Exhibit 10.66


 


CONSULTING
AGREEMENT AND MUTUAL RELEASES


 


This Consulting Agreement and Mutual Releases (hereinafter “Agreement”)
is freely entered into by InterMune, Inc. (hereinafter the “Company”) and Scott
Harkonen (hereinafter “Harkonen”), collectively, the “Parties”, in
consideration of the commitments and payments either set forth or expressly
referenced in this Agreement.


 


1.                                       Subject
only to both the specific exceptions expressly set forth in this Agreement and
the Company’s timely and complete performance of its obligations both to
deposit and have timely released to Harkonen the Escrow Amount with the Escrow
Agent (as those terms are defined in Paragraph 10(a) herein) (each of which is
a condition precedent for Harkonen’s waivers and releases herein), Harkonen, on
behalf of himself, and his respective past and/or future spouses (if any),
family members, agents, heirs, estate, executors, administrators, insurers,
attorneys, successors and assigns (hereinafter collectively with Harkonen, the
“Harkonen Releasees”), hereby fully releases, acquits and forever discharges
the Company, and all of its past and present parent companies, affiliates,
subsidiaries, related companies, predecessors, successors, assigns and
transferees, and each of their past and present agents, officers, directors,
attorneys, stockholders, partners, and employees (hereinafter collectively,
“Company Releasees”), from and against any and all claims, complaints, rights,
demands, actions, suits, contracts, torts, promises, agreements, debts,
obligations, liability, damages, judgments, rights and demands, and causes of
action, whether asserted or unasserted, of any and every kind, nature and
character whatsoever, known or unknown, which the Harkonen Releasees have or
have had against the Company Releasees including, but not limited to, those
arising from or in any way connected with or relating to:


 


(a)                                  Harkonen’s
employment, change in employment status (Harkonen resigned his employment with
the Company effective June 30, 2003) (hereinafter the “Employment
Resignation Date”), lack of employment, resignation of employment or
resignation from the Company’s Board of Directors and alleged injuries;


 


(b)                                 The
Employment Agreement between Harkonen and the Company, effective
October 15, 1998 (“Original Agreement”), and each amendment thereto
(collectively referred to herein as the “Employment Agreement”), except as to
its surviving terms therein (if any) and the severance payments the Company
acknowledges have been paid or remain due to Harkonen (the latter as confirmed
in the Parties letter agreement on July 14, 2003).


 


(c)                                  All
other acts or omissions of the Company Releasees heretofore occurring on or
before the Board Resignation Date (as defined in Paragraph 11 herein); and


 


(d)                                 Any
other Harkonen claims under any and all federal, state or local law,
constitution or regulations regarding either employment, employment benefits or
employment discrimination or retaliation; statutory theories, including
discrimination laws including, but not limited to, Title VII of the Civil
Rights Act of 1964, as amended, the California Fair Employment and Housing Act,
as amended, the California Constitution, the Age Discrimination in Employment
Act (“ADEA”), as amended, the Family and Medical Leave Act, as amended, the
California Family Rights Act, as amended, and any other laws or regulations
concerning discrimination or retaliation on the basis of race, color, creed,
religion, age, sex, marital status, physical or mental disability or handicap,
national origin or ancestry.


 


2.                                       Since
Harkonen is 40 years of age or older, he is hereby informed that he has or may
have specific rights and/or claims under the ADEA, and he agrees and
understands that:


 


(a)                                  In
consideration of the benefits and release of claims provided to Harkonen as set
forth in this Agreement, which are, at least in part, in addition to anything
of value to which Harkonen is already entitled, he specifically waives any
rights and/or claims under ADEA to the extent that such rights and/or claims
arose prior to the Board Resignation Date;


 


(b)                                 Harkonen
does not waive any rights or claims under the ADEA that may arise after the
Board Resignation Date;


 


(c)                                  Harkonen
has been advised that he has 21 days after receipt of this Agreement within
which to consider this Agreement’s terms and he has consulted with counsel of
his own choice prior to executing this Agreement;


