EXHIBIT
10.81


 


AMENDMENT
TO RIGHTS AGREEMENT


BETWEEN
INTERMUNE, INC. AND


MELLON
INVESTOR SERVICES LLC


 


THIS
AMENDMENT TO RIGHTS AGREEMENT (the “Amendment”) is
made this 29th day of October 2004, by and between INTERMUNE, INC., a Delaware corporation (the “Company”),
and MELLON INVESTOR SERVICES LLC (the
“Rights Agent”).


 


R  E  C  I  T  A
L  S


 


WHEREAS,
Warburg, Pincus Equity Partners, L.P., a Delaware limited partnership (“WPEP”),
Warburg, Pincus Netherlands Equity Partners I, C.V., a Netherlands limited
partnership (“WPEP I”), Warburg, Pincus Netherlands Equity Partners II,
C.V., a Netherlands limited partnership (“WPEP II”), Warburg, Pincus
Netherlands Equity Partners III, C.V., a Netherlands limited partnership (“WPEP
III” and, together with WPEP, WPEP I and WPEP II, the “Purchasers”),
Warburg Pincus & Co., a New York general partnership and the sole general
partner of each of the Purchasers (“WP”), and Warburg Pincus LLC, a New
York limited liability company and the sole manager of each of the Purchasers (“WP
LLC” and, collectively, WP LLC, WP and the Purchasers are referred to
herein as, the “Purchaser Group”) and the Company entered into a
Standstill Agreement, dated April 28, 2004, (the “Original Standstill Agreement”),
relating to the potential acquisitions by the Purchaser Group of shares of
common stock, par value $0.001 per share, of the Company (the “Common Stock”);


 


WHEREAS,
the Purchaser Group and the Company entered into an Amended
and Restated Standstill Agreement, dated October 29, 2004 (the “Amended and
Restated Standstill Agreement”), which amends and restates the Original
Standstill Agreement in its entirety;


 


WHEREAS,
the Company and the Rights Agent are parties to that certain Rights Agreement,
dated as of July 17, 2001 (the “Rights Agreement”);


 


WHEREAS,
the Company desires to amend the Rights Agreement to facilitate the Purchaser
Group’s acquisition of additional shares of the Common Stock in accordance with
the terms of the Amended and Restated Standstill Agreement; and


 


WHEREAS,
the Board of Directors of the Company has approved this Amendment and
authorized its appropriate officers to execute and deliver the same to the
Rights Agent.


 


NOW,
THEREFORE, in accordance with the procedures for amendment of
the Rights Agreement set forth in Section 27 thereof, and in consideration of
the foregoing and the mutual agreements herein set forth, the parties hereby
agree as follows:


 


1.    Capitalized terms that are not otherwise
defined herein shall have the meanings ascribed to them in the Rights
Agreement.


 


2.    Section 1 of the Rights
Agreement is restated in its entirety as follows:


 





















 


SECTION
1.         CERTAIN DEFINITIONS.  For purposes of this Agreement, the following
terms have the meanings indicated:


 


(a)           “Acquiring Person”
shall mean any Person (as such term is hereinafter defined) who or which,
together with all Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 20% or more of the Common Shares then outstanding.  Notwithstanding the foregoing, (A) the term
Acquiring Person shall not include (i) the Company, (ii) any Subsidiary (as
such term is hereinafter defined) of the Company, (iii) any employee benefit or
compensation plan of the Company or any Subsidiary of the Company, (iv) any
entity holding Common Shares for or pursuant to the terms of any such employee
benefit or compensation plan of the Company or any Subsidiary of the Company or
(v) an Excluded Stockholder (as such term is hereinafter defined) and (B) no
Person shall become an “Acquiring Person” either (x) as the result of an
acquisition of Common Shares by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of shares beneficially
owned by such Person to 20% or more (25% or more with respect to an Excluded
Stockholder) of the Common Shares then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 20%
or more (25% or more with respect to an Excluded Stockholder) of the Common
Shares then outstanding by reason of share purchases by the Company and shall,
following written notice from, or public disclosure by the Company of such
share purchases by the Company, become the Beneficial Owner of any additional
Common Shares without the prior consent of the Company and shall then
Beneficially Own more than 20% (25% with respect to an Excluded Stockholder) of
the Common Shares then outstanding, then such Person shall be deemed to be an “Acquiring
Person,” or (y) if the Board of Directors determines in good faith that a
Person who would otherwise be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this paragraph (a), has become such inadvertently, and
such Person divests, as promptly as practicable (as determined in good faith by
the Board of Directors), following receipt of written notice from the Company
of such event, of Beneficial Ownership of a sufficient number of Common Shares
so that such Person would no longer be an Acquiring Person, as defined pursuant
to the foregoing provisions of this paragraph (a), then such Person shall not
be deemed to be an “Acquiring Person” for any purposes of this Agreement; provided, however, that if such Person shall again become
the Beneficial Owner of 20% or more (25% or more with respect to an Excluded
Stockholder) of the Common Shares then outstanding, such Person shall be deemed
an “Acquiring Person,” subject to the exceptions set forth in this
Section 1(a).


 


(b)           “Affiliate” and “Associate” shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), as in effect
on the date of this Agreement; provided, however,
that the limited partners of a limited partnership shall not be deemed to be
Associates of such limited partnership solely by virtue of their limited
partnership interests.


