Exhibit 10.74


 


Aralast Promotion Agreement


 


Parties


 


This Aralast Promotion
Agreement (the “Agreement”) is effective March 26, 2004, (the “Effective Date”)
by and between Baxter Healthcare Corporation, with offices at One Baxter Way,
Westlake Village, California 91362 (“Baxter”) and InterMune, Inc. with offices
at 3280 Bayshore Blvd.,  Brisbane, California 94005 (“InterMune”).


 


Recitals


 


WHEREAS, Baxter is engaged in the manufacture,
promotion and sale of a plasma-derived Alpha1 Proteinase Inhibitor, a biological
pharmaceutical with the trade name Aralast, (“Aralast”), which is used to treat
certain pulmonology indications; and


 


WHEREAS,
InterMune has a direct sales force which specializes in the sale of biological
pharmaceuticals, including those used to treat pulmonology indications, and who
directly call on pulmonologists; and


 


WHEREAS, InterMune has represented to Baxter
that it has the capability, technical ability, expertise and experienced sales
force to promote Aralast and achieve Baxter’s sales targets; and


 


WHEREAS, Baxter and InterMune desire to enter
into this Agreement for InterMune  to
promote  Aralast  in the United States.


 


Now Therefore It Is Hereby Agreed As Follows:


 


1.             Promotion Services.


 


(a)                    During
the term of this Agreement, Baxter grants to InterMune the [*] right to promote
Aralast within the Territory (as defined below) in accordance with the terms,
covenants and conditions hereof.  The
“Territory” shall include the 50 states of the United States and the District
of Columbia, but excludes the territories, possessions and commonwealths of the
United States.


 


(b)                   InterMune
accepts such appointment and agrees to promote Aralast for Baxter on the terms
and subject to the conditions described in this Agreement.  InterMune shall have no right to assign or
sublicense the rights granted hereunder (except as set forth in Section 26), or
to appoint agents or co-promoters to promote Aralast or to satisfy its
obligations under this Agreement.


 












[*] CERTAIN INFORMATION IN THIS
EXHIBIT HAS BEEN OMITTED AND FILED SEPERATELY WITH THE COMMISSION.  CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS


 


1

















 


(c)                    During
the term of the Agreement, Baxter grants InterMune the right to use trademarks,
trade names, servicemarks and logos belonging to Baxter that directly relate to
Aralast (the “Aralast Trademarks”) for the purpose of promoting Aralast.  The Aralast Trademarks are set forth in
Attachment A.  The right to use the
Aralast Trademarks is subject to Baxter’s guidelines (attached as Attachment B
hereto), as may be amended from time to time; [*]  All use by InterMune shall inure to the benefit of Baxter, and
InterMune agrees not to contest Baxter’s rights in such Aralast
Trademarks.  InterMune further agrees
not to use any trademarks, trade names, servicemarks, logos or designs that
would be confusingly similar to the Aralast Trademarks.  InterMune does not, and shall not, acquire
any rights whatever in or to such trademarks or trade names.  Baxter, by this Agreement, does not make any
claim to nor does it purport to authorize any use of or grant any rights in
trademarks and trade names belonging to others.  The packaging and labeling for Aralast shall not bear InterMune’s
trademark. InterMune agrees to
immediately cease the use of Aralast Trademarks upon the expiration of the
Agreement, and shall return all marketing and other materials bearing such
Aralast Trademarks to Baxter upon such expiration.


 


(d)                   Baxter
has the sole right and responsibility for establishing and modifying the terms
and conditions for Aralast sales, including the selling price, and any other
terms of sale and distribution. Baxter shall continue to promote Aralast and
[*] prompt written notice upon [*] receipt of such notice, the parties will
promptly meet to negotiate in good faith a commercially reasonable [*] set
forth in Sections [*]


 


(e)                    [*]
at any time upon 60-days prior written notice to [*] as further set forth in
Section [*]


 


2.             Sales Scope, [*]


 


(a)                    Sales
Force.  At all times during the term
of the Agreement, InterMune will maintain a direct sales force [*] (the “Direct
Sales Force”).  For purposes of
determining whether InterMune has satisfied its obligation to meet the [*] it
shall be entitled to [*] so long as it equals or exceeds [*] must equal the
equivalent of [*]  For example, if
InterMune has [*] it shall be deemed to meet this requirement.