 


(d)                                 As
also agreed by the Company, Harkonen (alone) has seven days after the execution
of this Agreement within which he may revoke this Agreement;


 


1

















 


(e)                                  In
order to revoke this Agreement, Harkonen must deliver to the General Counsel of
the Company, on or before 7 days after the execution of this Agreement, a
letter stating that he is revoking this Agreement;


 


(f)                                    This
Agreement shall not become effective or enforceable until the eighth day
following the date that the Parties have executed this Agreement provided that
Harkonen (alone) does not revoke this Agreement on or before 7 days after the
execution of this Agreement as set forth immediately above (the “Effective
Date”);


 


(g)                                 Harkonen
has not been subject to any undue or improper influence interfering with the
exercise of his free will in deciding whether to execute this Agreement; and


 


(h)                                 Harkonen
has carefully read and fully understands all of the provisions of this
Agreement, knowingly and voluntarily agrees to all of the terms set forth in
this Agreement, and acknowledges that in entering into this Agreement, is not
relying on any representation, promise or inducement made by the Company or its
attorneys with the exception of those promises expressly contained in and/or
referenced in this Agreement.


 


3.                                       Each
Party represents that he/it has no pending legal or administrative claims
against the other Party and that he/it has not filed any actions in any forum
against the other Party.


 


4.                                       The
Company agrees that, except as expressly set forth herein, Harkonen’s
obligations in the Agreement represent settlement in full of all outstanding
obligations owed to the Company Releasees by (and any and all actual and/or
potential, known or unknown claims by the Company against) the Harkonen
Releasees.  The Company, on its own
behalf and (to the fullest extent allowed) on behalf of its affiliates,
divisions, subsidiaries, related companies, predecessor and/or successor
companies, assigns, transferees, and each of their past and present agents,
officers, directors, insurers, attorneys, shareholders, partners, and
employees; hereby each (subject only to the specific exceptions expressly set
forth herein) fully release, acquit and forever discharge the Harkonen
Releasees from and against any and all claims, complaints, rights, demands,
actions, suits, contracts, torts, promises, agreements, debts, obligations, liability,
damages, judgments, rights and demands, and causes of action, whether asserted
or unasserted, of any and every kind, nature and character whatsoever, known or
unknown, which the Company Releasees have, have had and/or may have had against
the Harkonen Releasees including, but not limited to, those arising from or in
any way connected with or relating to any and all acts, facts or omissions of
the Harkonen Releasees heretofore occurring on or before the Board Resignation
Date. .


 


5.                                       The
Parties understand and agree that the releases in this Agreement are full and
final releases covering all known and unknown, suspected or unsuspected
injuries, debts, claims or damages as to the released matters only.  The Parties expressly waive any and all
rights or benefits that the Parties may now have as to the released matters,
under the terms of Section 1542 of the California Civil Code and any
similar law of any state or territory in the United States.  Said section provides as follows:


 


“A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”


 


The Parties fully understand that, if any fact with
respect to any matter covered in the releases is found hereinafter to be other
than or different from the facts now believed by the Parties to be true, the
Parties expressly accept and assume that the releases shall be and remain
effective, notwithstanding such difference in facts unless such alleged fact is
falsely represented as such in this Agreement. 
Each Party, being aware of said code section, agrees to expressly waive
any rights each Party may have thereunder, as well as under any other statute
or common law principles of similar effect, as to the subject matter covered by
this Agreement only.  Nevertheless, none
of the waivers and releases anywhere in this Agreement shall waive, release,
apply to and/or limit in any way either: 
(1) Harkonen’s legally vested rights (if any) already earned during
Harkonen’s employment, officership and board membership with the Company until
his roles’ termination (or beyond, but only if so allowed under either a
pre-existing Company agreement, benefit plan, policy or pursuant to applicable
law): a) under any benefit plan of the Company (e.g., under any medical plan,
stock option plan, employee stock purchase plan or 401(k) plan), b) pursuant to
any Company insurance policies, c) Harkonen’s rights (to the extent otherwise
qualified) to workers’ compensation, unemployment compensation, ERISA right and
any and all rights which cannot be legally waivable under applicable federal or
state law, and d) Harkonen’s pre-existing contractual severance-related
compensation


