Exhibit 10.67


 


ESCROW AGREEMENT


 


THIS ESCROW AGREEMENT (the
“Escrow Agreement”) made and entered into as of the 25th day of
September, 2003 by and among InterMune, Inc. (the “Company”), Scott Harkonen
(“Harkonen”) and U.S. Bank, National Association (the “Escrow Agent”), with the
latter’s office at One California Street, Suite 2550, San Francisco, CA  94111.


 


WITNESSETH


WHEREAS, the Company and
Harkonen have heretofore entered into a Consulting Agreement and Mutual
Releases (the “Agreement”) for the purpose of finalizing certain agreements
between them, and WHEREAS, pursuant to the Agreement, the Company hereby
deposits today $282,500 (the “Escrow Fund”) with the Escrow Agent;


 


NOW
THEREFORE, IT IS AGREED:


 


1.               The
Company hereby delivers to the Escrow Agent, and the Escrow Agent hereby
acknowledges receipt of the Escrow Funds to be held in accordance with the
terms and conditions of this Escrow Agreement.


 


2.               The
Escrow Agent shall hold the Escrow Fund until such time as it shall receive
written direction from the Company to release all of the Escrow Fund and to
whom and when.


 


3.               U.S.
Bank National Association’s General Provisions are incorporated herein and
attached as Exhibit A.


 


4.               The
Escrow Agent fees shall be paid in advance by the Company in accordance with
the Fee Schedule attached as Exhibit B.


 


5.               The
Escrow Agent is to invest the Escrow Fund in a Money Market fund.  Interest shall become part of the Escrow
Fund for the benefit of the Escrow’s Fund subsequent recipient.


 


6.               NOTICES  All notices, demands, and requests required
or permitted to be given under the provisions of this agreement must be in
writing and shall be deemed to have been sufficiently given when received if
personally delivered or by facsimile or, if mailed by registered or certified
mail, with return receipt requested, or overnight mail addressed as follows:


 


	
  If to the
  Company:

  	
  InterMune,
  Inc.

  
	
   

  	
  Attn:
  General Counsel

  
	
   

  	
  3280
  Bayshore Blvd.

  
	
   

  	
  Brisbane,
  CA  94005

  
	
   

  	
   

  
	
  If to
  Harkonen:

  	
  Dr. Scott
  Harkonen

  
	
   

  	
  125 Montalvo

  
	
   

  	
  San
  Francisco, CA  94116

  



 


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  If to the
  Escrow Agent:

  	
  U.S. Bank
  National Association

  
	
   

  	
  One
  California Street, Suite 2550

  
	
   

  	
  San
  Francisco, CA  94111

  
	
   

  	
  Ann Gadsby

  
	
   

  	
  Telephone
  (415) 273-4532

  
	
   

  	
  Fax: (415)
  273-4591

  



 


IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement on the
date and year first above written.


 


 


	
  InterMune, Inc.

  
	
   

  
	
  By

  	
  /s/ Sharon
  Surrey-Barbari

  	
   

  
	
  Title

  	
  SVP and CFO

  	
   

  
	
   

  
	
   

  
	
  Dr. Scott Harkonen

  
	
   

  
	
  /s/ W. Scott
  Harkonen

  	
   

  
	
   

  
	
  U.S. BANK, National Association, as Escrow Agent

  
	
   

  
	
  By

  	
  /s/ Michael
  P. Susnow

  	
   

  
	
  Title

  	
  Vice
  President

  	
   

  
										



 


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General
Provisions for


 


Corporate
Escrow Agreements


 


LIABILITY
OF ESCROW AGENT


 


In performing any duties under the Escrow Agreement (“Agreement”),
Escrow Agent (“Agent”) shall not be liable to any Party for consequential
damages, (including, without limitation lost profits) losses, or expenses,
except for gross negligence or willful misconduct on the part of the Agent.  Agent shall not incur any such liability for
(I) any act or failure to act made or omitted in good faith, or (II) any action
taken or omitted in reliance upon any instrument, including any written
statement or affidavit provided for in this Agreement that Agent shall in good
faith believe to be genuine, nor will Agent be liable or responsible for
forgeries, fraud, impersonations, or determining the scope of any
representative authority.  In addition,
Agent may consult with legal counsel in connection with Agent’s duties under
this Agreement and shall be fully protected in any act taken, suffered, or
permitted by him/her in good faith in accordance with the advice of
counsel.  Agent is not responsible for
determining and verifying the authority of any person acting or purporting to
act on behalf of any party to this Agreement.


