Exhibit 4.1


 


AMENDMENT


TO


AMENDED AND RESTATED RIGHTS AGREEMENT


 


THIS AMENDMENT (this “Amendment”) of the
Rights Agreement (as defined below) is made and entered into as of the 21 day
of November, 2008, by and between Theravance, Inc., a Delaware corporation
(the “Company”), and The Bank of New York Mellon Corporation, as “Rights Agent”
under the Rights Agreement.


 


RECITALS:


 


WHEREAS, the Company and the
Rights Agent are parties to the Amended and Restated Rights Agreement, dated as
of June 22, 2007 (the “Rights Agreement”);


 


WHEREAS, since the date of
the Rights Agreement, the Rights Agent has changed its name to “The Bank of New
York Mellon Corporation”; and


 


WHEREAS, pursuant to Section 27
of the Rights Agreement, the Company and the Rights Agent desire to amend the
Rights Agreement as set forth below;


 


NOW, THEREFORE, the undersigned, in
consideration of the premises, covenants and agreements contained herein and in
the Rights Agreement, and other good, sufficient and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, do hereby agree
as follows:


 


Each of the following sections or provisions
of the Rights Agreement is hereby amended as follows:


 


(A). The definition of an “Acquiring Person”,
as defined in Section 1(a), is amended to read as follows:


 


“‘Acquiring
Person’ shall mean any Person (as such term is hereinafter defined) who or
which shall be the Beneficial Owner (as such term is hereinafter defined) of
19.0% or more of the shares of Common Stock then outstanding, but shall not
include an Exempt Person (as such term is hereinafter defined); provided,
however, that (i) if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an “Acquiring
Person” became the Beneficial Owner of a number of shares of Common Stock such
that the Person would otherwise qualify as an “Acquiring Person” inadvertently
(including, without limitation, because (A) such Person was unaware that
it beneficially owned a percentage of Common Stock that would otherwise cause
such Person to be an “Acquiring Person” or (B) such Person was aware of
the extent of its Beneficial Ownership of Common Stock but had no actual
knowledge of the consequences of such Beneficial Ownership under this
Agreement) and without any intention of changing or influencing control of the
Company, then such Person shall not be deemed to be or 


 

















 


to have become an “Acquiring
Person” for any purposes of this Agreement unless and until such Person shall
have failed to divest itself, as soon as practicable (as determined, in good
faith, by the Board of Directors of the Company), of Beneficial Ownership of a
sufficient number of shares of Common Stock so that such Person would no longer
otherwise qualify as an “Acquiring Person”; (ii) if, as of the date hereof
or prior to the first public announcement of the adoption of this Agreement,
any Person is or becomes the Beneficial Owner of 19.0% or more of the shares of
Common Stock outstanding, such Person shall not be deemed to be or to become an
“Acquiring Person” unless and until such time as such Person shall, after the
first public announcement of the adoption of this Agreement, become the
Beneficial Owner of additional shares of Common Stock (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding Common
Stock or pursuant to a split or subdivision of the outstanding Common Stock),
unless, upon becoming the Beneficial Owner of such additional shares of Common
Stock, such Person is not then the Beneficial Owner of 19.0% or more of the
shares of Common Stock then outstanding; (iii) no Person shall become an “Acquiring
Person” as the result of an acquisition of shares of Common Stock by the
Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares of Common Stock beneficially owned by such
Person to 19.0% or more of the shares of Common Stock then outstanding, provided,
however, that if a Person shall become the Beneficial Owner of 19.0% or
more of the shares of Common Stock then outstanding by reason of such share
acquisitions by the Company and shall thereafter become the Beneficial Owner of
any additional shares of Common Stock (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Stock or
pursuant to a split or subdivision of the outstanding Common Stock), then such
Person shall be deemed to be an “Acquiring Person” unless upon becoming the
Beneficial Owner of such additional shares of Common Stock such Person does not
beneficially own 19.0% or more of the shares of Common Stock then outstanding;
and (iv) GlaxoSmithKline plc, Glaxo Group Limited and SmithKlineBeecham
Corporation (collectively “GSK”) shall not be deemed an “Acquiring Person”
under this Agreement for so long as GSK is in compliance with the terms of that
certain Amended and Restated Governance Agreement dated June 4, 2004, as
amended, by and among the Company and GSK.  For all purposes of this
Agreement, any calculation of the number of shares of Common Stock outstanding
at any particular time, including for purposes of determining the particular
percentage of such outstanding shares of Common Stock of which any Person is
the Beneficial Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of
the General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), as in effect on the date hereof.”


 


(B). Section 3(a), is amended to read as
follows:


 


 “(a)          
Until the Close of Business on the earlier of (i) the tenth day after the
Stock Acquisition Date or (ii) the tenth Business Day (or such later date
as may be determined by action of the Board of Directors prior to such time as
any Person becomes an Acquiring Person) after the date of the commencement by
any Person (other than an Exempt Person) of, or of the first public
announcement of the intention of such Person (other than an Exempt Person) to
commence, a tender or exchange offer the consummation of which would result in any
Person (other than an Exempt Person) becoming the Beneficial Owner of shares of
Common Stock


 

















 


aggregating 19.0% or more of
the Common Stock then outstanding (the earlier of such dates being herein
referred to as the “Distribution Date”, provided, however, that
if either of such dates occurs after the date of this Agreement and on or prior
to the Record Date, then the Distribution Date shall be the Record Date), (x) the
Rights will be evidenced (subject to the provisions of Section 3(b) hereof)
by the certificates for Common Stock registered in the names of the holders
thereof and not by separate Right Certificates, and (y) the Rights will be
transferable only in connection with the transfer of Common Stock.  As
soon as practicable after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign and the Company will send or cause
to be sent (and the Rights Agent will, if requested, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common Stock as of the
close of business on the Distribution Date (other than any Acquiring Person or
any Associate or Affiliate of an Acquiring Person), at the address of such
holder shown on the records of the Company, a Right Certificate, in
substantially the form of Exhibit B hereto (a “Right Certificate”),
evidencing one Right (subject to adjustment as provided herein) for each share
of Common Stock so held.  As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.”


 


This
Amendment shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and assigns.


 


This
Amendment may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.


 


Except
as hereby amended, the Rights Agreement shall remain in full force and effect.


 


This
Amendment shall be governed by, and interpreted in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.


 


[SIGNATURE PAGE FOLLOWS]


 

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first above written.


 


 


	
   

  	
  THERAVANCE,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Rick E Winningham

  
	
   

  	
   

  	
  Name: 

  	
  Rick
  E Winningham

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK MELLON CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Maria G. Cooper

  
	
   

  	
   

  	
  Name:
  Maria G. Cooper

  
	
   

  	
   

  	
  Title:
  Relationship Manager