 


2

















 


and benefits as confirmed
in the Parties’ letter agreement of July 14, 2003; (2) Harkonen’s rights
to indemnification, duty to defend and/or to be held harmless (all on an
on-going payment basis) by the Company (with respect to all of his prior,
existing and continuing capacities with, and efforts for, the Company) pursuant
to all agreements or contracts in any written form (including, but not limited
to, the acknowledged Indemnity Agreement 
between the Parties (the form of which was attached to Company SEC
filings), applicable Company insurance policies, statutes, corporate bylaws
and/or articles of incorporation or common law obligations including, but not
limited to, with respect to the following matters:  Lombardi v. InterMune, Inc., et al. (U.S.D.C. for the Northern
District of California, Case No. C-03-3068-MJJ); Johnson v. Harkonen, et al.
(U.S.D.C. for the Northern District of California, Case No. C-03-2954-MEJ); SEC
Confidential Informal Investigation (Case No. MSF-2713); Adler v. Harkonen, et
al. (San Mateo County (Cal.) Superior Court Case No. CIV 433125); Mahoney v.
InterMune, Inc. et al. (U.S.D.C. for the Northern District of California, Case
No. C-03-3273 SI); and any such other existing or future actions whether
related to any of the above (collectively, the “Securities Litigation”) or
otherwise involving Harkonen’s past, present or future employment, board or
consulting relationships with the Company; the Company specifically confirms
that, among other things, Harkonen is entitled to, and will receive from the
Company to the maximum extent legally
allowed by law, full indemnification, duty to defend and to be held
harmless by it (including, without limitation, providing full payment for all reasonable
fees and costs incurred by separate legal counsel of Harkonen’s own choosing;
provided that such legal counsel has been approved in advance (the Wilson,
Sonsini firm already has been approved) and in writing by the Company’s
applicable insurance carrier) in connection with the Securities Litigation (all
together the “Indemnity Contract”); (3) the Parties’ rights to enforce this
Agreement; and (4) each Party’s rights to claims for either the other Party’s
(and associated Releasees’) acts or omissions that occur after the Board
Resignation Date or any unreleased claims.


 


6.                                       Harkonen
agrees that he will only direct any inquiries to the Company from any third
parties to any Company employee who, at the time of such inquiry, is employed
at the Company as a Senior Vice President or above.  If any such Company employee receives such an inquiry from a
third party, except as otherwise authorized by Harkonen in writing or as
required by law, the employee shall inform the inquiring party that the
Company’s policy permits him or her to disclose only the following
information:  (a) the facts and dates of
Harkonen’s employment, director and consulting relationship (i.e., CEO,
Chairman of the Board, Company founder and consultant); (b) Harkonen’s base
salary as of the Employment Resignation Date; (c) that Harkonen’s resignation
from the Company resulted from the Company’s decision to change direction in
its leadership; and (d) Harkonen did an excellent job at establishing the
Company’s presence in its industry.


 


7.                                       Harkonen
agrees not to knowingly initiate application or reapplication for employment at
any time with the Company, or any other subsidiary or related company.  In the event Harkonen unknowingly initiates
application or reapplication for a position with such company, such company is
under no obligation to hire Harkonen.


 


8.                                       Except
as expressly set forth herein, it is agreed that each Party is to bear its or
his own attorneys’ fees and costs.


 


9.                                       On
the Board Resignation Date, the Company shall issue a mutually- agreed upon (as
to the changes in Harkonen’s relationship with the Company only) press release.