 


FEES
AND EXPENSES


 


It is understood that the fees and usual charges agreed upon for
services of Agent shall be considered compensation for ordinary services as
contemplated by this Agreement.  In the
event that the conditions of this Agreement are not promptly fulfilled, or if
Agent renders any service not provided for in this Agreement, or if the Parties
request a substantial modification of its terms, or if any controversy arises,
or if Agent is made a Party to, or intervenes in, any litigation pertaining to
this escrow or its subject matter, Agent shall be reasonably compensated for
such extraordinary services and reimbursed for all costs, attorney’s fees,
including allocated costs of in-house counsel, and expenses occasioned by such
default, delay, controversy or litigation and Agent shall have the right to
retain all documents and/or other things of value at any time held by Agent in
this escrow until such compensation, fees, costs, and expenses are paid.  The Parties jointly and severally promise to
pay these sums upon demand.  Unless
otherwise provided, the Parties each will pay one-half of all Agent’s usual
charges and Agent may deduct such sums from the funds deposited.


 


CONTROVERSIES


 


If any controversy arises between the Parties to this Agreement, or
with any other Party, concerning the subject matter of this Agreement, its
terms or conditions, Agent will not be required to determine the controversy or
to take any action regarding it.  Agent
may hold all documents and funds and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in
Agent’s discretion, Agent may require, despite what may be set forth elsewhere
in this Agreement.  In such event, Agent
will not be liable for interest or damage.  
Furthermore, Agent may at its option, file an action of interpleader
requiring the Parties to answer and litigate any claims and rights among
themselves.  Agent is authorized to
deposit with the clerk of the court all documents and funds held in escrow,
except all costs, expenses, charges and reasonable attorney fees incurred by
Agent due to the interpleader action and which the Parties jointly and
severally agree to pay.  Upon initiating
such action, Agent shall be fully released and discharged of and from all
obligations and liability imposed by the terms of this Agreement.


 


INDEMNIFICATION
OF ESCROW AGENT


 


The Parties and their respective successors and assigns agree jointly
and severally to indemnify and hold Agent harmless against any and all losses,
claims, damages, liabilities, and expenses, including reasonable costs of
investigation, counsel fees, including allocated costs of in-house counsel and
disbursements that may be imposed on Agent or incurred by Agent in connection
with the performance of his/her duties under this Agreement, including but not
limited to any litigation arising from this Agreement or involving its subject
matter. Agent shall have a first lien on the property and papers held under
this Agreement for such compensation and expenses.


 


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INVESTMENT
INSTRUCTIONS


 


For the purpose of investing funds held in escrow, Agent may accept
written instructions (including instructions sent to the agent  by facsimile transmission, with original
sent promptly to the agent) from an authorized party. The parties shall
indemnify and hold Agent harmless from any and all liability for acting on such  investment instruction purported to be given
by an Authorized Party.  Agent shall not
be responsible for the authenticity of any instructions, or be in any way
liable for any unauthorized instruction or for acting on such an instruction,
whether or not the person giving the instructions was, in fact, an Authorized
Party.  In no event shall Agent be
liable to the Parties for any consequential, special, or exemplary damages,
including but not limited to lost profits, from any cause whatsoever arising
out of, or in any way connected with acting upon  instructions believed by Agent to be genuine.  In the absence of such  instructions, the agent shall invest, to the
extent reasonably practicable, in a U.S.Bank Money Market Account, which is
insured by the FDIC.


 


The Agent may make any investments through its own investment
department or that of its affiliates. 
The Agent shall not be liable for any loss from such investments,
including upon the sale or disposition of any investments.


 


Agent will act upon investment instructions the day that such
instructions are received, provided the requests are communicated within a
sufficient amount of time to allow Agent to make the specified investment.  Instructions received after an applicable
investment cutoff deadline will be treated as being received by Agent on the next
business day, and Agent shall not be liable for any loss arising directly or
indirectly, in whole or in part, from the inability to invest funds on the day
the instructions are received.  Agent
shall not be liable for any loss incurred by the actions of third parties or by
any loss arising by error, failure, or delay in making  an investment which is caused by
circumstances beyond Agent’s reasonable control.


 


FUNDS
INVESTED DURING ESCROW


 


The Parties acknowledge that payment of any interest earned on the
funds invested in this escrow will be subject to backup withholding penalties
unless a properly completed Internal Revenue Service form W8 or W9
certification is submitted to Escrow Agent.


 


RESIGNATION
OF ESCROW AGENT


 


Agent may resign at any time upon giving at least thirty (30) days’
written notice to the Parties; provided, however, that no such resignation
shall become effective until the appointment of a successor escrow agent which
shall be accomplished as follows:  The
Parties shall use their best efforts to mutually agree on a successor escrow
agent within thirty (30) days after receiving such notice.  If the Parties fail to agree upon a
successor escrow agent within such time, Agent shall have the right to appoint
a successor escrow agent authorized to do business in the state of
California.  The successor escrow agent
shall execute and deliver an instrument accepting such appointment and it
shall, without further acts, be vested with all the estates, properties,
rights, powers, and duties of the predecessor escrow agent as if originally
named as escrow agent.   Agent shall be
discharged from any further duties and liability under this Agreement.


