Exhibit 10.3


 


CONSULTING
AGREEMENT


 


Effective July 15, 2005, Marty Glick, 511 Hampton Road, Piedmont,
CA (“Consultant”) and Theravance, Inc., 901 Gateway Boulevard, South San
Francisco CA 94080 (“Theravance”) agree as follows:


 


1.                                       Services and
Payment.


 


(a)                                  Consultant agrees to
consult with and advise Theravance from time to time, at Theravance’s request
and upon mutual agreement by Consultant (“Services”). It is the parties’
intention that Consultant will work with the Thervance Chief Executive Officer
or his designate. From July through December 2005, Consultant shall
be paid a monthly retainer of $3,750.00, against which he will provide Services
at the rate of $275.00 per hour, with any overage in time to be applied against
the subsequent month’s retainer. During this period Consultant will provide
Theravance a monthly summary of hours spent / Services rendered. Consultant
will receive 50% of his monthly retainer on July 15, 2005 and will receive
his full monthly retainer thereafter on the first day of each succeeding month
through December 1, 2005. 
Consultant shall be entitled to reimbursement for expenses for which
Consultant has received prior approval from Theravance upon submission of
receipts therefor.


 


(b)                                 During the term of
this Agreement, and provided this Agreement is not terminated by the Theravance
for Cause (defined below), Consultant shall continue to vest in his stock
options as set forth in the Letter Agreement between the Theravance and
Consultant dated September 10, 2004. For Services provided, the Company
shall pay Consultant a fee of $275 per hour for each hour of authorized
Services rendered under this Agreement. 
After December 31, 2005, such fees (if any) shall be invoiced and
paid within 30 days following the receipt by the Company of an invoice.


 


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/her 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 customers or employees) 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
and Services for Competitors.  As
additional protection for Proprietary Information, Consultant agrees that
during the term of this Agreement, Consultant will not encourage or solicit any
employee of or consultant to Theravance to leave Theravance for any
reason.  During the term of this
Agreement, you agree not to serve as an officer or an employee of any business
competing with, or similar to the business of, the Company and engaged in such
competing or similar business of the Company anywhere within any state,
possession, territory or jurisdiction of the United States of America or any
other country in which you have provided services for the Company.  If any restriction set forth in this
paragraph 4 is held to be unreasonable or unenforceable by a court of competent
jurisdiction, then you agree, and hereby submit, to the reduction and
limitation of such prohibition to such area or period as shall be deemed
reasonable.  This restriction will not
apply to your service as a member of the Board of Directors of other companies,
regardless of whether or not they are in a business that competes with the
Company; provided that you continue to adhere to all of your other obligations
herein, including without limitation your confidentiality obligations.


 


5.                                       Term and
Termination.  This Agreement shall
become effective on the date hereof and remain in force until December 31,
2006 unless terminated by either
party. Consultant may terminate this Agreement at any time, for any reason, by
giving Theravance 10 days’ written notice. 
Theravance may only terminate this Agreement for Cause, which for
purposes of this Agreement shall mean (a) a material failure to comply
with the Theravance’s written policies or rules, (b) conviction of, or
plea of “guilty” or “no contest” to, a felony under the laws of the United
States or any state thereof, (c) gross misconduct, or (d) material
breach of this Agreement. All provisions of this Agreement and any remedies for
breach of this Agreement shall survive any termination or expiration.


 


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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 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.                                       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.


 


10.                                 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, except that if the Consultant has
signed Theravance’s Nondisclosure Agreement, it shall remain in full force and
effect.


 


11.                                 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.


 


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


 


13.                                 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.


 


14.                                 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.


 


15.                                 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/ MARTY GLICK

  	
   

  	
  By:

  	
   

  	
  /s/ RICK E WINNINGHAM

  	
   

  
	
  Marty Glick

  	
   

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
  Name:

  	
  Rick E Winningham

  
	
  Social Security No.:

  	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
							



 


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