Re: Transition Agreement
Exhibit 10.21
January 8, 2024
Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
Dallas, TX 75214
Dear Samar:
This letter sets forth the substance of the Transition Agreement (the “Agreement”) which BioTE Medical, LLC (the “Company”) is offering to you to aid in your employment transition.
1.
Transition Period. As discussed, if you execute and return this Agreement by January 29, 2024 then your employment with the Company will continue for a Transition Period from the date of this Agreement through February 29, 2024 (the “Transition Period”) or such earlier date as your employment ends as mutually agreed to between you and the Company. If you do not timely execute this Agreement, your employment will end on January 31, 2024. The date your employment ends is the “Separation Date.” During the Transition Period, you will be expected to continue to work from the Company’s Irving, Texas office and be available for transition matters that come up during regular business hours (8:30am CT through 5:00pm CT) and such transition activities as may be assigned to you by Xxxxx Xxxxx, Chief Executive Officer (“CEO”) or the CEO’s designee. Of course, we anticipate that you may want to spend reasonable time during business hours to conduct job search activities. The Company asks that you schedule such activities during the Transition Period in such a way as to not unreasonably interfere with your requested duties to the Company during this time. You agree through the Transition Period to perform any assigned duties and responsibilities consistent with completing and transitioning your financial duties as requested by the Company, and to continue to abide by all of your obligations to the Company and the Company’s policies and procedures. Your employment during the Transition Period will be at the same salary and with the same benefits in effect prior to the date of this Agreement; provided, however, that following the employment commencement of a new Chief Financial Officer, your title shall be Advisor to the Chief Financial Officer. The Company will work with you in good faith on the messaging around your departure.
2.
Severance. You are eligible for severance pursuant to the terms of the employment agreement between you and the Company, effective July 25, 2022 (the “Employment Agreement”); provided, however, that per this Agreement the Company is offering you enhanced severance benefits above the benefits contained in your Employment Agreement. If you (a) complete the Transition Period, (b) execute this Agreement, and abide by its terms; and (c) execute the Updated Release of Claims attached to this Agreement as Exhibit A (the “Updated Release”) by the later of (i) twenty-one (21) days following the date of this Agreement, but no earlier than the Separation Date or (ii) the Separation Date, then the Company will provide you with the following “Severance Benefits”:
xxx.Xxxxx.xxx
0000 X. Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000
Xxxxx Xxxxxx
January 8, 2024
Page 2 of 8
(a)
Salary Continuation Severance. Pursuant to the terms of your Employment Agreement, the Company will pay you, as severance, the equivalent of twelve (12) months of your base salary in effect as of the Separation Date (the “Severance”). The Severance will be paid in substantially equal installments on the Company’s regular payroll dates, subject to standard deductions and withholdings, beginning with the first such date which occurs at least eight (8) days following the “Effective Date” (as defined therein) of the Updated Release;
i.
With this extended Severance, Xxxxxxxx agrees to timely respond to questions and requests from Company’s management for the duration of the twelve months of Severance.
(b)
Health Insurance Premiums. Reimburse you, for a period of up to twelve (12) months, for Company’s share of your medical/dental/vision benefits that you were actively participating in as of the Separation Date, provided that you elect such benefits for COBRA and remits the applicable COBRA payment(s) to Company’s third-party administrator. Company’s reimbursement to you set forth in this Section, if any, will occur following your monthly COBRA payment to the Company’s third-party administrator.;
i.
It is your responsibility to elect COBRA. All other Company benefits will end on your last day of employment.
(c)
Additional Severance Benefit. Although you are not otherwise entitled to any other severance benefits, the Company will, as an additional severance benefit, pay you up to $140,000.00 which is the equivalent to your Target Bonus for 2023 (the “Additional Severance Benefit”). The Additional Severance Benefit will be paid in a lump sum on the date when similarly situated Company employees will receive payment of their 2023 Annual Bonuses, if any, which the Company anticipates will take place on or around April 1, 2024.
3.
Failure to Accept Transition Employment; Early Termination by You. You have until January 29, 2024 to consider this Agreement. If you do not accept transition employment by such date, January 31, 2024 will be your Separation Date and you will receive the Severance pursuant to the terms of your Employment Agreement but you will not be eligible to receive the enhanced cash severance and COBRA premium benefits described in this Agreement (including the Additional Severance Benefit). In the event that you accept transition employment by executing this Agreement and then resign before February 29, 2024, the effective date of your termination will be your Separation Date and you will receive the Severance pursuant to the terms of your Employment Agreement, but you will not be eligible to receive the enhanced cash severance and COBRA premium benefits described in this Agreement (including the Additional Severance Benefit).
