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Exhibit 10.28    
    


 
 

THERAVANCE, INC.
  
  CLASS A COMMON
  
  STOCK PURCHASE AGREEMENT
  
  September    , 2004    
    









 
 

TABLE OF CONTENTS    
    



	 
	 	Page

	1. Purchase and Sale of Stock	 	3
	 	1.1 Sale and Issuance of Class A Common Stock	 	3
	 	1.2 Closing	 	3
	 	1.3 Additional Closing	 	4
	

2. Representations and Warranties of the Company	
 	

4
	 	2.1 Organization, Good Standing and Qualification	 	4
	 	2.2 Capitalization and Voting Rights	 	4
	 	2.3 Subsidiaries	 	4
	 	2.4 Authorization	 	4
	 	2.5 Valid issuance of Preferred and Common Stock	 	4
	 	2.6 Governmental Consents	 	5
	 	2.7 Offering	 	5
	 	2.8 Litigation	 	5
	 	2.9 Patents and Trademarks	 	5
	 	2.10 Compliance with Other Instruments	 	6
	 	2.11 Agreements; Action	 	6
	 	2.12 Related-Party Transactions	 	6
	 	2.13 Permits	 	6
	 	2.14 Disclosure	 	6
	 	2.15 Corporate Documents	 	6
	 	2.16 Title to Property and Assets	 	6
	 	2.17 Tax Returns, Payments and Elections	 	7
	 	2.18 Environmental Law	 	7
	 	2.19 Proprietary Information and Employment Agreements	 	7
	 	2.20 Financial Statements	 	7
	 	2.21 Registration Rights	 	7
	 	2.22 Real Property Holding Corporation	 	7
	 	2.23 Labor Agreements	 	7
	 	2.24 Insurance	 	8
	

3. Representations and Warranties of the Investor	
 	

8
	 	3.1 Authorization	 	8
	 	3.2 Purchase Entirely for Own Account	 	8
	 	3.3 Disclosure of Information	 	8
	 	3.4 Investment Experience	 	8
	 	3.5 Accredited Investor	 	8
	 	3.6 Restricted Securities	 	8
	

4. Conditions of Investor's Obligations at Closing	
 	

8
	 	4.1 Performance	 	9
	 	4.2 Compliance Certificate	 	9
	 	4.3 Qualifications	 	9
	 	4.4 Proceedings and Documents	 	9
	 	4.5 Closing of Initial Public Offering	 	9
	

5. Conditions of the Company's Obligations at Closing	
 	

9
	 	5.1 Representations and Warranties	 	9
	 	5.2 Qualifications	 	9
	 	5.3 Closing of Initial Public Offering	 	9
	

6. Miscellaneous	
 	

9
	 	6.1 Survival of Warranties	 	9
	 	 	 








 

	 	6.2 Successors and Assigns	 	9
	 	6.3 Governing Law	 	9
	 	6.4 Counterparts	 	10
	 	6.5 Titles and Subtitles	 	10
	 	6.6 Notices	 	10
	 	6.7 Finder's Fee	 	10
	 	6.8 Expenses	 	10
	 	6.9 Amendments and Waivers	 	10
	 	6.10 Severability	 	10
	 	6.11 Confidentiality	 	11
	 	6.12 Publicity	 	11
	 	6.13 Entire Agreement	 	11
	 	6.14 Legends	 	11
	 	6.15 Acknowledgement of Notice and Partial Exercise of Rights	 	11
	 	6.16 Registrable Securities	 	12




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THERAVANCE, INC.
  
    CLASS A COMMON STOCK PURCHASE AGREEMENT    
    



        THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of the    day of September, 2004, by and among Theravance, Inc., a Delaware
corporation (the "Company"), and SmithKline Beecham Corporation, a Pennsylvania corporation (the "Investor"). 


