Exhibit 10.1


 


CONSULTING
AGREEMENT


 


Effective June 22,
2008 Michael M. Kitt, M.D. (“Consultant”) and Theravance, Inc., 901
Gateway Boulevard, South San Francisco CA 94080 (“Theravance” or the “Company”)
agree as follows:


 


1.                                       Services
and Payment. Consultant agrees to consult with and advise Theravance from
time to time, at Theravance’s request (“Services”) for up to 4 days per week
for the primary purpose of assisting Theravance with the preparation of the New
Drug Application for the Telavancin Hospital Acquired Pneumonia indication (the
“NDA”).  Services also will include
consulting and advisory assistance with the Company’s other development-stage
programs (e.g. Telavancin cSSSI, GI Prokinetic, PUMA and TD-1792) as required. As
full payment for the Services, Consultant will (i) receive a monthly
consulting fee of $25,480.00 and (ii) continue to vest in any (a) currently
outstanding options to purchase the Company’s Common Stock and (b) restricted
stock unit awards (RSUs) through the termination date of this Agreement in
accordance with the terms of such options and RSUs. Consultant shall also be
entitled to reimbursement for expenses for which Consultant has received prior
approval from Theravance within thirty (30) days of Consultant’s submission of
receipts thereof.


 


The parties agree that after the date the NDA is
submitted to the United States Food and Drug Administration (the “NDA
Submission Date”): (i) Consultant’s Service requirement hereunder will
fall to 5 hours per week at mutually agreeable times through the termination
date of this Agreement; (ii) Consultant’s monthly consulting fee will
cease; and (iii) Consultant will continue to vest in any (a) then
outstanding options to purchase the Company’s Common Stock and (b) RSUs
through the termination date of this Agreement in accordance with the terms of
such options and RSUs.


 


2.                                       Ownership
of Inventions.  Theravance shall own
all right, title and interest (including patent rights, copyrights, trade
secret rights, trademark rights and all other rights of any sort throughout the
world) relating to any and all inventions (whether or not patentable),
including without limitation, discoveries, compositions of matter,
pharmaceutical formulations, methods of use, methods of making, techniques,
processes, formulas, improvements, works of authorship, designations, designs,
know-how, ideas and information made or conceived or reduced to practice, in
whole or in part, by Consultant (solely or jointly with others) during the term
of this Agreement that arise out of or relate to the Services or any
Proprietary Information (as defined below) (collectively, “Inventions”).  Consultant will promptly disclose, provide
and assign all Inventions to Theravance. 
Consultant shall further assist Theravance, at Theravance’s expense, to
further evidence, record and perfect such assignments, and to perfect, obtain,
maintain, enforce, and defend any rights assigned throughout the world. Such
assistance may include, but is not limited to, execution of documents and
assistance or cooperation in legal proceedings. 
Consultant hereby irrevocably designates and appoints Theravance as his agent
and attorney-in-fact to act for and on Consultant’s behalf to execute and file
any document and to do all other lawfully permitted acts to further the
foregoing with the same legal force and effect as if


 

















 


executed by Consultant.  When
requested by Theravance, Consultant will make available to Theravance all
notes, data and other information relating to any Invention.


 


3.                                       Proprietary
Information.  Consultant agrees that
all Inventions and other business, technical and financial information
concerning Theravance (including, without limitation, the identity of and
information relating to Theravance’s employees, vendors and service providers) that
Consultant develops, learns or obtains during the term of this Agreement or
while he is providing Services constitute “Proprietary Information.”  Consultant will hold in confidence and not
disclose or make available to third parties or make use of any Proprietary
Information except with the prior written consent of Theravance or to the
extent necessary in performing Services for Theravance.  However, Consultant shall not be obligated
under this paragraph with respect to information Consultant can document (i) is
or becomes readily publicly available without restriction through no fault of
Consultant, or (ii) that Consultant knew without restriction prior to its
disclosure by Theravance.  Upon
termination of this Agreement or as otherwise requested by Theravance,
Consultant will promptly return to Theravance all documents, materials and
copies containing or embodying Proprietary Information, except that Consultant
may keep a personal copy of (i) compensation records relating to the
Services and (ii) this Agreement.


 


4.                                       Solicitation.  As additional protection for Proprietary
Information, Consultant agrees that during the term of this Agreement and for
one year thereafter, Consultant will not encourage or solicit any employee of
or consultant to Theravance to leave Theravance for any reason.