 


2

















 


(b)                   Promotion.
During the term of the Agreement, InterMune shall have the Direct Sales Force
promote and detail Aralast on prescribing pulmonologist sales calls as the [*]
(“Aralast Details”) in accordance with subsection (c) below.  The [*] on the detail.  During Aralast Details, InterMune
representatives shall deliver Baxter’s quarterly Plans of Action (to be
provided by Baxter pursuant to Section 11). 
Attached as Attachment C is the
call sheet to be used for each Aralast Detail.


 


(c)                    [*]  During the term of the Agreement,
InterMune’s Direct Sales Force must:


 


(i)                                [*];
and


 


(ii)                             [*]


 


Up to [*] the
parties will meet to re-evaluate the [*]


 


(d)                   [*] 
InterMune is being engaged by Baxter to provide reach into the community
of pulmonologist physicians with the expectation that InterMune’s regular
detailing of these physicians, as described herein, will [*] so that the
[*]  If one of the following occurs:


 


(i)                               [*]; or


 


(ii)                           [*];


 


[*] upon thirty (30) days
written notice, at [*] for any reason, or (2) any [*] relating to Aralast.  [*]


 


Provided that [*]
requirements set forth in Section [*] will have no right to [*] if, during the
time such [*] (as defined
in Section [*] in the Territory.  As
used herein, “Affiliate” means (a) any corporation or business entity fifty
percent (50%) or more of the voting stock of which is and continues to be owned
directly or indirectly by Baxter; (b) any corporation or business entity which
directly or indirectly owns fifty percent (50%) or more of the voting stock of
Baxter; or (c) any corporation or business entity under the direct or indirect
control of such corporation or business entity as described in (a) or (b).


 


(e)                    [*]
During the term of the Agreement, [*] where at least:


 


(i)                                approximately
[*] and


 


(ii)                             at
least [*]; and


 


(iii)                          at
least [*]


 


3

















 


The parties
have agreed upon [*] no later than 30 days after the Effective Date.  InterMune shall promptly notify Baxter of
any [*] the three criteria listed above, and if [*] upon 30 days prior written
notice; provided that [*]


 


3.             Training [*] Sales
Force Communications.


 


(a)                    InterMune.  InterMune shall ensure its Direct Sales
Force is trained within [*] business days of the later of the Effective Date or
initial receipt of Baxter’s training materials.  Thereafter, InterMune will ensure its Direct Sales Force attends
Baxter training and receives any updated training materials [*] InterMune will
[*] and will provide Baxter with the [*] 
InterMune will [*] InterMune will take sole responsibility for the ongoing
training of its sales force and new hires throughout the year.  InterMune shall provide training [*] to any
new hires to the Direct Sales Force within sixty [*] after hire.


 


(b)                   Baxter.


 


(i)                                Baxter
will provide the training materials and [*] to be used for training the Direct
Sales Force within the [*] business days of the Effective Date.  Baxter shall provide [*]  Baxter will provided updated training
materials as needed.


 


(ii)                             Baxter
will [*] based on the assumption that [*]


 


(iii)                          Baxter
will ensure that [*] within a reasonable period of time.


 


4.             Compliance with
Laws.


 


(a)                    During
the term of this Agreement, each party shall in all material respects conform
its practices and procedures relating to the manufacture, sale, distribution,
marketing, detailing and promotion of Aralast in the Territory to all
applicable laws, rules, regulations and guidelines, including, without
limitation, all applicable provisions of the Food, Drug and Cosmetic Act,
current Good Manufacturing Practices, the Prescription Drug Marketing Act, the
Federal Health Care Programs Anti-Kickback Law, 42 U.S.C. 1320a-7b(b), the
Office of the Inspector General (“OIG”) Final Compliance Program Guidance for
Pharmaceutical Manufacturers, the Pharmaceutical Research and Manufacturers of
America Code on Interactions with Healthcare Professionals and/or the Advanced Medical
Technology Association Code of Ethics on Interactions with Healthcare
Professionals, the Accreditation Council for Continuing
Medical Education Standards for Commercial Support and the American Medical
Association (“AMA”) Guidelines on Gifts to Physicians from Industry, as the
same may be amended from time to time.


