Exhibit 10.9U
SEPARATION AGREEMENT AND
RELEASE
RECITALS
This Separation Agreement and
Release (“Agreement”) is made by and between Thomas
H. Silberg (“Employee”) and Tercica, Inc.
(“Company”) (jointly referred to as the
“Parties”):
WHEREAS, Employee is employed by the
Company;
WHEREAS, the Company and Employee
entered into an At-Will Employment, Confidential Information,
Invention Assignment and Arbitration Agreement (the
“Confidentiality Agreement”);
WHEREAS, by his resignation,
Employee’s employment with the Company will end on
June 30, 2005 (the “Resignation Date”);
WHEREAS, the Company and Employee
have entered into Stock Option Agreements granting Employee the
option to purchase shares of the Company’s common stock
subject to the terms and conditions of the Company’s 2004
Stock Option Plan and the Stock Option Agreement (the “Stock
Option Agreements”); and
WHEREAS, the Parties wish to resolve
any and all disputes, claims, complaints, grievances, charges,
actions, petitions and demands that the Employee may have against
the Company, including, but not limited to, any and all claims
arising or in any way related to Employee’s employment with
or separation from the Company.
NOW THEREFORE, in consideration of
the promises made herein, the Parties hereby agree as
follows:
COVENANTS
1. Consideration . The
Company agrees to pay Employee: (a) six months of base salary,
less applicable withholding, in accordance with the Company’s
regular payroll practices; and (b) after December 31,
2005, up to a maximum of five months of additional salary, less
applicable withholding, in accordance with the Company’s
regular payroll practices, until the earlier of May 31, 2006
or the date Employee commences working full-time for another
employer. The Company hereby waives its right to repayment of the
$50,000 signing bonus paid to Employee pursuant to that certain
offer letter between the Company and Employee, dated as of
April 14, 2004, even though Employee will not have worked for
the full 18 months set forth in the offer letter.
2. Stock . The Parties agree
that for purposes of determining the number of shares of the
Company’s common stock that Employee is entitled to purchase
from the Company: 87,499 shares shall have vested on June 30,
2005; and on June 30, 2005, the vesting of Employee’s
unvested options for the purchase of 106,252 shares of the
Company’s common stock will be accelerated. Employee will
have until June 30, 2006 to exercise any of his 87,499 vested
and 106,252 accelerated vested option shares.
3. Benefits .
Employee’s dental insurance benefits will cease at the end of
June 2005, subject to Employee’s right to continue his dental
insurance under COBRA. Employee’s dental
insurance benefits will be paid by the Company
until the earlier of May 31, 2006 or the date Employee is able
to obtain coverage for equivalent benefits from another employer.
Employee’s participation in all other benefits and incidents
of employment will cease on the Resignation Date. Employee will
cease accruing employee benefits, including, but not limited to,
vacation time and paid time off, as of the Resignation
Date.
4. Confidential Information .
Employee shall continue to maintain the confidentiality of all
confidential and proprietary information of the Company and shall
continue to comply with the terms and conditions of the
Confidentiality Agreement between Employee and the Company.
Employee shall return all of the Company’s property and
confidential and proprietary information in his possession to the
Company. By signing this Agreement, Employee represents and
declares under penalty of perjury under the laws of the State of
California that he has returned all Company property.
5. Payment of Salary .
Employee acknowledges and represents that the Company has to date
paid all salary, wages, bonuses, accrued vacation, commissions and
any and all other benefits due to Employee. On the Resignation
Date, Employee will sign a similar representation.
6. Release of Claims .
Employee agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to Employee
by the Company and its officers, managers, supervisors, agents and
employees. Employee, on his own behalf, and on behalf of his
respective heirs, family members, executors, agents, and assigns,
hereby fully and forever releases the Company and its officers,
directors, employees, agents, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations, and assigns (“the
Releasees”), from, and agree not to sue concerning, any
claim, duty, obligation or cause of action relating to any matters
of any kind, whether presently known or unknown, suspected or
unsuspected, that Employee may possess arising from any omissions,
acts or facts that have occurred up until and including the
Effective Date of this Agreement including, without
limitation:
(a) any and all claims relating to
or arising from Employee’s employment relationship with the
Company and the termination of that relationship;
(b) any and all claims relating to,
or arising from, Employee’s right to purchase, or actual
purchase of shares of stock of the Company, including, without
limitation, any claims for fraud, misrepresentation, breach of
fiduciary duty, breach of duty under applicable state corporate
law, and securities fraud under any state or federal
law;
(c) any and all claims under the law
of any jurisdiction including, but not limited to, wrongful
discharge of employment; constructive discharge from employment;
termination in violation of public policy; discrimination; breach
of contract, both express and implied; breach of a covenant of good
faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional
distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander;
negligence; personal injury; assault; battery; invasion of privacy;
false imprisonment; and conversion;
(d) any and all claims for violation
of any federal, state or municipal statute, including, but not
limited to, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Age Discrimination in Employment Act of
1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974,
The Worker
-2-
Adjustment and Retraining Notification Act, the
Older Workers Benefit Protection Act; the Family and Medical Leave
Act; the California Family Rights Act; the California Fair
Employment and Housing Act, and the California Labor
Code;
(e) any and all claims for violation
of the federal, or any state, constitution;
(f) any and all claims arising out
of any other laws and regulations relating to employment or
employment discrimination;
(g) any claim for any loss, cost,
damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds
received by Employee as a result of this Agreement; and
(h) any and all claims for
attorneys’ fees and costs.
The Company and Employee agree 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.
7. Acknowledgement of Waiver of
Claims Under ADEA . Employee acknowledges that he is waiving
and releasing any rights he may have under the Age Discrimination
in Employment Act of 1967 (“ADEA”) and that this waiver
and release is knowing and voluntary. Employee and the Company
agree that this waive
