Exhibit 10.38


 


THERAVANCE, INC.



2004 EQUITY INCENTIVE PLAN



(AS ADOPTED MAY 27, 2004 AND AMENDED DECEMBER
6, 2006)


 


















TABLE OF CONTENTS


	
  

  	
  Page

  
	
  ARTICLE I. INTRODUCTION

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II. ADMINISTRATION

  	
  1

  
	
  2.1 Committee
  Composition

  	
  1

  
	
  2.2 Committee
  Responsibilities

  	
  1

  
	
  2.3 Committee
  for Non-Officer Grants

  	
  2

  
	
   

  	
   

  
	
  ARTICLE III. SHARES AVAILABLE FOR GRANTS

  	
  2

  
	
  3.1 Basic
  Limitation

  	
  2

  
	
  3.2 Additional
  Shares

  	
  2

  
	
  3.3 Dividend
  Equivalents

  	
  2

  
	
  3.4 Shares
  Subject to Substituted Options

  	
  2

  
	
   

  	
   

  
	
  ARTICLE IV. ELIGIBILITY

  	
  3

  
	
  4.1 Incentive
  Stock Options

  	
  3

  
	
  4.2 Other Grants

  	
  3

  
	
   

  	
   

  
	
  ARTICLE V. OPTIONS

  	
  3

  
	
  5.1 Stock Option
  Agreement

  	
  3

  
	
  5.2 Number of
  Shares

  	
  3

  
	
  5.3 Exercise
  Price

  	
  3

  
	
  5.4
  Exercisability and Term

  	
  3

  
	
  5.5 Modification
  or Assumption of Options

  	
  4

  
	
  5.6 Buyout
  Provisions

  	
  4

  
	
   

  	
   

  
	
  ARTICLE VI. PAYMENT FOR OPTION SHARES

  	
  4

  
	
  6.1 General Rule

  	
  4

  
	
  6.2 Surrender of
  Stock

  	
  4

  
	
  6.3 Exercise/Sale

  	
  4

  
	
  6.4
  Exercise/Pledge

  	
  4

  
	
  6.5 Promissory
  Note

  	
  5

  
	
  6.6 Other Forms
  of Payment

  	
  5

  
	
   

  	
   

  
	
  ARTICLE VII. STOCK APPRECIATION RIGHTS

  	
  5

  
	
  7.1 SAR
  Agreement

  	
  5

  
	
  7.2 Number of
  Shares

  	
  5

  
	
  7.3 Exercise
  Price

  	
  5

  
	
  7.4
  Exercisability and Term

  	
  5

  
	
  7.5 Exercise of
  SARs

  	
  5

  
	
  7.6 Modification
  or Assumption of SARs

  	
  6

  
	
   

  	
   

  
	
  ARTICLE VIII. RESTRICTED SHARES

  	
  6

  
	
  8.1 Restricted Stock Agreement

  	
  6

  
	
   

  	
   

  




 i
 









 


	
  8.2 Payment for Awards

  	
  6

  
	
  8.3 Vesting Conditions

  	
  6

  
	
  8.4 Voting and
  Dividend Rights

  	
  7

  
	
   

  	
   

  
	
  ARTICLE IX. STOCK UNITS

  	
  7

  
	
  9.1 Stock Unit
  Agreement

  	
  7

  
	
  9.2 Payment for
  Awards

  	
  7

  
	
  9.3 Vesting
  Conditions

  	
  7

  
	
  9.4 Voting and
  Dividend Rights

  	
  7

  
	
  9.5 Form and
  Time of Settlement of Stock Units

  	
  8

  
	
  9.6 Death of
  Recipient

  	
  8

  
	
  9.7 Creditors’
  Rights

  	
  8

  
	
   

  	
   

  
	
  ARTICLE X. CHANGE IN CONTROL

  	
  8

  
	
  10.1 Effect of
  Change in Control

  	
  8

  
	
  10.2
  Acceleration

  	
  8

  
	
   

  	
   

  
	
  ARTICLE XI. PROTECTION AGAINST DILUTION

  	
  9

  
	
  11.1 Adjustments

  	
  9

  
	
  11.2 Dissolution
  or Liquidation

  	
  9

  
	
  11.3
  Reorganizations

  	
  9

  
	
   

  	
   

  
	
  ARTICLE XII. DEFERRAL OF AWARDS

  	
  10

  
	
   

  	
   

  
	
  ARTICLE XIII. AWARDS UNDER OTHER PLANS

  	
  11

  
	
   

  	
   

  
	
  ARTICLE XIV. PAYMENT OF FEES IN SECURITIES

  	
  11

  
	
  14.1 Effective
  Date

  	
  11

  
	
  14.2 Elections
  to Receive NSOs, Restricted Shares or Stock Units

  	
  11

  
	
  14.3 Number and
  Terms of NSOs, Restricted Shares or Stock Units

  	
  11

  
	
   

  	
   

  
	
  ARTICLE XV. LIMITATION ON RIGHTS

  	
  11

  
	
  15.1 Retention
  Rights

  	
  11

  
	
  15.2
  Stockholders’ Rights

  	
  11

  
	
  15.3 Regulatory
  Requirements

  	
  12

  
	
   

  	
   

  
	
  ARTICLE XVI. WITHHOLDING TAXES

  	
  12

  
	
  16.1 General

  	
  12

  
	
  16.2 Share
  Withholding

  	
  12

  
	
   

  	
   

  
	
  ARTICLE XVII. FUTURE OF THE PLAN

  	
  12

  
	
  17.1 Term of the
  Plan

  	
  12

  
	
  17.2 Amendment
  or Termination

  	
  13

  
	
  17.3 Stockholder
  Approval

  	
  13

  
	
   

  	
   

  
	
  ARTICLE XVIII. DEFINITIONS

  	
  13

  



 



 ii















THERAVANCE,
INC.

2004 EQUITY INCENTIVE PLAN


ARTICLE I.                                                        INTRODUCTION.