 


(b)                   Each
of Baxter and InterMune shall promptly notify the other party of and provide
such party with a copy of any material adverse correspondence or other material
adverse reports with respect to the Aralast Details or the manufacture, use,
sale, distribution or promotion of Aralast, respectively, that is received from
the U.S. Department of Health and Human Services or its components (including
the FDA and


 


4

















 


the OIG) or
any foreign counterparts, or the AMA relating to such laws, rules, regulations
and guidelines. Further,
InterMune shall inform Baxter of any material correspondence it receives from a
healthcare provider, competitor or any other party relating to promotional
practices used to detail Aralast.


 


(c)                    During
the term of the Agreement, InterMune will advertise, promote and market Aralast
and promote the goodwill of Baxter in a manner consistent with all applicable
FDA requirements.  InterMune shall
conduct its activities relative to the marketing of Aralast in a professional
manner and in accordance with the Baxter’s Sales & Marketing practices (a
copy of which is attached as Attachment D hereto), as it may be amended from
time-to-time, and in accordance with the terms of this Agreement. [*]


 


(d)                   During
the term of the Agreement, InterMune
shall inform Baxter BioScience North America Customer Service (800) 423-2090 of
any adverse events or any other significant allegation of deficiencies related
to the identity, integrity, quality, durability, reliability, safety,
effectiveness or performance (Product Complaints) regarding Aralast.  InterMune shall comply in all
respects with Baxter’s Product Complaints: Receiving and Reporting Guide (a
copy of which is attached as Attachment E hereto), as it may be amended from
time-to-time.  [*]  Baxter
shall provide reasonable quantities of this guide to InterMune to assist InterMune staff in the reporting of product
complaints.


 


5.             Promotional
Materials.


 


(a)                    During
the term of the Agreement, Baxter shall provide in a timely manner reasonable
quantities of all necessary and available Aralast promotional materials that
may be reasonably requested by InterMune in connection with the training of
InterMune’s Direct Sales Force and its promotion of Aralast.  Baxter shall own all right, title and
interest in and to such promotional materials, including all copyrights
appurtenant thereto. Baxter hereby grants to InterMune the right, during the
term of this Agreement, to use, display, transmit and reproduce the promotional
materials in connection with InterMune’s promotion and detailing of Aralast.


 


(b)                   [*]
with respect to the [*] of the promotional materials, but [*] that all such
materials must be [*] use of such promotional materials to ensure [*]  In no event shall [*] of the promotional
materials.


 


6.             Term.  Unless otherwise terminated as herein
provided, the term of this Agreement shall commence on the Effective Date and
shall expire on December 31, 2006.  [*]


 


7.             Termination.


 


(a)                    Either party
may terminate this Agreement upon [*]-days prior written notice in the event of
a material breach of this Agreement by the other party that is not cured by the
breaching party to the non-breaching party’s reasonable satisfaction within
such [*]day period. In the event that
[*]


 


5

















 


(b)                   [*] may terminate this Agreement if [*] fails
to meet the requirements for the [*]; or fails to provide the [*] and, in each
case, such failure is not cured within [*]days prior written notice.


 


(c)                    [*] may terminate this Agreement pursuant to
Section [*], or pursuant to Section [*]


 


(d)                   [*] may terminate this Agreement upon [*]days
prior written notice if [*]  Such
notice will state the [*] the
effective date of termination.  As used
herein, [*] in the Territory.


 


(e)                    [*] may terminate this Agreement: (i) upon
[*]days prior written notice if [*], or (ii) upon [*]days prior written notice
if [*]  In such case, [*] the effective
date of termination.