4.
Early Termination by the Company. In the event you accept transition employment by executing this Agreement, you will remain an at-will employee through the Transition Period. As part of this Agreement, the Company agrees that it will not terminate your employment before February 29, 2024 unless you engage in any conduct that constitutes “Cause” as defined in the Employment Agreement (a “For Cause Termination”). Any for Cause Termination shall be effective immediately and you shall have no further eligibility for salary after the Cause termination date, nor will you be eligible for any of the Severance Benefits. In the event the Company terminates your employment before the end of the Transition Period for conduct that does not constitute Cause, you will be eligible to receive the Severance Benefits plus an additional amount which is the equivalent of your base salary for the remainder of the Transition Period, provided that you meet the other conditions set forth in Section 2 above, including but not limited to timely executing and allowing to become effective the Updated Release within the timing provided by the Company (which will be no less than twenty-one (21) days after you received the Updated Release together with this Agreement).
Xxxxx Xxxxxx
January 8, 2024
Page 3 of 8
5.
Accrued Salary. Within six (6) days following the Separation Date, the Company will pay you all accrued salary earned through the Separation Date, subject to standard payroll deductions and withholdings. You will receive this payment regardless of whether or not you sign this Agreement.
6.
Other Compensation or Benefits. You are not a participant in the Company’s group health insurance plans. You acknowledge that, except as expressly provided in this Agreement, you will not receive any additional compensation, severance or benefits after the Separation Date.
7.
Expense Reimbursements. You agree that, within ten (10) days of the Separation Date, you will submit your final documented expense reimbursement statement reflecting all business expenses you incurred through the Separation Date, if any, for which you seek reimbursement. The Company will reimburse you for reasonable business expenses pursuant to its regular business practice.
8.
Return of Company Property. Within three (3) business days following the Separation Date, you agree to return to the Company all Company documents (and all copies thereof) and other Company property that you have had in your possession at any time, including, but not limited to, Company files, notes, drawings, records, business plans and forecasts, financial information, specifications, computer-recorded information, tangible property (including, but not limited to, computers), credit cards, entry cards, identification badges and keys; and, any materials of any kind that contain or embody any proprietary or confidential information of the Company (and all reproductions thereof). Please coordinate return of Company property with Xxxxxxxx Xxxxxxxx, Head of Human Resources. Receipt of the Severance Benefits under this Agreement is expressly conditioned upon return of all Company property.
9.
Proprietary Information and Post-Termination Obligations. Both during and after your employment you acknowledge your continuing obligations under your Employee Confidential Information, Inventions, Non-Solicitation and Non-Competition Agreement (the “Confidential Information Agreement”) not to use or disclose any confidential or proprietary information of the Company. A copy of your Confidential Information Agreement is attached hereto as Exhibit B. If you have any doubts as to the scope of the restrictions in your agreement, you should contact Xxxxxxxx Xxxxxxxx, Head of Human Resources immediately to assess your compliance. As you know, the Company will enforce its contract rights. Please familiarize yourself with the enclosed agreement which you signed. Confidential information that is also a “trade secret,” as defined by law, may be disclosed (A) if it 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. In addition, in the event that you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose the trade secret to your attorney and use the trade secret information in the court proceeding, if you: (A) file any document containing the trade secret under seal; and (B) do not disclose the trade secret, except pursuant to court order.
10.
Confidentiality. The provisions of this Agreement will be held in strictest confidence by you and will not be publicized or disclosed in any manner whatsoever; provided, however, that: (a) you may disclose this Agreement to your immediate family; (b) you may disclose this Agreement in confidence to your attorney, accountant, auditor, tax preparer, and financial advisor; and (c) you may disclose this Agreement insofar as such disclosure may be required by law. Notwithstanding the foregoing, nothing in this Agreement shall limit your right to voluntarily communicate with the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Securities and Exchange Commission, other federal government agency or similar state or local agency or to discuss the terms and conditions of your employment with others to the extent expressly permitted by Section 7 of the National Labor Relations Act.
Xxxxx Xxxxxx
January 8, 2024
Page 4 of 8
11.
Non-Disparagement. You agree not to disparage the Company or its officers, directors, employees, shareholders and agents, in any manner likely to be harmful to them or their business, business reputation or personal reputation; provided that you will respond accurately and fully to any question, inquiry or request for information when required by legal process. Notwithstanding the foregoing, nothing in this Agreement shall limit your right to voluntarily communicate with the Equal Employment Opportunity Commission, United States Department of Labor, the National Labor Relations Board, the Securities and Exchange Commission, other federal government agency or similar state or local agency or to discuss the terms and conditions of your employment with others to the extent expressly permitted by Section 7 of the National Labor Relations Act.
