Separation Agreement between Terns, Inc. and Senthil Sundaram dated August 2, 2023
Exhibit 10.1#
August 2, 2023
PERSONAL AND CONFIDENTIAL
BY EMAIL
Senthil Sundaram
Dear Sen:
The purpose of this separation agreement (the “Agreement”) is to confirm the terms of your transition from CEO of Terns Pharmaceuticals, Inc. and any affiliates, including without limitation, Terns, Inc. (collectively, the “Company”), pursuant to your Employment Agreement, dated and amended as of November 8, 2022 (the “Employment Agreement”). This Agreement outlines the terms of certain benefits and payments to you in connection with your transition and termination.
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Other than as set forth in this Section and Agreement, you are not eligible for any other payment from the Company, including without limitation, wages, bonuses, benefits, or compensation. Pursuant to the Guardian Basic Life Insurance Policy, the Company agrees to continue the life insurance coverage for you due to the fact that your employment will end due to your Total Disability in accordance with the Continuation of Coverage provided for in the Policy.
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Without limiting the foregoing general waiver and release, you specifically waive and release the Company from any Claim arising from or related to your prior employment relationship with the Company or the termination thereof, including, without limitation:
** Claims under any local, state or federal discrimination, fair employment practices or other employment-related statute, regulation or executive order (as they may have been amended through the Execution Date) prohibiting discrimination or harassment based upon any protected status including, without limitation, race, national origin, age, gender, marital status, disability, veteran status or sexual orientation. Without limitation, specifically included in this paragraph are any Claims arising under the federal Age Discrimination in Employment Act, the Civil Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans With Disabilities Act, the Federal Worker Adjustment and Retraining Notification Act; and any similar California, or other state, federal, or local statute.
** Claims under any other local, state or federal employment related statute, regulation or executive order (as they may have been amended through the Execution Date) relating to any other terms and conditions of employment.
** Claims under any state or federal common law theory including, without limitation, wrongful discharge, breach of express or implied contract, promissory estoppel, unjust enrichment, breach of a covenant of good faith and fair dealing, violation of public policy, defamation, interference with contractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, misrepresentation, deceit, fraud or negligence.
** Any other Claim arising under local, state or federal law.
Notwithstanding the foregoing, this section does not release the Company from any obligation expressly set forth in this Agreement. Moreover, this section does not release any claims or entitlements you may have to indemnification from the Company or the benefit of coverage under any D&O policies of insurance applicable to the period for which you served as a Company officer and director. You acknowledge and agree that, but for providing this waiver and release, you would not be receiving the economic benefits described herein unless you sign and do not revoke this Agreement (and the Supplemental Release of Claims).
**Unknown Claims, Waiver of California Civil Code Section 1542. You understand and expressly agree that this Agreement extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or attributable to any conduct of the Company, whether set forth in any claim or demand referred to in this Agreement or not, and that any and all rights granted to you under Section 1542 of the California Civil Code
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or any analogous state law or federal law or regulation, are expressly WAIVED. Section 1542 of the California Civil Code reads as follows:
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 MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY.
In waiving the provisions of Section 1542 of the California Civil Code, you acknowledge you may later discover facts in addition to or different from those you now believe to be true with respect to the matters released in this Agreement. You, however, agree you have taken that possibility into account in reaching this Agreement, and that the release in this Agreement will remain in effect as a full and complete release notwithstanding the discovery or existence of additional or different facts.
It is the Company’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you have been encouraged and given the opportunity to consult with legal counsel for the purpose of reviewing the terms of this Agreement. Also, because you are over the age of 40, and consistent with the provisions of the Age Discrimination in Employment Act, which prohibits discrimination on the basis of age, the Company is providing you with twenty-one (21) days in which to consider and accept the terms of this Agreement by signing below and returning it to Bryan Yoon at the Company ***@***). In addition, you may rescind your assent to this Agreement if, within seven (7) days after you sign this Agreement, you deliver by hand or send by mail or confirmed receipt email (if by mail, certified, return receipt and postmarked within such 7-day period) a notice of rescission to Bryan Yoon. The eighth day following your signing of this Agreement without rescission is the “Effective Date” of this Agreement.
