-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U8Avv8gZRm6sKE4J7P/us6P/8r3w7OyPHJFZgDkyhr5RmmoRGlfsxr1cAdDcdgix 1zz+3GM+1favDsQLGlW2rg== 0000899140-04-000577.txt : 20040429 0000899140-04-000577.hdr.sgml : 20040429 20040429122635 ACCESSION NUMBER: 0000899140-04-000577 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20040429 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WARBURG PINCUS EQUITY PARTNERS LP CENTRAL INDEX KEY: 0001075598 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 466 LEXINGTON AVE. CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2128780600 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INTERMUNE INC CENTRAL INDEX KEY: 0001087432 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 943296648 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-60673 FILM NUMBER: 04763534 BUSINESS ADDRESS: STREET 1: 3280 BAYSHORE STREET 2: BLVD CITY: BRISBANE STATE: CA ZIP: 94005 BUSINESS PHONE: 415 466 2200 MAIL ADDRESS: STREET 1: 3280 BAYSHORE BLVD CITY: BRISBANE STATE: CA ZIP: 94005 FORMER COMPANY: FORMER CONFORMED NAME: INTERMUNE PHARMACEUTICALS INC DATE OF NAME CHANGE: 20000121 SC 13D/A 1 w2533160.txt AMENDMENT NO. 2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 2) InterMune, Inc. --------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.001 per share --------------------------------------------------------------------- (Title of Class of Securities) 45885B 10 0 --------------------------------------------------------------------- (CUSIP Number) Scott A. Arenare, Esq. Managing Director and General Counsel Warburg Pincus LLC 466 Lexington Avenue New York, New York 10017 (212) 878-0600 (Name, Address and Telephone Number of Person --------------------------------------------------------------------- Authorized to Receive Notices and Communications) Copies to: Peter H. Jakes, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019 (212) 728-8000 April 28, 2004 --------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: ? Page 1 of 7 This Amendment No. 2 amends the Schedule 13D, filed with the Securities and Exchange Commission (the "SEC") on December 4, 2003, and as amended by Amendment No. 1 to the Schedule 13D, filed with the SEC on February 18, 2004 (collectively, the "Schedule 13D"), on behalf of Warburg, Pincus Equity Partners, L.P., a Delaware limited partnership ("WPEP"), Warburg Pincus & Co., a New York general partnership ("WP"), and Warburg Pincus LLC, a New York limited liability company ("WP LLC" and, together with WPEP and WP, the "Reporting Entities"). This Amendment No. 2 relates to the common stock, $0.001 par value per share (the "Common Stock"), of InterMune, Inc., a Delaware corporation (the "Company"). The holdings of Common Stock of WPEP in this Amendment No. 2 include certain shares of Common Stock which may be deemed to be beneficially owned by Warburg, Pincus Netherlands Equity Partners I, C.V. ("WPNEP I"), Warburg, Pincus Netherlands Equity Partners II, C.V. ("WPNEP II") and Warburg, Pincus Netherlands Equity Partners III, C.V. ("WPNEP III" and, together with WPNEP I, WPNEP II and WPEP, the "Investors"). WP, WP LLC and the Investors are referred to herein as the "Group Members." Unless otherwise indicated herein, each capitalized term used but not otherwise defined herein shall have the meaning ascribed to such term in the Schedule 13D. The Group Members are making this single joint filing because they may be deemed to constitute a "group" within the meaning of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Each Group Member disclaims beneficial ownership of all of the shares of Common Stock, other than those reported as being owned by it. Page 2 of 7 Item 4. Purpose of Transaction. Item 4 of the Schedule 13D is hereby amended by adding the following paragraphs: On April 28, 2004, the Group Members entered into a letter agreement with the Company (the "Standstill Agreement"), under which, for a period of three years from the date thereof (the "Standstill Period"), the Group Members agreed that none of them or any of their respective affiliates (as such term is defined in the Standstill Agreement) shall, without the prior written consent of the majority of the independent members of the Board of Directors of the Company (the "Board") who are not affiliated with the Group Members: o 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 Group Members together with their respective affiliates beneficially owning (within the meaning of Rule 13d-3 under the Exchange Act) more than 19.9% of the Common Stock, as of the date of such acquisition; o 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 "Business Combination"); o solicit proxies or shareholder consents or participate in any such solicitation for any purpose relating to the election or removal of directors of the Company or a Business Combination; Page 3 of 7 o form, join. encourage, influence, advise or participate in a "group" (as defined in Section 13(d)(3) of the Exchange Act) with respect to the voting, ownership or control of any Common Stock (other than the group consisting of the current members of the Group Members); o seek to have the Company waive, amend or modify its Certificate of Incorporation, Bylaws or the Rights Agreement, dated as of July 17, 2001, between the Company and Mellon Investor Services LLC (the "Rights Agreement"); o assist, advise or encourage (including by knowingly providing or arranging financing for that purpose) any other person in connection