Exhibit 10.76


 


May 7, 2004


 


VIA PERSONAL DELIVERY


 


Stephen N. Rosenfield


C/o InterMune, Inc.


3280 Bayshore Blvd.


Brisbane, CA 94005


 


Re:                             Separation
and Consulting Agreement


 


Dear Stephen:


 


This letter agreement sets forth the substance of the separation and
consulting arrangement (the “Agreement”) that INTERMUNE,
INC. (the “Company”) is offering to you in connection with your
resignation.


 


1.                                      Separation.  Your last day of employment with the Company
will be May 31, 2004 (the “Separation Date”).


 


2.                                      Accrued
Salary and Paid Time Off.  On the
Separation Date, the Company will pay you all accrued salary, and all accrued
and unused vacation earned through the Separation Date, subject to standard
payroll deductions and withholdings.  You
are entitled to these payments regardless of whether or not you sign this
Agreement.


 


3.                                      Severance Benefits.  Under your offer letter with the
Company, dated March 3, 2000 (the “Offer Letter”), in the event of the
termination of your employment other than for cause, you are entitled to
receive continuation of salary for six (6) months following your termination
date.  In further consideration of the
terms of this Agreement, the Company has decided to extend this benefit by
continuing your 2004 base salary for a total of one (1) year (including the six
(6) months referenced in the previous sentence) after the Separation Date.  Thus, the Company will pay you a total
severance amount equal to Two Hundred Sixty-Nine Thousand Eight Hundred
Sixty-Eight Dollars ($269,868), less standard withholdings (the ”Severance”). 
This Severance will be paid in 24 equal semi-monthly payments over the
one-year period, starting on the Company’s first regularly-scheduled pay
date following the Separation Date (“the Severance Period”).


 


4.                                      Health
Insurance.  In further consideration
of the terms of this Agreement, after the Separation Date, the Company will pay
you the cash equivalent of the premiums necessary 


 
















 


for health, dental
and vision insurance coverage through
the earlier of (a)  the end of the Severance Period, or
(b) your employment start date with another employer that provides group
health, dental and vision insurance. 
Such payments will be in addition to the Severance and will be subject
to standard withholdings.  You agree that
within two days of the date that you become employed with any third party that
provides such health, dental and vision insurance coverage, you shall send a
written notice and make a telephonic communication to the Company’s Senior Vice
President, Human Resources of such employment. 
The payment set forth in this Section 4 is in lieu of the six (6)
months of benefits continuation provided in your Offer Letter.  You may, of course, use the payment set forth
in this Section 4 to purchase COBRA continuation coverage of any component(s)
of the Company’s health, dental and/or vision plans.  To the extent provided by the federal COBRA
law or, if applicable, state insurance laws, and by the Company’s current group
health insurance policies, to the extent that you are not employed by a third
party at the termination of the benefits continuation under this
Section 4, you will be eligible to continue your group health insurance
benefits at your own expense.  Later, you
may be able to convert to an individual policy through the provider of the
Company’s health insurance, if you wish.


 


5.                                      Consulting.  In partial
consideration for the Severance described above, from June 1, 2004,
through and until May 31, 2005  (the ”Consulting Period”), you agree to assist and
provide legal support services to the Company reporting directly and only to
the Chief Executive Officer of the Company (“CEO”), as requested by the CEO,
for eight (8) to ten (10) hours (not including local travel time) per month,
with no additional compensation.  In
addition, to the extent you are called upon to serve as a percipient witness in
any pending litigation against InterMune, the Company will compensate you at
the rate of $250.00 per hour for time spent in that capacity (e.g., in preparing to be deposed or in
deposition).  You will also be reimbursed
for reasonable out-of-pocket expenses paid by you in performance of your
services for the Company (including high-speed Internet and fax lines to your
home), provided that such
expenses are incurred, documented and submitted in accordance with the
Company’s standard expense reimbursement policy (i.e., you will be entitled to reimbursement for
expenses if such expenses are permitted under and submitted pursuant to the
Company’s standard reimbursement policy for employees).  You
agree to perform the services in a timely and professional manner consistent
with industry standards, and at a location, place and time that you and the
Company mutually deem appropriate.  The
Company will make its facilities and equipment available to you when necessary.