 


(f)                      The
following provisions shall survive termination of this Agreement:  Sections [*]  Termination of this Agreement shall not relieve either party of
any liability or obligation which accrued hereunder prior to the effective date
of such termination, nor preclude either party from pursuing all rights and
remedies it may have hereunder or at law or in equity with respect to any
breach of this Agreement, nor prejudice either party’s right to obtain performance
of any obligation.


 


8.             Transition
to Baxter Sales Force.  After the
expiration of this Agreement, InterMune shall cooperate reasonably with Baxter
in returning all Aralast related materials. 
Thereafter, InterMune shall continue to reasonably assist and advise
Baxter in the promotion of Aralast for so long as [*]


 


6

















 


9.             [*] to InterMune.


 


(a)                    [*]
Baxter shall pay InterMune a [*] shall be calculated based on the [*] as to
each [*] of the following [*] regardless of the [*]


 


(i)                                [*];


 


(ii)                             [*];


 


(iii)                          [*];
and


 


(iv)                         [*]


 


Notwithstanding
the foregoing, [*]


 


(b)                   [*]


 


(i)                                [*]
shall be:


 


[*]


 


In any event, [*]


 


(ii)                             [*]
shall be:


 


[*]


 


In any event, [*]


 


(iii)                          [*]
shall be:


 


[*]


 


In any event, [*]


 


(c)                                  [*]
of the Agreement, [*]


 


In any event,
the [*]  there shall be [*] amongst
and between the parties.


 


[*] or is
otherwise [*] shall be obligated to [*] 
The foregoing shall be [*]


 


7

















 


(d)                                 Timing
of [*] Payments and Reports.


 


(i)                                     During
the term of the Agreement, InterMune shall provide Baxter with the reports and
tracking data as set forth in Section 12(a). 
Baxter shall pay the [*] described in subsection (b) above for each [*]  Baxter shall provide to InterMune contemporaneously
the reports described in Section 12(b). 
The first [*] payments and reports under this Agreement shall [*]


 


(ii)                                  Following
the [*] described in subsection [*] and shall provide to [*] described in
Section [*]


 


(iii)                               Baxter
shall remit all payments under this Section by wire transfer to a bank account
to be designated in writing by InterMune.


 


(e)                    [*]


 


(i)                                [*]
in accordance with the [*]  In the event
[*] as set forth below.  The [*] the
requirements set forth above shall be considered [*] as applicable.


 


(1)                                       In
the event [*]


 


(2)                                       In
the event [*]


 


(3)                                       In
the event [*]


 


(4)                                       In
the event that [*]


 


Provided that [*]


 


(ii)                             Notwithstanding
the foregoing, [*] shall not be permitted to [*]


 


(iii)                          Notwithstanding
the foregoing, [*] for any reason or
other [*]


 


10.           [*] in the Territory  [*] during
the term of this Agreement and (i) [*] or (ii) in the event of any [*] pursuant
to Section [*] or (B) [*] pursuant to Section [*] as set forth in Section [*]
as set forth in Section [*] will have no obligations under this Section 10 if
[*] in the Territory.


 


11.           Marketing.


 


(a)                    Generally.  Baxter will prepare and
deliver the Aralast Quarterly Plans of Action to be used during Aralast
Details.  Both parties’ sales
representatives will meet periodically to discuss marketing territories and
marketing coverage in those territories.


 


(b)                   JMT.  Baxter and InterMune shall
form a joint marketing team (“JMT”) for the marketing of Aralast.  The JMT shall be comprised of six
representatives, three for each party. The JMT shall meet at least [*] each
year shall be [*] unless otherwise agreed in writing.  Each party shall pay their own costs for attending each
meeting.  [*]


 


8

















 


shall
not be obligated to [*] The JMT shall be responsible for, among other things, coordinating
the promotional efforts of both the parties’ sales forces, the form and timing
of reporting Aralast Details and sales, developing training materials for the
sales forces and developing tactical plans for promotional materials.


 


12.           Reports.


 


(a)                    InterMune.


 


(i)                                InterMune shall provide Baxter with [*]
reports [*] which reports will include the data fields in Attachment C, within
[*]  The form of these reports may be
revised and modified subject to InterMune’s written agreement.


