Exhibit 10.1
ZIPREALTY, INC
2004 EQUITY INCENTIVE
PLAN
RESTRICTED STOCK AWARD
AGREEMENT
THIS RESTRICTED STOCK AWARD
AGREEMENT (the “Agreement”), dated as of
August 21, 2009, is entered into between ZipRealty, Inc., a
Delaware corporation (the “Company”), and [EMPLOYEE]
(the “Employee”). Unless otherwise defined herein, the
terms of this Agreement will have the same meaning as defined in
the ZipRealty, Inc. 2004 Equity Incentive Plan (the
“Plan”). The Agreement is entered into as
follows:
WHEREAS, the employment of Employee
is considered by the Company to be important for the
Company’s continued growth; and
WHEREAS, pursuant to the Company
meeting certain key corporate performance goals under its 2009
Management Incentive Plan, to reward Employee’s contributions
to that achievement, to induce Employee to remain with the Company,
and to assure Employee’s continued commitment to the success
of the Company, the Compensation Committee of the Board of
Directors of the Company (the “Board”) has determined
that Employee shall be granted a stock award (“Stock
Award”) covering shares of the Company’s common stock
(the “Shares”) under the Company’s Plan and
subject to the restrictions stated below.
THEREFORE, the parties agree as
follows:
1. Grant of Stock Award
. Subject to the terms and conditions of this Agreement and the
Plan which is incorporated herein by reference, the Company hereby
issues to Employee a Stock Award covering [#] Shares and hereby
agrees to issue such Shares to Employee.
2. Vesting Schedule .
As long as Employee’s employment or service relationship with
the Company as a Service Provider continues during the following
vesting term, the interest of Employee in the Shares shall vest as
follows: one-half (1/2) of the Shares subject to the Stock
Award will vest on January 1, 2010, and the remaining one-half
(1/2) of the Shares subject to the Stock Award will vest on
July 1, 2010. Therefore, provided Employee has not experienced
a termination of employment or service relationship prior to the
close of business on July 1, 2010, the interest of Employee in
the Shares shall be vested fully on that date. Additional vesting
terms may apply under circumstances specified in any Change of
Control Agreement between Employee and the Company.
3. Forfeiture . Upon
the date Employee’s employment terminates for any reason and
Employee is no longer a Service Provider, all Shares received by
Employee pursuant to this Agreement that have not vested as
described in Section 2 of this Agreement, together with any
shares of stock issued as a dividend or other distribution on, in
exchange for or upon the conversion of, such unvested Stock
(collectively, the “Forfeited Shares”), will be
forfeited to the extent that they have not vested on or prior to
such date. In that event, the Forfeited Shares will immediately
revert to the Company with no further action required by the
Company or Employee. Employee will receive no payment for Forfeited
Shares that are forfeited. The Company determines when
Employee’s relationship as a Service Provider terminates for
this purpose.
4. Escrow of Shares .
(a) To ensure that Employee’s
unvested Shares are delivered to the Company in the event of a
forfeiture described in Section 3, Employee agrees, promptly
following the execution of this Agreement, to deliver to and
deposit with the escrow agent (the “Escrow Agent”)
named in the Joint Escrow Instructions attached as
Exhibit A the certificate(s) evidencing the unvested
Shares and an Assignment Separate from Certificate executed by
Employee (with date and number of shares in blank) in the form
attached as Exhibit B . The certificate(s) evidencing
the unvested Shares and the Assignment Separate from Certificate
shall be delivered to the Escrow Agent and held under the Joint
Escrow Instructions, which shall be delivered to the Escrow Agent
promptly following the execution of this Agreement.
(b) Promptly following the date when
the Shares have vested in full, the Company shall direct the Escrow
Agent to deliver to Employee a certificate or certificates
representing the Shares.
5. Transfer Restrictions
. Except as otherwise provided for in this Agreement and the
Plan, the Shares or rights granted hereunder may not be sold,
pledged or otherwise transferred until the Shares become vested and
nonforfeitable in accordance with Sections 2 and 3.