with any of the foregoing; or o make, or take any action (including a request to waive or amend any provision of this agreement) that would cause the Company to make a public announcement regarding any intention of the Group Members or any of their respective affiliates to take an action which would be prohibited by any of the foregoing. Additionally, pursuant to the Standstill Agreement, the Company represented that its Board had taken all actions necessary to render inapplicable the provisions of Section 203 of the General Corporation Law of the State of Delaware ("Section 203"), solely as it related to the acquisition by the Group Members of beneficial ownership of up to 19.9% of the Common Stock (the "Waiver"); provided, however, such Waiver shall no longer be applicable if, subsequent to becoming an "interested stockholder" (as defined in Section 203), the Group Members no longer have beneficial ownership of 15% or more of the Common Stock as a result of any sale or disposition of beneficial ownership of Common Stock by the Group Members. Finally, during the Standstill Period, the Company has agreed that it shall not amend or modify the definition of "Acquiring Person" in the Rights Agreement, if, as a result of such amendment or modification, the Group Members would be deemed to be an "Acquiring Person" thereunder. During the Standstill Period, the Company has also Page 4 of 7 agreed that it shall not adopt a new rights agreement or any agreement having substantially the same effect of the Rights Agreement if the Group Members would be considered an "Acquiring Person" (or would have the same or substantially similar effect of an "Acquiring Person" under the Rights Agreement). The summary of the terms of the Standstill Agreement, is qualified in its entirety by reference to the full text of the Agreement, which is filed as Exhibit 1 to this Amendment No. 2 and incorporated herein by reference. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer Item 6 of the Schedule 13D is hereby amended by adding the following paragraph: The summary in Item 4 of the terms of the Standstill Agreement is incorporated herein by reference. Because the foregoing summary does not purport to be a complete discussion of the Standstill Agreement, it is qualified in its entirety by reference to the full text of the Agreement, which is filed as Exhibit 1 to this Amendment No. 2 and incorporated herein by reference. Item 7. Material to Be Filed as Exhibits 1. Letter Agreement, dated April 28, 2004, by and between the Company and the Group Members. Page 5 of 7 SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: April 29, 2004 WARBURG, PINCUS EQUITY PARTNERS, L.P. By: Warburg Pincus & Co., General Partner By: /s/ Scott A. Arenare ----------------------------- Name: Scott A. Arenare Title: Partner Dated: April 29, 2004 WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I, C.V. By: Warburg Pincus & Co., General Partner By: /s/ Scott A. Arenare ----------------------------- Name: Scott A. Arenare Title: Partner Dated: April 29, 2004 WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II, C.V. By: Warburg Pincus & Co., General Partner By: /s/ Scott A. Arenare ----------------------------- Name: Scott A. Arenare Title: Partner Dated: April 29, 2004 WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III, C.V. By: Warburg Pincus & Co., General Partner By: /s/ Scott A. Arenare ----------------------------- Name: Scott A. Arenare Title: Partner Page 6 of 7 Dated: April 29, 2004 WARBURG PINCUS & CO. By: /s/ Scott A. Arenare ------------------------------ Name: Scott A. Arenare Title: Partner Dated: April 29, 2004 WARBURG PINCUS LLC By: /s/ Scott A. Arenare ------------------------------ Name: Scott A. Arenare Title: Managing Director Page 7 of 7 EX-1 3 w2536512.txt LETTER AGREEMENT EXHIBIT 1 WARBURG, PINCUS EQUITY PARTNERS, L.P. 466 Lexington Avenue New York, NY 10017 April 28, 2004 InterMune, Inc. 3280 Bayshore Boulevard Brisbane, CA 94005 Attention: Chief Executive Officer 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 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 (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) more than 19.9% of the 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 "Business Combination"); (c) solicit proxies or shareholder consents or participate in any such solicitation for any purpose relating to the election or removal of directors of the Company or a Business Combination; (d) form, join, encourage, influence, advise or participate in a "group" (as defined in Section 13(d)(3) of the Exchange Act) with respect to the voting, ownership or control of any Common Stock (other than the group consisting of the current members of the Purchaser Group); (e) seek to have the Company waive, amend or modify its Certificate of Incorporation, Bylaws or the Rights Agreement, dated as of July 17, 2001, between the Company and Mellon Investor Services LLC (the "Rights Agreement"); (f) assist, advise or encourage (including by knowingly providing or arranging financing for that purpose) any other person in connection with any of the foregoing; or (g) make, or take any action (including a request to waive or amend any provision of this agreement) that would cause the Company to make, a public announcement regarding any intention of the Purchaser Group or any of their respective Affiliates to take an action which would be prohibited by any of the foregoing. For purposes of this letter agreement, "Affiliates" shall mean (1) any person, corporation, partnership, trust, limited liability company or other entity, whether existing now or in the future, that, directly or indirectly, controls, is controlled by or is under common control with, the Purchaser Group; provided, however, that no corporation, partnership, trust, limited liability company or other entity in which a Controlled Fund (as defined below) has made or in the future makes an investment shall be considered an Affiliate for purposes of this letter agreement and/or (2) any fund, whether existing now or in the future, of which WP is a general partner or WP LLC is a manager (a "Controlled Fund"). 