 


(ii)                             InterMune shall provide Baxter with [*]
reports [*] to include the data fields in Attachment F, within [*]  The form of these reports may be revised and
modified subject to InterMune’s written agreement.


 


(iii)                          InterMune shall also provide Baxter with [*]


 


(b)                   Baxter. Baxter shall provide, on a monthly basis, reports on [*] broken down
into [*] will include a [*] will include a [*]


 


13.           Right to
Audit.


 


(a)                    Compliance
Audits.  Each party will have the
right to audit the other party to ensure that such other party is materially
compliant with the terms and conditions of the Agreement, including, without
limitation, Section 4.  Such audit will
be conducted by an internal or external
specialist selected by the auditing party and reasonably acceptable to the
other party.  Such audits may be made
[*] at reasonable times mutually agreed by InterMune and Baxter.  Such expert shall hold all information
discovered as part of the audit confidential, and only report to the auditing
party such information as is necessary for the auditing party to ascertain the
other party’s material compliance with this Agreement.


 


(b)                   Financial Audits.  The
parties shall maintain the records used to calculate compliance with all
obligations under this Agreement, including all [*] payable under Section 9 and
all records which support the calculation of each component of the [*]  Such records shall be maintained for at
least [*] years following the end of the calendar year to which they
pertain.  Such records will be open for
audit during by an independent certified public accountant selected by a party
and reasonably acceptable to the other party for the purpose of verifying the
other party’s compliance with their obligations hereunder, including [*]  Such audits may be made [*] at reasonable
times mutually agreed by InterMune and Baxter. 
The party requesting the audit shall bear the costs and expenses of
audits conducted under this subsection (b) unless a variation or error producing
an underpayment in [*] payable or underperformance of obligations exceeding [*]
for the time period inspected is established in the course of any such


 


9

















 


audit, whereupon all costs relating to the audit and any unpaid amounts
that are discovered will be paid promptly by the other party, together with
interest on such unpaid amounts equal to the lesser of prime rate plus [*] per
year, or the maximum rate permitted by law.


 


14.           Sales and Distribution; Recalls and Other
Field Corrective Actions.  Baxter shall have the sole right and
obligation to take such actions with respect to Aralast, [*] as would normally
be done in accordance with accepted business practices and legal requirements
to maintain the authorization and/or ability to market Aralast in the
Territory, including, without limitation, the following:


 


(a)                    manufacturing
and distributing Aralast in the Territory;


 


(b)                   booking
sales and distribution of Aralast hereunder and performance of related
services;


 


(c)                    handling
all aspects of order processing, invoicing and collection, inventory and
receivables;


 


(d)                   providing
customer support, including handling medical queries, and performing other
functions consistent with customary practice for prescription pharmaceuticals;


 


(e)                    responding
to Aralast complaints;


 


(f)                      handling
all Aralast returns;


 


(g)                   handling
all voluntary recalls and market withdrawals of Aralast;


 


(h)                   communicating
with any governmental agencies and satisfying their requirements regarding
regulatory approvals of Aralast in the Territory including, but not limited to,
BLA approval, labeling approval, promotional materials approval, product and/or
establishment licenses, registrations or authorizations of any federal, state
or local regulatory agency, department bureau or other governmental entity;


 


(i)                       reporting
adverse reaction reports to regulatory authorities as required by applicable
law or regulation; and


 


(j)                       negotiating
any and all agreements with providers, managed care organizations, payers,
wholesalers, group purchasing organizations, and the like, regarding Aralast.


 


15.           Representations and
Warranties.


 


(a)                    The
parties represent and warrant to each other that they are not a party to any
agreement that would prevent it from fulfilling its obligations under this
Agreement.


 


(b)                   Baxter
represents to InterMune that:


 


10

















 


(i)                                [*]
including without limitation the [*] in each case in accordance with this
Agreement.


 


(ii)                             [*]
in each case in accordance with this Agreement, [*]


 


(iii)                          [*] of this Agreement.


 


(iv)                         [*]


 


(c)                    InterMune represents to Baxter that
[*] of this Agreement.


