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Exhibit 10.2
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (the "Agreement") is entered into between ZipRealty, Inc.
(the "Company"), on the one hand and Gary M. Beasley (the
"Executive") on the other hand with reference to the following
facts:
WHEREAS:
Executive was employed by the
Company.
On or about May 2, 2006
Executive and Company entered into an Employment Agreement.
On or about May 5, 2006
Executive and Company entered into an Executive Proprietary
Information Agreement (the "Confidentiality Agreement").
Company and Executive have entered
into stock option agreements dated December 14, 2001, March 6,
2002, March 29, 2004, December 16, 2004, January 3,
2006 and May 2, 2006 (collectively, the "Stock Option
Agreements"), 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 on or about January 5, 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 options for 267,249
shares, as set forth in Exhibit A.
(b) Subject to any earlier
termination of the Options that may be required by
Beasley – ZipRealty, Inc.
Separation Agreement and Release
Page 1 of 7
Section 12(c) of the 1999 Plan or Section 13(c) of the 2004
Plan, as applicable, Executive shall be permitted an extension of
time to exercise all vested Options through December 31,
2007.
(c) Beyond the amendments to
the Options as provided for in subsection (b), the Options will
remain subject to the terms and conditions of the Plans under which
they were granted and the Stock Option Agreements.
(d) Company agrees to pay
Executive $10,000 per calendar month for a period of twelve months
beginning January 2007. Such payment shall be made via direct
deposit or other manner agreed by the parties and shall be paid by
the last day of each month such that all payments have been paid by
December 31, 2007. The payment for January 2007 shall be
paid within three business days of the Effective Date of this
Agreement. In exchange for this payment, Executive agrees to
provide continued consultation to the Company for a period of
twenty-four months beginning February 1, 2007, relating to the
Company’s involvement in the following litigation matters:
The United States Department of Justice v. National Association
of Realtors Civil Action No. 05C5140 and ZipRealty Inc.
v. Squire, Sanders & Dempsey, LLP, et. al. Case
No. CGC 06 450765 (the "Litigation"). Specifically, Executive
agrees to provide full cooperation to the Company relating to the
Litigation by making himself reasonably available to Company and
its counsel to respond to questions from Company employees and
counsel, review information on behalf of Company or its counsel,
provide information to assist the Company and its counsel in
responding to discovery requests and preparing for depositions and
trial, and to provide statements and/or testimony as necessary (the
"Litigation Consulting Services"). Executive shall be reimbursed
for any reasonable expenses, such as travel or parking, incurred in
the course of providing such consultation for the Litigation.
Executive acknowledges that this payment is not intended to
compensate him for testimony, which at all times must be truthful
and accurate, but for time spent consulting. Executive and Company
agree that the Litigation Consulting Services will not conflict
with Executive’s other employment, consulting or professional
obligations. Executive understands and agrees that he is not acting
as a Company employee or service provider in providing the
Litigation Consulting Services.
(e) Upon the final date of
Executive’s employment with Company, he was paid all accrued,
unused vacation and, shortly thereafter, his 2006 Bonus. 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, except as provided herein.
(f) Executive’s health
insurance benefits ceased on the Termination Date, subject to
Executive’s right to continue his health insurance under
COBRA. Executive’s participation in all other benefits and
incidents of employment ceased on the Termination Date. Executive
ceased accruing Executive benefits, including but not limited to,
vacation time and paid time off, as of the Termination Date.
(g) Executive shall continue
to maintain the confidentiality of all confidential and proprietary
information of the Company and shall continue to comply with the
terms
Beasley – ZipRealty, Inc.
Separation Agreement and Release
Page 2 of 7
and conditions of the Confidentiality Agreement between
Executive and the Company. Executive has returned 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
(collectively the "Executive Releasees"), does hereby fully and
forever release and discharge the Company Releasees and Company
Releasees do hereby fully and forever release and discharge the
Executive Releasees of and from, and agree not to sue concerning
any claim, duty, obligation or cause of action relating to any
matters of any kind,
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