SEPARATION AND RELEASE OF CLAIMS AGREEMENT
Exhibit 10.1
This Separation and Release of Claims Agreement (the “Agreement”) is made as of the Agreement Effective Date (as defined below) by and between Blue Apron, LLC (the “Company”), an affiliate of Blue Apron Holdings, Inc. (“Blue Apron” and, collectively with its affiliates, including the Company, the “Company Group”) and Xxxxx Xxxxxxxx (“Executive”) (together, the “Parties”).
WHEREAS, Executive’s last day of employment with the Company will be August 4, 2023 (the “Separation Date”);
WHEREAS, the Parties wish to establish terms for Executive’s separation from the Company;
WHEREAS, the Parties agree that the benefits and rights set forth in this Agreement shall be the exclusive benefits and rights due Executive.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1.Termination – As of the Separation Date, Executive’s employment will terminate and Executive will cease to hold the position of Chief Technology Officer of any company in the Company Group or the authorities commensurate with that position set forth in the Company’s delegation of authority. In addition, as of the Separation Date, Executive is no longer deemed to be an (i) “officer” of any company in the Company Group within the meaning of Rule 16a-1(f) under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and (ii) an “executive officer” of any Company in the Company Group within the meaning of Rule 3b-7 under the Exchange Act. As of the Separation Date, all salary payments from the Company will cease and any benefits Executive had as of the Separation Date under benefit plans, programs, or practices of the Company will terminate, except as required by federal or state law.
2.Separation Benefits – Provided Executive (a) signs and returns this Agreement no later than the Return Date (as defined below) but no earlier than the Separation Date, and (b) does not revoke this Agreement during the Revocation Period (as defined below), the Company will, in exchange for Executive’s commitments and obligations set forth in this Agreement, provide Executive with the following separation benefits (the “Separation Benefits”):
x.Xxxxxxxxx Pay – Commencing on the Company’s first regularly scheduled payroll date that follows the Agreement Effective Date and continuing for six (6) months thereafter in accordance with the Company’s regular payroll practices, the Company will continue to pay to Executive, as severance pay, her base salary rate as of the Receipt Date (as defined below), less all applicable taxes and withholdings.
b.Bonus – The Company will make a one-time lump sum payment to you in the amount of 178,865.77 (less all applicable deductions and withholdings), which is equivalent to your 2023 target bonus, pro-rated for the period of employment (the “Bonus”), and for which the Company will issue you a Form W-2. The Bonus will be paid on the date on which the Company would pay the 2023 Bonus if you remained employed. For avoidance of doubt, the period of employment for which the Bonus will be pro-rated is January 1, 2023 through August 4, 2023.
c.Group Health Insurance – Should Executive be eligible for and timely elect to continue receiving group health insurance coverage under the law known as COBRA, the Company will, commencing on the Separation Date and continuing until the earlier of (x)
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the date that is six (6) months following the Separation Date, and (y) the end of the calendar month in which Executive becomes eligible to receive group health insurance coverage under another employer’s benefit plan (the “COBRA Contribution Period”), continue to pay the share of the premiums for such coverage to the same extent it was paying such premiums on Executive’s behalf immediately prior to the Separation Date. The remaining balance of any premium costs during the COBRA Contribution Period, and all premium costs thereafter, shall be paid by Executive on a monthly basis for as long as, and to the extent that, Executive remains eligible for COBRA continuation. Executive agrees that, should she become eligible for group health insurance coverage through another employer prior to the date that is six (6) months following the Separation Date, she will inform the Company in writing within five (5) business days of so becoming eligible.
d.Outplacement Services – If requested by Executive, the Company will arrange and pay for reasonable outplacement services (“Outplacement Benefits”) with a provider selected by the Company in its sole discretion for up to six (6) months following the Agreement Effective Date; provided, however, that if Executive commences new employment prior to the conclusion of such six-month period, Executive’s Outplacement benefits shall immediately cease upon commencement of such new employment.
e.Equity – Subject to and upon the occurrence of the Agreement Effective Date (as defined in Section 14 below), all unvested equity awards listed on Schedule 1 hereto which would otherwise vest after the Separation Date solely based on continued service will accelerate and become vested in full as of the Agreement Effective Date. For the avoidance of doubt, all equity awards consisting of Performance Stock Units or any other equity that is unvested as of the Separation Date will be forfeited.