The
Plan was adopted by the Board to be effective at the IPO.  The purpose of the Plan is to promote the
long-term success of the Corporation and the creation of stockholder value by
(a) encouraging Employees, Outside Directors and Consultants to focus on
critical long-range objectives, (b) encouraging the attraction and
retention of Employees, Outside Directors and Consultants with exceptional
qualifications, and (c) linking Employees, Outside Directors and
Consultants directly to stockholder interests through increased stock
ownership.  The Plan seeks to achieve
this purpose by providing for Awards in the form of Restricted Shares, Stock
Units, Options (which may constitute incentive stock options or nonstatutory
stock options) or stock appreciation rights.


The
Plan shall be governed by, and construed in accordance with, the laws of the
State of Delaware (except their choice-of-law provisions).


ARTICLE II.                                                    ADMINISTRATION.


2.1                                 Committee Composition.  The Committee shall administer the Plan.  The Committee shall consist exclusively of
two or more directors of the Corporation, who shall be appointed by the Board.  In addition, each member of the Committee
shall meet the following requirements:


(a)                                  Any
listing standards prescribed by the principal securities market on which the
Corporation’s equity securities are traded;


(b)                                 Such
requirements as the Internal Revenue Service may establish for outside
directors acting under plans intended to qualify for exemption under
section 162(m)(4)(C) of the Code;


(c)                                  Such
requirements as the Securities and Exchange Commission may establish for
administrators acting under plans intended to qualify for exemption under
Rule 16b-3 (or its successor) under the Exchange Act; and


(d)                                 Any
other requirements imposed by applicable law, regulations or rules.


2.2                                 Committee Responsibilities.  The Committee shall (a) select the
Employees, Outside Directors and Consultants who are to receive Awards under
the Plan, (b) determine the type, number, vesting requirements and other
features and conditions of such Awards, (c) interpret the Plan,
(d) make all other decisions relating to the operation of the Plan and
(e) carry out any other duties delegated to it by the Board.  The Committee may adopt such rules or
guidelines as it deems appropriate to implement the Plan.  The Committee’s determinations under the Plan
shall be final and binding on all persons.













2.3                                 Committee for Non-Officer Grants.  The Board may also appoint a secondary
committee of the Board, which shall be composed of one or more directors of the
Corporation who need not satisfy the requirements of Section 2.1.  Such secondary committee may administer the
Plan with respect to Employees and Consultants who are not Outside Directors
and are not considered executive officers of the Corporation under
section 16 of the Exchange Act, may grant Awards under the Plan to such
Employees and Consultants and may determine all features and conditions of such
Awards.  Within the limitations of this
Section 2.3, any reference in the Plan to the Committee shall include such
secondary committee.


ARTICLE III.                                                SHARES
AVAILABLE FOR GRANTS.


3.1                                 Basic Limitation.  Shares of Common Stock issued pursuant to the
Plan may be authorized but unissued shares or treasury shares.  The aggregate number of shares of Common
stock that may be awarded pursuant to Awards granted under the Plan shall not
exceed (a) 7,200,000 (1) shares plus the number of shares remaining available
for issuance under the 1997 Stock Plan and the Long-Term Stock Option Plan and
(b) the additional shares of Common Stock described in Sections 3.2
and 3.4.  The limitations of this
Section 3.1 shall be subject to adjustment pursuant to
Article 11.  The number of shares of
Common Stock that are subject to Options or other rights outstanding at any
time under the Plan shall not exceed the number of shares of Common Stock that
then remain available for issuance under the Plan.










(1)  All
share numbers reflect the reverse stock split approved in connection with the
IPO.  Reflects increase of 3,500,000
shares approved by the Compensation Committee of the Board of Directors on
November 29, 2006 and the Board of Directors on December 6, 2006.


3.2                                 Additional Shares.  If Restricted Shares or shares of Common
Stock issued upon the exercise of Options under this Plan, the 1997 Stock Plan,
or the Long-Term Stock Option Plan are forfeited or repurchased, then such
shares of Common Stock shall again become available for Awards under this Plan.  If Stock Units, Options or SARs under this
Plan, the 1997 Stock Plan, or the Long-Term Stock Option Plan are forfeited or
terminate for any other reason before being exercised, then the corresponding
shares of Common Stock shall again become available for Awards under this
Plan.  If Stock Units are settled, then
only the number of shares of Common Stock (if any) actually issued in
settlement of such Stock Units shall reduce the number available under
Section 3.1 and the balance shall again become available for Awards under
the Plan.  If SARs are exercised, then
only the number of shares of Common Stock (if any) actually issued in
settlement of such SARs shall reduce the number available under
Section 3.1 and the balance shall again become available for Awards under
the Plan.


3.3                                 Dividend Equivalents.  Any dividend equivalents paid or credited
under the Plan shall not be applied against the number of Restricted Shares,
Stock Units, Options or SARs available for Awards, whether or not such dividend
equivalents are converted into Stock Units.


3.4                                 Shares Subject to Substituted Options.  The number of shares of Common Stock subject
to Options granted by the Corporation shall not reduce the number of shares of
Common Stock that may be issued under Section 3.1 if (a) the
Corporation or a Subsidiary is a party to a transaction with another
corporation described in section 424(a) of the 



 2
 









Code,
(b) employees or independent contractors of such corporation hold options
to purchase shares of such corporation’s stock that are cancelled as part of
such transaction and (c) the Corporation grants Options under the Plan to
such employees or independent contractors to replace the cancelled options in
accordance with section 424(a) of the Code (whether or not such Options are
ISOs).


ARTICLE IV.                                               ELIGIBILITY.


4.1                                 Incentive Stock Options.  Only Employees who are common-law
employees of the Corporation, a Parent or a Subsidiary shall be eligible for
the grant of ISOs.  In addition, an
Employee who owns more than 10% of the total combined voting power of all
classes of outstanding stock of the Corporation or any of its Parents or
Subsidiaries shall not be eligible for the grant of an ISO unless the
requirements set forth in section 422(c)(6) of the Code are satisfied.


4.2                                 Other Grants.  Only Employees, Outside Directors and
Consultants shall be eligible for the grant of Restricted Shares, Stock Units,
NSOs or SARs.


ARTICLE V.                                                   OPTIONS.