 


10.                                 In
further consideration of Harkonen’s waiver and releases herein, the Company
also agrees to provide and/or do the following:


 


(a)                                  Upfront
Payment.  The Company agrees that it
will immediately deposit (on the day of the Board Resignation Date) with U.S.
Bank National Association (“Escrow Agent”) a total of $282,500.00 (“Escrow
Amount”) on behalf of the Company.  On
the first business day following the Effective Date, the Escrow Agent shall
distribute to Harkonen the Escrow Amount. 
If, for any reason, Harkonen revokes this Agreement as permitted under
Paragraph 2(d) herein, the Escrow Agent shall immediately distribute the Escrow
Amount to the Company.  The Company and
Harkonen agree to execute any reasonable agreements with the Escrow Agent (such
as that agreement signed by the Parties earlier today) necessary to appoint the
Escrow Agent and to permit the Escrow Agent to hold and disburse the Escrow Amount
to Harkonen or the Company as set forth herein.  The payment will not be subject to any withholdings or other
set-offs of any kind and the Company shall be fully responsible for all fees
and costs owed to the Escrow Agent.  The
Company agrees to timely and accurately report to Harkonen and the government
the payments on Forms 1099 MISC.  The
payment represents part of the


 


3

















 


consideration for
Harkonen’s release of all claims not subject to withholding.


 


(b)                                 Consulting.  From the Employment Resignation Date through
and until June 30, 2004 (the “Consulting Period”), Harkonen has been and
will continue to be reasonably available to assist reasonably and directly the
Company’s Chief Executive Officer during regular business hours at mutually
agreeable pre-scheduled times following advanced written request (including
e-mail) for up to 10 total hours per full month.  Upon the Company’s request and by mutual agreement, Harkonen may
(but is not obligated to) work beyond the 10 hours per full month, at the rate
of $500.00 per hour for each additional hour worked.  During the Consulting Period, Harkonen has been and will continue
to be retained by the Company as an independent contractor and not as an
employee of the Company or in any other capacity.  The Company represents
that its comprehensive general liability insurance policy e applies to
Harkonen’s consulting assistance and that he shall not be responsible to pay
any deductible or retention amount under such insurance policy.  Throughout the Consulting Period and
thereafter, Harkonen will remain free to pursue and engage in any and all
legally permissible activities including, without limitation, other consulting
opportunities and employment, provided that Harkonen does not render any
services as an employee, consultant or otherwise to any individual or entity
that breaches any of the other obligations (to the extent applicable to
him)  otherwise set forth in the
proprietary information agreement described in Paragraph 13 herein.


 


(c)                                  Further
Non-Equity Compensation.  Whether or
not Harkonen is fully or only partially utilized, or not utilized further at
all by the Company as a consultant, the Company will further pay Harkonen a
total of $405,000.00 in nine equal payments of $45,000.00, the first payment of
which shall be paid on the Effective Date and the remaining eight payments of
which shall be paid on the 15th of each month beginning in the month
immediately following the month in which the Effective Date occurs.  These payments will not be subject to any
withholdings or other set-offs of any kind. 
The Company agrees to timely and accurately report to Harkonen and the
government the payments on Forms 1099 MISC.


 


(d)                                 Equity
Compensation.


 


(i)                                     Restricted
Stock.  The Company represents that
that as of the Effective Date, (A) Harkonen has vested in full as to six
hundred ninety thousand (690,000) shares of Common Stock of the Company
purchased pursuant to the Common Stock Purchase Agreement between the Parties
dated as of April 27, 1999 (as amended February 23, 2000)(the
“Restricted Shares”), (B) all restrictions and conditions related to the
Restricted Shares imposed by the Company pursuant to the Common Stock Purchase
Agreement (including, without limitation, rights of first refusal and rights of
repurchase) have terminated and any legends which may have been previously
endorsed on the certificate or certificates evidencing the Restricted Shares
have been removed, and (C) to the extent it has not already done so, the Escrow
Agent named by the Parties in the Joint Escrow Instructions of April 27,
1999 shall be instructed to deliver any such certificate or certificates
evidencing the Restricted Shares to Harkonen or (at his direction) his
authorized representative.


 


(ii)                                  Stock
Options.