 


During
the Consulting Period, you will be retained by the Company as an independent
contractor and not as an employee of the Company or in any other capacity.  You will be solely responsible for all tax
returns and payments required to be filed with or made to any federal, state or
local tax authority with respect to your performance of services under this 


 


2
















 


Section 5, and you agree to indemnify and defend the Company against
any and all such taxes and contributions, including without limitation
penalties and interest.  The Company
represents that its comprehensive general liability insurance policy applies to
your consulting assistance and that you shall not be responsible to pay any deductible
or retention amount under such insurance policy.  Throughout the Consulting Period and
thereafter, you will remain free to pursue and engage in any and all legally
permissible activities, including, without limitation, other consulting
opportunities and employment; provided,
however, you may not render any services as an employee, consultant
or otherwise to any individual or entity that breach any of the other
obligations (to the extent applicable to you) otherwise set forth in the
Proprietary Information and Inventions Agreement described in Section 10
hereof.


 


6.                                      Stock Options.  You were granted options to purchase shares
of the Company’s common stock (“Options”), pursuant to the governing Stock
Option Agreements, the Company’s 1999 Equity Incentive Plan and the Company’s
2000 Equity Incentive Plan (collectively, the “Plan Documents”).  As of your Separation Date, you have a total
of 171,248 vested Options, of which you have early exercised (purchased) 61,115
Options granted to you on March 6, 2000.


 


In
further consideration of your acceptance of this Agreement, as set forth on Exhibit A, the Company will waive any right
to repurchase as to 18,519 unvested Options (ISOs) granted to you on
March 6, 2000, that you have early exercised, and will accelerate the
vesting of those Options to your Separation Date.  Also as set forth on Exhibit A, the Company will accelerate
vesting of (a) 4,815 unvested Options granted to you on March 6, 2000, (b)
5,000 unvested Options (625 ISOs and 4,325 NQs) granted to you on March 6,
2001, and (c) 18,750 (7,112 ISOs and 11,638 NQs) unvested Options granted to
you on March 5, 2003, that you have not exercised as of your Separation
Date.  You agree to return to the
Company, as of your Separation Date, 23,332 vested Options (NQs) granted to you
by the Company on February 12, 2002. 
You understand that all other unvested Options, i.e., 834 ISOs and 15,834 NQs granted to
you by the Company on February 12, 2002, will be forfeited as of your
Separation Date.


 


The
option acceleration and lapse of repurchase right set forth in this
Section 6 are provided in lieu of the six (6) months of continued vesting
provided in your Offer Letter.  Any and
all of your unexercised and vested options must be exercised by 5:00 p.m. on
May 31, 2005, and any options that are not exercised by 5:00 p.m. on the May
31, 2005 shall expire and terminate.  You
acknowledge that any options exercised after the Separation Date may lose
“incentive stock option” status under Internal Revenue Code and agree to consult
your tax advisor concerning the status of such options.


 


3
















 


7.                                      Other Compensation or Benefits.  You acknowledge that, except as expressly
provided in this Agreement, you will not receive any additional compensation,
severance or benefits after the Separation Date.


 


8.                                      Expense
Reimbursements.  Within thirty (30)
days of the Separation Date, you will have submitted your final documented
expense reimbursement statement reflecting all business expenses you incurred
through the Separation Date, if any, for which you seek reimbursement.  The Company will reimburse you for these
expenses pursuant to its regular business practice.


 


9.                                      Return
of Company Property.  By the
Separation Date, you agree to return to the Company all Company documents (and
all copies thereof) and other Company property that you have had in your
possession at any time, including, but not limited to, Company files, notes,
drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information, tangible property (including,
but not limited to, computers), credit cards, entry cards, identification
badges and keys; and, any materials of any kind that contain or embody any
proprietary or confidential information of the Company (and all reproductions
thereof).  Notwithstanding the above, you
and the Company acknowledge that you may retain your archived Company computer
files throughout the Consulting Period. 
You agree to return to the Company all copies of all documents in that
archive, whether in paper or electronic form, immediately at the end of the
Consulting Period.


 


10.                               Proprietary
Information Obligations.  During and
after your employment and your consulting relationship with the Company, you acknowledge
and will abide by all of your continuing obligations under your Proprietary
Information and Inventions Agreement, including your obligation not to use or
disclose any confidential or proprietary information of the Company without
prior written authorization from a duly authorized representative of the
Company.  A copy of your Proprietary
Information and Inventions Agreement is attached hereto as Exhibit B.


