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