**Exhibit 10.9(c)(c)**

May 21, 2008 

Andrew J. Grethlein 

SVP, Pharmaceutical Operations 

Tercica, Inc. 

2000Sierra Point Pkwy., Suite 400 

Brisbane, CA 94005 

 

Dear Andy: 

Effective as of May 19, 2008, Tercica agrees to amend that certain Offer Letter, dated as of March 5, 2003, with respect to the following paragraph and itsterms: 

“If the Company terminates your employment without Cause or you terminate your employment for Good Reason (as defined inExhibit B) in either case within 12 months after a Change of Control, then, subject to your entering into and not revoking the Company’s standard form of release of claims in favor of the Company, you will receive a severance paymentequal to six (6) months of your base salary in effect at the time of termination, the vesting for 50% of the unvested stock option shares will be accelerated so as to vest as of the date of termination, and you will have ninety (90) daysto exercise all those stock option shares that have vested as of the date of termination.” 

The paragraph above shall be terminated and superseded inits entirety by the following paragraphs and their terms: 

“If the Company terminates your employment without Cause or you terminateyour employment for Good Reason (as defined in Exhibit B) in either case within 12 months after a Change of Control, then, subject to your entering into and not revoking the Company’s standard form of release of claims in favor of theCompany, you will receive a severance payment equal to one year of your base salary in effect at, the time of termination, the vesting for 100% of the unvested stock option shares will be accelerated so as to vest as of the date of termination, andyou will have ninety (90) days to exercise all those stock option shares that have vested as of the date of termination. 

All severance provisions provided in this offer letter are subject to you and the Company entering into afinal separation agreement in the form attached to this offer letter as Exhibit D, and we agree to the terms of Exhibit D are the final terms that will govern your termination of employment with the Company in the event a severancewill be paid to you.” 

 
Sincerely/s/ Stephen N. Rosenfield
Stephen N. Rosenfield

EVP Legal Affairs, GeneralCounsel & Secretary

 

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**EXHIBIT D**

**SEPARATION AGREEMENT AND RELEASE**

**RECITALS**

This Separation Agreement and Release (“Agreement”) is made by and between                     (“Employee”) and                     (“Company”) (jointly referred to as the “Parties”): 

WHEREAS, Employee was 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, Employee’s employment terminated on                     (the “Termination Date”); 

WHEREAS, the Company and Employee have entered into a Stock Option Agreement granting Employee the option to purchase shares of the Company’s common stock subject to the terms and conditions of the Company’s2004 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 Employeemay 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, theParties hereby agree as follows: 

**COVENANTS**

1. Consideration. The Company agrees to pay Employee the lump sum equivalent of **[six months/one year —*****determined by the circumstances of the termination as set forth in the offer letter ofhis/her base salary*****]**, less applicable withholding, in accordance with the Company’s regular payroll practices. This payment will be sent to Employee within five (5) business days after the Effective Date of this Agreement.

2. Stock. The Parties agree that for purposes of determining the number of shares of the Company’s common stock which Employeeis entitled to purchase from the Company, pursuant to the exercise of outstanding options, the Employee will be considered to have vested **[up to the Termination Date or fully-vested as per full acceleration*****— determined by thecircumstances of the termination as set forth in the offer letter.*****]** Employee acknowledges that as of the Termination Date, he will have vested in                     options and no more. The exercise of any stock options shall continue to be subject to the terms and conditions of theStock Option Agreements. 

 

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3. Benefits. Employee’s health insurance benefits will cease on                    ; provided however, subject to Employee’s right to continue his/her health, dental and vision insurance underCOBRA, Company shall pay Employee’s and Employee’s family’s COBRA health, dental and vision insurance premiums for a period of the shorter of (a) **[six months or one year*****— determined by the circumstances ofthe termination as set forth in the offer letter*****]** or (b) such time as Employee’s subsequent employer pays for Employee’s and Employee’s family’s health, dental and vision insurance premiums.Employee’s participation in all other benefits and incidents of employment ceased on the Termination Date. Employee ceased accruing employee benefits, including, but not limited to, vacation time and paid time off, as of theTermination Date. 

4. Confidential Information. Employee shall continue to maintain the confidentiality of allconfidential 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’sproperty and confidential and proprietary information in his/her possession to the Company. By signing this Agreement, Employee represents and declares under penalty of perjury under the laws of the State of California thathe/she has returned all Company property. 

5. Payment of Salary. Employee acknowledges and represents that the Company has paidall salary, wages, bonuses, accrued vacation, commissions and any and all other benefits due to Employee. 