 


11.                               Confidentiality.  The provisions of this Agreement will be held
in strictest confidence by you and the Company and will not be publicized or
disclosed in any manner whatsoever; provided, however,
that:  (a) you may disclose this
Agreement in confidence to your immediate family; (b) the parties may disclose
this Agreement in confidence to their respective attorneys, accountants,
auditors, tax preparers and financial advisors; (c) the Company may disclose
this Agreement as necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; and (d) the parties may disclose this
Agreement insofar as such disclosure may be necessary to enforce its terms or
as otherwise required by law.  In
particular, and without limitation, you agree not to disclose the terms of this
Agreement to any current or former Company employee.


 


4
















 


12.                               Nondisparagement.  You agree not to disparage the Company or its
officers, directors, employees, stockholders and agents, in any manner likely
to be harmful to them or their business, business reputation, or personal
reputation.  The Company (through its
officers and directors) agrees not to disparage you in any manner likely to be
harmful to your business reputation, or personal reputation.  Notwithstanding the foregoing, it shall not
violate the provisions of this Section 12 for you or the Company to
respond accurately and fully to any question, inquiry, or request for
information when required by legal process.


 




13.                               Indemnity. 
The Company hereby agrees to hold harmless and indemnify you
to the fullest extent authorized or permitted by the provisions of the
Company’s Bylaws and the Delaware General Corporation Law, as the same may be
amended from time to time, against all losses, liabilities, damages and
expenses (including reasonable attorney fees and costs) (collectively,
“Losses”) that you may suffer as a result of any claims, demands, actions or
other proceedings made or instituted by any party against you and arising out
of or relating to your services as an employee of the Company prior to the date
hereof and as a consultant during the Consulting Period. This indemnity shall
continue after the Effective Date so long as you shall be subject to any
possible claim or threatened, pending or completed action, suit or proceeding,
whether civil, criminal, arbitrational, administrative or investigative, by
reason of your services as an employee or consultant of the Company.  




 


14.                               Cooperation.  You agree to assist the Company in every
proper way with any pending or threatened litigation in which you may have
factual knowledge relevant to the matter. 
You agree to assist the Company by attending meetings, preparing and
signing affidavits, attending informal interviews, providing deposition or
trial testimony, and other similar acts as requested by the Company.  You acknowledge and agree that you are
expected only to provide truthful and accurate information and testimony in
connection with your obligations as set forth in this Section 14.  You further agree to assist the Company with
any transitional matters relating to the termination of your employment by
making yourself available by telephone as reasonably requested by the Company.


 


15.                               Release.


 


(a)                                  Release by You. 
In exchange for the benefits you are receiving under the
terms of this Agreement to which you would not otherwise be entitled, you
hereby generally and completely release the Company and its directors,
officers, employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent or subsidiary entities, insurers, affiliates and assigns
from any and all claims, liabilities and obligations, both known and unknown,
that arise out of or are in any way related to events, acts, conduct, or
omissions prior to or on the date you sign this Agreement.  This general release includes, but is not
limited to: (1) all claims arising 


 


5
















 


out of or in any way related to your employment with the Company or the
termination of that employment, or your consulting arrangement with the
Company; (2) all claims related to your compensation or benefits from the
Company, including salary, bonuses, commissions, vacation pay, expense
reimbursements, severance pay, fringe benefits, stock, stock options or any
other ownership interests in the Company; (3) all claims for breach of
contract, wrongful termination or breach of the implied covenant of good faith
and fair dealing; (4) all tort claims, including claims for fraud, defamation,
emotional distress and discharge in violation of public policy; and (5) all federal,
state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act of
1967 (as amended) (“ADEA”), or the California Fair Employment & Housing
Act.


 


(b)                                 Release by the Company.  In exchange for the consideration
under this Agreement, the Company hereby generally and completely releases you
of and from any and all claims or potential claims, liabilities and
obligations, both known and unknown, arising out of or in any way related to
events, acts, conduct, or omissions that arose within the course and scope of
your employment, prior to or on the date you sign this Agreement and during the
Consulting Period.  Notwithstanding the
release in the preceding sentence, the Company is not waiving its rights to
enforce the provisions of this Agreement.


 


16.                               Waiver
Of Unknown Claims.  In giving its
release, which includes claims that may be unknown to a party to this agreement
at present, each party acknowledges that he or it has read and understand
Section 1542 of the California Civil Code which reads 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.”  Each party expressly waives and relinquishes all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to the party’s release of claims herein, including
but not limited to the party’s release of any unknown or unsuspected claims he
or it may have against the other party.


