Exhibit 10.92


 


AMENDMENT TO OFFER LETTER RE


SEVERANCE PAY AND CHANGE IN
CONTROL


 


The following
agreement (the “Agreement”) between InterMune, Inc. and Roger Hawley (“Executive”)
is intended to amend the Offer Letter accepted by Executive on July 2,
2003 (the “Offer Letter”).  Other than as
specifically provided below, all terms and conditions of the Offer Letter
continue in full force and effect.


 


1.                                       Severance
Pay in the Event of Termination (Not For Cause).  Although Executive remains an at-will
employee of InterMune, InterMune agrees that in the event Executive is
terminated by the Company other than for “Cause” (as that term is defined
below) in the absence of a “Change in Control” of InterMune (as that term is
defined below), Executive will receive the following benefits within fourteen
(14) days after receipt by the Company of a general release duly signed by the
Executive that releases the Company from all of the Executive’s actual or
potential claims against InterMune:


 


•                  If Executive has
completed less than one (1) full year of service, Executive will receive
six (6) months base salary at Executive’s final rate of pay, six (6) months
benefits continuation (i.e.,
Company-provided COBRA payments), and six (6) months immediate
acceleration of vesting of each of Executive’s outstanding equity grants,
whether stock options or restricted shares


 


•                  If Executive has
completed at least one (1) year but less than two (2) years of
service, Executive will receive nine (9) months base salary at Executive’s
final rate of pay, nine (9) months benefits continuation (i.e., Company-provided COBRA payments),
and nine (9) months immediate acceleration of vesting of each of Executive’s
outstanding equity grants, whether stock options or restricted shares


 


•                  If Executive has
completed two (2) years of service or more, Executive will receive twelve
(12) months base salary at Executive’s final rate of pay, twelve (12) months
benefits continuation (i.e.,
Company-provided COBRA payments), and twelve (12) months immediate acceleration
of vesting of each of Executive’s outstanding equity grants, whether stock
options or restricted shares


 


•                  If such
termination not for Cause occurs in the second half of the calendar year,
Executive also will receive a pro rata share
of Executive’s target bonus for that year.


 


The acceleration of vesting
provided for in this Section 1 of this Agreement is intended to be in lieu
of any acceleration rights provided in the operative Stock Option Agreement,
and in addition to any acceleration rights provided in the operative Stock Plan
documents.  All other terms and
conditions applicable to Executive’s equity grants, e.g., with regard


 





















 


to exercise after termination,
forfeiture, etc., will continue to be governed by the operative Stock Option
Agreement and Stock Plan document.  Cash
compensation required to be paid pursuant to this Section 1 of this
Agreement will be paid either in a single lump-sum payment or ratably on a
monthly basis over the severance period, in the Company’s sole discretion.


 


2.                                       Compensation
upon Change in Control.  In the event
of a Change in Control of the Company that results in: (i) Executive’s
termination without Cause, or (ii) Executive’s resignation for “Good
Reason,” which for purposes of this Agreement shall mean either (a) a material
diminution in Executive’s duties, title or compensation, or (b) a
requirement that Executive relocate more than fifty (50) miles from the Company’s
Home Office location, any of which event occurs within one (1) year of the
change in control (a “Triggering Event”), Executive will receive the following
benefits within fourteen (14) days after receipt by the Company of a general
release duly signed by the Executive that releases the Company from all of the
Executive’s actual or potential claims against InterMune:


 


(a)          Cash
Compensation:  Two (2) years
base salary at Executive’s final rate of pay and two (2) years benefits
continuation (i.e.,
Company-provided COBRA payments).  If a
Triggering Event occurs in the second half of the calendar year, Executive also
will receive a pro rata share of
Executive’s target bonus for that year.


 


(b)         Options
or Restricted Share Grants:  Vesting
of all outstanding equity grants (including InterMune stock option grants,
InterMune restricted stock grants, and any grants made by the acquiring entity)
will immediately accelerate. The acceleration of vesting provided for in this Section 2
of this Agreement is intended to be in lieu of any acceleration rights provided
in the operative Stock Option Agreement, and in addition to any acceleration
rights provided in the operative Stock Plan document.  All other terms and conditions applicable to
Executive’s equity grants, e.g.,
with regard to exercise after termination, forfeiture, etc., will continue to
be governed by the operative Stock Option Agreement and Stock Plan documents.


 


(c)          Transition
Management Services: Executive will receive executive transition management
services for a one-year period with Lee Hecht Harrison, Right Management, or a
similar outplacement firm, up to a cap of Forty Thousand Dollars ($40,000).


 


3.               Definitions.


 


For purposes of this Agreement, “Cause” shall mean any of the
following:


 


•                  Willful refusal
to follow lawful and reasonable corporate policy or Chief Executive Officer
directives; or


•                  Willful failure,
gross neglect or refusal to perform duties; or


 


2





















 


•                  Willful act that
intentionally or materially injures the reputation or business of the Company;
or


•                  Willful breach
of confidentiality that has a material adverse affect on the Company; or


•                  Fraud or
embezzlement; or


•                  Indictment for
criminal activity.


 


For purposes
of this Agreement, “Change in Control” shall mean any of the following:


 


•                  A sale, lease or
other disposition of all or substantially all of the securities or assets of
the Company; or


•                  A merger or
consolidation in which the Company is not the surviving corporation; or


•                  A reverse merger
in which the Company is the surviving corporation but the shares of Common
Stock outstanding immediately preceding the merger are converted by virtue of
the merger into other property, whether in the form of securities, cash or
otherwise.


 


 


	
  /s/ Roger
  Hawley

  	
   

  	
  Dated:

  	
    7/26/04

  	
  , 2004

  
	
  Roger Hawley

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  INTERMUNE,
  INC

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Daniel
  Welch

  	
   

  	
  Dated:

  	
    7/26/04

  	
  , 2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
  Pres &
  CEO

  	
   

  	
   

  	
   

  	
   

  



 


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