EXHIBIT 10.79
WARBURG, PINCUS EQUITY PARTNERS, L.P.
466 Lexington Avenue
New York, NY 10017
October 29, 2004
InterMune, Inc.
3280 Bayshore Boulevard
Brisbane, CA
94005
Attention: Chief Executive Officer
Re:
Amended and Restated Standstill Agreement
Gentlemen:
In connection with the acquisition of Common Stock, par value $0.001 per share
(the "Common Stock"), of InterMune, Inc., a Delaware corporation (the
"Company"), by 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"), the Company and the Purchaser Group entered into a
Standstill Agreement, dated April 28, 2004 (the "Original Standstill
Agreement").
In connection with the Purchaser Group's desire to purchase
additional shares of Common Stock and the Company's desire to influence any
disposition of Common Stock held by the Purchaser Group, the Company and the
Purchaser Group hereby amend and restate the Original Standstill Agreement in
its entirety and agree as follows:
1.
STANDSTILL.
FOR A PERIOD OF THREE YEARS FROM THE DATE HEREOF
(THE "STANDSTILL PERIOD"), NO MEMBER OF THE PURCHASER GROUP OR ANY OF THEIR
RESPECTIVE AFFILIATES (AS DEFINED BELOW) SHALL, WITHOUT THE PRIOR WRITTEN
CONSENT OF A MAJORITY OF THE INDEPENDENT MEMBERS OF THE BOARD OF DIRECTORS OF
THE COMPANY (THE "BOARD") WHO ARE NOT AFFILIATED WITH THE PURCHASER GROUP:
(A)
IN ANY MANNER ACQUIRE, AGREE OR SEEK TO ACQUIRE, OR MAKE ANY
PROPOSAL OR OFFER (OTHER THAN TO A MEMBER OF THE BOARD OR SENIOR MANAGEMENT OF
THE COMPANY BY MEANS THAT WOULD NOT CAUSE PUBLIC DISSEMINATION THEREOF) TO
ACQUIRE, WHETHER DIRECTLY OR INDIRECTLY,
(I)
ANY MATERIAL ASSETS OF THE COMPANY OR
(II)
ANY COMMON STOCK, VOTING EQUITY SECURITIES OF THE COMPANY OR ANY
SECURITIES CONVERTIBLE OR EXCHANGEABLE INTO OR EXERCISABLE FOR ANY SUCH
SECURITIES (INCLUDING DERIVATIVES), OTHER THAN ACQUISITIONS THAT WOULD NOT, IN
THE AGGREGATE, RESULT IN THE PURCHASER GROUP TOGETHER WITH THEIR RESPECTIVE
AFFILIATES BENEFICIALLY OWNING (AS DEFINED HEREIN) MORE THAN 25.0% OF THE
COMPANY'S ISSUED AND OUTSTANDING COMMON STOCK, AS OF THE DATE OF SUCH
ACQUISITION;
(B)
PROPOSE TO ANY PERSON (OTHER THAN TO A MEMBER OF THE BOARD OR
SENIOR MANAGEMENT OF THE COMPANY BY MEANS THAT WOULD NOT CAUSE PUBLIC
DISSEMINATION THEREOF) OR EFFECT, SEEK TO EFFECT OR ENTER INTO, WHETHER ALONE OR
IN CONCERT WITH OTHERS, ANY MERGER, CONSOLIDATION, ACQUISITION, SCHEME, BUSINESS
COMBINATION OR OTHER EXTRAORDINARY TRANSACTION IN WHICH THE COMPANY OR ANY OF
ITS SUBSIDIARIES IS A CONSTITUENT CORPORATION OR PARTY (A