PROMISSORY ISSUED BY KAPLAN



 



EXHIBIT 10.9



PROMISSORY NOTE




	 	 	 
	$ 375,000	 	
New York, New York

April 2, 2001



     FOR VALUE RECEIVED, the undersigned, Jeffrey J. Kaplan (the “Borrower”)
hereby unconditionally promises to pay to the order of Viewpoint Corporation, a
Delaware corporation, (the “Company”), the principal sum of three hundred
seventy-five thousand dollars ($375,000), together with interest on the unpaid
principal amount of this Note from time to time outstanding for the period from
and including the date hereof to but excluding the date that the principal of
this Note shall be paid in full at a rate per annum specified below, all on the
following terms and conditions:


     Unless otherwise forgiven in connection with a Forgiveness Event (as
defined below), the principal amount of this Note and all accrued and unpaid
interest from the date hereof shall be due on April 2, 2005; provided, however,
that the principal amount of this Note shall be due and payable on written
demand by the Company at any time after the thirtieth (30th) day following the
occurrence of one or more of the following events if such event(s) occurs not
less than 30 days before April 2, 2005 (the “Maturity Date”):



	 	(i)	 	the Borrower shall cease to be an employee of the Company
for any reason other than the Company’s non-renewal of the
Employment Agreement (in which event the principal amount
of this Note and all accrued and unpaid interest from the
date hereof to the Maturity Date shall be due and payable
on the Maturity Date),
	 
	 	(ii)	 	except as otherwise set forth in the Stock and Option
Pledge Agreement, dated as of April 2, 2001, between the
Company and Pledgor (the “Pledge Agreement”), the Borrower
shall attempt to transfer any Collateral (as defined in the
Pledge Agreement), or
	 
	 	(iii)	 	an Event of Default (as defined in the Pledge Agreement)
shall have occurred.



     Interest. This note shall bear interest at 4.94% per annum, compounding
annually and shall be computed on the basis of a year of 360 days and actual
days elapsed (including the first day but excluding the last day) occurring in
the period for which payable.


 






 


     Manner of Payment. All payments of principal and interest to be made by
the Borrower under this Note shall be made in U.S. Dollars, legal currency of
the United States of America, in immediately available funds, to an account
specified by the Company, not later than 10:00 a.m. New York time on the
Maturity Date on which such payment shall become due (each such payment made
after such time on the Maturity Date to be deemed to have been made on the next
succeeding day). All amounts payable under this Note shall be paid free and
clear of, and without reduction by reason of, any deduction, set-off or
counterclaim whatsoever.


     Security. This Note is the Note referred to in the Pledge Agreement, a
copy of which is on file with the Secretary of the Company. The Pledge Agreement
contains, among other things, provisions governing the Company’s right to
transfer Collateral upon the occurrence of an Event of Default.


     Recourse. Unless the Borrower resigns employment with the Company without
Good Reason (as defined in the Employment Agreement) during the term of the
Employment Agreement and prior to the Maturity Date, or the Borrower’s
employment is terminated by the Company for Cause (as defined in the Employment
Agreement) during the term of the Employment Agreement and prior to the Maturity
Date, the Company’s sole recourse to repayment of this Note will be limited to
the net, after-tax proceeds from the sale of Company Common Stock (as defined in
the Pledge Agreement) issuable upon exercise of the Stock Option and Subsequent
Options (as each such term is defined in the Pledge Agreement). If, during the
term of the Employment Agreement and prior to the Maturity Date, the Borrower
resigns employment with the Company without Good Reason or the Borrower’s
employment is terminated by the Company for Cause, this Note will be fully
recourse to the Borrower. If this Note has become fully recourse to Borrower in
accordance with the foregoing and the proceeds of sale, collection or other
realization of or upon the Collateral (as defined in the Pledge Agreement) are
insufficient to cover the costs and expenses of such realization (subject to
Pledgor’s maximum liability for attorney’s fees as set forth in Section 9(k) of
the Pledge Agreement) and the payment in full of the Obligations (as defined in
the Pledge Agreement), the Borrower shall remain liable for any deficiency to
the extent the Borrower is obligated under this Note.


     Forgiveness. The Borrower will not be obligated to repay this Note if,
during the term of the Employment Agreement, (a) there is a Change in Control of
the Company (as defined in the Employment Agreement), (b) the Company completes
a Qualifying Equity Financing (as defined in the Employment Agreement), (c) the
Company completes a Qualifying Acquisition (as defined in the Employment
Agreement), (d) the Borrower resigns employment with the Company for Good Reason
or the Borrower’s employment is terminated by the Company without Cause, or (e)
the Borrower becomes Permanently Disabled (as defined in the Employment
Agreement) or dies (each of (a) through (e) a “Forgiveness Event”).


     Prepayment. The Borrower shall have the right to prepay at any time, and
from time to time, without premium or penalty, all or any portion of the
principal hereunder.


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Upon such prepayment, the Borrower shall pay unpaid interest on the principal
amount so prepaid accrued to the date of such prepayment.


     Waiver. To the extent permitted by applicable law and except as otherwise
provided herein, the Borrower hereby waives presentment, protest, demand for
payment, notice of dishonor and all other notices or demands in connection with
the delivery, acceptance, performance, default or endorsement of this Note. No
failure on the part of the Company to exercise and no delay in exercising, and
no course of dealing with respect to, any right, power or privilege under this
Note shall operate as a waiver thereof, nor shall any single or partial exercise
of any right, power or privilege under this Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.


     Amendments; Successors; Assignments. This Note may not be amended except
by an instrument in writing signed by each of the Borrower and the Company. This
Note shall be binding upon the Borrower and inure to the benefit of the Company
and their respective successors and permitted assigns. The Borrower shall not
assign any of its rights or obligations under this Note without the prior
written consent of the Company. The Company may at any time and from time to
time assign all or any portion of its rights under this Note, and, upon the
Company giving notice of such assignment to the Borrower specifying the interest
hereunder being assigned and the assignee to which such interest is being
assigned, each reference herein to the Company shall (solely in respect of the
interest so assigned) constitute a reference to such assignee (as if such
assignee were named herein) rather than the Company. The Company shall be
entitled to have this Note subdivided, by exchange of this Note for promissory
notes of lesser denominations or otherwise, to the extent necessary to reflect
any such assignment.


     Governing Law. This Note shall be construed in accordance with, and all
actions arising hereunder shall be governed by the laws of the State of New York
without giving effect to the conflicts of laws principles thereof (other than
New York General Obligations Law Section 5-1401). Borrower hereby irrevocably
submits to the exclusive jurisdiction of (a) the Supreme Court of the State of
New York, New York County, and (b) the United States District Court for the
Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this Note or any transaction contemplated hereby.
Borrower irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Note or the
transactions contemplated hereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the Southern
District of New York, and hereby and thereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.


     Waiver of Jury Trial. BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING


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ARISING OUT OF OR RELATING TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY.



	 	 	 
	 	 	
/s/ Jeffrey J. Kaplan
	 	 	


	 	 	
Jeffrey J. Kaplan




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