Exhibit 10.9


 


Indemnity
Agreement


 


This
Indemnity Agreement (this “Agreement”), dated as of December     ,
2008, is made by and between Facet Biotech Corporation, a Delaware corporation
(the “Company”), and
                                                    ,
an individual (the “Indemnitee”).


 


Background


 


A.            The Indemnitee’s service to the
Company substantially benefits the Company.


 


B.            The Company is aware that competent
and experienced persons are increasingly reluctant to serve as directors,
officers or agents of corporations unless they are protected by comprehensive
liability insurance or indemnification, due to increased exposure to litigation
costs and risks resulting from their service to such corporations, and due to
the fact that the exposure frequently bears no reasonable relationship to the
compensation of such directors, officers and other agents.


 


C.            The Company believes that it is
unfair for its directors, officers and agents and the directors, officers and
agents of its subsidiaries to assume the risk of huge judgments and other
expenses which may occur in cases in which the director, officer or agent
received no personal profit and in cases where the director, officer or agent
was not culpable.


 


D.            The Board of Directors of the
Company (the “Board”) has concluded that, to retain and attract talented
and experienced individuals to serve as directors, officers and agents of the
Company and its subsidiaries, it is necessary for the Company to contractually
indemnify its directors, officers and agents and the directors, officers and
agents of its subsidiaries, and to assume for itself maximum liability for
expenses and damages in connection with claims against such directors, officers
and agents in connection with their service to the Company and its
subsidiaries, and has further concluded that the failure to provide such
contractual indemnification could result in great harm to the Company and its
subsidiaries and the Company’s stockholders.


 


E.             Section 145 of the General
Corporation Law of Delaware, under which the Company is organized (“Section 145”),
empowers the Company to indemnify its directors, officers, employees and agents
by agreement and to indemnify persons who serve, at the request of the Company,
as the directors, officers, employees or agents of other corporations or
enterprises, and expressly provides that the indemnification provided by Section 145
is not exclusive.


 


F.             The Company’s Bylaws requires,
subject to the provisions therein, that it indemnify its directors, officers
and legal representatives to the fullest extent authorized by the General
Corporation Law of Delaware.


 


G.            The Company desires and has
requested the Indemnitee to serve as a director, officer or agent of the
Company and/or one or more subsidiaries of the Company free from undue concern
for claims for damages arising out of or related to such services to the
Company and/or one or more subsidiaries of the Company.


 

















 


H.            Indemnitee is willing to serve, or
to continue to serve, the Company and/or one or more subsidiaries of the
Company, provided that he or she is furnished the
indemnity provided for in this Agreement.


 


Agreement


 


The
Company and Indemnitee, intending to be legally bound, agree as follows:


 


1.             Definitions.


 


(a)           Agent.  For the purposes of this Agreement, “agent”
of the Company means any person who is the legal representative, is or was a
director, officer or employee of the Company or is or was serving at the
request of the Company as a director, officer or employee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans.


 


(b)           Expenses.  For purposes of this Agreement, “expenses”
include all out-of-pocket costs of any type or nature whatsoever (including,
without limitation, all attorneys’ fees and related disbursements), actually
and reasonably incurred by the Indemnitee in connection with either the
investigation, defense or appeal of a proceeding or establishing or enforcing a
right to indemnification under this Agreement or Section 145 or otherwise;
provided, however,
that “expenses” shall not include any judgments, fines, ERISA excise taxes or
penalties, or amounts paid in settlement of a proceeding.


 


(c)           Proceeding.  For the purposes of this Agreement, “proceeding”
means any threatened, pending, or completed action, suit or other proceeding,
whether civil, criminal, administrative, or investigative.


 


(d)           Subsidiary.  For purposes of this Agreement, “subsidiary”
means any corporation of which more than 50% of the outstanding voting
securities is owned directly or indirectly by the Company, by the Company and
one or more other subsidiaries, or by one or more other subsidiaries.


 


2.             Agreement
to Serve.  In consideration of the
Company’s covenants and commitments hereunder, the Indemnitee agrees to serve
as agent of the Company, so long as he or she is duly appointed or elected and
qualified in accordance with the applicable provisions of the Bylaws of the
Company or any subsidiary of the Company or until such time as he or she
tenders his or her resignation in writing (subject to any contractual
obligation under any other agreement or any obligation imposed by operation of
law); provided, however,
that nothing contained in this Agreement is intended to create any right to
continued employment by Indemnitee.