        WHEREAS,
pursuant to Section 2.1(d)(i) of that certain Amended and Restated Governance Agreement, dated June 4, 2004 by and among the Company and the Investor and
its affiliates (the "Governance Agreement"), the Investor has certain rights to purchase equity securities of the Company in connection with issuances of equity securities by the Company; 



        WHEREAS,
the Company intends to effect an initial public offering of its Common Stock (the "Initial Public Offering") pursuant to its registration statement on
Form S-1 filed with the Securities and Exchange Commission (the "SEC") on June 10, 2004, as amended (the "Registration Statement") and pursuant to a purchase agreement by and
among the Company and the various underwriters named in the Company's final prospectus for the Initial Public Offering (the "Underwriters"); 


        WHEREAS,
pursuant to the Initial Public Offering, the Underwriters have agreed to purchase                        shares of the Company's
Common Stock and the Company has granted the
Underwriters an option to purchase (the "Over-allotment Option") an additional                        shares of the Company's
Common Stock (the "Over-allotment Shares"); and 


        WHEREAS,
in connection with the Initial Public Offering, the Investor desires to partially exercise its rights under Section 2.1(d)(i) of the Governance Agreement to
purchase shares of the Company's Class A Common Stock. 


        THE
PARTIES HEREBY AGREE AS FOLLOWS: 


        1.    Purchase and Sale of Stock.    



        1.1    Sale and Issuance of Class A Common Stock.    



        (a)   On
or prior to the Closing (as defined below), the Company shall adopt and file with the Secretary of State Delaware the Restated Certificate of Incorporation (the
"Restated Certificate") in the form attached as Exhibit 3.3 to the Registration Statement. 


        (b)   On
or prior to the Closing (as defined below), the Company shall have authorized the sale and issuance pursuant to this Agreement of at
least                        shares of
its Class A Common Stock at a price equal to the public offering price per share of shares of Common Stock initially sold to the public pursuant to the Registration Statement. The
Class A Common Stock shall have the rights, preferences, privileges and restrictions set forth in the Restated Certificate. 


        (c)   Subject
to the terms and conditions of this Agreement, the Investor agrees to purchase at the Closing and the Company agrees to sell and issue to the Investor at the
Closing,                        shares of the Company's Class A Common Stock for an aggregate purchase price of
$                        .
 




        1.2    Closing.    The purchase and sale of the Class A Common Stock shall take place at the offices of
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, 155 Constitution Drive, Menlo Park, CA 94025, immediately after the closing of the Initial Public Offering (the "IPO Closing"),
which is expected to occur at 6:00 A.M. on October    , 2004, or at such other time and place as the Company and Investor mutually agree upon orally or in writing (which time and
place are designated as the "Closing"). At the Closing the Company shall deliver to the Investor a certificate representing the Class A Common Stock that the Investor is purchasing against
payment of the purchase price therefor by check or wire transfer, or any combination thereof. 


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        1.3    Additional Closing.    If the Underwriters exercise the Over-allotment Option, Investor agrees that
it shall purchase an additional number of shares of the Company's Class A Common Stock equal to 6.133% of the number of Over-allotment Shares with respect to which the Underwriters
exercise their option to purchase rounded up to the nearest full share (the "Additional Shares") for an aggregate purchase price equal to the product of the number of Additional Shares multiplied by
the public offering price per share of shares of Common Stock initially sold to the public pursuant to the Registration Statement. The purchase and sale of the Additional Shares shall take place at
the offices of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, 155 Constitution Drive, Menlo Park, CA 94025, immediately after the closing of the Underwriters' purchase of the
Over-allotment Shares, or at such other time and place as the Company and
Investor mutually agree upon orally or in writing (which time and place are designated as the "Additional Closing"). At the Additional Closing the Company shall deliver to the Investor a certificate
representing the Class A Common Stock that the Investor is purchasing against payment of the purchase price therefor by check or wire transfer, or any combination thereof. 


        2.    Representations and Warranties of the Company.    The Company hereby represents and warrants to the Investor
that, as of the date hereof, and except as set forth in the Company's prospectus dated [September]    , 2004 which is part of the Registration Statement and which
has been furnished to the Investor (the "Prospectus"), which exceptions shall be deemed to be representations and warranties as if made hereunder: 



        2.1    Organization, Good Standing and Qualification.    The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to (i) execute, deliver and perform its obligations under this Agreement,
(ii) to issue and sell the Class A Common Stock hereunder, (iii) to perform its obligations under the Restated Certificate, and (iv) to carry on its business as now
conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material
adverse effect on its business or properties. 