Other than the Separation Benefits, Executive acknowledges that she will not be eligible for, nor shall she have a right to receive, any payments or benefits from the Company following the Separation Date.
3.Release of Claims – In exchange for the Separation Benefits, which Executive acknowledges she would not otherwise be entitled to receive, Executive hereby fully, forever, irrevocably and unconditionally releases, remises and discharges the Company, its affiliates, subsidiaries, parent companies, predecessors, and successors, and all of their respective past and present officers, directors, stockholders, partners, members, employees, agents, representatives, plan administrators, attorneys, insurers and fiduciaries (each in their individual and corporate capacities) (collectively, the “Released Parties”) from any and all claims, charges, complaints, any other form of action, any other form of relief, or any other recovery of damages or monetary relief, asserted or unasserted (including attorneys’ fees and costs), of every kind and nature that Executive ever had or now has against any or all of the Released Parties up to the date on which she signs this Agreement, whether known or unknown, including, but not limited to, any and all claims arising out of or relating to Executive’s employment with and/or separation from the Company and service as an officer, director or manager of the Company, including, but not limited to, all claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq., the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., the Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. § 2101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., Executive Order 11246, Executive Order 11141, the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., all as amended; all claims arising out of the New York Human Rights Law, N.Y. Exec. Law § 290 et seq., the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq., the New York Civil Rights Law, N.Y. Civ. Rights Law § 1 et seq., N.Y. Civ. Rights Law § 47-a (New York disability discrimination law), N.Y. Lab. Law § 190 et seq. (New York wage payment laws), N.Y. Lab. Law § 190 (New York equal pay law), the New York Minimum Wage Act, N.Y. Lab. Law § 650
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et seq., and N.Y. Lab. Law § 740 (New York whistleblower protection law), all as amended; all claims arising out of the New Jersey Law Against Discrimination, N.J. Stat. Xxx. § 10:5-1 et seq., the New Jersey Family Leave Act, N.J. Stat. Xxx. § 34:11B-1 et seq., N.J. Stat. Xxx. § 34:11D-1 et seq. (New Jersey sick leave law), N.J. Stat. Xxx. § 34:11-2 et seq. (New Jersey wage payment law), the New Jersey Xxxxx X. Xxxxx Equal Pay Act, N.J. Stat. Xxx. § 34:11-56.1 et seq., the New Jersey Conscientious Employee Protection Act, and N.J. Stat. Xxx. § 34:19-1 et seq. (New Jersey whistleblower protection law), all as amended; all common law claims including, but not limited to, actions in defamation, intentional infliction of emotional distress, misrepresentation, fraud, wrongful discharge, and breach of contract (including, without limitation, all claims arising out of or related to the Executive Severance Benefits Plan); all claims to any non-vested ownership interest in the Company or any of its affiliates, contractual or otherwise; all state and federal whistleblower claims to the maximum extent permitted by law; and any claims (including claims for retaliation) under any theory or statute not expressly referenced above; provided, however, that nothing in this release of claims prevents Executive from filing a charge with, cooperating with, or participating in any investigation or proceeding before, the Equal Employment Opportunity Commission or a state fair employment practices agency (except that Executive acknowledges that she may not recover any monetary benefits in connection with any such charge, investigation, or proceeding, and Executive further waives any rights or claims to any payment, benefit, attorneys’ fees or other remedial relief in connection with any such charge, investigation or proceeding).
4.Continuing Obligations – Executive acknowledges and reaffirms her continuing obligations to the Company pursuant to her employee Non-Disclosure and Invention Assignment Agreement (“NDIAA”), which remain in full force and effect.