Also, consistent with the provisions of local, state and federal discrimination laws, nothing in this release shall be deemed to prohibit you from challenging the validity of this release under such discrimination laws (the “Discrimination Laws”) or from filing a charge or complaint of age or other employment related discrimination with the Equal Employment Opportunity Commission (“EEOC”) or state or local equivalent, or from participating in any investigation or proceeding conducted by the EEOC or state or local equivalent (or seeking the recovery of any governmental bounty). Further, nothing in this release or Agreement shall be deemed to limit the Company’s right to seek immediate dismissal of such charge or complaint on the basis that your signing of this Agreement constitutes a full release of any individual rights under the Discrimination Laws, or to seek restitution to the extent permitted by law of the economic benefits provided to you under this Agreement in the event that you successfully challenge the validity of this release and prevail in any claim under the Discrimination Laws.
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By executing this Agreement, you are acknowledging that: (1) you have carefully read and understand the terms and effects of this Agreement, including the Section entitled Your Release of Claims; (2) you understand that the Your Release of Claims is legally binding and by signing this Agreement, you give up certain rights; (3) you have been afforded sufficient time to understand the terms and effects of this Agreement; (4) your agreements and obligations hereunder are made voluntarily, knowingly and without duress; and (5) neither the Company nor its agents or representatives have made any representations inconsistent with the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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This Agreement may be signed on one or more copies, each of which when signed will be deemed to be an original, and all of which together will constitute one and the same Agreement. The Company will counter-sign this Agreement once it receives it from you. This Agreement will remain valid for 21 days after its delivery to you.
Terns, Inc.
By: /s/ Bryan Yoon
Name: Bryan Yoon
Its: Member of the Board
Confirmed, Agreed and Acknowledged:
/s/ Senthil Sundaram
Senthil Sundaram
Dated: August 2, 2023
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Exhibit A – Resignation Form
August 2, 2023
To the Chair of the Terns Pharmaceuticals, Inc. Board of Directors
Please be advised that I hereby resign as Chief Executive Officer of Terns Pharmaceuticals, Inc., as Chief Executive Officer of Terns, Inc. and as a member of the Terns Pharmaceuticals, Inc. Board of Directors, as well as from any other officer and director positions for Terns Pharmaceuticals, Inc. and Terns, Inc. and any of their affiliates or subsidiaries thereof effective as of August 2, 2023.
_________________________
Senthil Sundaram
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Exhibit B
Equity Statement – Shareworks Statement Attached
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Supplemental Release of Claims
I (or my estate representatives) hereby agree and acknowledge that by signing this Supplemental Release of Claims and accepting the Severance benefits set forth in the Agreement between me and Terns, Inc. dated August 2, 2023 (the “Agreement”), and for other good and valuable consideration, hereby waive my right to assert any and all forms of legal claims against the Company (as defined in the Agreement) of any kind whatsoever, whether known or unknown, arising from the beginning of time through the date I execute this Supplemental Release of Claims (the “Supplemental Release of Claims Execution Date”). Except as set forth below, my waiver and release herein is intended to bar any form of legal claim, complaint or any other form of action by me, including but not limited to a class or collective action, whether I seek to participate as a party plaintiff or as a class member (each a “Claim” and jointly referred to as “Claims”) against the Company seeking any form of relief including, without limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages, or any other form of monetary recovery whatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’ fees and any other costs) against the Company, for any alleged action, inaction or circumstance existing or arising through the Supplemental Release of Claims Execution Date.
Without limiting the foregoing general waiver and release, I specifically waive and release the Company from any Claim arising from or related to my prior employment relationship with the Company or the termination thereof, including, without limitation:
** Claims under any local, state or federal discrimination, fair employment practices or other employment-related statute, regulation or executive order (as they may have been amended through the Execution Date) prohibiting discrimination or harassment based upon any protected status including, without limitation, race, national origin, age, gender, marital status, disability, veteran status or sexual orientation. Without limitation, specifically included in this paragraph are any Claims arising under the federal Age Discrimination in Employment Act, the Civil Rights Acts of 1866 and 1871, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans With Disabilities Act, the Federal Worker Adjustment and Retraining Notification Act; and any similar California, or other state, federal, or local statute.