 


17.                               ADEA
Waiver.  You hereby acknowledge that you are knowingly
and voluntarily waiving and releasing any rights you may have under the ADEA,
and that the consideration given for the foregoing waiver is in addition to
anything of value to which you were already entitled.  You have been advised by this writing, as
required by the ADEA that: (a) your waiver and release do not apply to any
claims that may arise after your signing of this Agreement; (b) you should
consult with an attorney prior to executing this release; (c) you have
twenty-one (21) days within which to consider this release (although you may
choose to voluntarily execute this release earlier); (d) you have seven (7)
days following the execution of 


 


6
















 


this
release to revoke the Agreement; and (e) this Agreement will not be effective until the eighth day
after this Agreement has been signed both by you and by the Company (“Effective
Date”).


 


18.                               Arbitration.  To ensure rapid and economical resolution of
any disputes which may arise under this Agreement (with the sole exception of
disputes involving enforcement of the Proprietary Information and Inventions
Agreement), you and the Company agree that any and all disputes or controversies
of any nature whatsoever, arising from or regarding the interpretation,
performance, enforcement or breach of this Agreement shall be resolved by
confidential, final and binding arbitration (rather than trial by jury or court
or resolution in some other forum).  Any
arbitration proceeding pursuant to this Agreement shall be conducted by
Judicial Arbitration and Mediation Services, Inc. (“JAMS”) in San Francisco,
California, under the then-existing JAMS rules. 
The prevailing party in such arbitration proceedings shall be entitled
to recover from the other party reasonable attorneys’ fees, arbitration
expenses and other recoverable costs incurred in connection with such
arbitration proceeding.  Nothing in this
Agreement shall prevent either party from seeking to obtain injunctive relief
in court to preserve the status quo or prevent irreparable harm pending the
conclusion of any such arbitration.


 


19.                               Miscellaneous.  This Agreement, including Exhibits A and B,
constitutes the complete, final and exclusive embodiment of the entire
agreement between you and the Company with regard to this subject matter.  By way of clarification, this Agreement
supersedes your Offer Letter and all terms and conditions thereof.  This Agreement shall not, however, supercede
your Indemnity Agreement with the Company, and such Indemnity Agreement shall
continue in full force and effect pursuant to the terms and conditions
thereof.  This Agreement is entered into
without reliance on any promise or representation, written or oral, other than
those expressly contained herein, and it supersedes any other such promises,
warranties or representations.  This
Agreement may not be modified or amended except in a writing signed by both you
and a duly authorized officer of the Company. 
This Agreement will bind the heirs, personal representatives, successors
and assigns of both you and the Company, and inure to the benefit of you and
the Company, their heirs, successors and assigns.  If any provision of this Agreement is
determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Agreement and the
provision in question will be modified by the court so as to be rendered
enforceable.  This Agreement will be
deemed to have been entered into and will be construed and enforced in
accordance with the laws of the State of California as applied to contracts
made and to be performed entirely within California.


 


7
















 


If
this Agreement is acceptable to you, please sign below and return the originals
of both to me.


 


I wish you good luck in your future endeavors.


 


Sincerely,


 


INTERMUNE, INC.


 


	
  By:  

  	
   /s/ Dan Welch

  	
   

  	
   

  
	
   

  	
  Dan
  Welch

  	
   

  
	
   

  	
  Chief
  Executive Officer

  	
   

  
	
   

  	
   

  
	
  Date:  

  	
   5-7-04

  	
   

  	
   

  
						



 


 


Exhibit A – Stock
Options Chart


 


Exhibit B -
Proprietary Information and Inventions Agreement


 


ACCEPTED AND AGREED:


 


	
  /s/ Stephen N. Rosenfield

  	
   

  	
   

  
	
  Stephen N. Rosenfield

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  5/7/04

  	
   

  	
   

  
					



 


8
















 


EXHIBIT A


 


OPTIONS


 


	
  Option
  Date

  	
   

  	
  ISO or NQ

  	
   

  	
  # Options

  Vested as of

  5/31/2004

  	
   

  	
  # Options

  Accelerated as

  of 5/31/2004

  	
   

  	
  Exercise Price

  ($)

  	
   

  
	
  3/6/2000

  	
   

  	
  ISO

  	
   

  	
  92,951

  	
   

  	
  18,519

  	
   

  	
  4.5000

  	
   

  
	
  3/6/2000

  	
   