5.Return of Company Property – Executive confirms that she has returned to the Company all keys, files, records (and copies thereof), equipment (including, but not limited to, computer hardware, software, printers, flash drives and other storage devices, wireless handheld devices, cellular phones, tablets, etc.), Company identification, and any other Company-owned property in her possession or control, and that she has left intact all, and will not otherwise destroy, delete, or make inaccessible to the Company any, electronic Company documents, including, but not limited to, those that she developed or helped to develop during her employment. Executive further represents that she has not (a) retained any copies in any form or media; (b) maintained access to any copies in any form, media, or location; (c) stored any copies in any physical or electronic locations that are not readily accessible or known to the Company or that remain accessible to her; or (d) sent, given, or made accessible any copies to any persons or entities that the Company has not authorized to receive such electronic or hard copies. Executive further represents that she has cancelled all accounts for her benefit, if any, in the Company’s name, including but not limited to, credit cards, telephone charge cards, cellular phone accounts, and computer accounts.
6.Confidentiality – Executive understands and agrees that, except as otherwise permitted by Section 8 below or agreed to in writing by the Company, the terms of this Agreement and the contents of the negotiations and discussions resulting in this Agreement shall be maintained as confidential by Executive and her agents and representatives and shall not be disclosed by Executive or her agents and representatives.
7.Non-Disparagement – Executive understands and agrees that, except as otherwise permitted by Section 8 of this Agreement below, she will not, in public or private, make any false, disparaging, negative, critical, adverse, derogatory or defamatory statements, whether orally or in writing, including online (including, without limitation, on any social media, networking, or employer review site) or otherwise, to any person or entity, including, but not limited to, any media outlet, industry group, financial institution, or current or former employee, board member, consultant, shareholder, client or customer of the Company, regarding the Company or any of the other Released Parties, or regarding the business, operations, products, performance, prospects, or financial condition of the Company or any of the other Released Parties; provided, however, that nothing in this Section 7 is intended to limit Executive’s right to provide honest feedback and/or
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reviews to the Company through its Customer Experience department or other customer feedback provided to the Company such as recipe reviews.
8.Scope of Disclosure Restrictions – Executive understands that nothing in this Agreement or elsewhere prohibits Executive from filing a charge or complaint with the Securities and Exchange Commission or any other federal, state, or local governmental regulatory or law enforcement agency (“Government Agencies”). Executive further understands that nothing in this Agreement or elsewhere limits Executive’s ability to, without notice or approval from the Company, communicate with any Government Agencies or otherwise participate in or fully cooperate with any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information to a Government Agency, nor does it limit Executive’s right to participate in the Securities and Exchange Commission’s whistleblower program. Further, notwithstanding Executive’s confidentiality and nondisclosure obligations, Executive is hereby advised as follows pursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.”
9.Cooperation – Executive agrees that, to the extent permitted by law, she will fully cooperate with the Company in the investigation, defense or prosecution of any claims or actions which already have been brought, are currently pending, or which may be brought in the future against the Company by a third party or by or on behalf of the Company against any third party, whether before a state or federal court, any state or federal government agency, or a mediator or arbitrator. Executive’s cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with the Company’s counsel, at reasonable times and locations designated by the Company, to investigate or prepare the Company’s claims or defenses, to prepare for trial or discovery or an administrative hearing, mediation, arbitration or other proceeding, to provide any relevant information in her possession, and to act as a witness when requested by the Company. Executive further agrees that, to the extent permitted by law, she will notify the Company promptly in the event that she is served with a subpoena (other than a subpoena issued by a Government Agency), or in the event that she is asked to provide a third party (other than a Government Agency) with information concerning any actual or potential complaint or claim against the Company.