        2.2    Capitalization and Voting Rights.    



        (a)   As
of June 30, 2004, the authorized capital of the Company is as set forth in the Prospectus under the caption "Capitalization." 




        2.3    Subsidiaries.    The Company does not presently own or control, directly or indirectly, any interest in any
other corporation, association or other business entity, other than Theravance East, Inc., a Delaware corporation and a direct wholly-owned subsidiary of the Company. The Company is not a
participant in any joint venture, partnership, or similar arrangement. 


        2.4    Authorization.    All corporate action on the part of the Company, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Company hereunder, and the authorization, issuance (or reservation for issuance),
sale and delivery of the Class A Common Stock being sold hereunder has been taken or will be taken prior to the Closing, and this Agreement constitutes a valid and legally binding obligation of
the Company, enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. 


        2.5    Valid Issuance of Preferred and Common Stock.    The Class A Common Stock that is being purchased by the
Investor hereunder, when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under this 


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Agreement,
the Amended and Restated Investors' Rights Agreement dated May 11, 2004 by and among the Company and the investors who are parties thereto (the "Investors' Rights Agreement"), the
Governance Agreement and under applicable state and federal securities laws. The Class A Common Stock that is being purchased by the Investor hereunder will not be subject to preemptive rights
or rights of first refusal that have not been waived or complied with. 



        2.6    Governmental Consents.    No consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local governmental authority on the part of the Company is required in connection with the consummation of the transactions contemplated
by this Agreement, except (i) the filing of the Restated Certificate with the Secretary of State of Delaware and (ii) certain post-closing filings as may be required pursuant
to federal securities laws and under the "Blue Sky" laws of the various states. 


        2.7    Offering.    Subject in part to the truth and accuracy of the Investor's representations set forth in
Section 3 of this Agreement, the offer, sale and issuance of the Class A Common Stock as contemplated by this Agreement are exempt from the registration requirements of any applicable
state and federal securities laws, and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemption. 


        2.8    Litigation.    There is no action, suit, proceeding or investigation pending or, to the Company's knowledge,
currently threatened against the Company that questions the validity of this Agreement, or the right of the Company to enter into this Agreement, or to consummate the transactions contemplated hereby,
or if determined adversely, might result, either individually or in the aggregate, in (i) any material adverse changes in the assets, business or prospects of the Company, financially or
otherwise or (ii) any change in the current equity ownership of the Company, nor is the Company aware that there is any basis for the foregoing. The Company is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. There is no action, suit, proceeding or investigation by the Company currently
pending or that the Company intends to initiate. 


        2.9    Patents and Trademarks.    The Company owns, or has rights to use pursuant to a valid license, all patents,
trademarks, service marks, trade names, copyrights, trade secrets, information, proprietary rights and processes necessary for its business as now conducted. The use, modification, licensing,
sublicensing, sale, or any other exercise of rights involving such intellectual property does not infringe any copyright, trade secret, trademark, service mark, trade name, firm name, logo, trade
dress, mask work, moral right, other intellectual property right, right of privacy or right in personal data, or to the knowledge of the Company, any patent, of any person. No claims
(i) challenging the validity, effectiveness, or ownership by the Company of any of the Company's intellectual property, or (ii) to the effect that the use, reproduction, modification,
manufacturing, distribution, licensing, sublicensing, sale or any other exercise of rights in any product, work, technology, service or process as used, provided or offered at any time, or as proposed
for use, reproduction, modification, distribution, licensing, sublicensing, sale or any other exercise of rights, by the Company infringes or will infringe on any intellectual property or other
proprietary or personal right of any person have been asserted or, to the knowledge of the Company, (A) are threatened by any person nor (B) are there any valid grounds for any bona fide
claim of any such kind. To the knowledge of the Company, there is no unauthorized use, infringement or misappropriation of any of the Company's intellectual property by any third party, employee or
former employee. The Company's employees are not obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or
order of any court or administrative agency, that would interfere with the use of his or her best efforts to promote the interests of the Company or that would conflict with the Company's business as
proposed to be conducted. Neither the execution nor delivery of this Agreement, nor the carrying on of the Company's business by the employees of the Company, nor the conduct of the Company's business
as proposed, will, to the best of the Company's knowledge, conflict 


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with
or result in a breach of the terms, conditions or provisions of, or constitute a default under, any contract, covenant or instrument under which any of such employees is now obligated. The
Company does not believe it is or will be necessary to utilize any inventions of any of its employees made prior to their employment by the Company unless such inventions are properly assigned to the
Company. 