  	
  NQ

  	
   

  	
  24,075

  	
   

  	
  4,815

  	
   

  	
  4.5000

  	
   

  
	
  3/6/2001

  	
   

  	
  ISO

  	
   

  	
  0

  	
   

  	
  625

  	
   

  	
  25.0000

  	
   

  
	
  3/6/2001

  	
   

  	
  NQ

  	
   

  	
  25,000

  	
   

  	
  4,375

  	
   

  	
  25.0000

  	
   

  
	
  2/12/2002

  	
   

  	
  ISO

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  43.6600

  	
   

  
	
  2/12/2002

  	
   

  	
  NQ

  	
   

  	
  23,332

  	
   

  	
  0

  	
   

  	
  43.6600

  	
   

  
	
  3/5/2003

  	
   

  	
  ISO

  	
   

  	
  0

  	
   

  	
  7,112

  	
   

  	
  18.7000

  	
   

  
	
  3/5/2003

  	
   

  	
  NQ

  	
   

  	
  6,250

  	
   

  	
  11,638

  	
   

  	
  18.7000

  	
   

  
	
   

  	
   

  	
  TOTALS:

  	
   

  	
  171,248

  	
   

  	
  47,084

  	
   

  	
   

  	
   

  



 


9
















 


EXHIBIT B


PROPRIETARY INFORMATION AND INVENTIONS
AGREEMENT


 


10
















 


INTERMUNE
PHARMACEUTICALS, INC


 


EMPLOYEE
PROPRIETARY INFORMATION


AND
INVENTIONS  AGREEMENT


 


In consideration of my employment or continued employment by INTERMUNE PHARMACEUTICALS, INC, (the “Company”), and the compensation now and
hereafter paid to me, I hereby agree as follows:


 


1.                                      NONDISCLOSURE


 


1.1                        Recognition of Company’s
Rights; Nondisclosure. At all
times during my employment and thereafter, I will hold in strictest confidence
and will not disclose, use, lecture upon or publish any of the Company’s
Proprietary Information (defined below), except as such disclosure, use or
publication may be required in connection with my work for the Company, or
unless an officer of the Company expressly authorizes such in writing.  I will obtain Company’s written approval
before publishing or submitting for publication any material (written, verbal,
or otherwise) that relates to my work at Company and/or incorporates any
Proprietary Information. I hereby assign to the Company any rights I may have
or acquire in such Proprietary Information and recognize that all Proprietary
Information shall be the sole property of the Company and its assigns.


 


1.2                        Proprietary Information.  The
term “Proprietary Information”
shall mean any and all confidential and/or proprietary knowledge, data or
information of the Company.  By way of
illustration but not limitation, “Proprietary
Information”  includes (a)
trade secrets, inventions, mask works, ideas, processes, formulas, source and
object codes, data, programs, other works of authorship, know-how,
improvements, discoveries, developments, designs and techniques (hereinafter
collectively referred to as “Inventions”);
and (b) information regarding plans for research, development, new products,
marketing and selling, business plans, budgets and unpublished financial
statements, licenses, prices and costs, suppliers and customers; and (c)
information regarding the skills and compensation of other employees of the
Company.  Notwithstanding the foregoing,
it is understood that, at all such times, I am free to use information which is
generally known in the trade or industry, which is not gained as result of a
breach of this Agreement, and my own, skill, knowledge, know-how and experience
to whatever extent and in whichever way I wish.


 


1.3                       Third Party Information.  I
understand, in addition, that the Company has received and in the future will
receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty
on the Company’s part to maintain the confidentiality of such information and
to use it only for certain limited purposes. 
During the term of my employment and thereafter, I will hold Third Party
Information in the strictest confidence and will not disclose to anyone (other
than Company personnel who need to know such information in connection with
their work for the Company) or use, except in connection with my work for the
Company, Third Party Information unless expressly authorized by an officer of
the Company in writing.


 


1.4                       No Improper Use of
Information of Prior Employers and Others. 
During my employment
by the Company I will not improperly use or disclose any confidential information
or trade secrets, if any, of any former employer or any other person to whom I
have an obligation of confidentiality, and I will not bring onto the premises
of the Company any unpublished documents or any property belonging to any
former employer or any other person to whom I have an obligation of
confidentiality unless consented to in writing by that former employer or
person.  I will use in the performance of
my duties only information which is generally known and used by persons with
training and experience comparable to my own, which is common knowledge in the
industry or otherwise legally in the public domain, or which is otherwise
provided or developed by the Company.