5.1                                 Stock Option Agreement.  Each grant of an Option under the Plan shall
be evidenced by a Stock Option Agreement between the Optionee and the
Corporation.  Such Option shall be
subject to all applicable terms of the Plan and may be subject to any other
terms that are not inconsistent with the Plan. 
The Stock Option Agreement shall specify whether the Option is an ISO or
an NSO.  The provisions of the various
Stock Option Agreements entered into under the Plan need not be identical.  Options may be granted in consideration of a
reduction in the Optionee’s other compensation.


5.2                                 Number of Shares.  Each Stock Option Agreement shall specify the
number of shares of Common Stock subject to the Option and shall provide for
the adjustment of such number in accordance with Article 11.  Options granted to any Optionee in a single fiscal
year of the Corporation shall not cover more than 1,500,000 shares of Common
Stock, except that Options granted to a new Employee in the fiscal year of the
Corporation in which his or her service as an Employee first commences shall
not cover more than 2,000,000 shares of Common Stock.  The limitations set forth in the preceding
sentence shall be subject to adjustment in accordance with Article 11.


5.3                                 Exercise Price.  Each Stock Option Agreement shall specify the
Exercise Price; provided that the Exercise Price shall in no event be less than
100% of the Fair Market Value of a share of Common Stock on the date of grant.


5.4                                 Exercisability and Term.  Each Stock Option Agreement shall specify the
date or event when all or any installment of the Option is to become
exercisable.  The Stock Option Agreement
shall also specify the term of the Option; provided that the term of an ISO
shall in no event exceed 10 years from the date of grant.  A Stock Option Agreement may provide for
accelerated exercisability in the event of the Optionee’s death, disability or
retirement or other events and may provide for expiration prior to the end of
its term in the event of the termination of the Optionee’s service.  Options may be awarded in combination with 



 3
 









SARs, and such
an Award may provide that the Options will not be exercisable unless the
related SARs are forfeited.


5.5                                 Modification or Assumption of Options.  Within the limitations of the Plan, the
Committee may modify, extend, or assume outstanding options.  The foregoing notwithstanding, no
modification of an Option shall, without the
consent of the Optionee, alter or impair his or her rights or obligations under
such Option.  Notwithstanding anything in
this Plan to the contrary, and except for the adjustments provided in Articles
X and XI, neither the Committee nor any other person may decrease the exercise
price for any outstanding Option after the date of grant nor cancel or allow an
optionee to surrender an outstanding Option to the Corporation as consideration
for the grant of a new Option with a lower exercise price or the grant of
another type of Award the effect of which is to reduce the exercise price of
any outstanding Option.


5.6                                 Buyout Provisions.  The Committee may at any time (a) offer
to buy out for a payment in cash or cash equivalents an Option previously
granted or (b) authorize an Optionee to elect to cash out an Option
previously granted, in either case at such time and based upon such terms and
conditions as the Committee shall establish.


ARTICLE VI.                                               PAYMENT
FOR OPTION SHARES.


6.1                                 General Rule.  The entire Exercise Price of shares of Common
Stock issued upon exercise of Options shall be payable in cash or cash
equivalents at the time such shares of Common Stock are purchased, except that
the Committee at its sole discretion may accept payment of the Exercise Price
in any other form(s) described in this Article 6.  However, if the Optionee is an Outside
Director or executive officer of the Corporation, he or she may pay the
Exercise Price in a form other than cash or cash equivalents only to the extent
permitted by section 13(k) of the Exchange Act.


6.2                                 Surrender of Stock.  With the Committee’s consent, all or any part
of the Exercise Price may be paid by surrendering, or attesting to the
ownership of, shares of Common Stock that are already owned by the
Optionee.  Such shares of Common Stock
shall be valued at their Fair Market Value on the date the new shares of Common
Stock are purchased under the Plan.  The
Optionee shall not surrender, or attest to the ownership of, shares of Common
Stock in payment of the Exercise Price if such action would cause the
Corporation to recognize compensation expense (or additional compensation
expense) with respect to the Option for financial reporting purposes.


6.3                                 Exercise/Sale.  With the Committee’s consent, all or any part
of the Exercise Price and any withholding taxes may be paid by delivering (on a
form prescribed by the Corporation) an irrevocable direction to a securities
broker approved by the Corporation to sell all or part of the shares of Common
Stock being purchased under the Plan and to deliver all or part of the sales
proceeds to the Corporation.


6.4                                 Exercise/Pledge.  With the Committee’s consent, all or any part
of the Exercise Price and any withholding taxes may be paid by delivering (on a
form prescribed by the Corporation) an irrevocable direction to pledge all or
part of the shares of Common Stock being 



 4
 









purchased
under the Plan to a securities broker or lender approved by the Corporation, as
security for a loan, and to deliver all or part of the loan proceeds to the
Corporation.


6.5                                 Promissory Note.  With the Committee’s consent, all or any part
of the Exercise Price and any withholding taxes may be paid by delivering (on a
form prescribed by the Corporation) a full-recourse promissory note.  However, the par value of the shares of
Common Stock being purchased under the Plan, if newly issued, shall be paid in
cash or cash equivalents.


6.6                                 Other Forms of Payment.  With the Committee’s consent, all or any part
of the Exercise Price and any withholding taxes may be paid in any other form
that is consistent with applicable laws, regulations and rules.


ARTICLE VII.                                           STOCK
APPRECIATION RIGHTS.


7.1                                 SAR Agreement.  Each grant of an SAR under the Plan shall be
evidenced by an SAR Agreement between the Optionee and the Corporation.  Such SAR shall be subject to all applicable
terms of the Plan and may be subject to any other terms that are not
inconsistent with the Plan.  The
provisions of the various SAR Agreements entered into under the Plan need not
be identical.  SARs may be granted in
consideration of a reduction in the Optionee’s other compensation.


7.2                                 Number of Shares.  Each SAR Agreement shall specify the number
of shares of Common Stock to which the SAR pertains and shall provide for the
adjustment of such number in accordance with Article 11.  SARs granted to any Optionee in a single
fiscal year shall in no event pertain to more than 1,500,000 shares of Common
Stock, except that SARs granted to a new Employee in the fiscal year of the
Corporation in which his or her service as an Employee first commences shall
not pertain to more than 2,000,000 shares of Common Stock.  The limitations set forth in the preceding
sentence shall be subject to adjustment in accordance with Article 11.