 


AUTOMATIC
SUCCESSION


 


Any company into which the Agent may be merged or with which it may be
consolidated, or any company to whom Agent may transfer a substantial amount of
its Global Escrow business, shall be the Successor to the Agent without the
execution or filing of any paper or any further act on the part of any of the
Parties, anything herein to the contrary notwithstanding.


 


GOVERNING
LAW


 


This Agreement is to be construed and interpreted according to
California law.


Prepared by U.S. Bank, N.A.,


 


SIGNATURE PAGES


 


This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be one and the same instrument.  The exchange of copies of this Agreement and
of signature pages by facsimile transmission shall constitute effective
execution and delivery of this Agreement as to the parties and may be used in
lieu of the original Agreement for all purposes.  Signatures of the parties transmitted by facsimile shall be
deemed to be their original signatures for all purposes.


 


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Fee Schedule for Escrow


Schedule of Fees for Services as


Escrow Agent


 


For


InterMune/W. Scott Harkonen Escrow


Customer Name /
Series 


 


	
  Initial Fees

  	
   

  	
   

  	
   

  
	
  01010

  	
   

  	
  Acceptance Fee
  (excluding charge for legal counsel and/or legal opinion) The acceptance fee
  includes the administrative review of documents, initial set-up of the
  account, and other reasonably required services up to and including the
  closing.  This is a one-time fee,
  payable at closing.

  	
   

  	
  $

  	
  500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. Bank Corporate Trust Services reserves the right to refer any or
  all escrow documents for legal review before execution.  Legal fees (billed on an hourly basis) and
  expenses for this service will be billed to, and paid by, the customer.  If appropriate and upon request by the
  customer, U.S. Bank Corporate Trust Services will provide advance estimates
  of these legal fees.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Administration
  Fees Billed Annually

  	
   

  	
   

  	
   

  
	
  04460

  	
   

  	
  Escrow Agent

  	
   

  	
  $

  	
  1,000.00

  	
   

  
	
   

  	
   

  	
  Annual administration fee for performance
  of the routine duties of the escrow agent associated with the management of
  the account.  Administration fees are
  payable in advance.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Incidental
  Expenses

  	
   

  	
   

  	
   

  
	
  SUCE0000

  	
   

  	
  Indirect OOP Expenses in Advance Charge for
  miscellaneous expenses such as; fax, messenger service, overnight mail,
  telephone, stationery and postage. 
  This charge is a percent of total Administration Fees, charged in
  advance.

  	
   

  	
  3.0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Transaction Fees

  	
   

  	
   

  	
   

  
	
  10880

  	
   

  	
  Disbursements/Draws

  	
   

  	
  $

  	
  20.00

  	
   

  
	
   

  	
   

  	
  Charge per item
  disbursed.  Includes the wire or check
  fee.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10100

  	
   

  	
  Trades

  	
   

  	
  $

  	
  100.00

  	
   

  
	
   

  	
   

  	
  Charge per trade to buy or sell investments,
  excluding automated sweep transactions.*

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  
  

  

  

  
	
   

  	
   

  	
  *Automatic sweeping of cash into money
  market funds is not considered a “trade” for the purposes of this fee.  However, applicable fees are disclosed in
  the “Automatic Money Market Investments” authorization letter or the fund
  prospectus provided

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10101

  	
   

  	
  Receipts

  	
   

  	
  $

  	
  20.00

  	
   

  
	
   

  	
   

  	
  Charge per
  receipt of funds via wire or check.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Direct Out of Pocket
  Expenses

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Reimbursement of expenses associated with
  the performance of our duties, including but not limited to publications,
  legal counsel after the initial close, travel expenses and filing fees.

  	
   

  	
  At Cost

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Extraordinary Services

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Extraordinary services are duties or
  responsibilities of an unusual nature, including termination, but not
  provided for in the governing documents or otherwise set forth in this
  schedule.  A reasonable charge will be
  assessed based on the nature of the service and the responsibility involved.  At our option, these charges will be billed
  at a flat fee or at our hourly rate then in effect.

  	
   

  	
   

  	
   

  



 


5

















 


Account approval is subject to review and qualification.  Fees are subject to change at our discretion
and upon written notice.  Fees paid in advance
will not be prorated.  The fees set
forth above and any subsequent modifications thereof are part of your
agreement.  Finalization of the
transaction constitutes agreement to the above fee schedule, including
agreement to any subsequent changes upon proper written notice.  In the event your transaction is not
finalized, any related out-of-pocket expenses will be billed to you
directly.  Absent your written
instructions to sweep or otherwise invest, all sums in your account will remain
uninvested and no accrued interest or other compensation will be credited to
the account.  Payment of fees
constitutes acceptance of the terms and conditions set forth.


 


Dated:  September 24, 2003


 


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