 


2.                                      ASSIGNMENT
OF INVENTIONS.


 


2.1                               Proprietary Rights, The term “Proprietary
Rights” shall mean all trade secret, patent, copyright, mask work
and other intellectual property rights throughout the world.


 


2.2                              Prior Inventions. 
Inventions, if any, patented or unpatented, which I made prior


 


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to the commencement of my employment with the Company are excluded from
the scope of this Agreement.  To preclude
any possible uncertainty, I have set forth on Exhibit
B (Previous Inventions) attached hereto a complete list of all
Inventions that I have, alone or jointly with others, conceived, developed or
reduced to practice or caused to be conceived, developed or reduced to practice
prior to the commencement of my employment with the Company, that I consider to
be my property or the property of third parties and that I wish to have
excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”).  If disclosure of any such Prior Invention
would cause me to violate any prior confidentiality agreement, I understand
that I am not to list such Prior Inventions in Exhibit
B but am only to disclose a cursory name for each such invention, a
listing of the party(ies) to whom it belongs and the
fact that full disclosure as to such inventions has not been made for that reason.
A space is provided on Exhibit B for
such purpose.  If no such disclosure is
attached, I represent that there are no Prior Inventions.  If, in the course of my employment with the
Company, I incorporate a Prior Invention into a Company product, process or
machine, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. 
Notwithstanding the foregoing, I agree that I will not incorporate, or
permit to be incorporated.  Prior Inventions in any Company Inventions without the Company’s
prior written consent.  




 


2.3                                  Assignment of Inventions. 
Subject to Sections 2.4, and 2,6, I hereby assign and agree to assign in
the future (when any such Inventions or Proprietary Rights are first reduced to
practice or first fixed in a tangible medium, as applicable) to the Company all
my right, title and interest in and to any and all Inventions (and all
Proprietary Rights with respect thereto) whether or not patentable or
registrable under copyright or similar statutes, made or conceived or reduced
to practice or learned by me, either alone or jointly with others, during the
period of my employment with the Company. 
Inventions assigned to the Company, or to a third party as directed by
the Company pursuant to this Section 2, are hereinafter referred to as “Company Inventions.”


 


2.4                        Nonassignable  Inventions.  This Agreement does not apply to an Invention
which qualifies fully as a nonassignable Invention under Section 2870 of
the California Labor Code (hereinafter “Section 2870”), I have reviewed the notification on Exhibit A (Limited Exclusion Notification)
and agree that my signature acknowledges receipt of the notification.


 


2.5                            Obligation to Keep Company
Informed.  During the period of my employment and for
six (6) months after termination of my employment with the Company, I will
promptly disclose to the Company fully and in writing all Inventions authored,
conceived or reduced to practice by me, either alone or jointly with others. In
addition, I will promptly disclose to the Company all patent applications filed
by me or on my behalf within a year after termination of employment.  At the time of each such disclosure, I will
advise the Company in writing of any Inventions that I believe fully qualify
for protection under Section 2870; and I will at that time provide to the
Company in writing all evidence necessary to substantiate that belief.  The Company will keep in confidence and will
not use for any purpose or disclose to third parties without my consent any
confidential information disclosed in writing to the Company pursuant to this
Agreement relating to Inventions that qualify fully for protection under the
provisions of Section 2870. I will preserve the confidentiality of any
Invention that does not fully qualify for protection under Section 2870.


 


2.6                            Government or Third Party.  I also
agree to assign all my right, title and interest in and to any particular
Company Invention to a third party, including without limitation the United
States, as directed by the Company.


 


2.7                            Works for Hire.  I
acknowledge that all original works of authorship which are made by me (solely
or jointly with others) within the scope of my employment and which are
protectable by copyright are “works made for hire,” pursuant to United States
Copyright Act (17 U.S.C., Section 101).


 


2.8                            Enforcement of Proprietary
Rights.  I will assist the Company in every proper way
to obtain, and from time to time enforce, United States and foreign Proprietary
Rights relating to Company Inventions in any and all countries.  To that end I will execute, verify and


 


2
















 


deliver such documents and perform such other acts (including appearances as a
witness) as the Company may reasonably request for use in applying for,
obtaining, perfecting, evidencing, sustaining and enforcing such Proprietary
Rights and the assignment thereof. In addition, I will execute, verify and
deliver assignments of such Proprietary Rights to the Company or its
designee.  My obligation to assist the
Company with respect to Proprietary Rights relating to such Company Inventions
in any and all countries shall continue beyond the termination of my
employment, but the Company shall compensate me at a reasonable rate after my
termination for the time actually spent by me at the Company’s request on such
assistance.


