**UNITED STATES**

**SECURITIES AND EXCHANGE COMMISSION**

**Washington, D.C. 20549**

 

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**FORM 10-K/A**

**(Amendment No. 1)**

 
| **(Mark One)**                                                                                                                               |
|---------------------------------------------------------------------------------------------------------------------------------------------------|
| ** **                                                                                                                                        |
| x                                                                                                                                                 | **ANNUAL   REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE   ACT OF 1934** |
|                                                                                                                                              | ** ** |
| **For the   fiscal year ended December 31, 2011**                                                                                            |
| ** **                                                                                                                                        |
| **or**                                                                                                                                            |
| ** **                                                                                                                                        |
| o                                                                                                                                                 | **TRANSITION   REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE   ACT OF 1934** |
|                                                                                                                                              | ** ** |
| **For the transition period from          to         ** |

** **

**Commission File No. 0-30319**

 

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**THERAVANCE, INC.**

(Exact name of registrant as specified in its charter)

| **Delaware**   (State or other jurisdiction of incorporation or organization) | ** ** | **94-3265960**   (I.R.S. Employer Identification No.) |
|-------------------------------------------------------------------------------|------------|-------------------------------------------------------|

 

| **901 Gateway Boulevard,**               | ** ** | ** ** |
|------------------------------------------|------------|------------|
| **South San Francisco, California**      | ** ** | **94080**  |
| (Address of principal executive offices) |       | (Zip Code) |

 

Registrant’s telephone number, including area code: **650-808-6000**

 

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SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:

 

| **Title of Each Class** | ** ** | **Name of Each Exchange On Which Registered** |
|----------------------------------------|------------|-----------------------------------------------------------------------------|
| Common Stock $0.01 Par Value           |       | Nasdaq Global Market                                                        |

 

SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: **NONE**

 

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Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes x No o

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 205 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No o

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x

 

Indicate by check mark whether registrant is a large accelerated filer, an accelerated filer or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act (Check One):

 

| Large accelerated filer x                                              |   | Accelerated filer o         |
|------------------------------------------------------------------------|--------|-----------------------------|
|                                                                   |   |                        |
| Non-accelerated filer o

(Do not check if a smaller reporting company) |   | Smaller reporting company o |

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No x

 

The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant based upon the closing price of the Common Stock on the Nasdaq Global Market on June 30, 2011 was $961,098,794.

 

On February 17, 2012, there were 86,149,162 shares of the registrant’s Common Stock outstanding.

 

 

 

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**EXPLANATORY NOTE**

 

Theravance, Inc. (the “Company”) filed its Annual Report on Form 10-K for the year ended December 31, 2011 with the Securities and Exchange Commission on February 27, 2012 (the “Form 10-K”). This Form 10-K/A Amendment No. 1 (“Amendment No. 1”) is being filed to amend the Form 10-K as an exhibit-only filing in response to comments received from the staff of the Securities and Exchange Commission regarding a request for confidential treatment of certain portions of Exhibit 10.34 originally filed with the Form 10-K.  In addition to re-filing Exhibit 10.34, as required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by our principal executive officer and principal financial officer are filed herewith as Exhibits 31.1 and 31.2 to this Amendment No. 1.

 

Except as described above, no other amendments or updates have been made to the Form 10-K as originally filed. This Amendment No. 1 does not reflect events after the original filing of the Form 10-K and does not modify or update any disclosures in the Form 10-K that may have been affected by subsequent events.

 

2

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**SIGNATURES**

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 
|                      | THERAVANCE, INC. |
|---------------------------|-----------------------|
|                      |                  |   |
|                      |                  |   |
| Date:   May 24, 2012 | By:                   | /s/ RICK E WINNINGHAM |
|                      |                  | Rick E Winningham |
|                      |                  | *Chief Executive Officer* |

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 
| **Signature**                 | ** ** | **Title**                                                        | ** ** | **Date**          | ** ** |
|-------------------------------|------------|------------------------------------------------------------------|------------|-------------------|------------|
|                          |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
| /s/ RICK E WINNINGHAM         |       | Chairman   of the Board and Chief Executive                      |       | May 24, 2012 |       |
| Rick E Winningham             |       | Officer   (Principal Executive Officer)                          |       |              |       |
|                          |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
| /s/ MICHAEL W. AGUIAR         |       | Senior   Vice President, Finance and Chief                       |       | May 24, 2012 |       |
| Michael W. Aguiar             |       | Financial   Officer (Principal Financial and Accounting Officer) |       |              |       |
|                          |       |                                                             |       |              |       |
| *                             |       | Director                                                         |       | May 24, 2012 |       |
| Henrietta Holsman Fore        |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
| *                             |       | Director                                                         |       | May 24, 2012 |       |
| Robert V. Gunderson, Jr. |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
| *                             |       | Director                                                         |       | May 24, 2012 |       |
| Arnold J. Levine, Ph.D        |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
| *                             |       | Director                                                         |       | May 24, 2012 |       |
| Burton G. Malkiel, Ph.D       |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
| *                             |       | Director                                                         |       | May 24, 2012 |       |
| Peter S. Ringrose, Ph.D       |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
| *                             |       | Director                                                         |       | May 24, 2012 |       |
| William H. Waltrip            |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
|                          |       |                                                             |       |              |       |
| *                             |       | Director                                                         |       | May 24, 2012 |       |
| George M. Whitesides, Ph.D    |       |                                                             |       |              |       |

 

3

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| **Signature**    | ** **                          | **Title** | ** ** | **Date**          | ** ** |
|------------------|-------------------------------------|-----------|------------|-------------------|------------|
|             |                                |      |       |              |       |
|             |                                |      |       |              |       |
| *                |                                | Director  |       | May 24, 2012 |       |
| William D. Young |                                |      |       |              |       |
|             |                                |      |       |              |       |
|             |                                |      |       |              |       |   |
|  *By:       | /s/ RICK E WINNINGHAM               |      |       |              |       |   |
|             | Rick E Winningham*Attorney in Fact* |      |       |              |       |   |

 

4

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**Exhibits**

 
| ** **           | ** ** | ** **                                                                                                                                                               | ** ** | **Incorporated by   Reference** |
|----------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------|
| **Exhibit   Number** | ** ** | **Description**                                                                                                                                                          | ** ** | **Form**                             | ** ** | **Filing   Date/Period   End Date** |
| 3.3                  |       | Amended   and Restated Certificate of Incorporation                                                                                                                      |       | S-1                                  |   | 7/26/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 3.4                  |       | Certificate   of Amendment of Restated Certificate of Incorporation                                                                                                      |       | 10-Q                                 |   | 3/31/07 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 3.5                  |       | Amended   and Restated Bylaws (as amended by the board of directors April 25,   2007)                                                                               |       | 10-Q                                 |   | 9/30/08 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 4.1                  |       | Specimen   certificate representing the common stock of the registrant                                                                                                   |       | 10-K                                 |   | 12/31/06 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 4.2                  |       | Amended   and Restated Rights Agreement between the registrant and The Bank of New   York, as Rights Agent, dated as of June 22, 2007                               |       | 10-Q                                 |   | 6/30/07 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 4.3                  |       | Indenture   dated as of January 23, 2008 by and between Theravance, Inc. and   The Bank of New York Trust Company, N.A., as trustee                            |       | 8-K                                  |   | 1/23/08 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 4.4                  |       | Form of   3.0% Convertible Subordinated Note Due 2015 (included in Exhibit 4.3)                                                                                |       |                                 |   |   |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 4.5                  |       | Amendment   to Amended and Restated Rights Agreement between the registrant and The Bank   of New York Mellon Corporation, as Rights Agent, dated November 21, 2008 |       | 8-K                                  |   | 11/25/08 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.1+                |       | 1997   Stock Plan                                                                                                                                                        |       | S-1                                  |   | 6/10/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.2+                |       | Long-Term   Stock Option Plan                                                                                                                                            |       | S-1                                  |   | 6/10/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.3+                |       | 2004   Equity Incentive Plan, as amended by the board of directors February 10,   2010 and approved by stockholders April 27, 2010 and forms of equity   award |       | 10-K                                 |   | 2/27/12 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.4                 |       | Employee   Stock Purchase Plan, as amended April 27, 2010                                                                                                           |       | 10-Q                                 |   | 6/30/10 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.5+                |       | Change   in Control Severance Plan, as amended and restated on July 27, 2007                                                                                        |       | 10-Q                                 |   | 6/30/08 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.6                 |       | Amended   and Restated Lease Agreement, 951 Gateway Boulevard, between the registrant   and HMS Gateway Office L.P., dated January 1, 2001                     |       | S-1                                  |   | 6/10/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.7                 |       | Lease   Agreement, 901 Gateway Boulevard, between the registrant and HMS Gateway   Office L.P., dated January 1, 2001                                          |       | S-1                                  |   | 6/10/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.8*                |       | Collaboration   Agreement between the registrant and Glaxo Group Limited, dated as of   November 14, 2002                                                           |       | S-1                                  |   | 9/29/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.9+                |       | Form of   Indemnification Agreement for directors and officers of the registrant                                                                                    |       | S-1                                  |   | 6/10/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.10                |       | Class A   Common Stock Purchase Agreement between the registrant and SmithKline Beecham   Corporation, dated as of March 30, 2004                              |       | S-1                                  |   | 6/10/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.11                |       | Amended   and Restated Investors’ Rights Agreement by and among the registrant and the   parties listed therein, dated as of May 11, 2004                      |       | S-1                                  |   | 6/10/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.12                |       | Amended   and Restated Governance Agreement by and among the registrant, SmithKline   Beecham Corporation and GlaxoSmithKline dated as of June 4, 2004              |       | S-1                                  |   | 7/26/04 |
|                 |       |                                                                                                                                                                     |       |                                 |   |   |
| 10.13*               |       | Strategic   Alliance Agreement between the registrant and Glaxo Group Limited, dated as   of March 30, 2004                                                         |       | S-1                                  |   | 9/30/04 |

