Exhibit 10.42


 


AGREEMENT AND GENERAL RELEASE


 


Theravance, Inc. (collectively referred
to throughout this Agreement as “Employer”), and Michael Kitt, his heirs,
executors, administrators, successors, and assigns (collectively referred to
throughout this Agreement as “Employee”), agree that:


 


1. Last Day of Employment:  Employee’s last day of employment with
Employer is June 21, 2008 (“Separation Date”).  Employee will be paid at his present rate of
base pay through their last day of employment. 
On Employee’s Separation Date, he will also receive any accrued but
unused vacation pay.


 


Prior to his last day of employment, Employee
must return to Employer all documents (paper and electronic, including all
copies of the same) and all other property in Employee’s possession or custody
in any way relating to the business of the Employer.  Such property includes, but is not limited
to, any computer or other electronic equipment that has been provided to
Employee by Employer.  An Employee’s
failure to return company shall forfeit the Employee’s eligibility to receive
severance per the terms of this Agreement and General Release.


 


2. Basic Severance Payment:  If Employee does not enter into this
Agreement, Employer will pay Employee the equivalent of two (2) weeks of
Employee’s last base pay, which equals the gross amount of $14,700.00 and will
be subject to all applicable withholding taxes (the “Basic Severance Payment”).  The Basic Severance Payment will automatically
be paid on the Separation Date and does not constitute consideration for the
signing of this Agreement and General Release.


 


3. Consideration:  In consideration for signing this Agreement
and General Release and compliance with the promises made herein, Employer
agrees:


 


A.     Enhanced
Severance Payment:  Following
the Separation Date, Theravance will pay Employee a lump sum equivalent to 28
weeks of Employee’s last base pay, which equals the gross amount of $205,800.00,
and will be subject to all applicable withholding taxes (the “Enhanced
Severance Payment”). Theravance will not accept
a signed Agreement and General Release prior to the Separation Date.  The Enhanced Severance Payment will be sent
to Employee within ten (10) days after Theravance receives Employee’s
signed Agreement and General Release, provided Employee has not revoked his/her
acceptance pursuant to Paragraph 9 of this Agreement.


 


B.     COBRA:  if
Employee elects to continue medical, dental and/ or vision coverage under the Theravance Plan in accordance with the
continuation requirements of COBRA, the Employer shall pay for the cost of said
coverage beginning on the first day of the month following the Employee’s last
day of employment and ending on January 31, 2009.  Thereafter, Employee shall be entitled to
elect to continue such COBRA coverage for the remainder of the COBRA period, at
his own expense.


 


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4. No Consideration Absent Execution of this Agreement:  Employee understands and agrees that he would
not receive the monies and/or benefits specified in paragraph “3” above, except
for his execution of this Agreement and General Release and the fulfillment of
the promises contained herein.


 


5. General Release of Claims:  Employee knowingly and voluntarily releases
and forever discharges Employer, its parent corporation, affiliates,
subsidiaries, divisions, successors and assigns and the current and former
employees, attorneys, officers, directors and agents thereof (collectively
referred to throughout the remainder of this Agreement as “Employer”), of and
from any and all claims, known and unknown, which the Employee has or may have
against Employer as of the date of execution of this Agreement and General
Release, including, but not limited to, any alleged violation of:


 


·                                          Title
VII of the Civil Rights Act of 1964, as amended;


 


·                                          The
Civil Rights Act of 1991;


 


·                                          Sections
1981 through 1988 of Title 42 of the United States Code, as amended;


 


·                                          The
Employee Retirement Income Security Act of 1974, as amended;


 


·                                          The
Immigration Reform and Control Act, as amended;


 


·                                          The
Americans with Disabilities Act of 1990, as amended;


 


·                                          The
Age Discrimination in Employment Act of 1967, as amended;


 


·                                          The
Workers Adjustment and Retraining Notification Act, as amended;


 


·                                          The
Occupational Safety and Health Act, as amended;


 


·                                          The
California Fair Employment and Housing Act, as amended;


 


·                                          The
California Labor Code;


 


·                                          California
Equal Pay Law, as amended;


 


·                                          Any
other federal, state or local civil or human rights law or any other local,
state or federal law, regulation or ordinance;


 


·                                          Any
claim based on violation of public policy, breach of contract, tort, or  any other common law claim; or


 


·                                          Any
allegation for costs, fees, or other expenses including attorneys’ fees
incurred in these matters.


 


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6.  Employee hereby waives the
provisions of Section 1542 of the California Civil Code, which provides as
follows:


 


A general release does not
extend to claims which the creditor does not know or suspect to exist in his or
her favor at the time of executing the release, which if known by him or her
must have materially affected his or her settlement with the debtor.


 


7.  Employee understands and
agrees that this Agreement and General Release extends to all claims, of every
nature and kind whatsoever, known or unknown, suspected or unsuspected,
enumerated in this Agreement or otherwise. Employee understands and agrees that
he may hereafter discover facts different from or in addition to those he now
knows or believes to be true in respect to the claims, demands, damages,
liabilities, actions or causes of action herein released, and he agrees that
this release shall be and remain in effect in all respects as complete and
general releases as to the matters to be released, notwithstanding any such
different and additional facts.