 


In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection with the
actions specified in the preceding paragraph, I hereby irrevocably designate
and appoint the Company and its duly authorized officers and agents as my agent
and attorney in fact, which appointment is coupled with an interest, to act for
and in my behalf to execute, verify and file any such documents and to do all
other lawfully permitted acts to further the purposes of the preceding
paragraph with the same legal force and effect as if executed by me.  I hereby waive and quitclaim to the Company
any and all claims, of any nature whatsoever, which I now or may hereafter have
for infringement of any Proprietary Rights assigned hereunder to the Company.


 


3.                                  RECORDS.  I
agree to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that may be required by the Company)
of all Proprietary Information developed by me and all Inventions made by me
during the period of my employment at the Company, which records shall be
available to and remain the sole property of the Company at all times.


 


4.                                  ADDITIONAL ACTIVITIES.  I
agree that during the period of my employment by the Company I will not,
without the Company’s express written consent, engage in any employment or
business activity which is competitive with, or would otherwise conflict with,
my employment by the Company, I agree further that for the period of my
employment by the Company and for one (1) year after the date of termination of
my employment by the Company I will not induce any employee of the Company to
leave the employ of the Company.


 


5.                                       NO CONFLICTING OBLIGATION.  I
represent that my performance of all the terms of this Agreement and as an
employee of the Company does not and will not breach any agreement to keep in
confidence information acquired by me in confidence or in trust prior to my
employment by the Company.  I have not
entered into, and I agree I will not enter into, any agreement either written
or oral in conflict herewith.


 


6.                                     RETURN OF COMPANY DOCUMENTS.  When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and documents, together with all copies thereof, and any
other material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company.  I further agree that any property situated on
the Company’s premises and owned by the Company, including disks and other
storage media, filing cabinets or other work areas, is subject to inspection by
Company personnel at any time with or without notice.  Prior to leaving, I will cooperate with the
Company in completing and signing the Company’s termination statement.


 


7.                                  LEGAL AND EQUITABLE
REMEDIES.  Because
my services are personal and unique and because I may have access to and become
acquainted with the Proprietary Information of the Company, the Company shall
have the right to enforce this Agreement and any of its provisions by
injunction, specific performance or other equitable relief, without bond and
without prejudice to any other rights and remedies that the Company may have
for a breach of this Agreement.


 


8.                                  NOTICES.  Any
notices required or permitted hereunder shall be given to the appropriate party
at the address specified below or at such other address as the party shall
specify in writing.  Such notice shall be
deemed given upon personal delivery to the appropriate address or if sent by
certified or registered mail, three (3) days after the date of mailing.


 


9.                                  NOTIFICATION OF NEW EMPLOYER.  In the event that I leave the employ of the
Company,


 


3
















 


I
hereby consent to the notification of my new employer of my rights and
obligations under this Agreement.


 


10.1                      Governing Law; Consent to
Personal Jurisdiction.  This Agreement will be governed by and
construed according to the laws of the State of California,
as such laws are applied to agreements entered into and to be performed
entirely within California between California residents.  I hereby expressly consent to the personal
jurisdiction of the state and federal courts located in Santa Clara County,
California for any lawsuit filed there against me by Company arising from or
related to this Agreement.


 


10.2                      Severability.  In
case any one or more of the provisions contained in this Agreement shall, for
any reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect the other
provisions of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.  If moreover, any one or more of
the provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, it
shall be construed by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.


 


10.3                      Successors and Assigns.  This
Agreement will be binding upon my heirs, executors, administrators and other
legal representatives and will be for the benefit of the Company, its
successors, and its assigns.


 


10.4                     Survival.  The
provisions of this Agreement shall survive the termination of my employment and
the assignment of this Agreement by the Company to any successor in interest or
other assignee.


 


10.5                      Employment.  I
agree and understand that nothing in this Agreement shall confer any right with
respect to continuation of employment by the Company, nor shall it interfere in
any way with my right or the Company’s right to terminate my employment at any
time, with or without cause.


 


10.6                      Waiver.  No waiver by the  Company of any breach of this Agreement shall
be a waiver of any preceding or succeeding breach.  No waiver by the Company of any right under
this Agreement shall be construed as a waiver of any other right.  The Company shall not be required to give
notice to enforce strict adherence to all terms of this Agreement.


