SEPARATION AGREEMENT AND RELEASE
Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (the “Agreement”) is entered into between ZipRealty,
Inc. (the “Company”), on the one hand and Xxxxxxx Xxxxxxxx (the “Executive”) on the other hand with
reference to the following facts:
WHEREAS:
Executive was employed by the Company.
On or about April 16, 2007 Executive and Company entered into an Employment Agreement.
On or about April 23, 2007 Executive and Company entered into an Executive Proprietary
Information Agreement (the “Confidentiality Agreement”).
Company and Executive have entered into a stock option agreement dated May 24, 2007 (the
“Stock Option Agreement”), granting Executive the option to purchase shares of the Company’s common
stock (collectively, the “Options”) subject to the terms and conditions of the Company’s 1999 Stock
Plan (the “1999 Plan”) and 2004 Equity Incentive Plan (the “2004 Plan” and together with the 1999
Plan, the “Plans”), as applicable, and the Stock Option Agreements.
Executive resigned from his position with the Company for personal reasons on or about
September 13, 2007 (the “Termination Date”).
COVENANTS
It therefore is agreed by and between the undersigned as follows:
1. Each of the undersigned executes and enters into this Agreement in consideration of each
and all of the agreements made and undertaken by each of the undersigned as follows:
(a) The Parties agree that for purposes of determining the number of shares of the Company’s
common stock which Executive is entitled to purchase from the Company, pursuant to the exercise of
outstanding options, the Executive will be considered to have vested only up to the Termination
Date. Executive acknowledges that as of the Termination Date, he will have vested in zero options.
(b) Company agrees to pay Executive nine weeks of Executive’s current base salary in the
amount of $4,326.92 per week, in accordance with the Company’s standard payroll practices.
(c) Executive’s health insurance benefits will cease on September 30, 2007, subject to
Executive’s right to continue his health insurance under COBRA. Assuming
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Executive makes a timely election to continue his health insurance under COBRA, Company will
reimburse Executive (or make direct payment for) Executive’s percentage of the cost of medical
insurance benefits continuation under COBRA for him and his dependents for the six months following
the Effective Date of the release described below. Executive’s participation in all other benefits
and incidents of employment will cease on the Termination Date. Executive will cease accruing
Executive benefits, including but not limited to, vacation time and paid time off, as of the
Termination Date.
(d) Company shall forgive Executive’s obligation to repay Company the $15,000 Relocation
Payment subject to repayment pursuant to Executives Employment Agreement dated April 16, 2007.
(e) Upon the final date of Executive’s employment with Company, he was paid all accrued,
unused vacation. Executive acknowledges and agrees that by these payments, he received from
Company each and all of the employment benefits, compensation, wages, vacation pay, and other
monies due and owing to him from Company.
(f) Executive shall continue to maintain the confidentiality of all confidential and
proprietary information of the Company and shall continue to comply with the terms and conditions
of the Confidentiality Agreement between Executive and the Company. Executive shall return all of
the Company’s property and confidential and proprietary information in his possession to the
Company. By signing this Agreement, Executive represents and declares under penalty of perjury
under the laws of the state of California that he has returned all Company property.
2. Executive and Company agree that the foregoing consideration represents settlement in full
of all outstanding obligations owed to Executive by the Company and its owners, related entities,
officers, directors, employees, agents, representatives and shareholders (collectively the “Company
Releasees”) and owed to the Company Releasees by the Executive. Executive, on his own behalf, and
on behalf of his respective heirs, family members, executors, agents, assigns, does hereby fully
and forever release and discharge the Company Releasees and Company Releasees do hereby fully and
forever release and discharge the Executive of and from, and agree not to xxx concerning any claim,
duty, obligation or cause of action relating to any matters of any kind, whether presently known or
unknown, suspected or unsuspected, that either Executive or Company Releasees may possess arising
from any omissions, acts or facts that have occurred up until and including the Effective Date of
this Agreement, including without limitation:
| a) | any and all claims relating to or arising from Executive’s employment relationship; | ||
| b) | any and all claims relating to, or arising from, Executive’s right to purchase, or actual purchase of shares of stock of the Company, including, without limitation, any claims for fraud misrepresentation, breach of fiduciary duty, breach of duty under applicable state |
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| corporate law, and securities fraud under any state or federal law; | |||
| c) | any and all claims under the law of any jurisdiction including, but not limited to, breach of fiduciary duty, wrongful discharge of employment, constructive discharge from employment, termination in violation of public policy, discrimination, harassment, retaliation, breach of contract, both express and implied, breach of the covenant of good faith and fair dealing, both express and implied; promissory estoppel, negligent and intentional infliction of emotional distress, negligent and intentional misrepresentation, negligent and intentional interference with prospective economic advantage, unfair business practices, defamation, libel, slander, negligence, personal injury, fraud, misrepresentation, assault, battery invasion of privacy, false imprisonment and conversion; | ||
| d) | any and all claims for violation of any federal, state or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the Executive Retirement Income Security Act of 1974, the Worker Adjustment Retraining and Notification Act, the Older Workers Benefit Protection Act; the California Fair Employment and Housing Act, the California Labor Code; | ||
| e) | any and all claims for violation of the federal or any state constitution; | ||
| f) | any and all claims arising out of any other laws and regulations relating to employment or employment discrimination; | ||
| g) | any claim for any loss, cost, damage, or expense arising out of any dispute over the non-withholding or other tax treatment of the proceeds received by Executive as a result of this Agreement; and | ||
| h) | any and all claims for attorneys’ fees and costs. |
The Company and Executive agree that the release set forth in this section shall be and remain in
effect in all respects as a complete general release as to the matters released. This release does
not extend to any rights of defense against and/or indemnification from claims by third parties
arising from Executive’s performance of his duties while employed by the Company; any rights
arising with respect to his vested shares or options; or any obligations incurred under this
Agreement. Further, this release does not waive any rights or claims that may arise after the
Effective Date of the Agreement and does not restrict Executive’s right to challenge the validity
of this Agreement. Further, this release does not extend to claims which as a matter of law cannot
be waived, such as a right to indemnification under California Labor Code section 2802.