 


(A)                              The
Company represents  that as of the
Effective Date, Harkonen holds a total of six option grants to purchase an
aggregate of four hundred twenty thousand (420,000) shares of Common Stock of
the Company (the “Option Shares”) pursuant to the InterMune, Inc. 2000 Equity
Incentive Plan, as amended (the “Plan”). 
The Company further represents that, as of September 12, 2003,
Harkonen has vested in the right to purchase 154,999 Option Shares, as fully
set out on Exhibit A hereto.


 


(B)                                For
purposes of the Plan, Harkonen shall be deemed to continue to be rendering
“Continuous Service” to the Company while he holds himself available in
accordance with the terms of this Agreement during the Consulting Period and
will consequently continue to vest during that period.  The Parties agree that Harkonen shall
continue to vest in his Option Shares otherwise pursuant to the terms set out
in his individual option grants.  To the
extent that Harkonen wishes to exercise “incentive stock options” under Internal
Revenue Code (“Code”) Section 422 (“ISOs”) and receive ISO tax treatment,
the Company acknowledges that he may do so for three (3) months from the
Employment Resignation Date. 
Thereafter, ISOs will be treated as nonstatutory stock options, as required
by the Code.


 


(C)                                Except
as to anything to the contrary contained herein, the other terms and conditions
of the Plan and the option agreements governing the stock options granted to
Harkonen shall continue to apply in full force and effect at all times in the
future, including with respect to the post-termination exercise periods set out
therein.


 


(e)                                  Company
Publications.  At all applicable
times, the Company will continue to list Harkonen as the Company’s founder and
original CEO and Board Chairman in a positive light on all Company website(s)
and outside and internal publications and presentations to the extent and at
such times as the Company


 


4

















 


elects to identify the
Company’s original management and/or its founding and early year operations
history.


 


(f)                                    COBRA
Payment.  If Harkonen elects to
continue medical, dental and vision insurance coverage for him and his eligible
dependants pursuant to COBRA after his Employment Resignation Date, the Company
shall pay and/or reimburse for such COBRA payments from the Employment
Resignation Date through and until the earlier of:  (i) June 30, 2004 or (ii) the date that Harkonen
becomes employed with any third party that provides such insurance coverage.
Harkonen agrees that within two days of the date that he becomes employed with
any third party that provides such insurance coverage, he shall send a written
notice to the Company’s General Counsel of such employment.  If Harkonen is not employed with any third party
at the end of the Consulting Period, he may continue COBRA insurance coverage
for him and his eligible dependants to the extent eligible under COBRA at his
own expense.


 


(g)                                 Equipment.  After the Company has promptly (within five
days of Harkonen’s return of such) downloaded and deleted all Company files and
(if any) its proprietary software (other than that which the Company deems
necessary for Harkonen’s consulting work) on the laptop computer , fax machine,
printer, Palm Pilot, and the Blackberry previously provided for Harkonen’s use,
the Company will return them to Harkonen in full working condition for his
personal use and free and clear ownership along with the related items
previously made available to his therewith (e.g., non-Company proprietary
software and operating system, power cords, manuals).


 


(h)                                 Expense
Reimbursement.  The Company will
reimburse Harkonen for all reasonable and necessary Company-related business
expenses incurred through and until the Board Resignation Date, provided that
Harkonen delivers to the Company any documentation necessary to substantiate
such expenses.  The Company will also,
within 15 days after its receipt of written documentation of Harkonen’s prior
payments, reimburse Harkonen for his financial planning and/or legal services
(the latter above and beyond the Company’s legal cost obligations as outlined
in Paragraphs 5 and 10(b) above) incurred by Harkonen through and until
July 31, 2004, up to a combined maximum total of $50,000.00.


 


11.                                 On
September 25, 2003, which is the date that the Parties executed and
exchanged this Agreement  (the “Board
Resignation Date”), Harkonen agrees to voluntarily resign as a member of the
Board of Directors of the Company, InterMune Europe, Ltd. and InterMune Canada,
Inc. by executing and delivering to the Company’s Secretary (by facsimile
sufficient) three resignation letters regarding his resignation from the
respective three entities and that his resignation from the three entities
shall be in full force and effect on the Board Resignation Date.