 


This
Agreement shall not be deemed an employment contract between the Company (or
any of its Subsidiaries) and the Indemnitee. 
The Indemnitee specifically acknowledges that with respect to the
Indemnitee’s service as an officer or key employee, such Indemnitee’s
employment with the Company (or any of its Subsidiaries), if any, is at will,
and Indemnitee may be discharged at any time for any reason, with or without
cause, except as may be otherwise provided in any written contract between the
Indemnitee and the Company (or any of its 


 


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subsidiaries), other applicable formal severance
policies duly adopted by the Board of Directors of the Company or by the
Company’s Certificate of Incorporation, Bylaws, and the General Corporation Law
of Delaware.  The Indemnitee specifically
acknowledges that with respect to the Indemnitee’s service as a director, such
Indemnitee may be discharged from service at any time for any reason, with or
without cause, except as may be otherwise provided by the Company’s Certificate
of Incorporation, Bylaws and the General Corporation Law of Delaware.


 


3.             Liability
Insurance.


 


(a)           Maintenance of
D&O Insurance.  The Company
hereby covenants and agrees that, so long as the Indemnitee shall serve as an
agent of the Company and thereafter so long as the Indemnitee shall be subject
to any possible proceeding by reason of the fact that the Indemnitee was an
agent of the Company, the Company, subject to Section 3(c), shall promptly
obtain and maintain in full force and effect directors’ and officers’ liability
insurance (“D&O Insurance”) in reasonable amounts from established
and reputable insurers.


 


(b)           Rights and
Benefits.  In all policies of D&O
Insurance, the Indemnitee shall be named as an insured in such a manner as to
provide the Indemnitee the same rights and benefits as are accorded to the most
favorably insured of the Company’s directors, if the Indemnitee is a director;
or of the Company’s officers, if the Indemnitee is not a director of the
Company but is an officer; or of the Company’s key employees, if the Indemnitee
is not a director or officer but is a key employee.


 


(c)           Limitation on
Required Maintenance of D&O Insurance. 
Notwithstanding the foregoing, the Company shall have no obligation to
obtain or maintain D&O Insurance if the Company determines in good faith
that such insurance is not reasonably available, the premium costs for such
insurance are disproportionate to the amount of coverage provided, the coverage
provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or the Indemnitee is covered by similar insurance
maintained by a subsidiary of the Company.


 


4.             Mandatory
Indemnification.  Subject to Section 9,
the Company shall indemnify the Indemnitee as follows:


 


(a)           Third Party
Actions.  If the Indemnitee is a
person who was or is a party or is threatened to be made a party to any
proceeding (other than an action by or in the right of the Company) by reason
of the fact that he is or was an agent of the Company, or by reason of anything
done or not done by him in any such capacity, the Company shall indemnify the
Indemnitee against any and all expenses and liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes and
penalties, and amounts paid in settlement) actually and reasonably incurred by
him in connection with the investigation, defense, settlement or appeal of such
proceeding, provided the Indemnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and its stockholders, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the
Indemnitee’s conduct was unlawful.


 


(b)           Derivative
Actions.  If the Indemnitee is a
person who was or is a party or is threatened to be made a party to any
proceeding by or in the right of the Company by reason of 


 


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the fact that he
is or was an agent of the Company, or by reason of anything done or not done by
him in any such capacity, the Company shall indemnify the Indemnitee against
all expenses actually and reasonably incurred by him in connection with the
investigation, defense, settlement, or appeal of such proceeding, provided the Indemnitee acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company and its stockholders; except that no indemnification under this Section 4(b) shall
be made in respect to any claim, issue or matter as to which such person shall
have been finally adjudged to be liable to the Company by a court of competent
jurisdiction unless and only to the extent that the court in which such
proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such amounts
which the court shall deem proper, provided, further, that no indemnification
under Section 4(b) shall be made in respect to any claim, issue or
matter if it has been finally adjudged that the Indemnitee is liable to the
Company for an accounting of profits made from the purchase or sale by the
Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of
the Securities Exchange Action of 1934, as amended, the rules and
regulations promulgated thereunder or similar provisions of any federal, state
or local statutory law.