6. Release ofClaims. 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, onhis/her own behalf, and on behalf of his/her 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 relatingto 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 thisAgreement including, without limitation: 

(a) any and all claims relating to or arising from Employee’semployment 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 applicablestate corporate law, and securities fraud under any state or federal law; 

(c) any and all claims under the law of anyjurisdiction 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 acovenant of good faith and fair dealing, both 

 

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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; andconversion; 

(d) any and all claims for violation of any federal, state or municipal statute, including, but notlimited 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 RetirementIncome Security Act of 1974, The Worker 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 HousingAct, 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 employmentdiscrimination; 

(g) any claim for any loss, cost, damage, or expense arising out of any dispute over thenon-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 mattersreleased. This release does not extend to any obligations incurred under this Agreement. 

7. Acknowledgement of Waiver of ClaimsUnder ADEA. Employee acknowledges that he/she is waiving and releasing any rights he/she may have under the Age Discrimination in Employment Act of 1967 (“ADEA”) and that this waiver and release is knowing andvoluntary. Employee and the Company agree that this waiver and release does not apply to any rights or claims that may arise under ADEA after the Effective Date of this Agreement. Employee acknowledges that the consideration givenfor this waiver and release Agreement is in addition to anything of value to which Employee was already entitled. Employee further acknowledges that he/she has been advised by this writing that: 

(a) He/she should consult with an attorney prior to executing this Agreement; 

(b) He/she has up to twenty-one (21) days within which to consider this Agreement; 

(c) He/she has seven (7) days following his/her execution of this Agreement to revoke this Agreement; 

 

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(d) this Agreement shall not be effective until the revocation period has expired;and 

(e) nothing in this Agreement prevents or precludes Employee from challenging or seeking a determination in good faithof the validity of this waiver under the ADEA, nor does it impose any condition precedent, penalties or costs for doing so, unless specifically authorized by federal law. 

8. Civil Code Section 1542. Employee represents that he/she is not aware of any claim by him/her other than the claims that arereleased by this Agreement. Employee acknowledges that he/she has had the opportunity to be advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICHIF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. Employee; being aware of said code section, agrees to expressly waive any rights he/she may have thereunder, as well as under any other statute or common lawprinciples of similar effect. 

9. No Pending or Future Lawsuits. Employee represents that he/she has no lawsuits, claims, oractions pending in his/her name, or on behalf of any other person or entity, against the Company or any other person or entity referred to herein. Employee also represents that he/she does not intend to bring any claims on his/her ownbehalf or on behalf of any other person or entity against the Company or any other person or entity referred to herein. 

10.Application for Employment. Employee understands and agrees that, as a condition of this Agreement, he/she shall not be entitled to any employment within the Company, its subsidiaries and he/she hereby waives any right, or alleged right,of employment or re-employment with the Company or its subsidiaries. 

11. Confidentiality. The Parties acknowledge thatEmployee’s agreement to keep the terms and conditions of this Agreement confidential was a material factor on which all parties relied in entering into this Agreement. Employee hereto agrees to use his/her best effortsto maintain in confidence the existence of this Agreement, the contents and terms of this Agreement, and the consideration for this Agreement (hereinafter collectively referred to as “Settlement Information”). Employeeagrees to take every reasonable precaution to prevent disclosure of any Settlement Information to third parties, and agrees that there will be no publicity, directly or indirectly, concerning any Settlement Information. Employeeagrees to take every precaution to disclose Settlement Information only to those attorneys, accountants, governmental entities, and family members who have a reasonable need to know of such Settlement Information. 

12. No Cooperation. Employee agrees he/she will not act in any manner that might damage the business of the Company. Employee agrees that hewill not encourage, counsel or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints by any third party against any of theReleasees, unless under a subpoena or other court order to do so. Employee shall inform the Company in writing within three (3) days of receiving any such subpoena or other court order. 

 

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13. Non-Disparagement. Employee agrees to refrain from any defamation, libel or slanderof the Releasees, and any tortious interference with the contracts, relationships and prospective economic advantage of the Releasees. Employee agrees that he/she shall direct all inquiries by potential future employers to Company’sHuman Resources department. 

14. Non-Solicitation. Employee agrees that for a period of twelve (12) months immediatelyfollowing the Effective Date of this Agreement, Employee shall not either directly or indirectly solicit, induce, recruit or encourage any of the Company’s employees or consultants to leave their employment, or attempt to do so,either for him/herself or any other person or entity. 

15. Breach. Employee acknowledges and agrees that any breach of anyprovision of this Agreement shall constitute a material breach of this Agreement and shall entitle the Company immediately to recover and/or cease the severance benefits provided to Employee under this Agreement.Employee shall also be responsible to the Company for all costs, attorneys’ fees and any and all damages incurred by the Company (a) enforcing the obligation, including the bringing of any suit to recover themonetary consideration, and (b) defending against a claim or suit brought or pursued by Employee in violation of this Agreement. 

