As filed with the Securities and Exchange Commission on May 5, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
THERAVANCE, INC.
(Exact name of registrant as specified in its charter)
Delaware (State
or other jurisdiction of |
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94-3265960 (IRS
Employer |
901 Gateway Boulevard
South San Francisco, California 94080
(Address of principal executive offices) (Zip Code)
THERAVANCE, INC.
2004
Equity Incentive Plan
(Full title of
the Plan)
BRADFORD J. SHAFER
Senior Vice President, General Counsel and Secretary
THERAVANCE, INC.
901 Gateway Boulevard
South San Francisco, California 94080
(Name and address of agent for service)
(650) 808-6000
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer o |
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Accelerated filer x |
Non-accelerated filer o |
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Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
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Amount to be |
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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Rights to Purchase Common Stock |
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7,524,199 |
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N/A |
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N/A |
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N/A |
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Common Stock, $0.01 par value |
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7,524,199 shares |
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$ |
15.31 |
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$ |
115,195,487 |
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$ |
8,213.44 |
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(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2004 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of Theravance, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low prices per share of Common Stock of Theravance, Inc. as reported on the Nasdaq Global Market on April 28, 2010.
PART II
Information Required in the Registration Statement
Theravance, Inc. (the Registrant) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the SEC):
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. The Registrant is not, however, incorporating any documents or information that the Registrant is deemed to furnish and not file in accordance with SEC rules.
Not applicable.
Certain legal matters with respect to the validity of the Common Stock registered hereby have been passed upon for the Company by Bradford J. Shafer, Senior Vice President, General Counsel and Secretary of the Company. Bradford J. Shafer is employed by the Company, and owns or has rights to acquire an aggregate of less than one percent of the Companys Common Stock.
Section 145 of the Delaware General Corporation Law authorizes a court to award or a corporations board of directors to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the 1933 Act). The Registrants bylaws provide for mandatory indemnification of its directors and officers and those serving at the Registrants request as directors, officers, employees or agents of other organizations to the maximum extent permitted by the Delaware General Corporation Law. The Registrants amended and restated certificate of incorporation provides that, pursuant to Delaware law, its directors shall not be liable for monetary damages for breach of the directors fiduciary duty as directors to the
Registrant and its stockholders. This provision in the amended and restated certificate of incorporation does not eliminate the directors fiduciary duty, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the directors duty of loyalty to the Registrant for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a directors responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. The Registrant has entered into indemnification agreements with its officers and directors. The indemnification agreements provide the Registrants officers and directors with further indemnification to the maximum extent permitted by the Delaware General Corporation Law. The Registrant maintains liability insurance for its directors and officers.
Not applicable.
Exhibit Number |
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Exhibit |
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4.1 |
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Amended and Restated Certificate of Incorporation of the Registrant. (Incorporated by reference to Exhibit 3.2 to the Registrants Registration Statement No. 333-116384 on Form S-1/A filed with the SEC on September 29, 2004). |
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4.2 |
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Certificate of Amendment of Restated Certificate of Incorporation of the Registrant. (Incorporated by reference to Exhibit 3.4 to the Registrants Quarterly Report on Form 10-Q for the period ended March 31, 2007, filed with the SEC on May 8, 2007). |
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4.3 |
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Amended and Restated Bylaws of the Registrant. (Incorporated by reference to Exhibit 3.5 to the Registrants Quarterly Report on Form 10-Q for the period ended September 30, 2008, filed with the SEC on November 6, 2008). |
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5 |
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Opinion and consent of Theravance, Inc. General Counsel. |
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23.1 |
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Consent of Independent Registered Public Accounting Firm. |
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23.2 |
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Consent of Theravance, Inc. General Counsel is contained in Exhibit 5. |
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24 |
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Power of Attorney. Reference is made to page II-4 of this Registration Statement. |
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99.1 |
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Theravance, Inc. 2004 Equity Incentive Plan, as amended and restated. (Incorporated by reference to Exhibit 10.3 to the Registrants Quarterly Report on Form 10-Q for the period ending March 31, 2010, filed with the SEC on May 5, 2010). |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of South San Francisco, State of California on this 5th day of May, 2010.