 


(c)           A Person shall be
deemed the “Beneficial Owner” of and shall be
deemed to “beneficially own” any securities:


 


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(i)           which such Person
or any of such Person’s Affiliates or Associates is deemed to beneficially own,
within the meaning of Rule 13d-3 of the General Rules and Regulations under the
Exchange Act as in effect on the date of this Rights Agreement;


 


(ii)          which such Person or
any of such Person’s Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights (other than these Rights),
warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to beneficially
own, securities tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person’s Affiliates or Associates until
such tendered securities are accepted for purchase or exchange; or (B) the
right to vote pursuant to any agreement, arrangement or understanding; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in response to a public proxy
or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act and (2) is
not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or


 


(iii)         which are
beneficially owned, directly or indirectly, by any other Person with which such
Person or any of such Person’s Affiliates or Associates has any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities) for the purpose of acquiring, holding, voting (except
to the extent contemplated by the proviso to Section 1(c)(ii)(B) hereof)
or disposing of any securities of the Company.


 


Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase, “then outstanding,” when used
with reference to a Person’s Beneficial Ownership of securities of the Company,
shall mean the number of such securities then issued and outstanding together
with the number of such securities not then actually issued and outstanding
which such Person would be deemed to own beneficially hereunder.


 


(d)           “Business Day”
shall mean any day other than a Saturday, a Sunday, or a day on which banking
institutions in the States of California or New Jersey are authorized or
obligated by law or executive order to close.


 


(e)           “Close of Business”
on any given date shall mean 5:00 p.m., Pacific Time, on such date; provided, however, that if such date is not a Business Day it
shall mean 5:00 p.m., Pacific Time, on the next succeeding Business Day.


 


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(f)           “Common Shares”
shall mean the shares of common stock, par value $.001 per share, of the
Company; provided, however, that, “Common Shares,”
when used in this Agreement in connection with a specific reference to any
Person other than the Company, shall mean the capital stock (or equity
interest) with the greatest voting power of such other Person or, if such other
Person is a Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.


 


(g)          “Distribution Date”
shall have the meaning set forth in Section 3 hereof.


 


(h)          “Excluded Stockholder” shall mean the
Purchaser Group (including its Affiliates and Associates); provided, however,
that the Purchaser Group (including its Affiliates and Associates) shall not be
an Excluded Stockholder if the Purchaser Group (including its Affiliates and
Associates) becomes the Beneficial Owner of more than 25% of the Common Shares
then outstanding.


 


(i)           “Final Expiration Date”
shall have the meaning set forth in Section 7 hereof.


 


(j)           “Interested Stockholder”
shall mean any Acquiring Person or any Affiliate or Associate of an Acquiring
Person or any other Person in which any such Acquiring Person, Affiliate or
Associate has an interest, or any other Person acting directly or indirectly on
behalf of or in concert with any such Acquiring Person, Affiliate or Associate.


 


(k)          “Person” shall mean
any individual, firm, corporation, limited liability company or other entity,
and shall include any successor (by merger or otherwise) of such entity.


 


(l)           “Preferred Shares”
shall mean shares of Series A Junior Participating Preferred Stock, par value
$0.001 per share, of the Company having the designations and the powers,
preferences and rights, and the qualifications, limitations and restrictions
set forth in the Form of Certificate of Designation attached to this Agreement
as Exhibit A.


 


(m)         “Purchase Price”
shall have the meaning set forth in Section 7(b) hereof.


 


(n)          “Redemption Date”
shall have the meaning set forth in Section 7 hereof.


 


(o)           “Shares Acquisition Date”
shall mean the first date of public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such provided, however that, if such
Person is determined not to have become an Acquiring Person pursuant to clause
(y) of Subsection 1(a)(B) hereof, then no Shares Acquisition Date shall be
deemed to have occurred.


 


(p)           “Subsidiary” of any
Person shall mean any corporation or other entity of which a majority of the
voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by such Person.


 


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(q)           “Transaction” shall
mean any merger, consolidation or sale of assets described in
Section 13(a) hereof or any acquisition of Common Shares which would
result in a Person becoming an Acquiring Person or a Principal Party (as such
term is hereinafter defined).


 


(r)           “Transaction Person”
with respect to a Transaction shall mean (i) any Person who (x) is or will
become an Acquiring Person or a Principal Party (as such term is hereinafter
defined) if the Transaction were to be consummated and (y) directly or indirectly
proposed or nominated a director of the Company which director is in office at
the time of consideration of the Transaction, or (ii) an Affiliate or Associate
of such a Person.


 


3.    The Rights Agreement, as amended by this
Amendment, shall remain in full force and effect in accordance with its terms.


 


4.    All the covenants and provisions of this
Amendment by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.


 


5.    If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.


 


6.    This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes
shall be governed by, and construed in accordance with, the laws of such State
applicable to contracts to be made and performed entirely within such State;
provided, however, that all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.


 


7.    This Amendment may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.


 


8.    The Company hereby certifies to the Rights
Agent that this Amendment is in compliance with Section 27 of the Rights
Agreement.


 


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IN
WITNESS WHEREOF, the parties herein have caused this
Amendment to be duly executed and attested, all as of the date and year first
above written.


 


	
  ATTEST:

  	
  INTERMUNE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Robin Steele

  	
   

  	
  /s/ Daniel Welch

  	
   

  
	
  Robin Steele

  	
  Daniel G. Welch

  
	
  Senior Vice President, General Counsel and

  Corporate Secretary

  	
  Chief Executive Officer and President

  
	
   

  	
   

  
	
   

  	
   

  
	
  ATTEST:

  	
  MELLON INVESTOR SERVICES LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Asa P. Drew

  	
   

  	
  By:

  	
  /s/ Joseph Thatcher

  	
   

  
	
   

  	
  Asa P. Drew

  	
   

  	
   

  	
  Joseph W. Thatcher

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
  Title:

  	
  Vice President

  	
   

  
								



 


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