 


10.7                      Entire Agreement.  The obligations pursuant
to Sections 1 and 2 of this Agreement shall apply to any time during which I
was previously employed, or am in the future employed, by the Company as a
consultant if no other agreement governs nondisclosure and assignment of
inventions during such period.  This
Agreement is the final, complete and exclusive agreement of the parties with
respect to the subject matter hereof and supersedes and merges all prior
discussions between us.  No modification
of or amendment to this Agreement, nor any waiver of any rights under this
Agreement, will be effective unless in writing and signed by the party to be
charged.  Any subsequent change or
changes in my duties, salary or compensation will not affect the validity or
scope of this Agreement.


 


4
















 


This Agreement shall be
effective as of the first day of my employment with the Company, namely;
March 4, 2000.


 


I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND
ITS TERMS.  I HAVE COMPLETELY FILLED OUT
EXHIBIT B TO THIS AGREEMENT.


 


 


	
  /s/ Stephen N. Rosenfield

  	
   

  
	
  (Signature)

  	
   

  
	
   

  	
   

  
	
  Stephen N. Rosenfield

  	
   

  
	
  (Printed Name)

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  284 Wawona Street

  	
   

  
	
   

  	
  San Francisco, CA 94127

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
  3/4/00

  	
   

  	
   

  
					



 


 


ACCEPTED AND AGREED TO: 


 


INTERMUNE PHARMACEUTICALS, INC.


 




	
  By:

  	
  /s/ M. Ono  

  	
   

  
	
  Title:

  	
  Senior Manager, HR

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  3294
  West Bayshore Road

  Palo Alto, CA 94303

  
	
   

  	
   

  
	
  Dated:

  	
  3/4/00

  	
   

  
								





 
















 


EXHIBIT A


 


LIMITED
EXCLUSION NOTIFICATION


 


THIS IS TO NOTIFY you in accordance with
Section 2872 of the California Labor Code that the foregoing Agreement
between you and the Company does not require you to assign or offer to assign
to the Company any invention that you developed entirely on your own time
without using the Company’s equipment, supplies, facilities or trade secret
information except for those inventions that either:


 


1.                                 Relate at the time of conception or reduction
to practice of the invention to the Company’s business,
or actual or demonstrably anticipated research or development of the Company;


 


2.                                 Result from any work performed by you for the
Company.


 


To the extent a provision in
the foregoing Agreement purports to require you to assign an invention
otherwise excluded from the preceding paragraph, the provision is against the
public policy of this state and is unenforceable.


 


This limited exclusion does not apply to any patent
or invention covered by a contract between the Company and the United States or
any of its agencies requiring full title to such patent or invention to be in
the United States.


 


I ACKNOWLEDGE RECEIPT of a  copy
of this notification.


 


	
   

  	
  By:

  	
  /s/ Stephen N. Rosenfield

  
	
   

  	
  (PRINTED NAME OF EMPLOYEE)

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  3/4/00

  
	
   

  	
   

  
	
  WITNESSED BY:

  	
   

  
	
   

  	
   

  
	
  /s/ [ILLEGIBLE]

  	
   

  
	
  (PRINTED NAME OF REPRESENTATIVE)

  	
   

  
				



 


 


A-1
















 


EXHIBIT B


 


	
  TO:

  	
  INTERMUNE  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
  FROM:

  	
  Stephen N. Rosenfield

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
  3/4/00

  	
   

  



 


SUBJECT: 
Previous Inventions


 


1.                                       Except as listed in Section 2 below, the
following is a complete list of all inventions or improvements relevant to the
subject matter of my employment by INTERMUNE
PHARMACEUTICALS, INC. (the “Company”)
that have been made or conceived or first reduced to practice by me alone or
jointly with others prior to my engagement by the Company:


 


ý           No inventions or improvements.


 


o           See below:


 


 


 


o                      Additional sheets attached.


 


2.                                         Due to a prior confidentiality agreement, I
cannot complete the disclosure under Section 1 above with respect to
inventions or improvements generally listed below, the proprietary rights and
duty of confidentiality with respect to which I owe to the following party(ies):


 


	
   

  	
   

  	
  Invention or Improvement

  	
   

  	
  Party(ies)

  	
   

  	
  Relationship

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


o                                    Additional
sheets attached.