7.3                                 Exercise Price.  Each SAR Agreement shall specify the Exercise
Price which shall not be less than fair market value.  An SAR Agreement may specify an Exercise
Price that varies in accordance with a predetermined formula while the SAR is
outstanding.


7.4                                 Exercisability and Term.  Each SAR Agreement shall specify the date all
or any installment of the SAR is to become exercisable.  The SAR Agreement shall also specify the term
of the SAR.  An SAR Agreement may provide
for accelerated exercisability in the event of the Optionee’s death, disability
or retirement or other events and may provide for expiration prior to the end
of its term in the event of the termination of the Optionee’s service.  SARs may be awarded in combination with
Options, and such an Award may provide that the SARs will not be exercisable
unless the related Options are forfeited. 
An SAR may be included in an ISO only at the time of grant but may be
included in an NSO at the time of grant or thereafter.  An SAR granted under the Plan may provide
that it will be exercisable only in the event of a Change in Control.


7.5                                 Exercise of SARs.  Upon exercise of an SAR, the Optionee (or any
person having the right to exercise the SAR after his or her death) shall
receive from the Corporation (a) shares of Common Stock, (b) cash or
(c) a combination of shares of Common Stock and cash, 



 5
 









as the
Committee shall determine.  The amount of
cash and/or the Fair Market Value of shares of Common Stock received upon
exercise of SARs shall, in the aggregate, be equal to the amount by which the
Fair Market Value (on the date of surrender) of the shares of Common Stock
subject to the SARs exceeds the Exercise Price. 
If, on the date an SAR expires, the Exercise Price under such SAR is less
than the Fair Market Value on such date but any portion of such SAR has not
been exercised or surrendered, then such SAR shall automatically be deemed to
be exercised as of such date with respect to such portion.


7.6                                 Modification or Assumption of SARs.  Within the limitations of the Plan, the
Committee may modify, extend or assume outstanding SARs.  The foregoing notwithstanding, no
modification of an SAR shall, without the consent of the Optionee, alter or
impair his or her rights or obligations under such SAR.


ARTICLE VIII.                                       RESTRICTED
SHARES.


8.1                                 Restricted Stock Agreement.  Each grant of Restricted Shares under the
Plan shall be evidenced by a Restricted Stock Agreement between the recipient
and the Corporation.  Such Restricted
Shares shall be subject to all applicable terms of the Plan and may be subject
to any other terms that are not inconsistent with the Plan.  The provisions of the various Restricted
Stock Agreements entered into under the Plan need not be identical.


8.2                                 Payment for Awards.  Subject to the following two sentences, Restricted
Shares may be sold or awarded under the Plan for such consideration as the
Committee may determine, including (without limitation) cash, cash equivalents,
property, full-recourse promissory notes, past services and future services.  To the extent that an Award consists of newly
issued Restricted Shares, the consideration shall consist exclusively of cash,
cash equivalents, property or past services rendered to the Corporation (or a
Parent or Subsidiary) or, for the amount in excess of the par value of such
newly issued Restricted Shares, full-recourse promissory notes.  If the Participant is an Outside Director or
executive officer of the Corporation, he or she may pay for Restricted Shares
with a promissory note only to the extent permitted by section 13(k) of
the Exchange Act.  Within the limitations
of the Plan, the Committee may accept the cancellation of outstanding options
in return for the grant of Restricted Shares.


8.3                                 Vesting Conditions.  Each Award of Restricted Shares may or may
not be subject to vesting.  Vesting shall
occur, in full or in installments, upon satisfaction of the conditions
specified in the Restricted Stock Agreement. 
The Committee may include among such conditions the requirement that the
performance of the Corporation or a business unit of the Corporation for a
specified period of one or more fiscal years equal or exceed a target
determined in advance by the Committee. 
The Committee shall determine such performance.  Such target shall be based on one or more of
the criteria set forth in Appendix A. 
The Committee shall identify such target not later than the 90th day of such period.  Subject to adjustment in accordance with
Article 11, in no event shall more than 1,500,000 Restricted Shares that are
subject to performance-based vesting conditions be granted to any Participant
in a single fiscal year of the Corporation, except that 2,000,000 Restricted
Shares may be granted to a new Employee in the fiscal year of the Corporation
in which his or her service as an Employee first commences.  A Restricted Stock Agreement may provide for
accelerated vesting in the 



 6
 









event of the
Participant’s death, disability or retirement or other events.  The Committee may determine, at the time of
granting Restricted Shares or thereafter, that all or part of such Restricted
Shares shall become vested in the event that a Change in Control occurs with
respect to the Corporation or in the event that the Participant is subject to
an Involuntary Termination after a Change in Control.


8.4                                 Voting and Dividend Rights.  The holders of Restricted Shares awarded
under the Plan shall have the same voting, dividend and other rights as the
Corporation’s other stockholders.  A
Restricted Stock Agreement, however, may require that the holders of Restricted
Shares invest any cash dividends received in additional Restricted Shares.  Such additional Restricted Shares shall be
subject to the same conditions and restrictions as the Award with respect to
which the dividends were paid.


ARTICLE IX.                                               STOCK
UNITS.


9.1                                 Stock Unit Agreement.  Each grant of Stock Units under the Plan
shall be evidenced by a Stock Unit Agreement between the recipient and the
Corporation.  Such Stock Units shall be
subject to all applicable terms of the Plan and may be subject to any other
terms that are not inconsistent with the Plan. 
The provisions of the various Stock Unit Agreements entered into under
the Plan need not be identical.  Stock
Units may be granted in consideration of a reduction in the recipient’s other
compensation.  Stock Units granted to a
recipient may in no event pertain to more than $10,000,000 in a single fiscal
year.


9.2                                 Payment for Awards.  To the extent that an Award is granted in the
form of Stock Units, no cash consideration shall be required of the Award
recipients.