 


16.           Relationship of the
Parties.  In fulfilling its
obligations under this Agreement, each party is acting as an independent
contractor.  Except as contemplated
under this Agreement, it does not have the right to, and will not at any time
hereafter without the other party’s prior written consent, transact any
business in the name of such other party or obligate it in any manner,
character or description.  Absent its
prior written consent, a party shall not, under any circumstances, be liable
for any agreement, contract, representation or warranty which the other party
has made or may enter into or make. 
This Agreement does not establish or create a partnership or joint
venture among the parties.


 


17.           Confidentiality.


 


(a)                    In
the course of this Agreement, it is anticipated that each party (the
“Recipient”) will learn of information that the other party (the “Disclosing
Party”) regards as confidential or proprietary, including, but not limited to,
information relating to the Disclosing Party’s business, products, plans,
technical know-how, processes, sales representatives, customers, suppliers,
pricing programs and strategies (“Confidential Information”).  The Recipient will keep confidential the
Disclosing Party’s Confidential Information, unless and until the Disclosing
Party consents in writing to such disclosure. 
The Recipient will take all reasonable precautions, including adequate
procedures and discipline, to safeguard the confidential nature of such
information.  The Recipient shall not
disclose any Confidential Information to others, except for the purposes of
this Agreement under an obligation of confidentiality at least equivalent to
those set forth herein.


 


(b)                   The
Recipient’s obligation hereunder to protect the Disclosing Party’s Confidential
Information shall not apply if the information:


 


(i)                                is
already in the Recipient’s possession, provided that such information is not
subject to the confidentiality provisions of any other agreement between the
Recipient and the Disclosing Party, or


 


(ii)                             is
information developed, generated, compiled or stored by the Recipient without
reference to the Disclosing Party’s Confidential Information, or


 


(iii)                          was
independently developed, as evidenced by written records, by a party without
reference to the other party’s Confidential Information, or


 


11

















 


(iv)                         becomes
generally available to the public other than as a result of a disclosure by the
Recipient or its representatives in violation of this Agreement, or


 


(v)                            becomes
available to the Recipient on a non-confidential basis from a source other than
the Disclosing Party or its representatives, provided that such source is not
known to the Recipient to be bound by obligations of confidentiality with the
Disclosing Party, or


 


(vi)                         is
required to be disclosed by law.


 


(c)                    The
terms of this Agreement will be deemed both parties’ Confidential Information.


 


(d)                   The
Recipient’s undertaking to protect the Disclosing Party’s Confidential
Information will survive any expiration or termination of this Agreement for
[*] years.


 


18.           Protection of
Employees.


 


(a)                    The
parties acknowledge that information provided hereunder regarding their
respective employees is confidential and proprietary information, and that the
other party’s unauthorized use thereof would cause irreparable harm.


 


(b)                   The
parties agree that [*] neither party will directly or indirectly, (through any
Affiliate, agent, representative or partner or otherwise) solicit or hire any
individual who, [*] nor encourage any such employee to leave the other party,
except with such party’s prior written consent.


 


19.           Publicity.
Neither party shall make any public announcement concerning this Agreement
without the prior written consent of the other party (which will not be
unreasonably withheld or delayed), unless counsel to such party advises that
such announcement or statement may be required by law (including applicable
stock exchange rule).  In the case of an
announcement required by law, the other party shall be advised in advance and
both parties shall use good faith efforts to cause a mutually agreeable
announcement to be issued in a timely basis.


 


20.           Force Majeure.  The parties shall not be liable for failure
or delay in fulfilling its obligations under this Agreement where such failure
or delay is due, in whole or in part, causes beyond its reasonable control,
including without limitation shortage of supply, manufacturing problems, war,
civil commotion, labor strike or lock-out, utility shortage or curtailment,
intervention of any governmental authority or acts of regulatory agencies
(except due to such party’s failure to comply with applicable law), fires,
floods, earthquakes, acts of God or terrorist acts.


 


21.           Notices.  Wherever notice is required or permitted
hereunder, it shall be by personal delivery, first class mail, overnight
delivery service, or sent by facsimile transmission, with electronic
confirmation, properly directed to the party at its address and contact
information listed below.  Said address
and contact information may be changed from time to time by similar written
notice.


