additional rights
contemplated by paragraph 2 hereof will only be payable if you deliver to the Company and do
not revoke a general release of claims in favor of the Company in the form attached on Exhibit A
hereto. Such release must be executed and delivered (and no longer subject to revocation, if
applicable) 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 the
Employment Agreement, the Plan and the Stockholders Agreement, and (b) understand,
acknowledge and agree that such rights and obligations will survive your termination of
employment with the Company and remain in full force and effect in accordance with all of the
terms and conditions thereof. In the event of a violation of any of your obligations described in
the 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 you
will respond and provide information with regard to matters in which you have knowledge as a
result of your employment with the Company, and will provide reasonable assistance to the
Company, its affiliates and their respective representatives in defense of any claims that may be
made against the Company or its affiliates, and will provide reasonable assistance to the
Company and its affiliates in the prosecution of any claims that may be made by the Company or
its affiliates, to the extent that such claims may relate to the period of your employment with the
Company (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 the
Company or its affiliates. You also agree to promptly inform the Company (to the extent that
you are legally permitted to do so) if you are asked to assist in any investigation of the Company
or its affiliates (or their actions) or another party attempts to obtain information or documents
from you with respect to matters you believe in good faith to relate to any investigation of the
Company or its affiliates, in each case, regardless of whether a lawsuit or other proceeding has
then been filed against the Company or its affiliates with respect to such investigation, and shall
not do so unless legally required. During the pendency of any litigation or other proceeding
involving Claims, you shall not communicate with anyone (other than your attorneys and tax
and/or financial advisors) with respect to the facts or subject matter of any pending or potential
litigation or regulatory or administrative proceeding involving the Company or any of its
affiliates without giving prior written notice to the Company or the Companys counsel.
7.
Nondisparagement. You hereby agree not to make negative comments or
otherwise disparage the Company or its affiliates or their respective officers, directors,
employees, shareholders, agents, services or products at any time 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, or administrative or arbitral proceedings
(including, without limitation, depositions in connection with such proceedings). The Company
agrees that they will not intentionally disparage or make derogatory comments about you to
33
EXHIBIT A
Page 3 of 9
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, or
administrative or arbitral proceedings (including, without limitation, depositions in connection
with such proceedings). The Company agrees to provide to you a neutral reference during an
employment verification statement providing your date of hire and date of separation only.
8.
Governing Law. This Letter Agreement will be governed by, and construed
under and in accordance with, the internal laws of the State of Oregon, courts of Multnomah
county, without regard to the choice of law rules thereof.
9.
Tax Matters. The Company may withhold from any and all amounts payable
under this Letter Agreement such federal, state, local or foreign taxes as may be required to be
withheld pursuant to any applicable law or regulation. The intent of the parties is that payments
and 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 requirements
of 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 agree
that your termination of employment on the Separation Date will constitute a "separation from
service" 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 hereto
constitute the entire agreement between you and the Company with respect to the subject matter
hereof and supersede any and all prior agreements or understandings between you and the
Company with respect to the subject matter hereof, whether written or oral (including, without
limitation, the Employment Agreement). This Letter Agreement will bind the heirs, personal
representatives, 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 you
may not assign your rights or obligations hereunder. This Letter Agreement may be amended or
modified only by a written instrument executed by you and the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
44
EXHIBIT A
Page 4 of 9
If this Letter Agreement accurately reflects your understanding as to the terms and
conditions of your termination of employment with the Company, please sign and date one copy
of this Letter Agreement in the space provided below and return the same to me for the
Company's records.
Very truly yours,
VIEWPOINT, INC.
By:
Name:
Title:
Jennifer Yruegas
September 25, 2015
The above terms and conditions accurately reflect our understanding regarding the terms
and conditions of my termination of employment with the Company, and I hereby confirm my
agreement to the same.
Dated:
Sep 25, 2015
, 2015
Benjamin Ertischek
Benjamin Ertischek (Sep 25, 2015)
Ben Ertischek
Separation Letter Agreement Signature Page
EXHIBIT A
Page 5 of 9
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 under
the Separation Letter Agreement by and between the Company and me dated as of September
25, 2015 (the "Agreement"), do hereby release and forever discharge as of the date hereof the
Company and its respective affiliates, subsidiaries, shareholders and direct or indirect parent
entities 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 or
indirect 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 this
General Release, and this General Release may be enforced by each of them in accordance with
the terms hereof in respect of the rights granted to such Released Parties hereunder. Terms used