9.3                                 Vesting Conditions.  Each Award of Stock Units may or may not be
subject to vesting.  Vesting shall occur,
in full or in installments, upon satisfaction of the conditions specified in
the Stock Unit Agreement.  The Committee
may include among such conditions the requirement that the performance of the
Corporation or a business unit of the Corporation for a specified period of one
or more fiscal years equal or exceed a target determined in advance by the
Committee.  The Committee shall determine
such performance.  Such target shall be
based on one or more of the criteria set forth in Appendix A.  The Committee shall identify such target not
later than the 90th day of such period.  A Stock Unit Agreement may provide for
accelerated vesting in the event of the Participant’s death, disability or
retirement or other events.  The
Committee may determine, at the time of granting Stock Units or thereafter,
that all or part of such Stock Units shall become vested in the event that the
Corporation is subject to a Change in Control or in the event that the
Participant is subject to an Involuntary Termination after a Change in Control.


9.4                                 Voting and Dividend Rights.  The holders of Stock Units shall have no
voting rights.  Prior to settlement or
forfeiture, any Stock Unit awarded under the Plan may, at the Committee’s
discretion, carry with it a right to dividend equivalents.  Such right entitles the holder to be credited
with an amount equal to all cash dividends paid on one share of Common Stock
while the Stock Unit is outstanding. 
Dividend equivalents may be converted into additional Stock Units.  Settlement of dividend equivalents may be
made in the form of cash, in the form of shares of Common Stock, or in a
combination of both.  Prior to
distribution, any 



 7
 









dividend
equivalents which are not paid shall be subject to the same conditions and
restrictions as the Stock Units to which they attach.


9.5                                 Form and Time of Settlement of Stock Units.  Settlement of vested Stock Units may be made
in the form of (a) cash, (b) shares of Common Stock or (c) any
combination of both, as determined by the Committee.  The actual number of Stock Units eligible for
settlement may be larger or smaller than the number included in the original
Award, based on predetermined performance factors.  Methods of converting Stock Units into cash
may include (without limitation) a method based on the average Fair Market
Value of shares of Common Stock over a series of trading days.  Vested Stock Units may be settled in a lump
sum or in installments.  The distribution
may occur or commence when all vesting conditions applicable to the Stock Units
have been satisfied or have lapsed, or it may be deferred to any later
date.  The amount of a deferred
distribution may be increased by an interest factor or by dividend
equivalents.  Until an Award of Stock
Units is settled, the number of such Stock Units shall be subject to adjustment
pursuant to Article 11.


9.6                                 Death of Recipient.  Any Stock Units Award that becomes payable
after the recipient’s death shall be distributed to the recipient’s beneficiary
or beneficiaries.  Each recipient of a
Stock Units Award under the Plan shall designate one or more beneficiaries for
this purpose by filing the prescribed form with the Corporation.  A beneficiary designation may be changed by
filing the prescribed form with the Corporation at any time before the Award
recipient’s death.  If no beneficiary was
designated or if no designated beneficiary survives the Award recipient, then
any Stock Units Award that becomes payable after the recipient’s death shall be
distributed to the recipient’s estate.


9.7                                 Creditors’ Rights.  A holder of Stock Units shall have no rights
other than those of a general creditor of the Corporation.  Stock Units represent an unfunded and
unsecured obligation of the Corporation, subject to the terms and conditions of
the applicable Stock Unit Agreement.


ARTICLE X.                                                   CHANGE
IN CONTROL.


10.1                           Effect of Change in Control.  In the event of any Change in Control, each
outstanding Award shall automatically accelerate so that each such Award shall,
immediately prior to the effective date of the Change in Control, become fully
exercisable for all of the shares of Common Stock at the time subject to such
Award and may be exercised for any or all of those shares as fully-vested
shares of Common Stock.  However, an
outstanding Award shall not so
accelerate if and to the extent such Award is, in connection with the Change in
Control, either to be assumed by the successor corporation (or parent thereof)
or to be replaced with a comparable Award for shares of the capital stock of
the successor corporation (or parent thereof). 
The determination of Award comparability shall be made by the Committee,
and its determination shall be final, binding and conclusive.


10.2                           Acceleration. The Committee shall
have the discretion, exercisable either at the time the Award is granted or at
any time while the Award remains outstanding, to provide for the automatic
acceleration of vesting upon the occurrence of a Change in Control, whether or
not the Award is to be assumed or replaced in the Change in Control.



 8
 









ARTICLE XI.                                               PROTECTION
AGAINST DILUTION.


11.1                           Adjustments.  In the event of a subdivision of the
outstanding shares of Common Stock, a declaration of a dividend payable in
shares of Common Stock, a declaration of a dividend payable in a form other
than shares of Common Stock in an amount that has a material affect on the
price of shares of Common Stock, a combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
lesser number of shares of Common Stock, a recapitalization, a spin-off or a
similar occurrence, corresponding adjustments shall automatically be made in
each of the following:


(a)                                  The
number of Options, SARs, Restricted Shares and Stock Units available for future
Awards under Article 3;


(b)                                 The
limitations set forth in Sections 5.2 and 7.2;


(c)                                  The
number of shares of Common Stock covered by each outstanding Option and SAR;


(d)                                 The
Exercise Price under each outstanding Option and SAR; or


(e)                                  The
number of Stock Units included in any prior Award which has not yet been
settled.


Except
as provided in this Article 11, a Participant shall have no rights by
reason of any issue by the Corporation of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.


11.2                           Dissolution or Liquidation.  To the extent not previously exercised or
settled, Options, SARs and Stock Units shall terminate immediately prior to the
dissolution or liquidation of the Corporation.


11.3                           Reorganizations.  In the event that the Corporation is a party
to a merger or consolidation, all outstanding Awards shall be subject to the
agreement of merger or consolidation. 
Such agreement shall provide for one or more of the following:


(a)                                  The continuation of
such outstanding Awards by the Corporation (if the Corporation is the surviving
corporation).


(b)                                 The assumption of such
outstanding Awards by the surviving corporation or its parent (in a manner that
complies with section 424(a) of the Code with respect to Options).


(c)                                  The substitution by
the surviving corporation or its parent of new awards for such outstanding
Awards (in a manner that complies with section 424(a) of the Code with
respect to Options).



