Exhibit 10.2


 


Tax
Sharing and Indemnification Agreement


 


THIS TAX SHARING
AND INDEMNIFICATION AGREEMENT (this “Agreement”) dated as of [           ], 2008 (the “Distribution Date”),
is entered into by and between PDL BioPharma, Inc., a Delaware corporation
(“PDL”), and Facet Biotech Corporation, a Delaware corporation (“Facet”)
(each a “Party” and collectively, the “Parties”). Capitalized
terms not defined herein shall have the meaning set forth in the Separation
Agreement.


 


Recitals


 


WHEREAS, PDL and
Facet have entered into a Separation and Distribution Agreement, dated as of
[         ], 2008, (the “Separation
Agreement”), relating to the separation by PDL of the PDL Business and the
Facet Business (as defined below) into PDL and Facet, respectively.


 


WHEREAS, prior to
the separation, PDL will (i) transfer the Facet Assets (as defined below)
and Facet Employees (as defined below) to Facet and Facet will assume the Facet
Liabilities (as defined below) (the “Contribution”), and
(ii) distribute on a pro rata basis all of the issued and outstanding
shares of common stock of Facet to the holders of PDL common stock (the “Distribution”).


 


WHEREAS, in
connection with the Contribution and the Distribution, the Parties wish to
provide for the payment of Taxes (as defined below) and entitlement to refunds
thereof, allocate responsibility and provide for cooperation in connection with
the filing of returns in respect of Taxes, and provide for certain other
matters relating to Taxes.


 


NOW, THEREFORE, in
consideration of the foregoing and the terms, conditions, covenants and
provisions of this Agreement, PDL and Facet mutually covenant and agree as
follows:


 


Article I


 


Definitions


 


1.1           “Code” means the
U.S. Internal Revenue Code of 1986, as amended.


 


1.2           “Contribution”
shall have the meaning the meaning set forth in the recitals hereto.


 


1.3           “Distribution Date”
shall have the meaning set forth in Section 1.13 of the Separation
Agreement.


 


1.4           “Distribution”
shall have the meaning set forth in the recitals hereto.


 


1.5           “Facet” shall
have the meaning set forth in the preamble hereto.


 


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1.6           “Facet Assets”
shall have the meaning set forth in Section 1.22 of the Separation
Agreement.


 


1.7           “Facet Business”
shall have the meaning set forth in Section 1.24 of the Separation
Agreement.


 


1.8           “Facet Employees”
shall have the meaning set forth in Section 1.25 of the Separation
Agreement.


 


1.9           “Facet Indemnitees”
shall have the meaning set forth in Section 3.1 of this Agreement.


 


1.10         “Facet Liabilities”
shall have the meaning set forth in Section 1.26 of the Separation
Agreement.


 


1.11         “Facet U.S. Subsidiaries” shall mean Fremont
Management, Inc. and Fremont Holdings, LLC. For clarity, Fremont Management, Inc. is a
member of the PDL Consolidated Group prior to the Distribution.


 


1.12         “Final Determination”
means any final determination of a liability in respect of Taxes that, under
applicable Tax Law, is no longer subject to further appeal, review or
modification through proceedings or otherwise (including the expiration of the
statute of limitations or a period for the filing of claims for refunds,
amended Tax Returns or appeals from adverse determinations).


 


1.13         “Indemnitee” means
any Person entitled to indemnification pursuant to the provisions of this
Agreement.


 


1.14         “Indemnifying Party”
means any Party required to provide indemnification pursuant to the provisions
of this Agreement.


 


1.15         “IRS” means the
U.S. Internal Revenue Service or any successor thereto, including its agents,
representatives, and attorneys.


 


1.16         “Law” shall have
the meaning set forth in Section 1.41 of the Separation Agreement.


 


1.17         “Party” shall have
the meaning set forth in the preamble hereto.


 


1.18         “PDL” shall have
the meaning set forth in the preamble hereto.


 


1.19         “PDL Consolidated
Group” means PDL and, with respect to the federal Taxes, the other members
of the affiliated group of corporations (within the meaning of
Section 1504(a) of the Code) of which PDL is the common parent, and
with respect to state or local Taxes, any other corporations with which PDL
filed or files a consolidated, combined or unitary Tax Return with PDL as the
common parent.


 


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1.20         “PDL Consolidated
Return Period” means a taxable period that ends on or before, or includes,
the Distribution Date for which a consolidated, combined or unitary (as
applicable) federal, state or local Tax Return is filed or required to be filed
by the PDL Consolidated Group.


 


1.21         “PDL France” shall
have the meaning set forth in Section 2.1(a) of this
Agreement.


 


1.22         “PDL Indemnitees”
shall have the meaning set forth in Section 3.2 of this Agreement.