2. No Effect on Directors. Notwithstanding any of the foregoing, the provisions set forth in Section 1 shall in no way limit the ability of any individual who is serving as a director of the Company to take any actions (or to refrain from taking any actions) in their capacity as directors of the Company. 3. Waiver of Section 203. The Company represents and warrants to the Purchaser Group that the Board has taken all action necessary to render inapplicable the provisions of Section 203 of the General Corporation Law of the State of Delaware ("Section 203") solely as it relates to the acquisition by the Purchaser Group of beneficial ownership of up to 19.9% of the Common Stock (the "Waiver"); provided, however, such Waiver shall no longer be applicable if, subsequent to becoming an "interested stockholder" (as defined in Section 203), the Purchaser Group no longer has beneficial ownership of 15% or more of the Common Stock as a result of any sale or disposition of beneficial ownership of Common Stock by the Purchaser Group. 4. No Amendment to Rights Agreement. During the Standstill Period, the Company shall not amend or modify the definition of "Acquiring Person" in the Rights Agreement, if, as a result of such amendment or modification, the Purchaser Group would be deemed to be an "Acquiring Person" thereunder. During the Standstill Period, the Company shall not adopt a new rights agreement or an agreement having substantially the same effect of the Rights Agreement if the Purchaser Group would be considered an "Acquiring Person" (or would have the same or substantially similar effect of an "Acquiring Person" under the Rights Agreement). 5. Representations. Each party represents to the other that: (a) this letter agreement has been duly authorized by all necessary corporate or partnership action, as the case may be and (b) this letter agreement is a valid and binding agreement of such party, enforceable against it in accordance with its terms. 6. Specific Enforcement; Legal Effect. The parties hereto agree that any breach of this letter agreement would result in irreparable injury to other party and that money damages would not be an adequate remedy for such breach. Accordingly, without prejudice to the rights and remedies otherwise available under applicable law, either party shall be entitled to specific performance and equitable relief by way of injunction or otherwise if the other party breaches or threatens to breach any of the provisions of this Agreement. It is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. This letter agreement contains the entire agreement between the parties hereto concerning the matters addressed herein. No modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon either party hereto, unless approved in writing by each such party; provided, however, that no waiver or amendment shall be effective as against the Company unless such waiver or amendment is approved by the vote a majority of the independent members of the Board who are not affiliated with the Purchaser Group. This Agreement shall be governed by and construed in accordance with the law of the State of New York without regard to principles of conflicts of law that would cause the application of the laws of any jurisdiction other than the State of New York. 7. Counterparts. This letter agreement may be executed in counterpart (including by facsimile), each of which shall be deemed an original. [Remainder of Page left blank intentionally] If you are in agreement with the terms set forth above, please sign this letter agreement in the space provided below and return an executed copy to the undersigned. Very truly yours, WARBURG, PINCUS EQUITY PARTNERS, L.P. By: Warburg Pincus & Co., its General Partner By: /s/ Jonathan Leff ----------------------------- Name: Jonathan Leff Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I, C.V. By: Warburg Pincus & Co., its General Partner By: /s/ Jonathan Leff ----------------------------- Name: Jonathan Leff Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II, C.V. By: Warburg Pincus & Co., its General Partner By: /s/ Jonathan Leff ----------------------------- Name: Jonathan Leff Title: Partner WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III, C.V. By: Warburg Pincus & Co., its General Partner By: /s/ Jonathan Leff ----------------------------- Name: Jonathan Leff Title: Partner WARBURG PINCUS & CO. By: /s/ Jonathan Leff ----------------------------- Name: Jonathan Leff Title: Partner WARBURG PINCUS LLC By: /s/ Jonathan Leff ----------------------------- Name: Jonathan Leff Title: Managing Director Confirmed and Agreed: INTERMUNE, INC. By: /s/ Stephen N. Rosenfield ----------------------------- Name: Stephen N. Rosenfield Title: Executive Vice President of Legal Affairs -----END PRIVACY-ENHANCED MESSAGE-----