 9
 









(d)                                 Full exercisability of
such outstanding Awards and full vesting of the shares of Common Stock subject
to such Awards, followed by the cancellation of such Awards.  The full exercisability of such Awards and
full vesting of the shares of Common Stock subject to such Awards may be
contingent on the closing of such merger or consolidation.  The Participants shall be able to exercise
such Awards during a period of not less than five full business days preceding
the closing date of such merger or consolidation, unless (i) a shorter
period is required to permit a timely closing of such merger or consolidation
and (ii) such shorter period still offers the Participants a reasonable
opportunity to exercise such Awards.  Any
exercise of such Awards during such period may be contingent on the closing of
such merger or consolidation.


(e)                                  The cancellation of
such outstanding Awards and a payment to the Participants equal to the excess
of (i) the Fair Market Value of the shares of Common Stock subject to such
Awards (whether or not such Awards are then exercisable or such shares of
Common Stock are then vested) as of the closing date of such merger or
consolidation over (ii) their Exercise Price.  Such payment shall be made in the form of
cash, cash equivalents, or securities of the surviving corporation or its
parent with a Fair Market Value equal to the required amount.  Such payment may be made in installments and
may be deferred until the date or dates when such Awards would have become
exercisable or such shares of Common Stock would have vested.  Such payment may be subject to vesting based
on the Optionee’s continuing service, provided that the vesting schedule shall
not be less favorable to the Participants than the schedule under which such
Awards would have become exercisable or such shares of Common Stock would have
vested.  If the Exercise Price of the
shares of Common Stock subject to such Awards exceeds the Fair Market Value of
such shares of Common Stock, then such Awards may be cancelled without making a
payment to the Participants.  For
purposes of this Subsection (e), the Fair Market Value of any security
shall be determined without regard to any vesting conditions that may apply to
such security.


ARTICLE XII.                                           DEFERRAL
OF AWARDS.


The Committee (in its sole discretion) may permit or
require a Participant to:


(a)                                  Have
cash that otherwise would be paid to such Participant as a result of the
exercise of an SAR or the settlement of Stock Units credited to a deferred
compensation account established for such Participant by the Committee as an
entry on the Corporation’s books;


(b)                                 Have
shares of Common Stock that otherwise would be delivered to such Participant as
a result of the exercise of an Option or SAR converted into an equal number of
Stock Units; or


(c)                                  Have
shares of Common Stock that otherwise would be delivered to such Participant as
a result of the exercise of an Option or SAR or the settlement of Stock Units
converted into amounts credited to a deferred compensation account established
for such Participant by the Committee as an entry on the Corporation’s
books.  Such amounts shall be determined
by reference to the Fair Market Value of such shares of Common Stock as of the
date they otherwise would have been delivered to such Participant.



 10
 









A
deferred compensation account established under this Article 12 may be
credited with interest or other forms of investment return, as determined by
the Committee.  A Participant for whom
such an account is established shall have no rights other than those of a
general creditor of the Corporation. 
Such an account shall represent an unfunded and unsecured obligation of
the Corporation and shall be subject to the terms and conditions of the
applicable agreement between such Participant and the Corporation.  If the deferral or conversion of Awards is
permitted or required, the Committee (in its sole discretion) may establish
rules, procedures and forms pertaining to such Awards, including (without
limitation) the settlement of deferred compensation accounts established under
this Article 12.


ARTICLE XIII.                                       AWARDS
UNDER OTHER PLANS.


The Corporation may grant awards under other plans or
programs.  Such awards may be settled in
the form of shares of Common Stock issued under this Plan.  Such shares of Common Stock shall be treated
for all purposes under the Plan like shares of Common Stock issued in
settlement of Stock Units and shall, when issued, reduce the number of shares
of Common Stock available under Article 3.


ARTICLE XIV.                                      PAYMENT
OF FEES IN SECURITIES.


14.1                           Effective Date.  No provision of this Article 14 shall be
effective unless and until the Board has determined to implement such provision.


14.2                           Elections to Receive NSOs, Restricted Shares or Stock
Units.  An Outside Director
may elect to receive his or her annual retainer payments or meeting fees from
the Corporation in the form of cash, NSOs, Restricted Shares or Stock Units, or
a combination thereof, as determined by the Board.  Such NSOs, Restricted Shares and Stock Units
shall be issued under the Plan.  An
election under this Article 14 shall be filed with the Corporation on the
prescribed form.


14.3                           Number and Terms of NSOs, Restricted Shares or Stock
Units.  The number of NSOs,
Restricted Shares or Stock Units to be granted to Outside Directors in lieu of
annual retainers or meeting fees that would otherwise be paid in cash shall be
calculated in a manner determined by the Board. 
The Board shall also determine the terms of such NSOs, Restricted Shares
or Stock Units.


ARTICLE XV.                                          LIMITATION
ON RIGHTS.


15.1                           Retention Rights.  Neither the Plan nor any Award granted under
the Plan shall be deemed to give any individual a right to remain an Employee,
Outside Director or Consultant.  The
Corporation and its Parents, Subsidiaries and Affiliates reserve the right to
terminate the service of any Employee, Outside Director or Consultant at any
time, with or without cause, subject to applicable laws, the Corporation’s
certificate of incorporation and by-laws and a written employment agreement (if
any).


15.2                           Stockholders’ Rights.  A Participant shall have no dividend rights,
voting rights or other rights as a stockholder with respect to any shares of
Common Stock covered by his or her Award prior to the time a stock certificate
for such shares of Common Stock is issued 



 11
 









or, if
applicable, the time he or she becomes entitled to receive such shares of
Common Stock by filing any required notice of exercise and paying any required
Exercise Price.  No adjustment shall be
made for cash dividends or other rights for which the record date is prior to
such time, except as expressly provided in the Plan.


15.3                           Regulatory Requirements.  Any other provision of the Plan
notwithstanding, the obligation of the Corporation to issue shares of Common
Stock under the Plan shall be subject to all applicable laws, rules and
regulations and such approval by any regulatory body as may be required.  The Corporation reserves the right to
restrict, in whole or in part, the delivery of shares of Common Stock pursuant
to any Award prior to the satisfaction of all legal requirements relating to
the issuance of such shares of Common Stock, to their registration,
qualification or listing or to an exemption from registration, qualification or
listing.