 


12

















 


	
  If to
  InterMune:

  	
   

  	
  If to Baxter:

  
	
   

  	
   

  	
   

  
	
  InterMune,
  Inc.

  3280 Bayshore Blvd.

  Brisbane, CA

  94005

  Attention: Executive Vice President

  Commercial Operations

  Phone: (415)
  466-2200

  Fax : (415) 466-2300

  Copy to: General Counsel

  Phone: (415) 466-2200

  Fax : (415) 508-0006

  	
   

  	
  Baxter
  Healthcare Corporation

  One Baxter Parkway

  Deerfield, Illinois 60015-4633

  Attention: General Counsel

  Phone:(847) 948-2600

  Fax:(847) 948-2450

  

  With a copy to:

  

  Baxter Healthcare Corporation

  BioScience Business Unit

  One Baxter Way

  Westlake Village, California 91362

  Attention: Vice President of Global

  Marketing

  Phone: (805)
  372-3620

  Fax: (805) 372-3622

  



 


22.           Indemnification;
Limitation of Liability.


 


(a)                    Subject
to subsection (c) below, Baxter shall indemnify, defend and hold InterMune and
its Affiliates and their respective directors, officers, agents and employees
harmless from any and all claims, liabilities, damages and causes of action
arising (collectively, “Liabilities”) to the extent arising from or in any way
connected with [*] This indemnity shall not apply to the extent such claims,
liabilities and causes of action are caused by the fault, breach of contract or
tort (including negligence and strict liability) of InterMune.


 


(b)                   Subject
to subsection (c) below, InterMune shall indemnify, defend and hold Baxter, and
its Affiliates and their respective directors, officers, agents and employees,
harmless from and against any Liabilities arising from or in any way connected
with [*]  This indemnity shall not apply
to the extent such claims, liabilities and causes of action are caused by the
fault, breach of contract or tort (including negligence and strict liability)
of Baxter, its Affiliates or any [*]


 


(c)                    A
party (the “Indemnitee”) which intends to claim indemnification under this
Section shall promptly notify the other party (the “Indemnitor”) in writing of
any action, claim or other matter in respect of which the Indemnitee or any of
its directors, officers, employees or agents, intend to claim such
indemnification; provided, however, the failure to provide such notice within a
reasonable period of time shall not relieve the Indemnitor of any of its
obligations hereunder except to the extent the Indemnitor is prejudiced by such
failure or delay.


 


13

















 


The Indemnitee
shall permit, and shall cause its directors, officers, employees and agents to
permit, the Indemnitor at its discretion to settle any such action, claim or
other matter, and the Indemnitee agrees to the complete control of such defense
or settlement by the Indemnitor. 
Notwithstanding the foregoing, the Indemnitor shall not enter into any
settlement that would adversely affect the Indemnitee’s rights hereunder, nor
impose any obligations on the Indemnitee in addition to those set forth herein
in order for it to exercise such rights, without Indemnitee’s prior written
consent, which shall not be unreasonably withheld or delayed.  No such action, claim or other matter shall
be settled without the prior written consent of the Indemnitor, which shall not
be unreasonably withheld or delayed.


 


The Indemnitor
shall not be responsible for any attorneys’ fees or other costs incurred other
than as provided herein.  The Indemnitee
and its directors, officers, employees and agents shall cooperate fully with
the Indemnitor and its legal representatives in the investigation and defense
of any action, claim or other matter covered by the indemnification obligations
of this Section.  The Indemnitee shall
have the right, but not the obligation, to be represented in such defense by
counsel of its own selection and at its own expense.


 


23.           Severability.  The intention of the parties is to comply
fully with all laws and public policies, and this Agreement shall be construed
consistently with all laws and public policies to the extent possible.  If and to the extent that any court
determines that it is impossible to construe any provision of this Agreement
consistently with any law or public policy and consequently holds that
provision to be invalid, such provision will be amended so to preserve, to the
extent possible, the parties’ original intent, or if it cannot be so amended,
such provision shall be struck.  Such
holding shall in no way affect the validity of the other provisions of this
Agreement, which shall remain in full force and effect.