        2.10    Compliance with Other Instruments.    The Company is not in violation or default in any material respect of
any provision of its Restated Certificate or Bylaws, or in any material respect of any instrument, judgment, order, writ, decree or contract to which it is a party or by which it is bound, or, to the
best of its knowledge, of any provision of any statute, rule or regulation applicable to the Company. The execution, delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby and thereby will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default
under any such provision, instrument, judgment, order, writ, decree or contract or an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or the
suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization, or approval applicable to the Company, its business or operations or any of its assets or
properties. 


        2.11    Agreements; Action.    


        The
Company's material agreements that are required by the rules and regulations of the SEC to be disclosed as exhibits to the Registration Statement are set forth as exhibits to the
Registration Statement. 


        2.12    Related-Party Transactions.    No executive officer or director of the Company or member of his or her
immediate family is indebted to the Company, nor is the Company indebted (or committed to make loans or extend or guarantee credit) to any of them. To the Company's knowledge, none of such persons has
any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation that
competes with the Company, except that executive officers or directors of the Company and members of their immediate families may own stock in publicly traded companies that may compete with the
Company. No member of the immediate family of any executive officer or director of the Company is directly or indirectly interested in any material contract with the Company. 


        2.13    Permits.    The Company has all material franchises, permits, licenses, and any similar authority necessary
for the conduct of its business as now being conducted by it, and the Company believes it can obtain, without undue burden or expense, any similar authority for the conduct of its business as planned
to be conducted. The Company is not in default in any material respect under any of its franchises, permits, licenses, or other similar authority. 



        2.14    Disclosure.    The Company has provided the Investor with all information requested by the Investor in
connection with their decision to purchase the Class A Common Stock, including all information the Company believes is reasonably necessary to make such investment decision. To the Company's
knowledge, neither this Agreement, nor any other statements or certificates made or delivered in connection herewith or therewith contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements herein or therein not misleading. 



        2.15    Corporate Documents.    The Restated Certificate and Bylaws of the Company are in the form as set forth as
exhibits 3.3 and 3.5, respectively, to the Registration Statement. 


        2.16    Title to Property and Assets.    The Company owns its property and assets free and clear of all mortgages,
liens, loans and encumbrances, except such encumbrances and liens that arise in the ordinary course of business and do not materially impair the Company's ownership or use of such property or assets,
and has good and marketable title to such property. With respect to the property and assets it leases, the Company is in compliance with such leases and holds a valid leasehold interest free of any
liens, claims or encumbrances. 


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        2.17    Tax Returns, Payments and Elections.    The Company has timely filed all tax returns and reports as required
by law. These returns and reports are true and correct in all material respects. The Company has paid all taxes and assessments due, except those contested by it in good faith, if any. The Company has
not been advised (a) that any of its federal, state or local returns are being audited as of the date hereof, or (b) of any deficiency in assessment or proposed judgment to its federal,
state or other taxes. The Company has no knowledge of any tax liabilities due with respect to the Company or its properties or assets as of the date of this Agreement that are not adequately provided
for. 


        2.18    Environmental Law.    To the Company's knowledge, the Company is not in violation of and has no liability or
potential liability under any applicable statute, law, or regulation relating to the environment, and to the best of its knowledge, no material expenditures are or will be required in order to comply
with any such existing statute, law, or regulation. 



        2.19    Proprietary Information and Employment Agreements.    Each current and former employee, officer and consultant
of the Company has executed a standard Proprietary Information and Inventions Agreement. The Company is not aware that any of its employees, officers or consultants are in violation thereof, and the
Company will use its best efforts to prevent any such violation. The Company has not entered into any employment agreements with any executive officers of the Company. 