ARTICLE XVI.                                      WITHHOLDING
TAXES.


16.1                           General. 
To the extent required by applicable federal, state, local or foreign
law, a Participant or his or her successor shall make arrangements satisfactory
to the Corporation for the satisfaction of any withholding tax obligations that
arise in connection with the Plan.  The
Corporation shall not be required to issue any shares of Common Stock or make
any cash payment under the Plan until such obligations are satisfied.


16.2                           Share Withholding.  To the extent that applicable law subjects a
Participant to tax withholding obligations, the Committee may permit a
Participant to satisfy all or part of his or her withholding or income tax
obligations by having the Corporation withhold all or a portion of any shares
of Common Stock that otherwise would be issued to him or her or by surrendering
all or a portion of any shares of Common Stock that he or she previously
acquired.  Such shares of Common Stock shall
be valued at their Fair Market Value on the date they are withheld or
surrendered.


ARTICLE XVII.                                  FUTURE
OF THE PLAN.


17.1                           Term of the Plan.  The Plan, as set forth herein, shall become
effective on the date of effectiveness of the IPO.  The Plan shall remain in effect until it is
terminated under Section 17.2, except that no ISOs shall be granted on or
after the 10th anniversary
of the later of (a) the date the Board adopted the Plan or (b) the
date the Board adopted the most recent increase in the number of shares of
Common Stock available under Article 3 which was approved by the
Corporation’s stockholders.  The Plan
shall serve as the successor to the Predecessor Plans, and no further option
grants shall be made under the Predecessor Plans after the Plan effective
date.  All options outstanding under the
Predecessor Plans as of such date shall, immediately upon effectiveness of the
Plan, remain outstanding in accordance with their terms.  Each outstanding option under the Predecessor
Plans shall continue to be governed solely by the terms of the documents
evidencing such option, and no provision of the Plan shall be deemed to affect
or otherwise modify the rights or obligations of the holders of such options
with respect to their acquisition of shares of Common Stock, except that the
following vesting acceleration provisions relating to Change in Control shall
be extended to the options outstanding under the Predecessor Plans at the IPO:
if the optionee experiences an involuntary termination within three months
before or twenty-four months following a Change in Control, each of such
optionee’s 



 12
 









outstanding
options shall automatically accelerate so that each such option shall,
immediately prior to the effective date of the termination, become fully exercisable
for all of the shares of Common Stock at the time subject to such option and
may be exercised for any or all of those shares as fully-vested shares of
Common Stock, provided that no options accelerated pursuant to the foregoing
provision may become exercisable prior to September 12, 2007.


17.2                           Amendment or Termination.  The Board may, at any time and for any
reason, amend or terminate the Plan.  No
Awards shall be granted under the Plan after the termination thereof.  The termination of the Plan, or any amendment
thereof, shall not affect any Award previously granted under the Plan.


17.3                           Stockholder Approval.  An amendment of the Plan shall be subject to
the approval of the Corporation’s stockholders only to the extent required by
applicable laws, regulations or rules. 
However, an amendment of the last sentence of Section 5.5 is subject to
the approval of the Corporation’s stockholders and section 162(m) of the
Code may require that the Corporation’s stockholders approve:


(a)                                  The
Plan not later than the first regular meeting of stockholders that occurs in
the fourth calendar year following the calendar year in which the Corporation’s
initial public offering occurred; and


(b)                                 The
performance criteria set forth in Article 9.2 not later than the first meeting
of stockholders that occurs in the fifth year following the year in which the
Corporation’s stockholders previously approved such criteria.


ARTICLE XVIII.                              DEFINITIONS.


18.1                           “Affiliate” means any entity other than a
Subsidiary, if the Corporation and/or one or more Subsidiaries own not less
than 50% of such entity.


18.2                           “Award” means any award of an Option, an
SAR, a Restricted Share or a Stock Unit under the Plan.


18.3                           “Board” means the Corporation’s Board of
Directors, as constituted from time to time.


18.4                           “Change in Control” shall mean:


(a)                                  The
consummation of a merger or consolidation of the Corporation with or into
another entity or any other corporate reorganization, if persons who were not
stockholders of the Corporation immediately prior to such merger, consolidation
or other reorganization own immediately after such merger, consolidation or
other reorganization 50% or more of the voting power of the outstanding
securities of each of (i) the continuing or surviving entity and
(ii) any direct or indirect parent corporation of such continuing or
surviving entity;


(b)                                 The
sale, transfer or other disposition of all or substantially all of the
Corporation’s assets;



 13
 









(c)                                  A
change in the composition of the Board, as a result of which fewer than 50% of
the incumbent directors are directors who either:


(i)                                     Had
been directors of the Corporation on the date 24 months prior to the date of
such change in the composition of the Board (the “Original Directors”) or


(ii)                                  Were
appointed to the Board, or nominated for election to the Board, with the
affirmative votes of at least a majority of the aggregate of (A) the Original
Directors who were in office at the time of their appointment or nomination and
(B) the directors whose appointment or nomination was previously approved in a
manner consistent with this Paragraph (ii); or


(d)                                 Any
transaction as a result of which any person is the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing at least 50% of the total voting
power represented by the Corporation’s then outstanding voting securities.  For purposes of this Paragraph (d), the
term “person” shall have the same meaning as when used in sections 13(d)
and 14(d) of the Exchange Act but shall exclude (i) a trustee or other
fiduciary holding securities under an employee benefit plan of the Corporation
or of a Parent or Subsidiary and (ii) a corporation owned directly or
indirectly by the stockholders of the Corporation in substantially the same
proportions as their ownership of the common stock of the Corporation.