 


(c)           Actions where
Indemnitee is Deceased.  If the
Indemnitee is a person who was or is a party or is threatened to be made a
party to any proceeding by reason of the fact that he or she is or was an agent
of the Company, or by reason of anything done or not done by him or her in any
such capacity, and if prior to, during the pendency of or after completion of
such proceeding Indemnitee becomes deceased, the Company shall indemnify the
Indemnitee’s heirs, executors and administrators against any and all expenses
and liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes and penalties, and amounts paid in
settlement) actually and reasonably incurred to the extent Indemnitee would
have been entitled to indemnification pursuant to Sections 4(a) or 4(b) were
Indemnitee still alive.


 


(d)           Limitations.  Notwithstanding the foregoing, the Company
shall not be obligated to indemnify the Indemnitee for expenses or liabilities
of any type whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes and penalties, and amounts paid in settlement) (i) for which
payment is actually made to or on behalf of Indemnitee under a valid and
collectible insurance policy of D&O Insurance, or under a valid and
enforceable indemnity clause, by-law or agreement, (ii) to the extent that
the Company has advanced expense in accordance with Section 6 or (iii) if
the Indemnitee would not be permitted to be indemnified under applicable law.


 


5.             Partial
Indemnification.  If the Indemnitee
is entitled under any provision of this Agreement to indemnification by the
Company for some or a portion of any expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes
and penalties, and amounts paid in settlement) incurred by him or her in the
investigation, defense, settlement or appeal of a proceeding, but not entitled,
however, to indemnification for all of the total amount hereof, the Company
shall nevertheless indemnify the Indemnitee for such total amount except as to
the portion hereof to which the Indemnitee is not entitled.


 


6.             Mandatory
Advancement of Expenses.  Subject to Section 9(a),
the Company shall advance all expenses incurred by the Indemnitee in connection
with the investigation, 


 


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defense,
settlement or appeal of any proceeding to which the Indemnitee is a party or is
threatened to be made a party by reason of the fact that the Indemnitee is or
was an agent of the Company.  Indemnitee
hereby undertakes to repay such amounts advanced only if, and to the extent
that, it shall be determined ultimately that the Indemnitee is not entitled to
be indemnified by the Company as authorized hereby.  The advances to be made under this Agreement
shall be paid by the Company to the Indemnitee within twenty (20) days
following delivery of a written request therefor and documentation evidencing
such expenses by the Indemnitee to the Company. 
In the event that the Company fails to pay expenses as incurred by the
Indemnitee as required by this paragraph, Indemnitee may seek mandatory
injunctive relief from any court having jurisdiction to require the Company to
pay expenses as set forth in this paragraph. 
If Indemnitee seeks mandatory injunctive relief pursuant to this
paragraph, it shall not be a defense to enforcement of the Company’s
obligations set forth in this paragraph that Indemnitee has an adequate remedy
at law for damages.


 


7.             Notice
and Other Indemnification Procedures.


 


(a)           Notice by
Indemnitee.  Promptly after receipt
by the Indemnitee of notice of the commencement of or the threat of
commencement of any proceeding, the Indemnitee shall, if the Indemnitee
believes that indemnification with respect thereto may be sought from the
Company under this Agreement, notify the Company of the commencement or threat
of commencement thereof.


 


(b)           Notice by Company.  If, at the time of the receipt of a notice of
the commencement of a proceeding pursuant to Section 7(a), the Company has
D&O Insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies.  The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in accordance
with the terms of such policies.


 


(c)           Defense.  In the event the Company reasonably
determines that it may be obligated to pay the expenses of any proceeding
against the Indemnitee, the Company shall be entitled to assume the defense of
such proceeding, with counsel approved by the Indemnitee, upon the delivery to
the Indemnitee of written notice of its election so to do.  After delivery of such notice, approval of
such counsel by the Indemnitee and the retention of such counsel by the
Company, the Company will not be liable to the Indemnitee under this Agreement
for any fees of counsel subsequently incurred by the Indemnitee with respect to
the same proceeding, provided that (i) the
Indemnitee shall have the right to employ his or her counsel in any such
proceeding at the Indemnitee’s expense; and (ii) if (A) the
employment of counsel by the Indemnitee has been previously authorized by the
Company, (B) the Indemnitee shall have reasonably concluded that there may
be a conflict of interest between the Company and the Indemnitee in the conduct
of any such defense, or (C) the Company shall not, in fact, have employed
counsel to assume the defense of such proceeding in a timely manner, then the
fees and expenses of Indemnitee’s counsel shall be at the expense of the
Company.