 


12.                                 Subject
to Paragraph 10(g) above, Harkonen hereby represents and warrants that he will
make every good faith effort to return to the Company within ten business days
of the Board Resignation Date all Company property including, but not limited
to, personal computers, laptops, fax machines, scanners, copiers,
diskettes/CDs, software programs and data compiled with the use of those
programs, software passwords or codes, cellular phones, credit cards, telephone
charge cards, manuals, building keys and passes, sales brochures, marketing
materials, business or marketing plans, reports, projections, and any and all
other Company property previously or currently held or used by Harkonen that is
or was related to Harkonen’s employment with the Company (the “Company
Property”), except to the extent Harkonen is legally allowed to have and retain
such (e.g., compensation and benefits materials and other materials to which he
has and/or has had access rights). 
Harkonen agrees that if he discovers any other Company Property in his
possession in the future, he will promptly return such materials to the Company
and such voluntary return shall not be considered a breach of this Agreement.


 


13.                                 Harkonen
further agrees and understands that he shall remain bound (to the extent
applicable) by the Proprietary Information and Inventions Agreement he executed
on April 21, 1999.


 


14.                                 This
Agreement is binding on and for the benefit of Harkonen, the Company, the
Company Releasees and the Harkonen Releasees, whenever (and to the fullest
extent) the context requires.  The
Parties agree that the consideration and obligations herein provided by the
Parties are for the benefit of and fully releases all the Company Releasees and
the Harkonen Releasees as to the subject matter covered by the releases.  If any term or condition of this Agreement
is determined to be overbroad or invalid, the remainder of the provisions shall
remain in full force and effect.


 


15.                                 The
execution and delivery of this Agreement or any payments or the performance of
any acts in connection therewith shall not be deemed by either the Company
Releasees or the Harkonen Releasees that any Party at any time performed or
failed to perform any act, which performance or failure to perform was or is in


 


5

















 


violation of any of the
Parties’ rights and/or which performance or failure to perform gives rise to
any valid claim for damages or any other relief whatsoever.  It is the sole purpose of this Agreement to avoid
the expense and vexation of further litigation in compromising the disputed
claims.


 


16.                                 This
Agreement, in combination with all other expressly referenced agreements
therein, to the extent modified herein or not and which are expressly
referenced herein, constitutes the entire agreement and understanding between
the Parties, and supersedes and replaces any contrary other prior agreements or
understandings, whether oral or written, between and among them with respect to
the subject matters of this Agreement.  
The provisions of this Agreement may not be waived, altered, amended, or
repealed in whole or in part except upon the prior written consent of Harkonen
and a majority of the Company’s Board of Directors.


 


17.                                 The
Parties understand and agree that the only payments and benefits Harkonen is
entitled to receive from the Company are expressly set forth or referenced in
this Agreement and that, except for such payments and benefits, Harkonen shall
have no rights to any other such payments and benefits.


 


18.                                 This
Agreement shall be construed and enforced in accordance with the laws of the
State of California.


 


19.                                 The
Parties declare that prior to execution of this Release, the Parties have
consulted with counsel of the Parties’ respective choices.  The Parties further apprised themselves of
sufficient relevant information, through sources of the Parties’ own selection,
in order that the Parties might intelligently exercise the Parties’ own
judgment in deciding whether to execute the Agreement and in deciding on the
contents hereof.  The Parties further
declare this decision is not predicated or influenced by any declarations or
representations of the other Parties other than may be expressly set forth or
referenced in this Agreement.


 


20.                                 If
any suit is brought relating to this Agreement or any alleged breach of it
(with the exception of a claim brought by Harkonen challenging the validity of
this Release under ADEA as amended by OWBPA), the prevailing Party in such suit
shall be entitled to all remedies and reimbursement for costs, expenses and
attorneys’ fees incurred by it.