 


1.23         “PDL Returns”
shall have the meaning set forth in Section 2.1(a) of this
Agreement.


 


1.24         “PDL Tax Liability”
means the consolidated, combined or unitary Tax Liability of the PDL
Consolidated Group.


 


1.25         “Person” means any
individual, partnership, joint venture, limited liability company, corporation,
association, joint stock company, trust, unincorporated organization or similar
entity or a governmental authority or any department or agency or other unit
thereof.


 


1.26         “Post-Distribution
Taxable Period” means a taxable period (and in the case of a Straddle
Period, the portion of a taxable period) that, to the extent it relates to
Facet and its Subsidiaries, begins after midnight on the Distribution Date.


 


1.27         “Pre-Distribution
Taxable Period” means a taxable period (and in the case of a Straddle
Period, the portion of a taxable period) ending on or before midnight on the
Distribution Date.


 


1.28         “Proceeding” means
any audit or other examination, judicial or administrative proceeding relating
to liability for, or Refunds or adjustments with respect to, Taxes.


 


1.29         “Refund” means any
refund of Taxes, including any reduction in Tax Liabilities by means of a
credit, offset, use of an overpayment or otherwise.


 


1.30         “Straddle Period”
means any taxable period that begins on or before and ends after the
Distribution Date.


 


1.31         “Subsidiary” shall
have the meaning set forth in Section 1.61 of the Separation
Agreement.


 


1.32         “Tax” means any
tax, charge, fee, impost, levy or other assessment imposed by any federal,
state, local or foreign Taxing Authority, including income, gross receipts,
excise, property, sales, use, license, capital stock, transfer, franchise,
payroll, withholding, social security, value added and other taxes, and any
interest, penalties or additions attributable thereto.


 


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1.33         “Tax Item” means
any item of income, gain, loss, deduction or credit or other attribute that may
have the effect of increasing or decreasing any Tax.


 


1.34         “Tax Liability”
means all liabilities for Taxes.


 


1.35         “Tax Return” means
any return, report, certificate, filing, statement, questionnaire, declaration,
form or similar statement or document (including any related or supporting
information or schedule attached thereto and any information return, amended
tax return, claim for refund or declaration of estimated tax) required to be
supplied to, or filed with, a Taxing Authority or jurisdiction (foreign or
domestic) in connection with the determination, assessment or collection of any
Tax or the administration of any Laws, regulations or administrative
requirements relating to any Tax.


 


1.36         “Taxing Authority”
means any governmental authority or any subdivision, agency, commission or
authority thereof or any quasi-governmental or private body, whether domestic
or foreign, having jurisdiction over the assessment, determination, collection
or imposition of any Tax (including the IRS).


 


1.37         “Treasury Regulation”
means the final and temporary (but not proposed) income tax regulations
promulgated under the Code, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).


 


Article II


 


Preparation and Filing of Tax Returns; Payment of
Tax


 


2.1           Tax Returns of PDL.


 


(a)           Except as provided
herein, PDL shall have sole and exclusive responsibility for the preparation
and filing, on a timely basis of all Tax Returns (the “PDL Returns”) for
any taxable period that ends on or before the Distribution Date as are required
to be filed of (i) PDL, which, for the avoidance of doubt, includes the
Facet Business prior to the Distribution Date, (ii) each member of the PDL
Consolidated Group and (iii) PDL BioPharma France S.A.S. (“PDL France”).
PDL shall have the right to: determine the manner in which all such returns
shall be filed; make any elections in connection with any such returns;
contest, compromise and settle any adjustments of deficiency proposed, asserted
or assessed in connection with any such returns; file, pursue, compromise or
settle any claim for refund; and determine whether any refunds to which PDL is
entitled shall be paid by way of a refund or credit.


 


(b)           To the extent an
election, return position, or amendment to a Tax Return filed by PDL or a
member of the PDL Consolidated Group relates to an item of income, gain, loss
or deduction of Facet, the Facet Business or PDL France accruing in a
Post-Distribution Taxable Period, Facet and PDL shall cooperate with each other
reasonably and in good faith to determine a mutually acceptable election,
return position, or amendment to such Tax Return. Notwithstanding the
foregoing, if such election, return position, or amendment to such Tax Return
solely affects Facet, the Facet Business


 


4

















 


or PDL France, such election, return position, or
amendment to such Tax Return shall be determined by Facet in its sole
discretion, reasonably and in good faith.


 


(c)           Facet shall prepare and
file all Tax Returns for all Straddle Periods (i) of PDL France and
(ii) that include solely Facet or the Facet Business. PDL and Facet shall
execute such consents, elections and other documents as may be required to
provide for the proper filing of each Tax Return relating to a Straddle Period.