12.
Cooperation after Termination. You agree to cooperate fully with the Company in all matters relating to the transition of your work and responsibilities on behalf of the Company, including, but not limited to, any present, prior or subsequent relationships and the orderly transfer of any such work and institutional knowledge to such other persons as may be designated by the Company, by making yourself reasonably available during regular business hours and as set forth in any consulting agreement signed between you and the Company. If you are not receiving severance at the time cooperation is requested, and if your required cooperation exceeds 10 hours per month, the Company will compensate you at an hourly rate determined by dividing his base salary in effect as of the Separation Date by 2,080 (or $120.19/hour).
13.
Release. In exchange for the payments and other consideration under this Agreement, to which you would not otherwise be entitled, and except as otherwise set forth in this Agreement, you, on behalf of yourself and, to the extent permitted by law, on behalf of your spouse, heirs, executors, administrators, assigns, insurers, attorneys and other persons or entities, acting or purporting to act on your behalf (collectively, the “Employee Parties”), hereby generally and completely release, acquit and forever discharge the Company, its parents and subsidiaries, and its and their officers, directors, managers, partners, agents, representatives, employees, attorneys, shareholders, predecessors, successors, assigns, insurers and affiliates (the “Company Parties”) of and from any and all claims, liabilities, demands, contentions, actions, causes of action, suits, costs, expenses, attorneys’ fees, damages, indemnities, debts, judgments, levies, executions and obligations of every kind and nature, in law, equity, or otherwise, both known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to agreements, events, acts or conduct at any time prior to and including the execution date of this Agreement, including but not limited to: all such claims and demands directly or indirectly arising out of or in any way connected with your employment with the Company or the termination of that employment; claims or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of compensation; claims pursuant to any federal, state or local law, statute, or cause of action; tort law; or contract law (individually a “Claim” and collectively “Claims”). The Claims you are releasing and waiving in this Agreement include, but are not limited to, any and all Claims that any of the Company Parties:
•
has violated its personnel policies, handbooks, contracts of employment, or covenants of good faith and fair dealing;
•
has discriminated against you on the basis of age, race, color, sex (including sexual harassment), national origin, ancestry, disability, religion, sexual orientation, marital status, parental status, source of income, entitlement to benefits, any union activities or other protected category in violation of any local, state or federal law, constitution, ordinance, or regulation, including but not limited to: Title VII
Xxxxx Xxxxxx
January 8, 2024
Page 5 of 8
of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; 42 U.S.C. § 1981, as amended; the Equal Pay Act; the Americans With Disabilities Act; the Genetic Information Nondiscrimination Act; the Family and Medical Leave Act; the Texas Human Rights Act; the Texas Labor Code; the Employee Retirement Income Security Act; the Employee Polygraph Protection Act; the Worker Adjustment and Retraining Notification Act; the Older Workers Benefit Protection Act; the anti-retaliation provisions of the Xxxxxxxx-Xxxxx Act, or any other federal or state law regarding whistleblower retaliation; the Xxxxx Xxxxxxxxx Fair Pay Act; the Uniformed Services Employment and Reemployment Rights Act; the Fair Credit Reporting Act; and the National Labor Relations Act; and
•
has violated any statute, public policy or common law (including, but not limited to, Claims for retaliatory discharge; negligent hiring, retention or supervision; defamation; intentional or negligent infliction of emotional distress and/or mental anguish; intentional interference with contract; negligence; detrimental reliance; loss of consortium to you or any member of your family and/or promissory estoppel).
Notwithstanding the foregoing, other than events expressly contemplated by this Agreement you do not waive or release rights or Claims that may arise from events that occur after the date this waiver is executed and you are not releasing any right of indemnification you may have for any liabilities arising from your actions within the course and scope of your employment with the Company or within the course and scope of your role as an officer of the Company. Also excluded from this Agreement are any Claims which cannot be waived by law, including, without limitation, any rights you may have under applicable workers’ compensation laws and your right, if applicable, to file or participate in an investigative proceeding of any federal, state or local governmental agency. Nothing in this Agreement shall prevent you from filing, cooperating with, or participating in any proceeding or investigation before the Equal Employment Opportunity Commission, the United States Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal government agency, or similar state or local agency (“Government Agencies”), or exercising any rights pursuant to Section 7 of the National Labor Relations Act. You further understand this Agreement does not limit your ability to voluntarily communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. While this Agreement does not limit your right to receive an award for information provided to the Securities and Exchange Commission, you understand and agree that, you are otherwise waiving, to the fullest extent permitted by law, any and all rights you may have to individual relief based on any Claims that you have released and any rights you have waived by signing this Agreement. If any Claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or multi-party action or proceeding based on such a Claim in which any of the Company Parties is a party. This Agreement does not abrogate your existing rights under any Company benefit plan or any plan or agreement related to equity ownership in the Company; however, it does waive, release and forever discharge Claims existing as of the date you execute this Agreement pursuant to any such plan or agreement. You acknowledge and agree that if, after your execution hereof, you file with any court or other agency a complaint, charge or claim asserting a Claim that has been released herein, the Company shall be entitled to (i) present this Agreement as evidence of the released Claim; and (ii) recover any attorneys’ fees incurred by the Company in defending against such released Claim.