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THERAVANCE, INC. |
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By: |
/s/ Rick E Winningham |
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Rick E Winningham |
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Chief Executive Officer and Chairman of the Board of Directors |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Theravance, Inc., a Delaware corporation, do hereby constitute and appoint Rick E Winningham, Bradford J. Shafer and Michael W. Aguiar, and any of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
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Date |
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/s/ Rick E Winningham |
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Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) |
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May 5, 2010 |
Rick E Winningham |
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/s/ Michael W. Aguiar |
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Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
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May 5, 2010 |
Michael W. Aguiar |
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Signature |
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Title |
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Date |
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/s/ Jeffrey M. Drazan |
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Director |
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May 5, 2010 |
Jeffrey M. Drazan |
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/s/ Robert V. Gunderson, Jr. |
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Director |
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May 5, 2010 |
Robert V. Gunderson, Jr. |
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/s/ Arnold J. Levine, Ph.D. |
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Director |
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May 5, 2010 |
Arnold J. Levine, Ph.D. |
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/s/ Burton G. Malkiel, Ph.D. |
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Director |
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May 5, 2010 |
Burton G. Malkiel, Ph.D. |
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Director |
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Peter S. Ringrose, Ph.D. |
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/s/ William H. Waltrip |
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Director |
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May 5, 2010 |
William H. Waltrip |
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/s/ George M. Whitesides, Ph.D. |
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Director |
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May 5, 2010 |
George M. Whitesides, Ph.D. |
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Director |
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William D. Young |
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EXHIBIT INDEX
Exhibit Number |
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Exhibit |
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4.1 |
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Amended and Restated Certificate of Incorporation of the Registrant. (Incorporated by reference to Exhibit 3.2 to the Registrants Registration Statement No. 333-116384 on Form S-1/A filed with the SEC on September 29, 2004). |
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4.2 |
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Certificate of Amendment of Restated Certificate of Incorporation of the Registrant. (Incorporated by reference to Exhibit 3.4 to the Registrants Quarterly Report on Form 10-Q for the period ended March 31, 2007, filed with the SEC on May 8, 2007). |
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4.3 |
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Amended and Restated Bylaws of the Registrant. (Incorporated by reference to Exhibit 3.5 to the Registrants Quarterly Report on Form 10-Q for the period ended September 30, 2008, filed with the SEC on November 6, 2008). |
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5 |
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Opinion and consent of Theravance, Inc. General Counsel. |
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23.1 |
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Consent of Independent Registered Public Accounting Firm. |
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23.2 |
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Consent of Theravance, Inc. General Counsel is contained in Exhibit 5. |
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24 |
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Power of Attorney. Reference is made to page II-4 of this Registration Statement. |
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99.1 |
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Theravance, Inc. 2004 Equity Incentive Plan, as amended and restated. (Incorporated by reference to Exhibit 10.3 to the Registrants Quarterly Report on Form 10-Q for the period ending March 31, 2010, filed with the SEC on May 5, 2010). |
EXHIBIT 5
May 5, 2010
Theravance, Inc.
901 Gateway Boulevard
South San Francisco, California 94080
Re: Theravance, Inc. Registration
Statement
for 7,524,199 Shares of Common Stock
Ladies and Gentlemen:
I refer to your registration on Form S-8 (the Registration Statement) under the Securities Act of 1933, as amended, covering the offering by the Company of up to 7,524,199 shares of the Companys Common Stock, under the 2004 Equity Incentive Plan (the Plan). I advise you that, in my opinion, when such shares have been issued and sold pursuant to the applicable provisions of the Plan, and in accordance with the Registration Statement, such shares will be validly issued, fully paid and nonassessable shares of the Companys Common Stock.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
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Very truly yours, |
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/s/ Bradford J. Shafer |
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Bradford J. Shafer, Senior Vice President, |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2004 Equity Incentive Plan of Theravance, Inc. of our reports dated February 26, 2010, with respect to the consolidated financial statements of Theravance, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2009, and the effectiveness of internal control over financial reporting of Theravance, Inc. filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
May 5, 2010