Exhibit 10.2


 


CONSULTING
AGREEMENT


 


Effective December 6,
2008, Arthur Campbell, One Marigold Lane, San Carlos, CA 94070 (“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 three and one-half (3.5) days
per week on site at Theravance or traveling as necessary to perform the
Services.  Services to be provided
hereunder are set forth in Exhibit A attached hereto.  As full payment for the Services, Consultant
will (i) receive a consulting fee of $21,422 per month payable monthly
within thirty (30) days of Theravance’s receipt of reasonably detailed invoices
therefor, and (ii) continue to vest in any currently outstanding (a) options
to purchase the Company’s Common Stock and (b) time-based restricted stock
unit award (RSU) during the term of this Agreement in accordance with the terms
of such options and the RSU. 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.


 


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 December 6, 2008 and remain in force until the earlier
of December 31, 2009 or when  terminated by either party.
Consultant may terminate this Agreement at any time, for any reason, by giving
the Company 10 days’ written notice.  The
Company may terminate this Agreement prior to December 31, 2009 only as
provided in Section 8.2 hereof or 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 or misconduct; (iv) failure to
perform lawful assigned services for ten days after receiving written
notification from the Company; (v) providing services to another company
or entity that has a product or program that is competitive with the Company’s
products or programs without the prior written consent of the Company; (vi) Consultant’s
revocation of the separation agreement dated December 5, 2008 between
Consultant and Theravance; or (vii) Consultant’s acceptance of new
employment. 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 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.  


 


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Any attempt to do so
shall be void.  Theravance shall be free
to assign or transfer this Agreement to a third party.


 


8.             Representations.


 


8.1            Consultant
represents and warrants that he has never been: (1) debarred, excluded or convicted of a crime
for which a person can be debarred under 21 U.S.C. § 335a; (2) excluded
by the OIG or other government entity as listed on http://exclusions.oig.hhs.gov
or http://epls.arnet.gov; or (3) threatened to be debarred, excluded or
indicted for a crime or otherwise engaged in conduct for which a person can be
debarred, excluded or indicted.  Consultant
agrees to notify Theravance immediately in the event of any such debarment,
exclusion, conviction, threat or indictment occurring during the term of this
Agreement, or the three (3) year period following the termination or
expiration of this Agreement.


 


8.2           If at any time during the term of
this Agreement, Consultant becomes the subject of any proceedings for
disqualification, debarment, delisting, exclusion, or denial or revocation of
licensure, as described above, Theravance shall have the right to terminate
this Agreement effective upon the date of such notice by Consultant.


 


8.3           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. In this regard, during the term of
this Agreement, Consultant agrees to (i) notify the Company in advance of
accepting any employment or additional consulting assignments, and (ii) refrain
from working on any product or program that is competitive with a Company
product or program without the prior written consent of the Company.


 


9.             Company Policies.  Consultant represents that he has read the
Theravance Insider Trading Policy, the Theravance Travel Policy 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, 8 or 9
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.


 


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


 


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.


 


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/ Arthur L. Campbell

  	
   

  	
  By:

  	
  /s/ Rick E
  Winningham

  
	
  (signature)

  	
   

  	
  (signature)

  
	
   

  	
   

  	
  Name: Rick E
  Winningham

  
	
   

  	
   

  	
  Title:   Chief Executive Officer

  



 


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EXHIBIT A


 


Description of Services


 


Consultant
may be asked to perform some or all of the services described below:


 


1.               Support the Technology Development
Laboratory, in particular the Company’s efforts to utilize the facility for
third party process development and manufacturing activities.


 


2.               As requested, provide insight and direction
on process chemistry, formulation and manufacturing issues.


 


3.               As requested, provide insight into Quality
Assurance activities.


 


4.               As requested, and with the mutual agreement
of Consultant and the Company, provide insight and direction into other aspects
of the Company’s business


 


5.               Meetings related to any of the above.


 


Invoices
shall include a description of the Services performed and the number of hours
spent, specify the product candidate to which each segment of work was
dedicated, specify the Purchase Order number related to the Services (to be
supplied by Theravance following execution of this agreement), and be sent to:


 


 


Theravance, Inc.


901
Gateway Boulevard


South
San Francisco, CA 94080


Attention:  Accounts Payable (Tom Catalano)


 


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