        2.20    Financial Statements.    The Company's audited financial statements as of December 31, 2002 and
December 31, 2003 and its unaudited financials as of and for the six-month period ended June 30, 2004 (the "Financial Statements") are as set forth in the Prospectus. The
Financial Statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated and with each other except that the
unaudited Financial Statements may not contain all footnotes required by generally accepted accounting principles. The Financial Statements fairly present the financial condition and operating results
of the Company as of the dates, and for the periods, indicated therein, subject in the case of the unaudited Financial Statements to normal year-end audit adjustments. Except as set forth
in the Financial Statements, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to the date of
the Financial Statements and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be
reflected in the Financial Statements, which, in both cases, individually or in the aggregate, are not material to the financial condition or operating results of the Company. Except as disclosed in
the Financial Statements, the Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation. The Company maintains and will continue to maintain a standard
system of accounting established and administered in accordance with generally accepted accounting principles. 


        2.21    Registration Rights.    Except as required pursuant to the Investors' Rights Agreement, the Company is not
presently under any obligation, and has not granted, any rights to register any of the Company's presently outstanding securities or any of its securities that may hereafter be issued. 


        2.22    Real Property Holding Corporation.    The Company is not a real property holding corporation within the
meaning of Section 897(c)(2) of the Internal Revenue Code of 1986 (the "Code"), as amended, and any regulations promulgated thereunder. 


        2.23    Labor Agreements.    The Company is not bound by or subject to (and none of its assets or properties is bound
by or subject to) any written or oral, express or implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the Company's knowledge, has sought to
represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to the Company's knowledge, threatened, that could
have a material adverse effect on its business or properties, nor is the Company aware of any labor organization activity involving its employees. 


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        2.24    Insurance.    The Company maintains in full force and effect such types and amounts of insurance issued by
insurers of recognized responsibility insuring the Company with respect to its business and properties, in such amounts and against such losses and risks which are usual and customary in the Company's
business as to amount and scope. 


        3.    Representations and Warranties of the Investor.    The Investor hereby represents and warrants that: 



        3.1    Authorization.    The Investor has full power and authority to enter into this Agreement, and this Agreement
constitutes its valid and legally binding obligation, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement of creditors' rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other
equitable remedies. 


        3.2    Purchase Entirely for Own Account.    This Agreement is made with the Investor in reliance upon the Investor's
representation to the Company, which by the Investor's execution of this Agreement the Investor hereby confirms, that the Class A Common Stock to be received by the Investor (the "Securities")
will be acquired for investment for the Investor's own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Investor has no present
intention of selling, granting any participation in, or otherwise distributing the same in violation of applicable securities laws. By executing this Agreement, the Investor further represents that
the Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of
the Securities. 


        3.3    Disclosure of Information.    The Investor further represents that it has had an opportunity to ask questions
and receive answers from the Company regarding the terms and conditions of the offering of the Class A Common Stock and the business, properties, prospects and financial condition of the
Company. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Investor to rely thereon. 


        3.4    Investment Experience.    The Investor is an investor in securities of companies in the development stage and
acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating
the merits and risks of the investment in the Class A Common Stock. The Investor also represents that it has not been organized for the purpose of acquiring the Class A Common Stock. 


        3.5    Accredited Investor.    The Investor is an "accredited investor" within the meaning of Rule 501 of
Regulation D adopted pursuant to the Act, as presently in effect. 



        3.6    Restricted Securities.    The Investor understands that the Securities it is purchasing are characterized as
"restricted securities" under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable
regulations such securities may be resold without registration under the Act, only in certain limited circumstances. In this connection, the Investor represents that it is familiar with
Rule 144 adopted pursuant to the Act, as presently in effect, and understands the resale limitations imposed thereby and by the Act. 



        4.    Conditions of Investor's Obligations at Closing.    The obligations of the Investor under subsection 1.1(c) of
this Agreement are subject to the fulfillment on or before the Closing of each of 


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the
following conditions, the waiver of which shall not be effective against the Investor if it does not consent thereto: 



        4.1    Performance.    The Company shall have performed and complied with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with by it on or before the Closing. 