Except
with respect to a GSK Change In Control (defined below), (i) any stock purchase
by SmithKline Beecham Corporation, a Pennsylvania corporation (“GSK”), pursuant
to the Class A Common Stock Purchase Agreement dated as of March 30, 2004 or
(ii) the exercise by GSK of any of its rights under the Amended and Restated
Governance Agreement dated as of June 4, 2004 among
the Corporation, GSK, GlaxoSmithKline plc and Glaxo Group Limited (the “Governance
Agreement”) to representation on the Board (and its committees) or (iii) any
acquisition by GSK of securities of the Corporation (whether by merger, tender
offer, private or market purchases or otherwise) not prohibited by the Governance
Agreement shall not constitute a Change in Control.  A transaction shall not constitute a Change
in Control if its sole purpose is to change the state of the Corporation’s
incorporation or to create a holding company that will be owned in substantially
the same proportions by the persons who held the Corporation’s securities
immediately before such transaction. A “GSK Change In Control” shall mean the
acquisition by GSK of the Corporation’s Voting Stock (as defined in the
Governance Agreement) that would bring GSK’s Percentage Interest (as defined in
the Governance Agreement) to 100% in compliance with the provisions of the
Governance Agreement.


18.5                           “Code” means the Internal Revenue Code of
1986, as amended.


18.6                           “Committee” means a committee of the Board,
as described in Article 2.


18.7                           “Common Stock” means the common stock of the
Corporation.


18.8                           “Corporation” means Theravance, Inc., a
Delaware corporation.


18.9                           “Consultant” means a consultant or adviser
who provides bona fide services to the Corporation, a Parent, a Subsidiary or
an Affiliate as an independent contractor. 




 14
 









Service as a
Consultant shall be considered employment for all purposes of the Plan, except
as provided in Section 4.1.


18.10                     “Employee” means a common-law employee
of the Corporation, a Parent, a Subsidiary or an Affiliate.


18.11                     “Exchange Act” means the Securities Exchange
Act of 1934, as amended.


18.12                     “Exercise Price,” in the case of an Option,
means the amount for which one share of Common Stock may be purchased upon
exercise of such Option, as specified in the applicable Stock Option
Agreement.  “Exercise Price,” in the case
of an SAR, means an amount, as specified in the applicable SAR Agreement, which
is subtracted from the Fair Market Value of one share of Common Stock in
determining the amount payable upon exercise of such SAR.


18.13                     “Fair Market Value” means the closing
selling price of one share of Common Stock as reported on Nasdaq, and if not
available, then it shall be determined by the Committee in good faith on such
basis as it deems appropriate.  Whenever possible, the determination of Fair
Market Value by the Committee shall be based on the prices reported in The
Wall Street Journal.  Such
determination shall be conclusive and binding on all persons.


18.14                     “IPO” means the initial public offering of
the Corporation’s Common Stock.


18.15                     “ISO” means an incentive stock option
described in section 422(b) of the Code.


18.16                     “NSO” means a stock option not described in
sections 422 or 423 of the Code.


18.17                     “Option” means an ISO or NSO granted under
the Plan and entitling the holder to purchase shares of Common Stock.


18.18                     “Optionee” means an individual who or estate
that holds an Option or SAR.


18.19                     “Outside Director” shall mean a member of
the Board who is not an Employee. 
Service as an Outside Director shall be considered employment for all
purposes of the Plan, except as provided in Section 4.1.


18.20                     “Parent” means any corporation (other than
the Corporation) in an unbroken chain of corporations ending with the Corporation,
if each of the corporations other than the Corporation owns stock possessing
50% or more of the total combined voting power of all classes of stock in one
of the other corporations in such chain. 
A corporation that attains the status of a Parent on a date after the
adoption of the Plan shall be considered a Parent commencing as of such date.


18.21                     “Participant” means an individual who or
estate that holds an Award.



 15
 









18.22                     “Plan” means this Theravance, Inc. 2004
Equity Incentive Plan, as amended from time to time.


18.23                     “Predecessor Plans” means the Corporation’s
existing 1997 Stock Plan and Long-Term Stock Option Plan.


18.24                     “Restricted Share” means a share of Common
Stock awarded under Article 8 of the Plan.


18.25                     “Restricted Stock Agreement” means the
agreement between the Corporation and the recipient of a Restricted Share that
contains the terms, conditions and restrictions pertaining to such Restricted
Share.


18.26                     “SAR” means a stock appreciation right
granted under the Plan.


18.27                     “SAR Agreement” means the agreement between
the Corporation and an Optionee which contains the terms, conditions and
restrictions pertaining to his or her SAR.


18.28                     “Stock Option Agreement” means the agreement
between the Corporation and an Optionee that contains the terms, conditions and
restrictions pertaining to his or her Option.


18.29                     “Stock Unit” means a bookkeeping entry
representing the equivalent of one share of Common Stock, as awarded under the
Plan.


18.30                     “Stock Unit Agreement” means the agreement
between the Corporation and the recipient of a Stock Unit which contains the
terms, conditions and restrictions pertaining to such Stock Unit.


18.31                     “Subsidiary” means any corporation (other
than the Corporation) in an unbroken chain of corporations beginning with the
Corporation, if each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.  A corporation that attains the status of a
Subsidiary on a date after the adoption of the Plan shall be considered a
Subsidiary commencing as of such date.



 16
 









Appendix A


PERFORMANCE CRITERIA FOR
RESTRICTED SHARES AND STOCK UNITS


The performance goals that may be used by the Committee
for such awards shall consist of: drug development milestones, operating
profits (including EBITDA), net profits, earnings per share, profit returns and
margins, revenues, stockholder return and/or value, stock price and working
capital.  Performance goals may be
measured solely on a corporate, subsidiary or business unit basis, or a
combination thereof.  Further,
performance criteria may reflect absolute entity performance or a relative
comparison of entity performance to the performance of a peer group of entities
or other external measure of the selected performance criteria.  Profit, earnings and revenues used for any
performance goal measurement shall exclude: gains or losses on operating asset
sales or dispositions; asset write-downs; litigation or claim judgments or
settlements; accruals for historic environmental obligations; effect of changes
in tax law or rate on deferred tax liabilities; accruals for reorganization and
restructuring programs; uninsured catastrophic property losses; the cumulative
effect of changes in accounting principles; and any extraordinary non-recurring
items as described in Accounting Principles Board Opinion No. 30 and/or in
management’s discussion and analysis of financial performance appearing in the
Corporation’s annual report to stockholders for the applicable year.



 17