16. No Admission of Liability. The Parties understand and acknowledge that this Agreement constitutes a compromise and settlement of actual or potential disputed claims. No action taken by the Parties hereto, or either ofthem, either previously or in connection With this Agreement shall be deemed or construed to be: 

(a) an admission of thetruth or falsity of any claims made or any potential claims; or 

(b) an acknowledgment or admission by either party ofany fault or liability whatsoever to the other party or to any third party. 

17. Costs. The Parties shall each bear their owncosts, expert fees, attorneys’ fees and other fees incurred in connection with this Agreement, except as provided herein. 

18. Tax Consequences. **[Use only if payment is 1099’d, vesting is accelerated, or the exercise period will be extended.]**The Company makes no representations or warranties with respect to the taxconsequences of the payment of any sums to Employee under the terms of this Agreement. Employee agrees and understands that he is responsible for payment, if any, of local, state and/or federal taxes on the sumspaid hereunder by the Company and any penalties or assessments thereon. Employee further agrees to indemnify and hold the Company harmless from any claims, demands, deficiencies, penalties, assessments, executions, judgments, orrecoveries by any government agency against the Company for any amounts claimed due on account of Employee’s failure to pay federal or state taxes or damages sustained by the Company by reason of any such claims,including reasonable attorneys’ fees. 

 

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19. Arbitration. The Parties agree that any and all disputes arising out of the terms of thisAgreement, their interpretation, and any of the matters herein released, shall be subject to binding arbitration in San Francisco County before the American Arbitration Association under its National Rules for the Resolution of EmploymentDisputes, supplemented by the California Code of Civil Procedure. The Parties agree that the prevailing party in any arbitration shall be entitled to injunctive relief in any court of competent jurisdiction to enforce thearbitration award. The Parties agree that the prevailing party in any arbitration shall be awarded its reasonable attorneys’ fees and costs. **The Parties hereby agree to waive their right to have any dispute between them resolved ina court of law by a judge or jury.** This paragraph will not prevent either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the Parties and the subject matter of theirdispute relating to Employee’s obligations under this Agreement and the Confidentiality Agreement. 

20. Authority. TheCompany represents and warrants that the undersigned has the authority to act on behalf of the Company and to bind the Company and all who may claim through it to the terms and conditions of this Agreement. Employeerepresents and warrants that he/she has the capacity to act on his/her own behalf and on behalf of all who might claim through him/her to bind them to the terms and conditions of this Agreement. Each party warrants andrepresents that there are no liens or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein. 

21. No Representations. Each party represents that it has had the opportunity to consult with an attorney, and has carefully read andunderstands the scope and effect of the provisions of this Agreement. In entering into this Agreement, neither party has relied upon any representations or statements made by the other party hereto which are not specifically setforth in this Agreement. 

22. Severability. In the event that any provision, or any portion thereof, becomes or is declared bya court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision or portion of said provision. 

23. Entire Agreement. This Agreement represents the entire agreement and understanding between the Company and Employee concerning the subjectmatter of this Agreement and Employee’s relationship with the Company, and supersedes and replaces any and all prior agreements and understandings between the Parties concerning the subject matter of this Agreement andEmployee’s relationship with the Company, with the exception of the Stock Option Agreement, the Stock Plan and the Confidentiality Agreement. 

24. No Waiver. The failure of the Company to insist upon the performance of any of the terms and conditions in this Agreement, or the failure to prosecute any breach of any of the terms and conditions of this Agreement,shall not be construed thereafter as a waiver of any such terms or conditions. This entire Agreement shall remain in full force and effect as if no such forbearance or failure of performance had occurred. 

 

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25. No Oral Modification. This Agreement may only be amended in a writing signed by Employee andthe Chief Executive Officer or General Counsel of the Company. 

26. Governing Law. This Agreement shall be construed, interpreted,governed, and enforced in accordance with the laws of the State of California, without regard to choice-of-law provisions. 

27.Effective Date. This Agreement is effective on the eighth day after it has been signed by employee (the “Effective Date”). 

28. Counterparts. This Agreement may be executed in counterparts, and each counterpart shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of theundersigned. 

29. Voluntary Execution of Agreement. This Agreement is executed voluntarily and without any duress or undueinfluence on the part or behalf of the Parties hereto, with the full intent of releasing all claims. The Parties acknowledge that: 

(a) They have read this Agreement; 

(b) They have been represented in the preparation, negotiation, and executionof this Agreement by legal counsel of their own choice or that they have voluntarily declined to seek such counsel; 

(c) They understand the terms and consequences of this Agreement and of the releases it contains; and 

(d) They are fully aware of the legal and binding effect of this Agreement. 

IN WITNESS WHEREOF, the Parties have executed this Agreement on therespective dates set forth below. 

 
  COMPANYDated:    By:   
Name

[Title]
      <First> <Last> an individualDated:        <First> <Last>
 

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