        4.2    Compliance Certificate.    The Chief Executive Officer of the Company shall deliver to the Investor at the
Closing a certificate stating that the conditions specified in Sections 4.1 have been fulfilled. 



        4.3    Qualifications.    All authorizations, approvals, or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Securities pursuant to this Agreement shall be duly obtained and effective
as of the Closing. 


        4.4    Proceedings and Documents.    All corporate and other proceedings in connection with the transactions
contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Investor, and they shall have received all such counterpart original and
certified or other copies of such documents as they may reasonably request. 


        4.5    Closing of Initial Public Offering.    The IPO Closing shall have occurred. 


        5.    Conditions of the Company's Obligations at Closing.    The obligations of the Company to the Investor under this
Agreement are subject to the fulfillment on or before the Closing of each of the following conditions by the Investor: 



        5.1    Representations and Warranties.    The representations and warranties of the Investor contained in
Section 3 shall have been true on and as of the Closing. 


        5.2    Qualifications.    All authorizations, approvals, or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Securities pursuant to this Agreement shall be duly obtained and effective
as of the Closing. 


        5.3    Closing of Initial Public Offering.    The IPO Closing shall have occurred. 


        6.    Miscellaneous.    


        6.1    Survival of Warranties.    The warranties, representations and covenants of the Company and the Investor
contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation of the subject matter
thereof made by or on behalf of the Investor or the Company. 


        6.2    Successors and Assigns.    Except as otherwise provided herein, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and assigns of the parties (including transferees of any Securities). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. 


        6.3    Governing Law.    This Agreement 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 Agreement 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 Agreement,
and hereby waives, and agrees not to assert, as a defense in any action, suit or proceeding 


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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 agreement may not be enforced in or by such courts. The parties hereby consent to and grant the Court of Chancery of the State of Delaware jurisdiction over such parties and
over the subject matter of any such claim and agree that mailing of process or other papers in connection with any such action, suit or proceeding in the manner provided in Section 6.6, or in
such other manner as may be permitted by law, shall be valid and sufficient thereof. 


        6.4    Counterparts.    This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument. 


        6.5    Titles and Subtitles.    The titles and subtitles used in this Agreement are used for convenience only and are
not to be considered in construing or interpreting this Agreement. 


        6.6    Notices.    All notices required or permitted hereunder shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, if not, then
on the next business day or (c) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.
Notwithstanding the foregoing or any provision to the contrary in the Investors' Rights Agreement or the Restated Certificate, the Company agrees that when any notice is given to the Investor, whether
under this Agreement, the Investors' Rights Agreement or the Restated Certificate, such notice shall not be deemed to be effectively given until a copy of such notice is transmitted to the Investor
via facsimile. All notices and certificates will be addressed to the Investor at the address set forth on the signature page hereto or at such other address as the Company or the Investor may
designate by ten (10) days advance written notice to the other parties hereto. 


        6.7    Finder's Fee.    The Investor agrees to indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Investor or any of its officers, partners, employees, or representatives is responsible. 


        The
Company agrees to indemnify and hold harmless the Investor from any liability for any commission or compensation in the nature of a finders' fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible. 



        6.8    Expenses.    Irrespective of whether the Closing is effected, each party shall bear their own costs and
expenses incurred with respect to the negotiation, execution, delivery and performance of this Agreement. If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement or the Restated Certificate, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may
be entitled. 


        6.9    Amendments and Waivers.    Any term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Investor. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of any securities purchased under this Agreement at the time outstanding, each future holder of all such securities, and
the Company. 


        6.10    Severability.    If one or more provisions of this Agreement are held to be unenforceable under applicable
law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its
terms. 