herein 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 paragraph
2 of the Agreement represent, in part, consideration for signing this General Release and are not
salary, wages or benefits to which I was already entitled. I understand and agree that I will not
receive the payments and benefits specified in paragraph 2 of the Agreement unless I execute
this General Release and do not revoke this General Release within the time period permitted
hereafter. Such payments and benefits will not be considered compensation for purposes of any
employee benefit plan, program, policy or arrangement maintained or hereafter established by
the Company or its affiliates.
2.
Except as provided in paragraphs 4 and 5 below and except for the provisions of
the Agreement which expressly survive the termination of my employment with the Company, I
knowingly and voluntarily (for myself, my heirs, executors, administrators and assigns) release
and 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 and
enforceable) and whether known or unknown, suspected, or claimed against the Company or any
of the Released Parties which I, my spouse, or any of my heirs, executors, administrators or
assigns, may have, by reason of any matter, cause, or thing whatsoever, from the beginning of
my initial dealings with the Company to the date of this General Release, and particularly, but
without limitation of the foregoing general terms, any claims arising from or relating in any way
to my employment relationship with the Company, the terms and conditions of that employment
relationship, 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, as
amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as
amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as
amended; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of
1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income
Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act;
A-1
EXHIBIT A
Page 6 of 9
or their state or local counterparts; invocation of the Oregon Family Leave Act, the Oregon
Military 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 local
civil 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, or
other expenses, including attorneys' fees incurred in these matters) (all of the foregoing
collectively 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 claims
that I may have under the Age Discrimination in Employment Act of 1967 which arise after the
date I execute this General Release. I acknowledge and agree that my separation from
employment with the Company in compliance with the terms of the Agreement shall not serve as
the basis for any claim or action (including, without limitation, any claim under the Age
Discrimination 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 injunctive
relief. Notwithstanding the above, I further acknowledge that I am not waiving and am not being
required to waive any right that cannot be waived under law, including the right to file an
administrative 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 award
resulting from the prosecution of such charge or investigation or proceeding. Additionally, I am
not waiving (i) any right to the severance or related benefits to which I am entitled under the
Agreement, (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 equity
holder of the Company or its affiliates.
6.
In signing this General Release, I acknowledge and intend that it shall be effective
as a bar to each and every one of the Claims hereinabove mentioned or implied. I expressly
consent that this General Release shall be given full force and effect according to each and all of
its 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 general
release 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 is
an essential and material term of this General Release and that without such waiver the Company
would 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 recover
against the Company in any Claim brought by a governmental agency on my behalf, this General
Release shall serve as a complete defense to such Claims to the maximum extent permitted by
law. I further agree that I am not aware of any pending claim of the type described in paragraph
2 above as of the execution of this General Release.
A-2
EXHIBIT A
Page 7 of 9
7.
I agree that neither this General Release, nor the furnishing of the consideration
for this General Release, shall be deemed or construed at any time to be an admission by the
Company, 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 other
Released Parties related to any Claims, I will pay all reasonable costs and expenses of defending
against 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 not
to disclose any information regarding the terms of this General Release or the Agreement, except
to my immediate family and any tax, legal or other counsel that I have consulted regarding the
meaning or effect hereof or as required by law, and I will instruct each of the foregoing not to
disclose the same to anyone.
10.
Any non-disclosure provision in this General Release does not prohibit or restrict
me (or my attorney) from responding to any inquiry about this General Release or its underlying
facts and circumstances by the Securities and Exchange Commission (SEC), the Financial
Industry Regulatory Authority (FINRA), any other self-regulatory organization or any
governmental entity.
11.
I represent that I am not aware of any claim by me other than the claims that are
released by this General Release. I acknowledge that I may hereafter discover claims or facts in
addition to or different than those which I now know or believe to exist with respect to the
subject matter of the release set forth in paragraph 2 above and which, if known or suspected at
the time of entering into this General Release, may have materially affected this General Release
and 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 in
such manner as to be effective and valid under applicable law, but if any provision of this
General Release is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not
affect 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 provision
had 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 UP

IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS
AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS
AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
A-3
EXHIBIT A
Page 8 of 9
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT

INCOME SECURITY ACT OF 1974, AS AMENDED;
3.
I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
4.
I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE

EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING
AND CONSIDERATION, I HAVE CHOSEN NOT TO DO SO OF MY OWN
VOLITION;
5.
I HAVE HAD THE OPPORTUNITY BUT DID NOT TAKE AT LEAST 21

DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE TO
CONSIDER IT, AND THE CHANGES MADE SINCE MY RECEIPT OF THIS
RELEASE ARE NOT MATERIAL OR WERE MADE AT MY REQUEST AND
WILL NOT RESTART THE REQUIRED 21-DAY PERIOD;
6.
I UNDERSTAND THAT I HAVE SEVEN (7) DAYS AFTER THE

EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS
RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL
THE REVOCATION PERIOD HAS EXPIRED;
7.
I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND

VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED
TO 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 AN
INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE COMPANY AND BY ME.
Benjamin Ertischek
DATED: Sep 25, 2015
SIGNED: Benjamin Ertischek (Sep 25, 2015)

Ben Ertischek
A-4
EXHIBIT A
Page 9 of 9

Ertischek V Viewpoint

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Ertischek V Viewpoint

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

Plaintiff Benjamin Ertischek was employed by defendants Viewpoint, Inc., A Corporation of

Delaware (Viewpoint) in Portland, Oregon in Multnomah County. Plaintiff is a resident of Portland,

Oregon in Multnomah County.

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

business operations in Portland, Oregon.

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

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

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

about the use of Tripwires confidential corporate information.

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

FIRST CLAIM FOR RELIEF

(Breach of Contract; Defendant Viewpoint)

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

Chief Financial Officer (CFO).

Inc., A Corporation of Delaware.

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

COBRA health insurance premiums for up to twelve months.

Plaintiff performed all of his obligations under the Viewpoint SAR.

Defendant Viewpoint ceased making COBRA payments in April 2016.

Viewpoint to reduce or terminate their relationship with Viewpoint.

of its management personnel as alleged in paragraph 15 above.

insurance premiums from April through September 2016.

required under the Viewpoint SAR.

COBRA health insurance premiums.

and disbursements in bringing this claim.

SECOND CLAIM FOR RELIEF

(Breach of Covenant of Nondisparagement; Defendant Viewpoint)

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

limited to KPMG, Wells Fargo and FTI Consulting.

disseminated inside and outside of Viewpoint to potential employers.

that purported to show financial misconduct by Plaintiff.

Viewpoints statements about Plaintiff breached Viewpoints express promise in the

disbursements in bringing this claim.

THIRD CLAIM FOR RELIEF

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

Plaintiff in regard to performance of the Viewpoint SAR.

with Plaintiff in regard to performance of the Viewpoint SAR.

threatening Plaintiff with further investigations.

and disbursements in bringing this claim.

FOURTH CLAIM FOR RELIEF

(Rescission; Defendant Viewpoint)

as part of this claim.

disbursements in bringing this claim.

FIFTH CLAIM FOR RELIEF

(Defamation; All Defendants)

employees and at company meetings.

injurious to Plaintiff in his business or profession.

vicariously liable for their actions.

SIXTH CLAIM FOR RELIEF

(Intentional Interference with Economic Relations; All Defendants)

funding will rely heavily on Plaintiffs personal reputation.

business was reduced by $1,250.000.

vicariously liable for their actions.

Plaintiff requests a jury trial for his Claims.

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

4) Costs and disbursements;

By: s/Jennifer L. Palmquist___________

Privileged & Confidential

Separation Letter Agreement

Dear Mr. Ertischek: