Exhibit 10.2


 


SECOND AMENDMENT TO


 


AMENDED AND RESTATED GOVERNANCE AGREEMENT


 


This
Second Amendment to the Amended and Restated Governance Agreement (this “Amendment”)
is entered into effective as of November 29, 2010, by and among
GlaxoSmithKline LLC, a Delaware limited liability company, the successor entity
to SmithKline Beecham Corporation, a Pennsylvania corporation (“GSK”),
Theravance, Inc., a Delaware corporation (the “Company”), GlaxoSmithKline
plc, an English public limited company (“GlaxoSmithKline”) and Glaxo Group
Limited, a limited liability company organized under the laws of England and
Wales (“GGL” and with each of GSK, GlaxoSmithKline and the Company, a “Party”)
and amends the Amended and Restated Governance Agreement (the “Governance Agreement”)
entered into as of June 4, 2004 and as amended on April 25, 2007, by
and among the Parties. All defined terms not defined in this Amendment shall
have the meaning ascribed to them in the Governance Agreement.


 


WHEREAS, the Parties wish to amend the Governance Agreement
to provide for the amendments described herein;


 


NOW, THEREFORE, in consideration of the foregoing and of
the mutual promises and covenants contained herein, the parties agree as
follows:


 


1.             Article II,
Section 2.1(d)(v) of the Governance Agreement be amended by replacing
such Section so that such Section shall be and read as follows:


 


Notwithstanding
anything contained in this Section 2.1(d)(i), (ii), (iii) and (iv),
if the Company shall (A) issue Permitted Indebtedness consisting of
securities exchangeable or convertible into Voting Stock or (B) convert
into Voting Stock all or any portion of the $172.5 million in aggregate
principal amount of unsecured convertible subordinated notes issued by the
Company in January 2008 (the “Convertible Notes”), the Company shall, in
either case, provide written notice to GSK of the conversion or exchange of any
such Permitted Indebtedness or such Convertible Notes, as the case may be,
within ten (10) days following any such conversion or exchange. GSK shall
notify the Company within twenty (20) days following the receipt of such notice
if it intends to purchase that number of shares of Voting Stock from the
Company required to maintain GSK’s Percentage Interest as measured immediately
prior to the date of such conversion or exchange of Permitted Indebtedness or
Convertible Notes, as the case may be, at a price per share equal to the
greater of (x) the conversion or exchange price of such Permitted
Indebtedness or such Convertible Notes, as applicable, or (y) the Fair
Market Value Per Share on the date of such purchase by GSK. The Company shall
use its commercially reasonable efforts to issue such shares of Voting Stock to
GSK within thirty (30) days after receipt of notice from GSK of its intention to
purchase such shares or such later date as is necessary to comply with any
federal 


 

















 


or
state securities or antitrust laws or the rules and regulations of the
SEC, NASD, NASDAQ, or any other such self-regulating organization.


 


2.             This
Amendment, the Governance Agreement and the agreements specifically referred to
herein and therein constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.


 


3.             This
Amendment shall be governed by and construed in accordance with and governed by
the law of the State of Delaware, without regard to the conflicts of laws
principles thereof.  Any action brought,
arising out of, or relating to this Amendment shall be brought in the Court of
Chancery of the State of Delaware.  Each
Party hereby irrevocably submits to the exclusive jurisdiction of said Court in
respect of any claim relating to the validity, interpretation and enforcement
of this Amendment, and hereby waives, and agrees not to assert, as a defense in
any action, suit or proceeding in which any such claim is made that it is not
subject thereto or that such action suit or proceeding may not be brought or is
not maintainable in such courts, or that the venue thereof may not be
appropriate or that this Amendment may not be enforced in or by such courts.


 


4.             In
the event of the invalidity of any provisions of this Amendment or if this
Amendment contains any gaps, the Parties agree that such invalidity or gap
shall not affect the validity of the remaining provisions of this
Amendment.  The Parties will replace an
invalid provision or fill any gap with valid provisions which most closely
approximate the purpose and economic effect of the invalid provision or, in
case of a gap, the Parties’ presumed intentions.  In the event that the terms and conditions of
this Amendment are materially altered as a result of the preceding sentences,
the Parties shall renegotiate the terms and conditions of this Amendment in
order to resolve any inequities.  Nothing
in this Amendment shall be interpreted so as to require any Party to violate
any applicable laws, rules or regulations.


 


5.             This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument.


 


2

















 


IN
WITNESS WHEREOF, the Parties hereby have executed this Amendment on the date
first written above.


 


	
   

  	
   

  
	
   

  	
  THERAVANCE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Rick E Winningham

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Rick
  E Winningham

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GLAXOSMITHKLINE
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William J. Mosher

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  William
  J. Mosher

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GLAXOSMITHKLINE
  plc

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Julian Heslop

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Julian
  Heslop

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GLAXO
  GROUP LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter K. Hopkins

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Peter
  K. Hopkins

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  A
  duly authorized representative for and on behalf of Glaxo Group Limited

  



 


 


SIGNATURE PAGE


SECOND AMENDMENT TO AMENDED AND RESTATED GOVERNANCE AGREEMENT