 

5

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| ** **           | ** ** | ** **                                                                                                                                                                                               | ** ** | **Incorporated by   Reference** |
|----------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------|
| **Exhibit   Number** | ** ** | **Description**                                                                                                                                                                                          | ** ** | **Form**                             | ** ** | **Filing   Date/Period   End Date** |
| 10.14*               |       | License   Agreement between the registrant and Janssen Pharmaceutica, dated as of   May 14, 2002                                                                                                    |       | S-1                                  |   | 9/29/04 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.15+               |       | Offer   Letter with Rick E Winningham dated August 23, 2001                                                                                                                                         |       | S-1                                  |   | 6/10/04 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.16                |       | Form of   Class A Common Stock Purchase Agreement between the registrant and GSK                                                                                                               |       | S-1                                  |   | 9/29/04 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.17+               |       | Offer   Letter with Michael W. Aguiar dated as of January 31, 2005                                                                                                                                  |       | 10-K                                 |   | 12/31/04 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.18+               |       | Form of   Notice of Grant and Stock Option Agreement under 2004 Equity Incentive Plan                                                                                                               |       | 10-K                                 |   | 12/31/04 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.19+               |       | Form of   Notice of Restricted Stock Award and Restricted Stock Agreement under 2004   Equity Incentive Plan (form in effect through 2010)                                                          |       | 10-Q                                 |   | 6/30/07 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.20+               |       | Description   of Cash Bonus Program, as amended                                                                                                                                                          |       | 10-K                                 |   | 12/31/09 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.21*               |       | License,   Development and Commercialization Agreement between the registrant and   Astellas Pharma Inc. dated November 7, 2005                                                                |       | S-3                                  |   | 1/30/06 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.22*               |       | Amendment   to License, Development and Commercialization Agreement between the   registrant and Astellas Pharma Inc. dated as of July 18, 2006                                                |       | 10-Q                                 |   | 9/30/06 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.23+               |       | Offer   letter with Leonard Blum dated July 27, 2007                                                                                                                                                |       | 10-Q                                 |   | 9/30/07 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.24+               |       | Amended   and Restated 2008 New Employee Equity Incentive Plan and forms of equity   award                                                                                                               |       | 10-K                                 |   | 2/27/12 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.25+               |       | Amendment   to Offer Letter between the registrant and Leonard Blum dated July 23,   2008                                                                                                           |       | 10-K                                 |   | 12/31/08 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.26+               |       | Amendment   to Offer Letter between the registrant and Rick E Winningham dated   December 23, 2008                                                                                                  |       | 10-K                                 |   | 12/31/08 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.27+               |       | Amendment   to Change in Control Severance Plan effective December 16, 2009                                                                                                                         |       | 10-K                                 |   | 12/31/09 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.28+               |       | 2010   Change in Control Severance Plan adopted December 16, 2009                                                                                                                                   |       | 10-K                                 |   | 12/31/09 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.29                |       | First   Amendment to Lease for 901 Gateway Boulevard effective as of June 1,   2010 between ARE-901/951 Gateway Boulevard, LLC and the registrant                                              |       | 10-Q                                 |   | 6/30/10 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.30                |       | First   Amendment to Lease for 951 Gateway Boulevard effective as of June 1,   2010 between ARE-901/951 Gateway Boulevard, LLC and the registrant                                              |       | 10-Q                                 |   | 6/30/10 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.31                |       | Common   Stock Purchase Agreement among the registrant, Glaxo Group Limited and   GlaxoSmithKline LLC, dated as of November 29, 2010                                                           |       | 8-K                                  |   | 11/29/10 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.32                |       | Second   Amendment to Amended and Restated Governance Agreement among the registrant,   Glaxo Group Limited, GlaxoSmithKline plc and GlaxoSmithKline LLC,   dated as of November 29, 2010 |       | 8-K                                  |   | 11/29/10 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.33+               |       | Form of   Amendment to Restricted Stock Unit Agreements between the registrant and each   current member of the Board of Directors outstanding as of December 31,   2010                       |       | 10-K                                 |   | 12/31/2010 |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 10.34(1)             |       | Amendment   to Strategic Alliance Agreement dated October 3, 2011                                                                                                                                   |       |                                 |   |   |
|                 |       |                                                                                                                                                                                                     |       |                                 |   |   |
| 21.1                 |       | List   of Subsidiaries                                                                                                                                                                                   |       | 10-K                                 |   | 12/31/05 |

 

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| ** **           | ** ** | ** **                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 | ** ** | **Incorporated by   Reference** |
|----------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------|
| **Exhibit   Number** | ** ** | **Description**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            | ** ** | **Form**                             | ** ** | **Filing   Date/Period   End Date** |
| 23.1                 |       | Consent   of Independent Registered Public Accounting Firm                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |       | 10-K                                 |   | 2/27/12 |
|                 |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                 |   |   |
| 24.1                 |       | Power   of Attorney                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       | 10-K                                 |   | 2/27/12 |
|                 |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                 |   |   |
| 31.1                 |       | Certification   of Chief Executive Officer Pursuant to Rule 13a-14 under the Securities   Exchange Act of 1934                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       |                                 |   |   |
|                 |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                 |   |   |
| 31.2                 |       | Certification   of Chief Financial Officer Pursuant to Rule 13a-14 under the Securities   Exchange Act of 1934                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |       |                                 |   |   |
|                 |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                 |   |   |
| 32                   |       | Certifications   Pursuant to 18 U.S.C. Section 1350                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |       | 10-K                                 |   | 2/27/12 |
|                 |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |       |                                 |   |   |
| 101^                 |       | The   following materials from Registrant’s Annual Report on Form 10-K for the   year ended December 31, 2011, formatted in Extensible Business Reporting   Language (XBRL) includes: (i) Consolidated Balance Sheets at   December 31, 2011 and 2010, (ii) Consolidated Statements of Income   for the years ended December 31, 2011, 2010 and 2009, (iii) Consolidated   Statements of Stockholders’ Equity for the years ended December 31,   2011, 2010 and 2009, (iv) Consolidated Statements of Cash Flows for   years ended December 31, 2011, 2010 and 2009 and (v) Notes to   Consolidated Financial Statements. |       | 10-K                                 |   | 2/27/12 |

 

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| +      | Management   contract or compensatory plan or arrangement required to be filed pursuant to   Item 15(b) of Form 10-K.                                                                                                                                                                                                                                         |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                                                                                                         |
| *      | Confidential   treatment has been granted for certain portions which are omitted in the copy   of the exhibit electronically filed with the Securities and Exchange   Commission. The omitted information has been filed separately with the   Securities and Exchange Commission pursuant to Theravance Inc.’s   application for confidential treatment.          |
|   |                                                                                                                                                                                                                                                                                                                                                                         |
| (1)    | Application   has been made to the Securities and Exchange Commission to seek confidential   treatment of certain provisions. Omitted material for which confidential   treatment has been requested has been filed separately with the Securities   and Exchange Commission.                                                                                                |
|   |                                                                                                                                                                                                                                                                                                                                                                         |
| ^      | XBRL   information is furnished and not filed or a part of a registration statement   or prospectus for purposes of sections 11 or 12 of the Securities   Exchange Act of 1933, as amended, is deemed not filed for purposes of   section 18 of the Securities Exchange Act of 1934, as amended, and   otherwise is not subject to liability under these sections. |

 

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