 


5.                                       Term
and Termination.  This Agreement
shall become effective on the date hereof and remain in force until the earlier
of March 31, 2009 or when  terminated by either party.
Consultant may terminate this Agreement at any time, for any reason, by giving
Theravance 30 days advance written notice. 
Theravance may terminate this Agreement prior to March 31, 2009
only for cause, which for purposes hereof shall mean:  (i) the unauthorized use or disclosure
of the confidential information or trade secrets of the Company, (ii) conviction
of a felony under the laws of the United States or any state thereof, (iii) negligence,
(iv) a material breach of this Agreement; (v) failure to perform
lawful assigned services for ten days after receiving written notification from
the Company; or (vi) prior to the NDA Submission Date, providing services
to another company or entity on any basis that uses more than one business day
per week of Consultant’s time without the prior written consent of the Company.
All provisions of this Agreement and any remedies for breach of this Agreement
shall survive any termination or expiration.


 


6.                                       Relationship
of the Parties.  Notwithstanding any
provision hereof, for all purposes of this Agreement each party shall be and
act as an independent contractor and not as a partner, joint venturer, or agent
of the other and shall not bind nor attempt to bind the other to any
contract.  Consultant is an independent
contractor and is solely responsible for all taxes, withholdings, and other
statutory or contractual obligations of any sort, including, but not limited
to, Workers’ Compensation Insurance. Consultant recognizes and agrees that
Consultant has no


 


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expectation of privacy
with respect to Theravance’s telecommunications, networking or information
processing systems (including, without limitation, computer files, email
messages and attachments, and voice messages) and that Consultant’s activity,
and any files or messages, on or using any of those systems may be monitored at
any time without notice.


 


7.                                       Assignment.  This Agreement and the Services performed
hereunder are personal to Consultant and Consultant shall not have the right or
ability to assign, transfer, or subcontract any obligations under this
Agreement without the written consent of Theravance.  Any attempt to do so shall be void.  Theravance shall be free to assign or
transfer this Agreement to a third party.


 


8.                                       No
Conflict.  Consultant represents and
warrants that (i) his performance hereunder will not breach any agreement
or obligation to keep in confidence proprietary information acquired by
Consultant in confidence or trust prior to or during Consultant’s engagement
with Theravance, and (ii) all work under this Agreement will be Consultant’s
original work and none of the Services or Inventions or any development, use,
production, distribution or exploitation thereof will infringe, misappropriate
or violate any intellectual property or other right of any person or
entity.  Consultant represents and
warrants that he has not entered into, and agrees that he will not enter into,
any agreement whether written or oral in conflict with this Agreement or with his
obligations as a consultant to Theravance.


 


9.                                       Company
Policies.  Consultant represents that
he has read the Theravance Insider Trading Policy provided herewith and the
Theravance Code of Business Conduct located at
http://ir.theravance.com/conduct.cfm, and agrees to abide by each such policy
during the term of this Agreement.


 


10.                                 Remedies.  Any breach of Section 2, 3, 4 or 8 will
cause irreparable harm to Theravance for which damages would not be an adequate
remedy, and, therefore, Theravance will be entitled to injunctive relief with
respect thereto in addition to any other remedies.  The failure of either party to enforce its
rights under this Agreement at any time for any period shall not be construed
as a waiver of such rights.


 


11.                                 Entire
Agreement.  This Agreement supersedes
all prior agreements between the parties and constitutes the entire agreement
between the parties as to the subject matter hereof.


 


12.                                 Notices.  All notices, requests and other
communications called for by this Agreement shall be deemed to have been given
if made in writing and mailed, postage prepaid, to the address of each party
set forth above, or to such other addresses as either party shall specify to
the other.


 


13.                                 Amendments.  No changes or modifications or waivers to
this Agreement will be effective unless in writing and signed by both parties.


 


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14.                                 Severability.  In the event that any provision of this
Agreement shall be determined to be illegal or unenforceable, that provision
will be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.


 


15.                                 Arbitration.  Subject to the exceptions set forth below,
Consultant understands and agrees that any disagreement regarding this
Agreement will be determined by submission to arbitration as provided by Section 1280
et  seq. of the California Code of Civil Procedure, and not by a
lawsuit or resort to court process proceedings. 
The only claims or disputes not covered by this paragraph are claims or
disputes related to issues affecting the validity, infringement or
enforceability of any trade secret or patent rights held or sought by
Theravance or which Theravance could otherwise seek; in which case such claims
or disputes shall not be subject to arbitration and will be resolved pursuant
to applicable law.


 


16.                                 Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of
California without regard to conflicts of law provisions thereof.  In any action or proceeding to enforce rights
under this Agreement, the prevailing party shall be entitled to recover costs
and attorneys fees.


 


 


	
  Consultant

  	
   

  	
  Theravance, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Michael Kitt

  	
   

  	
  By:

  	
  /s/ Rick E Winningham

  
	
   

  	
  (signature)

  	
   

  	
   

  	
  (signature)

  
	
   

  	
   

  	
  Name:

  	
  Rick E Winningham

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive
  Officer

  
	
   

  	
   

  	
   

  
	
  Date: June 18,
  2008

  	
   

  	
  Date:  June 18, 2008

  
							



 


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