 


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8.             Determination
of Right to Indemnification.


 


(a)           Successful
Defense.  To the extent the
Indemnitee has been successful on the merits or otherwise in defense of any
proceeding (including, without limitation, an action by or in the right of the
Company) to which the Indemnitee was a party by reason of the fact that he is
or was an agent of the Company at any time, the Company shall indemnify the
Indemnitee against all expenses of any type whatsoever actually and reasonably
incurred by him or her in connection with the investigation, defense or appeal
of such proceeding.  If the Indemnitee is
not wholly successful in defense of such proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or
matters in such proceeding, the Company shall indemnify the Indemnitee against
all expenses actually and reasonably incurred by the Indemnitee in connection
with each successfully resolved claim, issue or matter.


 


(b)           Other Situations.  In the event that Section 8(a) is
inapplicable, the Company shall also indemnify the Indemnitee in accordance
with the terms of this Agreement unless, and except to the extent that, the
Company shall prove by clear and convincing evidence in a forum listed in Section 8(c) that
the Indemnitee has not met the applicable standard of conduct required to
entitle the Indemnitee to such indemnification.


 


(c)           Selection of
Forum.  The Indemnitee shall be
entitled to select the forum in which the validity of the Company’s claim under
Section 8(b) that the Indemnitee is not entitled to indemnification
will be heard from among the following:


 


(i)            A quorum of the
Board consisting of all directors who are not parties to the proceeding for
which indemnification is being sought;


 


(ii)           Legal counsel
selected by the Indemnitee, and reasonably approved by the Board, which counsel
shall make such determination in a written opinion; or


 


(iii)          A panel of three
arbitrators, one of whom is selected by the Company, another of whom is
selected by the Indemnitee and the last of whom is selected by the first two
arbitrators so selected.


 


(d)           Submission to
Forum.  As soon as practicable, and
in no event later than thirty (30) days after written notice of the Indemnitee’s
choice of forum pursuant to Section 8(c), the Company shall, at its own
expense, submit to the selected forum in such manner as the Indemnitee or the
Indemnitee’s counsel may reasonably request, its claim that the Indemnitee is
not entitled to indemnification; and the Company shall act in the utmost good
faith to assure the Indemnitee a complete opportunity to defend against such
claim.


 


(e)           Application to
Court of Chancery.  Notwithstanding a
determination by any forum listed in Section 8(c) that Indemnitee is
not entitled to indemnification with respect to a specific proceeding, the
Indemnitee shall have the right to apply to the Court of Chancery of Delaware,
the court in which that proceeding is or was pending or any other court of
competent jurisdiction, for the purpose of enforcing the Indemnitee’s right to
indemnification pursuant to this Agreement.


 


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(f)            Expenses Related
to this Agreement.  Notwithstanding
any other provision in this Agreement to the contrary, the Company shall
indemnify the Indemnitee against all expenses incurred by the Indemnitee in connection
with any hearing or proceeding under this Section 8 involving the
Indemnitee and against all expenses incurred by the Indemnitee in connection
with any other proceeding between the Company and the Indemnitee involving the
interpretation or enforcement of the rights of the Indemnitee under this
Agreement unless a court of competent jurisdiction finds that any of the claims
and/or defenses of the Indemnitee in any such proceeding was frivolous or made
in bad faith.


 


9.             Exceptions.  Any other provision in this Agreement to the
contrary notwithstanding, the Company shall not be obligated pursuant to the
terms of this Agreement:


 


(a)           Claims Initiated
by Indemnitee.  To indemnify or
advance expenses to the Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by the Indemnitee and not by way of defense, unless (i) such
indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board, (iii) such indemnification is
provided by the Company, in its sole discretion, pursuant to the powers vested
in the Company under the General Corporation Law of Delaware or (iv) subject
to Section 9(b), the proceeding is brought to establish or enforce a right
to indemnification under this Agreement or any other statute or law or
otherwise as required under Section 145;


 


(b)           Lack of Good
Faith.  To indemnify the Indemnitee
for any expenses incurred by the Indemnitee with respect to any proceeding
instituted by the Indemnitee to enforce or interpret this Agreement, if a court
of competent jurisdiction determines that each of the material assertions made
by the Indemnitee in such proceeding was not made in good faith or was
frivolous; or


 


(c)           Unauthorized
Settlements.  To indemnify the
Indemnitee under this Agreement for any amounts paid in settlement of a
proceeding unless the Company consents to such settlement, which consent shall
not be unreasonably withheld.