14.
Your Acknowledgments and Affirmations. You acknowledge and agree that (i) the consideration given to you in exchange for the waiver and release in this Agreement is in addition to anything of
Xxxxx Xxxxxx
January 8, 2024
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value to which you were already entitled; (ii) that you have been paid for all time worked, have received all the leave, leaves of absence and leave benefits and protections for which you are eligible, and have not suffered any on-the-job injury for which you have not already filed a Claim; (iii) you have been given sufficient time to consider this Agreement and consult an attorney or advisor of your choosing; and (iv) you are knowingly and voluntarily executing this Agreement waiving and releasing any Claims you may have as of the date you execute it. You affirm that all of the decisions of the Company Parties regarding your pay and benefits through the date of your execution of this Agreement were not discriminatory based on age, disability, race, color, sex, religion, national origin or any other classification protected by law. You affirm that you have not filed or caused to be filed, and are not presently a party to, a Claim against any of the Company Parties. You further affirm that you have no known workplace injuries or occupational diseases. You acknowledge and affirm that you have not been retaliated against for reporting any allegation of corporate fraud or other wrongdoing by any of the Company Parties, or for exercising any rights protected by law, including any rights protected by the Fair Labor Standards Act, the Family Medical Leave Act or any related statute or local leave or disability accommodation laws, or any applicable state workers’ compensation law.
15.
No Admission. This Agreement does not constitute an admission by the Company of any wrongful action or violation of any federal, state, or local statute, or common law rights, including those relating to the provisions of any law or statute concerning employment actions, or of any other possible or claimed violation of law or rights.
16.
Breach. You agree that upon any breach of this Agreement you will forfeit all amounts paid or owing to you under this Agreement. Further, you acknowledge that it may be impossible to assess the damages caused by your violation of the terms of Sections 7, 8, 9, or 10 of this Agreement and further agree that any threatened or actual violation or breach of those Sections of this Agreement will constitute immediate and irreparable injury to the Company. You therefore agree that any such breach of this Agreement is a material breach of this Agreement, and, in addition to any and all other damages and remedies available to the Company upon your breach of this Agreement, the Company shall be entitled to an injunction to prevent you from violating or breaching this Agreement. You agree that if the Company is successful in whole or part in any legal or equitable action against you under this Agreement, you agree to pay all of the costs, including reasonable attorneys’ fees, incurred by the Company in enforcing the terms of this Agreement.
17.
Miscellaneous. This Agreement, including its Exhibits, constitutes the complete, final and exclusive embodiment of the entire agreement between you and the Company with regard to this subject matter. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations. This Agreement may not be modified or amended except in a writing signed by both you and a duly authorized officer of the Company. This Agreement will bind the heirs, personal representatives, successors and assigns of both you and the Company, and inure to the benefit of both you and the Company, their heirs, successors and assigns. If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination will not affect any other provision of this Agreement and the provision in question will be modified by the court so as to be rendered enforceable. This Agreement will be deemed to have been entered into and will be construed and enforced in accordance with the laws of the State of Texas as applied to contracts made and to be performed entirely within Texas.
Xxxxx Xxxxxx
January 8, 2024
Page 7 of 8
If this Agreement is acceptable to you, please sign and date below on or before January 29, 2024, and then send me the fully signed Agreement. The Company’s offer contained herein will automatically expire if we do not receive the fully signed Agreement within this timeframe.
I thank you for your efforts to date on behalf of the Company and thank you in advance for your cooperation in successfully completing the Transition Period. I also wish you good luck in your future endeavors.
Xxxxx Xxxxxx
January 8, 2024
Page 8 of 8
Sincerely,
BIOTE MEDICAL, LLC |
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By: |
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/s/ Xxxxx Xxxxx |
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Xxxxx Xxxxx |
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Chief Executive Officer |
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AGREED TO AND ACCEPTED: |
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/s/ Xxxxx Xxxxxx |
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Xxxxx Xxxxxx |
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Jan 11, 2024 |
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Date |
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