 


24.           Waiver.   No failure or omission by either party to
insist upon or enforce any of the terms of this Agreement shall be deemed a
waiver of such terms.  Any waiver must
be in writing, signed by an authorized representative of the party to be charged,
in order to be effective.  No waiver
will be effective against any further breach.


 


25.           Choice of Law; Venue.  This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of [*] without
giving effect to any choice or conflict of law provisions thereof.  For any legal action arising from or related
to this Agreement, the parties hereby: (i) consent and submit solely to
jurisdiction and venue of the state and federal courts located in [*] (ii)
agree that such courts shall be the sole courts utilized; and (iii) hereby
waive any jurisdictional or venue objections to such courts, including without
limitation, forum non conveniens.


 


26.           Assignment.  Neither party may assign or transfer this
Agreement or any rights or obligations hereunder without the prior written
consent of the other, except that a party may make such an assignment without
the other party’s consent to a permitted successor-in-interest to substantially
all of the business assets of such party to which this Agreement relates,
whether in a merger, sale of stock, sale of assets or other transaction.  [*] 
Any permitted successor or assignee of


 


14

















 


rights and/or obligations
hereunder shall, in a writing to the other party, expressly assume performance
of such rights and/or obligations.  Any
permitted assignment shall be binding on the successors of the assigning
party.  Any assignment or attempted
assignment by either party in violation of the terms of this Section shall be
null and void and of no legal effect. 
This Agreement shall be binding upon and shall inure to the benefit of
each party’s successors-in-interest and permitted assigns.


 


27.           Headings.  The article and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.


 


28.           Days.      All references herein to
“days” mean calendar days, unless specifically stated otherwise.


 


29.           Remedies Cumulative.  Unless specifically and expressly provided
otherwise, the remedies provided under this Agreement are cumulative, and are
not exclusive of other remedies available to a party in law or equity.


 


30.           Complete Agreement.  This Agreement constitutes the entire agreement
between the parties hereto, and cancels and supersedes any and all previous
agreements between the parties with respect to the subject matter hereof.  All modifications or amendments hereto must
be in writing and signed by all parties. 
No renewal, termination or cancellation of this Agreement, or
modification or waiver of any of the provisions herein contained, or any future
representation, promise or condition in connection with the subject matter
hereof, shall be binding upon either party unless it is made in writing.


 


31.           Counterparts.  This Agreement may be executed in
counterparts with the same force and effect as if each of the signatories had
executed the same instrument.


 


32.           Ambiguities.  Ambiguities, if any, in this Agreement shall
not be construed against either party, regardless of which party is deemed to
have drafted the provision at issue.


 


IN WITNESS WHEREOF, the parties
have caused this Agreement to be executed by their duly authorized
representatives:


 


	
  Baxter Healthcare Corporation

  	
  InterMune, Inc.

  
	
   

  	
   

  
	
  By:

  	
  /s/  Ron Lloyd

  	
   

  	
  By:

  	
  /s/ Roger Hawley

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Ron Lloyd

  	
   

  	
  Name: Roger
  Hawley

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  VP – Global Marketing

  	
   

  	
  Title:  Executive Vice
  President, Commercial Operations

  
	
   

  	
   

  
	
  Date:

  	
  April 5, 2004

  	
   

  	
  Date:

  	
  March 26, 2004

  	
   

  
									



 


15

















 


ATTACHMENT A – ARALAST
TRADEMARKS


 


[*]


 


16

















 


ATTACHMENT B – ARALAST
TRADEMARK GUIDELINES


 


[*]


 


17

















 


ATTACHMENT
C – CALL REPORT DETAILS


 


[*]


 


18

















 


 


 


19

















 


ATTACHMENT D – BAXTER SALES
& MARKETING PRACTICES


 


[*]


 


20

















 


ATTACHMENT E – PRODUCT
COMPLAINTS: RECEIVING AND REPORTING GUIDE


 


[*]


 


21

















 


 ATTACHMENT F – [*] COMPLIANCE REPORT


 


[*]


 


22