10.Business Expenses; Final Compensation – Executive acknowledges that she has been reimbursed by the Company for all reasonable business expenses incurred in conjunction with the performance of her employment and that no other reimbursements are owed to her. Executive further acknowledges that she has received all compensation due to her from the Company, including, but not limited to, all wages, bonuses and accrued, unused vacation time, and that she is not eligible for or entitled to receive any additional payments or consideration from the Company other than the Separation Benefits.
11.Amendment and Waiver – This Agreement shall be binding upon the Parties and may not be modified in any manner, except by an instrument in writing of concurrent or subsequent date signed by duly authorized representatives of the Parties. This Agreement is binding upon and shall inure to the benefit of the Parties and their respective agents, assigns, heirs, executors, administrators, personal representatives, and successors. No delay or omission by either Party in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar to or waiver of any right on any other occasion.
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12.Validity – Should any provision of this Agreement be declared or be determined by any court of competent jurisdiction to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement.
13.Nature of Agreement – The Parties understand and agree that this Agreement is a separation and release of claims agreement and does not constitute an admission of liability or wrongdoing on the part of the Company or any of the other Released Parties.
14.Time for Consideration and Revocation – Executive acknowledges that she was initially presented with this Agreement on July 19, 2023 (the “Receipt Date”). Executive understands that this Agreement shall be of no force or effect, and she will not be eligible to receive the Separation Benefits hereunder, unless she (a) signs and returns this Agreement no earlier than the Separation Date but no later than September 2, 2023 (the “Return Date”), and (b) does not revoke this Agreement within the seven (7) day period after signing it (the “Revocation Period”). This Agreement will not become effective or enforceable until the day following the expiration of the Revocation Period (the “Agreement Effective Date”).
15.Acknowledgements – Executive acknowledges that she has been given at least forty-five (45) days to consider this Agreement (the “Consideration Period”), and that the Company is hereby advising her to consult with an attorney of her own choosing prior to signing this Agreement. Executive further acknowledges and agrees that any changes made to this Agreement following the Receipt Date, whether material or immaterial, shall not re-start or affect in any manner the Consideration Period. Executive understands that she may revoke this Agreement during the Revocation Period by notifying the Company’s General Counsel,in writing by certified mail email at the address below, and that this Agreement shall not be effective or enforceable until the expiration of the Revocation Period. Executive understands and agrees that by entering into this Agreement, she is waiving any and all rights or claims she might have under the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, and that she has received consideration beyond that to which she was previously entitled.
General Counsel
Blue Apron, LLC
00 Xxxxxxx Xx., 00xx Xxxxx
New York, NY 10005
xxxxxxxxxxxx@xxxxxxxxx.xxx
16.Voluntary Assent – Executive affirms that no other promises or agreements of any kind have been made to or with Executive by any person or entity whatsoever to cause her to sign this Agreement, and that she fully understands the meaning and intent of this Agreement and has had the opportunity to be represented by counsel of her own choosing. Executive further states and represents that she has carefully read this Agreement, understands the contents herein, freely and voluntarily assents to all of the terms and conditions hereof, and signs her name of her own free act.
17.Governing Law and Forum; Waiver of Jury Trial – This Agreement shall be interpreted and construed by the laws of the State of New York, without regard to conflict of laws provisions. Each of the Parties hereby irrevocably submits to and acknowledges and recognizes the exclusive jurisdiction and venue of the courts of the State of New York, or if appropriate, the United States Federal Court sitting in the State of New York (which courts, for purposes of this Agreement, are the only courts of competent jurisdiction), and waives any objection to laying venue in any such action or proceeding in such courts, and waives any objection that such courts are an inconvenient forum or do not have jurisdiction over either Party. Each Party to this Agreement hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.
18.Entire Agreement – This Agreement contains and constitutes the entire understanding and agreement between the Parties hereto with respect to Executive’s separation from the Company,
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separation benefits, and the settlement of claims against the Released Parties, and cancels all previous oral and written negotiations, agreements, commitments and writings in connection therewith.
