Exhibit 10.1


 


AGREEMENT AND GENERAL RELEASE


 


Theravance, Inc. (collectively referred
to throughout this Agreement as “Employer”), and Archie Campbell, 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 December 5, 2008 (“Separation Date”).  Employee will be paid at his present rate of
base pay through his 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 property 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 $14,124.42 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 $197,741.88, 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.  After Theravance receives Employee’s signed
Agreement and General Release, the Enhanced Severance Payment will be sent to
Employee on January 30, 2009, provided Employee has not revoked his
acceptance pursuant to Paragraph 9 of this Agreement. For purposes of Section 409A
of the Internal Revenue Code of 1986, as amended, each of the Basic Severance
Payment and the Enhanced Severance Payment is hereby designated as a separate
payment.  If this Agreement and
General Release has not been
signed and become effective by January 30, 2009, then the offer of
Enhanced Severance contained herein is withdrawn.


 


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 the earliest of


 


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(a) December 31, 2009, (b) the
expiration of Employee’s continuation coverage under COBRA or (c) the date
Employee becomes eligible for health insurance in connection with new
employment.  Thereafter, Employee shall
be entitled to elect to continue such COBRA coverage for the remainder of the
COBRA period, at his own expense.


 


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

  



 


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  ·

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

  



 


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


 


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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.


 


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 


 


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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
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:


 


 


	
   

  	
   

  	
   

  
	
  Arthur L. Campbell

  	
   

  	
  By: Dennis Driver

  
	
   

  	
   

  	
  Title: Vice President, Human Resources

  
	
  Date: 

  	
   

  	
  Date: 

  



 


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