 


10.           Non-exclusivity.  The provisions for indemnification and
advancement of expenses set forth in this Agreement shall not be deemed
exclusive of any other rights which the Indemnitee may have under any provision
of law, the Company’s Certificate of Incorporation or Bylaws, the vote of the
Company’s stockholders or disinterested directors, other agreements, or
otherwise, both as to action in his or her official capacity and to action in
another capacity as a result of serving his or her position as an agent of the
Company, and the Indemnitee’s rights under this Agreement continue for 10 years
after the Indemnitee has ceased acting as an agent of the Company and shall
inure to the benefit of the heirs, executors and administrators of the
Indemnitee.


 


11.           Enforcement.  Any right to indemnification or advances
granted by this Agreement to Indemnitee shall be enforceable by or on behalf of
Indemnitee in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request
therefor.  Indemnitee, in such
enforcement action, if successful in whole or in part, shall be entitled to be
paid also the expense of prosecuting the Indemnitee’s claim.  It shall be a defense to any action 


 


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for which a claim
for indemnification is made under this Agreement (other than an action brought
to enforce a claim for expenses pursuant to Section 6, provided that the required undertaking has been tendered to
the Company) that Indemnitee is not entitled to indemnification because of the
limitations set forth in Sections 4 and 9. 
Neither the failure of the Company (including its Board of Directors or
its stockholders) to have made a determination prior to the commencement of
such enforcement action that indemnification of Indemnitee is proper in the
circumstances, nor an actual determination by the Company (including its Board
of Directors or its stockholders) that such indemnification is improper, shall
be a defense to the action or create a presumption that Indemnitee is not
entitled to indemnification under this Agreement or otherwise.


 


12.           Subrogation.  In the event the Company is obligated to make
a payment under this Agreement, the Company shall be subrogated to the extent
of such payment to all of the rights of recovery under an insurance policy or
any other indemnity agreement covering the Indemnitee, who shall execute all
documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such
rights.


 


13.           Survival
of Rights.


 


(a)           All agreements and
obligations of the Company contained in this Agreement shall continue during
the period Indemnitee is an agent of the Company and shall continue thereafter
for 10 years so long as Indemnitee 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 the fact
that Indemnitee was serving in the capacity referred to in this Agreement.


 


(b)           The Company shall
require any successor to the Company (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place.


 


14.           Interpretation
of Agreement.  It is understood that
the Company and Indemnitee intend this Agreement to be interpreted and enforced
so as to provide indemnification to the Indemnitee to the fullest extent
permitted by law including those circumstances in which indemnification would
otherwise be discretionary.


 


15.           Severability.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, (i) the validity, legality and enforceability of the remaining
provisions of the Agreement (including without limitation, all portions of any
paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby, and (ii) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable and to give effect to Section 14.


 


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16.           Modification
and Waiver.  No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by both of the Company and Indemnitee. 
No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions of this Agreement (whether or
not similar) nor shall such waiver constitute a continuing waiver.


 


17.           Notices.  All notices and other communications
hereunder shall be in writing and shall be deemed given if properly addressed: (a) if
delivered personally or by commercial delivery service, on the day of delivery;
or (b) if delivered by registered or certified mail (return receipt
requested), or first class mail, three business days after mailing.  Notices shall be deemed to be properly
addressed to either party if addressed to the following addresses (or at such
other address for a party as shall be specified by like notice):


 


If to the Company :              Facet
Biotech Corporation


1400 Seaport Boulevard


Redwood City, CA 
94063


Attention: 
General Counsel


 


If to Indemnitee:                   To
the address set forth on the signature page to this Agreement


 


18.           Governing
Law.  This Agreement shall be
governed exclusively by and construed according to the laws of the State of
Delaware as applied to contracts between Delaware residents entered into and to
be performed entirely within Delaware.


 


The
Company and Indemnitee have entered into this Agreement effective as of the
date first above written.


 


	
  Facet
  Biotech Corporation  

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Officer
  or Director’s name]

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
   

  
	
  Ttile:

  	
   

  	
   

  	
   

  	
   

  
							



 


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