 


21.                                 The
Parties each represent and warrant that the undersigned have the authority and
capacity to act on behalf of (and to bind) themselves and all who may claim
through them to the terms and conditions of this Agreement.  Each Party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.


 


22.                                 Each
Party agrees to refrain from defamation, libel or slander of the other Party or
tortious interference with the contracts and relationships of the other Party.


 


23.                                 This
Agreement may be executed in counterparts and by facsimile, and each
counterpart and facsimile shall have the same force and effect as an original
and shall constitute an effective, binding agreement on the part of each of the
undersigned, upon receipt of the original or faxed copy of the counterpart
signed by the other Parties and/or the other Party’s legal counsel.


 


24.                                 The
Parties expressly state that each has read this Agreement, with the assistance
of the Parties’ respective counsel of choice, and each understands all of its
terms, and that the preceding paragraphs (and any other agreements expressly
referenced, whether or not modified, herein) recite the sole consideration and
understandings between the Parties regarding the subject matter of this
Agreement.  Harkonen states that he has
been given up to twenty-one (21) days to consider the contents of this
Agreement, if he wishes, that he has been advised to consult legal counsel, and
that he has been advised that he may revoke this Agreement within seven (7)
days of signing it.  The contents of
this Agreement have been explained to the Parties by the Parties’ respective
counsel of choice.  The Parties agree
that each is executing this Agreement voluntarily as of the dates set forth
below with full knowledge of its significance.


 


6

















 


	
  Accepted by:

  	
   

  
	
   

  	
   

  
	
  Dated:
  September 25, 2003

  	
  /s/ W. Scott
  Harkonen

  	
   

  
	
   

  	
  Scott
  Harkonen, an Individual

  
	
   

  	
   

  
	
  Accepted by:

  	
   

  
	
   

  	
   

  
	
  Dated:
  September 25, 2003

  	
  InterMune,
  Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Sharon
  Surrey-Barbari

  	
   

  
	
   

  	
  Sharon
  Surrey-Barbari

  
	
   

  	
  Senior Vice
  President, Finance and Administration and

  Chief Financial Officer

  
					



 


7

















 


EXHIBIT A


 


HARKONEN OPTIONS


 


	
  Original

  Classification

  	
   

  	
  Option

  Price

  	
   

  	
  Original

  Option Shares

  Granted

  	
   

  	
  As of
  9/12/03

  Option shares

  	
   

  	
  As of
  6/03/04

  Option shares

  	
   

  
	
  Vested

  	
   

  	
  Unvested

  	
   

  	
  Vested

  	
   

  	
  Unvested

  	
   

  
	
  Non-qual

  	
   

  	
  $

  	
  25.00

  	
   

  	
  105,500

  	
   

  	
  73,000

  	
   

  	
  32,500

  	
   

  	
  102,500

  	
   

  	
  17,500

  	
   

  
	
  ISO

  	
   

  	
  $

  	
  25.00

  	
   

  	
  14,500

  	
   

  	
  7,000

  	
   

  	
  7,500

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Non-qual

  	
   

  	
  $

  	
  43.60

  	
   

  	
  3,121

  	
   

  	
  74,962

  	
   

  	
  101,917

  	
   

  	
  108,749

  	
   

  	
  71,251

  	
   

  
	
  ISO

  	
   

  	
  $

  	
  43.60

  	
   

  	
  176,879

  	
   

  	
  37

  	
   

  	
  3,084

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Non-qual

  	
   

  	
  $

  	
  18.70

  	
   

  	
  117,161

  	
   

  	
  0

  	
   

  	
  117,161

  	
   

  	
  42,499

  	
   

  	
  77,501

  	
   

  
	
  ISO

  	
   

  	
  $

  	
  18.70

  	
   

  	
  2,839

  	
   

  	
  0

  	
   

  	
  2,839

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  Total shares

  	
   

  	
   

  	
   

  	
  420,000

  	
   

  	
  154,999

  	
   

  	
  265,001

  	
   

  	
  253,748

  	
   

  	
  166,252

  	
   

  



 


1