19.Tax Acknowledgement – In connection with the Separation Benefits provided to Executive pursuant to this Agreement, the Company shall withhold and remit to the tax authorities the amounts required under applicable law, and Executive shall be responsible for all applicable taxes owed by her with respect to such Separation Benefits under applicable law. Executive acknowledges that she is not relying upon the advice or representation of the Company with respect to the tax treatment of any of the Separation Benefits set forth in this Agreement. Executive further acknowledges and agrees that the Company is not making any representations or warranties to her and shall have no liability to her or any other person if any provisions of or payments and benefits provided under this Agreement are determined to constitute deferred compensation subject to Section 409A of the Internal Revenue Code but not to satisfy an exemption from, or the conditions of, that Section.
20.Counterparts – This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but both of which together will constitute one and the same Agreement. Facsimile and PDF signatures shall be deemed to be of equal force and effect as originals.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date(s) written below.
BLUE APRON, LLC
By: _/s/ Xxxxx Xxxxxxx___________________ Date:_____August 7, 2023________
Name: ___Terri Leitgeb________________
Title: ____Chief People Officer____________
I hereby agree to the terms and conditions set forth above. I have been given forty-five (45) days to consider this Agreement, and I have chosen to execute this on the date below. I intend that this Agreement will become a binding agreement between me and the Company if I do not revoke my acceptance in writing to the Company within seven (7) days following the date below and I understand that my receipt of the Separation Benefits described herein is contingent upon my non-revocation of this Agreement.
Xxxxx Xxxxxxxx
_/s/ Xxxxx Xxxxxxxx__________________________ Date:____August 5, 2023________
EXHIBIT A
DECISIONAL UNIT INFORMATION
The following information is provided under federal law to assist you in making a decision whether to sign this Agreement and accept the severance benefits offered by the Company:
1. Decisional Unit. The decisional unit for this reduction in force is C-Level Executives (the “Decisional Unit”).
2. Eligibility. All persons included in the Decisional Unit are eligible for the program. All persons who are being terminated in the reduction in force are selected for the program.
3. How Long to Decide. You will have up to forty-five (45) days from the receipt of this Agreement in which to decide whether to sign this Agreement. The offer of severance benefits contained in this Agreement will expire on the forty-sixth (46th) day after it is provided to you. Please note that once you have signed this Agreement, you will have seven (7) days to revoke your signature and acceptance of the terms of this Agreement.
4. Selection Information. Federal law provides certain information be given to you concerning individuals who were eligible and selected for the reduction in force and individuals who were eligible but not selected for the reduction in force. This information is provided below:
Job Titles and Ages of Individuals in the Decisional Unit, and Whether Selected for the Reduction in Force and Eligible for Severance Benefits
| Job Title | Age(s) (as of July 18, 2023) | Selected for RIF and Eligible for Severance? | ||||||
| Chief Executive Officer | 50 | N | ||||||
| Chief Revenue Officer | 53 | N | ||||||
| Chief Technology Officer | 52 | Y | ||||||
| Chief People Officer | 52 | N | ||||||
| General Xxxxxxx and Corporate Secretary | 00 | X | ||||||
SCHEDULE 1
RSUs To Vest On Agreement Effective Date
| Grant Date | Shares Granted | Vested | Unvested | ||||||||
| 8/25/2019 | 4,493 | 4,212 | 281 | ||||||||
| 8/25/2019 | 1,997 | 1,872 | 125 | ||||||||
| 2/27/2020 | 625 | 507 | 118 | ||||||||
| 5/25/2020 | 625 | 505 | 120 | ||||||||
| 8/25/2020 | 625 | 507 | 118 | ||||||||
| 12/2/2020 | 625 | 507 | 118 | ||||||||
| 2/25/2022 | 1,751 | 729 | 1,022 | ||||||||
| 2/25/2023 | 2,500 | 0 | 2,500 | ||||||||
| 2/25/2023 | 3,125 | 260 | 2,865 | ||||||||
| Total | 16,366 | 9,099 | 7,267 | ||||||||