** Claims under any other local, state or federal employment related statute, regulation or executive order (as they may have been amended through the Execution Date) relating to any other terms and conditions of employment.
** Claims under any state or federal common law theory including, without limitation, wrongful discharge, breach of express or implied contract, promissory estoppel, unjust enrichment, breach of a covenant of good faith and fair dealing, violation of public policy, defamation, interference with contractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, misrepresentation, deceit, fraud or negligence.
** Any other Claim arising under local, state or federal law.
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Notwithstanding the foregoing, this section does not release the Company from any obligation expressly set forth in the Agreement, including but not limited to the obligation to pay the Severance. Moreover, this section does not release any claims or entitlements I may have to indemnification from the Company or the benefit of coverage under any D&O policies of insurance applicable to the period for which I served as a Company officer and director. I acknowledge and agree that the Company will not pay me (or my estate) the Severance unless I sign and do not revoke this Supplemental Release of Claims.
**Unknown Claims, Waiver of California Civil Code Section 1542. I understand and expressly agree that this Supplemental Release of Claims extends to all claims of every nature and kind, known or unknown, suspected or unsuspected, past, present, or future, arising from or attributable to any conduct of the Company, whether set forth in any claim or demand referred to in this Agreement or not, and that any and all rights granted to me under Section 1542 of the California Civil Code or any analogous state law or federal law or regulation, are expressly WAIVED. Section 1542 of the California Civil Code reads as follows:
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 MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY.
In waiving the provisions of Section 1542 of the California Civil Code, I acknowledge I may later discover facts in addition to or different from those I now believe to be true with respect to the matters released in this Agreement. I, however, agree I have taken that possibility into account in reaching this Agreement, and that the release in this Supplemental Release of Claims will remain in effect as a full and complete release notwithstanding the discovery or existence of additional or different facts.
It is the Company’s desire and intent to make certain that I fully understand the provisions and effects of this Supplemental Release of Claims. To that end, I have been encouraged and given the opportunity to consult with legal counsel for the purpose of reviewing the terms of this Supplemental Release of Claims. Also, because I am over the age of 40, and consistent with the provisions of the Age Discrimination in Employment Act, which prohibits discrimination on the basis of age, the Company is providing me with twenty-one (21) days in which to consider and accept the terms of this Supplemental Release of Claims by signing below and returning it to Bryan Yoon (or other designee) at the Company ***@***). In addition, I may rescind my assent to this Supplemental Release of Claims if, within seven (7) days after I sign this Supplemental Release of Claims, I deliver by hand or send by mail or confirmed receipt email (if by mail, certified, return receipt and postmarked within such 7-day period) a notice of rescission to Bryan Yoon (or his designee). The eighth day following my signing of this Supplemental Release of Claims without rescission is the “Effective Date” of this Supplemental Release of Claims.
Also, consistent with the provisions of local, state and federal discrimination laws, nothing in this release shall be deemed to prohibit me from challenging the validity of this release under
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such discrimination laws (the “Discrimination Laws”) or from filing a charge or complaint of age or other employment related discrimination with the Equal Employment Opportunity Commission (“EEOC”) or state or local equivalent, or from participating in any investigation or proceeding conducted by the EEOC or state or local equivalent (or seeking the recovery of any governmental bounty). Further, nothing in this release or Agreement shall be deemed to limit the Company’s right to seek immediate dismissal of such charge or complaint on the basis that my signing of this Supplemental Release of Claims constitutes a full release of any individual rights under the Discrimination Laws, or to seek restitution to the extent permitted by law of the economic benefits provided to me under the Agreement and this Supplemental Release of Claims in the event that I successfully challenge the validity of this release and prevail in any claim under the Discrimination Laws.
Confirmed, Agreed and Acknowledged:
____________________________________
Senthil Sundaram
Dated:______________________________
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