Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (“Agreement”) is made by and between Yaniv Sarig (“Employee”) and Aterian, Inc. (the “Company”) (collectively referred to as the “Parties” or individually referred to as a “Party”).
RECITALS
WHEREAS, Employee’s employment with the Company terminated on July 26, 2023 (the “Termination Date”);
WHEREAS, Employee signed a Proprietary Information and Inventions Agreement with the Company in connection with Employee’s commencement of employment pursuant to an offer letter agreement with the Company dated April 1, 2015 (the “Confidentiality Agreement”);
WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances, charges, actions, petitions and demands that Employee may have against the Company and any of the Releasees as defined below, arising out of or in any way related to Employee’s employment with or separation from the Company;
NOW, THEREFORE, in consideration of the mutual promises made herein, the Company and Employee hereby agree as follows:
AGREEMENT
a. Separation Payment. The Company will pay Employee a lump sum of $350,000, less applicable withholding (the “Separation Payment”). This payment will be made to Employee within fourteen (14) business days after the Effective Date (as defined below). Employee acknowledges and agrees that the Separation Payment shall be in lieu of any other separation benefits or payments to which Employee may be entitled (other than vested benefits under Company pension or retirement plans), whether in connection with any Company policy, employment agreement or otherwise.
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b. General. Employee acknowledges that without this Agreement, Employee is otherwise not entitled to the consideration listed in this paragraph 2.
Employee agrees 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 obligations incurred under this Agreement. Notwithstanding anything to the contrary in this
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Agreement, the Released Claims do not include any rights or claims (i) for already-vested or accrued benefits under the Company’s benefit plans, (including without limitation any Company pension or retirement plans), (ii) for benefits and/or the right to seek benefits under applicable workers’ compensation and/or unemployment compensation statutes, (iii) with respect to any indemnification or other protections owing to Employee under the Company’s (or any other Company Group (as defined below) member’s) certificate of incorporation or bylaws or equivalent charter documents or any indemnification agreement between the Company (or any other member of the Company Group) and Employee or under any directors’ and officers’ liability insurance policy maintained by the Company or any other Company Group member (collectively, the “Indemnification Rights”), (iv) with respect to Employee’s equity interests in the Company (other than claims related to any Unvested Shares), (v) arising after Employee signs this Agreement, (vi) arising under this Agreement or (vii) any claims that cannot be released as a matter of law, including, but not limited to, Employee’s right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company (with the understanding that any such filing or participation does not give Employee the right to recover any monetary damages against the Company; Employee’s release of claims herein bars Employee from recovering such monetary relief from the Company) (clauses (i) – (vii) collectively, the “Excluded Rights/Claims”). Employee represents that Employee has made no assignment or transfer of any right, claim, complaint, charge, duty, obligation, demand, cause of action, or other matter waived or released by this section. For purposes of this Agreement, “Company Group” means the Company and its affiliates, subsidiaries, parents, divisions, subsidiaries and predecessor and successor corporations and assigns.
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a. Unknown Claims. Employee acknowledges that Employee has been advised to consult with legal counsel and that Employee is familiar with the principle that a general release does not extend to claims that the releaser does not know or suspect to exist in her favor at the time of executing the release, which, if known by her, must have materially affected her settlement with the releasee. Employee, being aware of said principle, agrees to expressly waive any rights Employee may have to that effect, as well as under any other statute or common law principles of similar effect.
b. California Civil Code Section 1542. Employee acknowledges that Employee has been advised to consult with legal counsel and is familiar with the provisions of California Civil Code Section 1542, a statute that otherwise prohibits the release of unknown claims, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Employee, being aware of said code section, agrees to expressly waive any rights Employee may have thereunder, as well as under any other statute or common law principles of similar effect.
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This Agreement is intended to comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended and the regulations thereunder (“Section 409A”), and the Company shall have complete discretion to interpret and construe this Agreement in any manner that establishes an exemption from (or otherwise conforms to) the requirements of Section 409A. For purposes of Section 409A, each payment hereunder shall at all times be considered a separate and distinct payment. To the extent required under Section 409A, any payments to be made under this Agreement due to a termination of employment only will be made upon a “separation from service” within the meaning of Section 409A. The Company makes no guarantee as to any tax treatment relating to this Agreement and neither the Company, its employees, officers, directors or attorneys shall have any liability to Employee on account of any adverse tax or related consequences relating to this Agreement including but not limited to adverse consequences under Section 409A.
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a. Employee has read this Agreement;
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b. Employee has a right to consult an attorney regarding this Agreement. Employee has been represented in the preparation, negotiation and execution of this Agreement by legal counsel of Employee’s own choice or has elected not to retain legal counsel;
c. Employee understands the terms and consequences of this Agreement and of the releases it contains; and
d. Employee is fully aware of the legal and binding effect of this Agreement.
[Remainder of Page Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
Dated: _______________ By: ______________________
Yaniv Sarig
ATERIAN, INC.
Dated: _______________ By: ______________________
Christopher Porcelli, its General Counsel & Head of People
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