Furthermore, Executive understands that while this Agreement does not affect his right
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to file a charge with or participate as a witness in an investigation or proceeding conducted by
the EEOC or any similar state agency, by accepting the terms provided herein and the consideration
provided to him as a result, he gives up any right to receive any relief whatsoever, including but
not limited to financial benefit or monetary recovery, from any lawsuit or settlement related to
such rights and claims as he now gives up, whether the lawsuit is filed or the settlement reached
by the EEOC, another agency, or anyone else
3. Executive and Company represent that each party is not aware of any claim by him or it
other than the claims that are released by this Agreement. Executive and Company acknowledge that
he/it has been advised by legal counsel and is familiar with the provisions of California Civil
Code Section 1542, which provides as follows
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
Executive and Company, being aware of said code section, agree to expressly waive any
rights he/it may have under the above principal or any statute or common law principals of similar
effect.
4. Executive acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 (“ADEA”) and that this waiver and release is knowing
and voluntary. Executive and the Company agree that this waiver and release does not apply to any
rights or claims that may arise under the ADEA after the Effective Date of this Agreement.
Executive acknowledges that the consideration given for this waiver and release Agreement is in
addition to anything of value to which Executive was already entitled. Executive further
acknowledges that he has been advised in writing that:
| a) | he should consult with an attorney prior to executing this Agreement; | ||
| b) | he has up to twenty-one (21) days within which to consider this Agreement; | ||
| c) | he has seven (7) days following his execution of this Agreement to revoke the Agreement; | ||
| d) | this Agreement shall not be effective until the revocation period has expired; and | ||
| e) | nothing in this Agreement prevents or precludes Executive from challenging or seeking a determination in good faith of the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties or costs from doing so, unless specifically |
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| authorized by federal law. |
Each of the undersigned agrees that none of the releases set forth herein releases any claims
arising out of obligations set forth in this Agreement.
5. This Agreement is effective after it has been signed by both parties and after (8) days
have passed since Executive signed the Agreement (the “Effective Date”).
6. The Parties agree that any and all disputes arising out of the terms of this Agreement,
their interpretation, and any of the matters herein released, shall be subject to binding
arbitration in Alameda County, California by an arbitrator agreed to by both parties. In the event
of any legal action relating to or arising out of this Agreement, the prevailing party shall be
entitled to recover from the losing party its attorneys’ fees and costs incurred in that action to
the extent permissible by law. The parties agree that the prevailing party in any arbitration shall
be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration
award. The Parties hereby agree to waive their right to have any dispute between them resolved in
a court of law by a judge or jury. This paragraph will not prevent either party from seeking
injunctive relief (or any other provisional remedy) from any court having jurisdiction over the
Parties and the subject matter of their dispute relating to Executive’s obligations under this
Agreement.
7. If any provision of this Agreement or the application thereof is held invalid, the
invalidity shall not affect other provisions or application of the Agreement which can be given
effect without the invalid provisions or application and to this end the provisions of this
Agreement are declared to be severable.
8. The Company makes no representations or warranties with respect to the tax consequences of
the payment of any sums to Executive under the terms of Section 1 of this Agreement. Executive
agrees and understands that he is responsible for payment, if any, of local, state and/or federal
taxes on the sums paid hereunder by the Company and any penalties or assessments thereon.
Executive further agrees to indemnify and hold the Company harmless from any claims, demands,
deficiencies, penalties, assessments, executions, judgments, or recoveries by any government agency
against the Company for any amounts claimed due on account of Executive’s failure to pay federal or
state taxes or damages sustained by the Company by reason of any such claims, including reasonable
attorneys’ fees.
9. This Agreement contains the entire agreement of the undersigned with respect to the matters
covered by this Agreement and no promise made by any party or by an officer, attorney, or agent of
any party that is not expressly contained in this Agreement shall be binding or valid. This
Agreement supersedes any prior agreement between the parties with the exception of the
Confidentiality Agreement, the Plans and the Stock Option Agreements. Additionally, any
modification of any provision of this Agreement, to be effective, must be in writing and signed by
both parties.
10. This Agreement shall be governed by and construed under the laws of the State of
California.
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11. This Agreement may be executed by facsimile and in counterparts, and the counterparts,
taken together, shall constitute the original.
12. Each of the undersigned executing this Agreement on behalf of a party represents and
warrants that he or she is a duly appointed agent or duly elected officer of the party and is fully
authorized to execute this Agreement on that party’s behalf.
13. Each party to this Agreement has consulted with, or had the opportunity to consult with,
legal and tax counsel concerning all paragraphs of this Agreement. Each party has read the
Agreement and has been fully advised by legal counsel with respect to the rights and obligations
under the Agreement, or has had the opportunity to obtain such advice. Each party is fully aware
of the intent and legal effect of the Agreement, and has not been influenced to any extent
whatsoever by any representation or consideration other than as stated herein. After consultation
with and advice from, or the opportunity for consultation with and advice from, legal counsel, each
party voluntarily enters into this Agreement.
| DATED: September 14, 2007 | /s/ Xxxxxxx Xxxxxxxx | |||||||||
| Xxxxxxx Xxxxxxxx | ||||||||||
| DATED: September 14, 2007 | ZipRealty, Inc. | |||||||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||||||||
| Chief Executive Officer | ||||||||||
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