 


8. Affirmations:  Employee affirms that he has not filed,
caused to be filed, or presently is a party to any claim, complaint, or action
against Employer in any forum or form. 
Employee further affirms that he has been paid and has received all
leave (paid or unpaid), compensation, wages, bonuses, commissions, and/or
benefits to which he may be entitled and that no other leave (paid or unpaid),
compensation, wages, bonuses, commissions and/or benefits are due to him,
except as provided in this Agreement and General Release. Employee furthermore
affirms that he has no known workplace injuries or occupational diseases and
has been provided and/or has not been denied any leave requested under the
Family and Medical Leave Act, the California Family Rights Act, or any other
leave of absence provided for under California or federal law.


 


9. Applicable Data and Revocation:  Attached as Exhibit “A” is a list of the
job titles and ages of employees that the Employer is required to provide to
the Employee pursuant to the Older Workers Benefit Protection Act (“OWBPA”).  Employees are entitled to forty five (45)
days from the date of receipt of the list to consider this Agreement.  Employee may revoke this Agreement and
General Release for a period of seven (7) calendar days following the day he
executes this Agreement and General Release. 
Any revocation within this period must be submitted, in writing, to Dennis
Driver and state, “I hereby revoke my acceptance of our Agreement and General
Release.”  The revocation must be
personally delivered to Dennis Driver or his designee, or mailed to Dennis
Driver at 901 Gateway Boulevard, South San Francisco, CA 94080 and postmarked
within seven (7) calendar days of execution of this Agreement and General
Release.  This Agreement and General
Release shall not become effective or enforceable until the revocation period
has expired.  If the last day of the
revocation period is a Saturday, Sunday, or legal holiday in the state in which
Employee was employed at the time of his last day of employment, then the
revocation period shall not expire until the next following day which is not a
Saturday, Sunday, or legal holiday.


 


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10. Confidentiality:  Employee agrees not to disclose any
information regarding the existence or substance of this Agreement and General
Release, except to his spouse, tax advisor, and an attorney with whom Employee
chooses to consult regarding his consideration of this Agreement and General
Release. Nothing herein is intended to or shall preclude Employee from filing a
complaint and/or charge with any appropriate federal, state, or local
government agency and/or cooperating with said agency in its investigation. Employee,
however, shall not be entitled to receive any relief, recovery, or monies in
connection with any complaint or charge brought against Employer, without
regard as to who brought any said complaint or charge.


 


11. Governing Law and Interpretation:  This Agreement and General Release shall be
governed and conformed in accordance with the laws of the state of California.  In the event the Employee breaches any
provision of this Agreement and General Release, Employee and Employer affirm
that either may institute an action to specifically enforce any term or terms
of this Agreement and General Release. 
Should any provision of this Agreement and General Release be declared
illegal or unenforceable by any court of competent jurisdiction and cannot be
modified to be enforceable, excluding the general release language, such
provision shall immediately become null and void, leaving the remainder of this
Agreement and General Release in full force and effect.


 


12. Nonadmission of Wrongdoing:  The Parties agree that neither this Agreement
and General Release nor the furnishing of the consideration for this Release
shall be deemed or construed at anytime for any purpose as an admission by
either party, or evidence of any liability or unlawful conduct of any kind.


 


13. Amendment:  This
Agreement and General Release may not be modified, altered or changed except in
writing and signed by both parties wherein specific reference is made to this
Agreement and General Release.


 


14. Entire Agreement:  This Agreement and General Release sets forth
the entire agreement between the parties hereto, and fully supersedes any prior
agreements or understandings between the parties, except the attached copy of
the Employees signed Confidentiality Agreement. 
Employee acknowledges that he has not relied on any representations,
promises, or agreements of any kind made to him in connection with his decision
to accept this Agreement and General Release, except for those set forth in
this Agreement and General Release.


 


EMPLOYEE HAS BEEN ADVISED THAT HE HAS AT
LEAST FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS AGREEMENT AND GENERAL
RELEASE AND HAS BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO
EXECUTION OF THIS AGREEMENT AND GENERAL RELEASE.


 


EMPLOYEE AGREES THAT ANY MODIFICATIONS,
MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT AND GENERAL RELEASE DO NOT 


 


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RESTART OR AFFECT IN ANY MANNER THE ORIGINAL
FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.


 


HAVING ELECTED TO EXECUTE THIS AGREEMENT AND
GENERAL RELEASE, TO FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE
THEREBY THE SUMS AND BENEFITS SET FORTH IN PARAGRAPH “3” ABOVE, EMPLOYEE FREELY
AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND
GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS HE HAS OR
MIGHT HAVE AGAINST EMPLOYER.


 


IN WITNESS WHEREOF, the parties hereto
knowingly and voluntarily executed this Agreement and General Release as of the
date set forth below:


 


 


	
  /s/ Michael Kitt

  	
   

  	
  By: /s/ Dennis Driver

  
	
  (Employee’s Name)

  	
   

  	
  Dennis Driver

  
	
   

  	
   

  	
  Vice President, Human Resources

  
	
   

  	
   

  	
   

  
	
  Date: June 22, 2008

  	
   

  	
  Date: July 7, 2008

  



 


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