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        6.11    Confidentiality.    Any confidential information obtained by the Investor pursuant to this Agreement which is
labeled or otherwise identified as confidential or proprietary shall be treated as confidential and shall not be disclosed to a third party without the prior written consent of the Company and shall
not be used by the Investor for any purpose other than monitoring the Investor's investment in the Company, except that the Investor may disclose such information (i) to its attorneys,
accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company, (ii) to its affiliates, officers,
directors, shareholders, members and/or partners in the ordinary course of business or pursuant to disclosure obligation to affiliates, shareholders, members and/or partners; provided that such
information is provided to such persons and entities with notice that such information is confidential and should be treated as such, (iii) to any prospective purchaser of the Investor's shares
of the Company, provided (in the case of disclosure in clause (iii)) the recipient agrees to keep such information confidential and to use such information
solely for evaluation of such proposed purchase, or (iv) as may otherwise be required by law. Notwithstanding the foregoing, such information shall not be deemed confidential for the purpose of
enforcement of this Agreement and said information shall not be deemed confidential after it becomes publicly known through no fault of the recipient. The provisions of this Section 6.11 shall
be in addition to, and not in substitution for, the provisions of any separate confidentiality agreement executed by the parties hereto; provided that if there is any conflict between the provisions
of this Section 6.11 and the more restrictive provisions of such separate confidentiality agreement, the provisions of such separate confidentiality agreement shall prevail. 


        6.12    Publicity.    No party or any affiliate of a party shall make, or cause to be made, any publicity, news
release or other such general public announcement or make any other disclosure to any third party in respect of this Agreement or the transactions contemplated hereby (including, without limitation,
disclosure of Investor's ownership interest in the Company) without the prior written consent of the other party; provided however, that the foregoing provision is not intended to limit communications
deemed reasonably necessary or appropriate by a party or its affiliates to its employees, stockholders, partners, directors, officers, potential investors, accountants and legal counsel who are under
an obligation to preserve the confidentiality of the foregoing. Notwithstanding the foregoing provision, the parties and their respective affiliates shall not be prohibited from making any disclosure
or release that is required by law, court order, or applicable regulation, or is considered necessary by legal counsel to fulfill an obligation under securities laws or the rules of a national stock
exchange or the NASDAQ National Market. 


        6.13    Entire Agreement.    This Agreement and the documents referred to herein constitute the entire agreement among
the parties and no party shall be liable or bound to any other party in any manner by any warranties, representations, or covenants except as specifically set forth herein or therein. 



        6.14    Legends.    It is understood that the certificates evidencing the Securities may bear one or all of the
following legends: 



        (a)   "These
securities have not been registered under the Securities Act of 1933, as amended. They may not be sold, offered for sale, pledged or hypothecated in the absence
of a registration statement in effect with respect to the securities under such Act or an opinion of counsel satisfactory to the Company that such registration is not required or unless sold pursuant
to Rule 144 of such Act." 


        (b)   Any
legend required by the laws of any state. 




        6.15    Acknowledgement of Notice and Partial Exercise of Rights.    Investor acknowledges that (a) in
connection with the Initial Public Offering that it has received notices required by Section 2.1(d)(i) of Governance Agreement, and (b) its purchase of Class A Common Stock
pursuant to this Agreement is only a partial exercise of its rights pursuant to Section 2.1(d)(i) of Governance Agreement. 


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        6.16    Registrable Securities.    The Class A Common Stock purchased by GSK pursuant to this Agreement shall
constitute Registrable Securities as defined in, and in accordance with the limitations set forth in, the Investors' Rights Agreement. 


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        IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. 



	 	 	THERAVANCE, INC.
	

 	
 	
By:	

 
	 	 	 	
 Rick E Winningham
 President and Chief Executive Officer




SIGNATURE PAGE TO FALL 2004 CLASS A COMMON STOCK PURCHASE AGREEMENT  









	 	INVESTOR:
	

 	

SMITHKLINE BEECHAM CORPORATION
 Name of Investor
	

 	

By:	

 
	 	 	

	 	Signature of Authorized Person

Name:

Title:
	

 	

Address:	

 
	 	 	

	 	

	 	

	

 	

Fax No:
	 	 	





SIGNATURE PAGE TO FALL 2004 CLASS A COMMON STOCK PURCHASE AGREEMENT  











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Exhibit 10.28


THERAVANCE, INC. CLASS A COMMON STOCK PURCHASE AGREEMENT September , 2004



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THERAVANCE, INC. CLASS A COMMON STOCK PURCHASE AGREEMENT