6. Mandatory Holding Period
for Executive Officers . As required by the Company’s
Corporate Governance Guidelines, upon each vesting event under this
Agreement, at least 50% of the shares that have so vested (after
deducting any shares surrendered to the Company to cover tax
withholdings at statutory rates) must be held by Employee for at
least one (1) year following vesting. This holding period will
lapse immediately upon the termination of Employee’s
employment with the Company or upon a “Change of
Control” (as defined in the Change of Control Agreement
between the Company and Employee). Upon the request of Employee to
have this such holding period waived due to hardship or a
requirement to comply with a court order (for example, in a divorce
settlement), the Company’s Corporate Governance and
Nominating Committee will consider such request and may make such
waivers as it deems appropriate under the circumstances.
7. Stockholder Rights
. Employee shall be entitled to all of the rights and benefits
generally accorded to stockholders with respect to the Shares. All
dividends on Shares that are subject to any restrictions, including
vesting, shall be subject to the same restrictions, including those
set forth in Sections 2 and 3, as the Shares on which the dividends
were paid.
(a) Employee shall be liable for any
and all taxes, including withholding taxes, arising out of this
grant or the vesting of Shares hereunder. In the event that the
Company is required to withhold taxes as a result of the grant or
vesting of the Shares, or subsequent sale of the Shares, Employee
shall surrender a sufficient number of whole Shares or make a cash
payment as necessary to cover all applicable required withholding
and payroll-based taxes at the time the Shares vest and the
transfer restrictions on the Shares, as described in
Section 5, lapse (or at such other time as required by
applicable laws), unless alternative procedures for such payment
are established by the Company. Employee will receive a cash refund
for any fraction of a surrendered Share not necessary for required
withholding taxes and required social security contributions. To
the extent that any surrender of Shares or payment of cash or
alternative procedure for such payment is insufficient, Employee
authorizes the Company, its affiliates and subsidiaries, which are
qualified to deduct tax at source, to deduct all applicable
required withholding taxes and social security contributions from
Employee’s compensation. Employee agrees to pay any amounts
that cannot be satisfied from wages or other cash compensation, to
the extent permitted by law.
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(b) Employee understands that
Section 83(a) of the Internal Revenue Code of 1986, as amended
(the “Code”), taxes as ordinary income the difference
between the amount paid for the Shares and the fair market value of
the Shares as of the date all “forfeiture restrictions”
on the Shares have lapsed. In this context, “forfeiture
restrictions” mean the forfeiture obligation set forth in
Section 3 of this Agreement and the restriction on
transferability as set forth in Section 5 of this Agreement
and in Section 7 of the Plan.
(c) Employee understands that
Employee may elect to be taxed at the time the Shares are issued,
based on the value of the Shares at the issuance date, rather than
when and as the forfeiture restrictions lapse (on the vesting
dates), by filing an election under Section 83(b) (an
“83(b) Election”) of the Code with the Internal Revenue
Service within 30 days from the date of issuance. Employee
acknowledges that the foregoing is only a summary of the effect of
United States federal income taxation with respect to issuance and
vesting of the Shares hereunder, and does not purport to be
complete. The Company has directed Employee to seek independent
advice regarding the applicable provisions of the Code, the income
tax laws of any municipality, state or foreign country in which
Employee may reside, the tax consequences of Employee’s
death, and the decision as to whether or not to file an 83(b)
Election (as well as appropriate advice and assistance with the
actual filing of any such 83(b) Election) in connection with the
issuance of the Shares.
(d) Regardless of any action the
Company takes with respect to any or all income tax, social
insurance, payroll tax, payment on account or other tax-related
withholding (“Tax-Related Items”), Employee
acknowledges and agrees that the ultimate liability for all
Tax-Related Items legally due by Employee is and remains
Employee’s responsibility and that the Company (i) makes
no representations nor undertakings regarding the treatment of any
Tax-Related Items in connection with any aspect of this issuance of
Shares, including the vesting of the Shares or the subsequent sale
of the Shares; and (ii) does not commit to structure the terms
or any aspect of this issuance of Shares to reduce or eliminate
Employee’s liability for Tax-Related Items. Prior to the
vesting of the Shares, Employee shall pay the Company
any