 


2.2           Tax Liability.


 


(a)           PDL shall be liable for
all Taxes due in respect of all PDL Returns and all Taxes imposed on or with
respect to PDL or any of its Subsidiaries (including Facet, the Facet Business,
the Facet U.S. Subsidiaries and PDL France) for all Pre-Distribution Taxable
Periods.


 


(b)           Facet shall be liable
for all Taxes of Facet, PDL France, the Facet U.S. Subsidiaries or relating to
the Facet Business due in respect of all Post-Distribution Taxable Periods.


 


(c)           For purposes of this Section 2.2,
any Tax Liability for a Straddle Period shall be apportioned between the
portion of the taxable period ending on the Distribution Date and the portion
of the taxable period beginning after the Distribution Date. Such
apportionments shall be made on a per diem basis for (i) real and personal
property Taxes and similar Taxes, including Taxes based on net-worth capital,
intangibles or similar items, and (ii) exemptions, allowances or
deductions that are calculated on an annual basis (such as the deduction for
depreciation). Such apportionment shall be made for all other Taxes on the
basis of a “closing of the books” as of the end of the day of the Distribution
Date.


 


Article III


 


Indemnification
for Taxes


 


3.1           Indemnification by
PDL. Except as otherwise provided in this Article III, PDL
shall indemnify and hold Facet, the Facet U.S. Subsidiaries and PDL France and
their successors and assigns (collectively, the “Facet Indemnitees”)
harmless from and against (i) the PDL Tax Liability, including any Taxes
that are imposed on PDL, any member of the PDL Consolidated Group, Facet or PDL
France as a result (in whole or in part) of the Contribution or Distribution,
(ii) any Tax Liability for Taxes as a result of Treasury Regulation
Section 1.1502-6 or any analogous or similar provision under state or
local Law or regulation, of any Person which is or has ever been a member of
the PDL Consolidated Group, (iii) all Tax Liabilities that PDL is required
to pay under Article II hereof and (iv) any costs and expenses
related to any of the foregoing (including reasonable legal, accounting,
appraisal, consulting or similar fees and expenses), provided, however, that
this Section 3.1 shall not apply to any portion of the Tax
Liability of Facet described in Section 3.2. For the avoidance of
doubt, PDL shall not be required to indemnify or otherwise compensate
Facet for any net operating losses, credits, refunds, deductions,
depreciation, amortization, allowance or other tax items accrued by Facet
or


 


5

















 


the Facet
Business in the Pre- Distribution Taxable Period whether or not such
tax item is used to reduce or offset a Tax Liability of PDL.


 


3.2           Indemnification by
Facet. Except as otherwise provided in this Article III, Facet
shall indemnify and hold each member of the PDL Consolidated Group (other than
Facet and the Facet U.S. Subsidiaries, if applicable) and their successors and
assigns (collectively, the “PDL Indemnitees”) harmless from and against
(i) all Tax Liabilities that Facet is required to pay under Article II
and (ii) any costs and expenses related to Tax Liabilities described in
clause (i) (including reasonable legal, accounting, appraisal, consulting
or similar fees and expenses).


 


3.3           Indemnification
Payments. PDL and Facet agree that any indemnification payment made
pursuant to this Article III or Article V of the
Separation Agreement, shall be paid free and clear of any Tax deduction or
withholding. If any deduction or withholding is required by applicable Law to
be made from any indemnification payment made pursuant to this Article III
or Article V of the Separation Agreement, the amount of the payment
will be increased by such additional amount as is necessary to ensure that the
net amount received by the Indemnitee (after taking account of all such
deductions and withholdings) is equal to the amount which it would have
received had the payment in question not been subject to any deductions or
withholdings. Notwithstanding the foregoing, the Parties agree to use
commercially reasonable efforts (to the extent such efforts will not result in
materially adverse consequences to a Party) to mitigate or avoid such
deductions and withholdings.


 


Article IV


 


Tax
Contests


 


4.1           Notification.
Facet shall promptly upon receipt of notice thereof notify PDL in writing of
any communication with respect to any pending or threatened Proceeding in
connection with a Tax Liability (or an issue related thereto) for which PDL may
be responsible pursuant to this Agreement. Facet shall include with such
notification (and thereafter provide to PDL) a true, correct and complete copy
of any written communication, and an accurate and complete written summary of
any oral communication, received by Facet with respect to any such Proceeding.
The failure of Facet to timely forward such notification or further
communication in accordance with the immediately preceding sentence shall not relieve
PDL of its obligation to pay such Tax Liability or indemnify Facet therefor,
except and to the extent that the failure to timely forward such notification
or further communication actually prejudices the ability of PDL to contest such
Tax Liability or increases the amount of such Tax Liability. Similarly, PDL
shall promptly upon receipt of notice thereof notify Facet in writing of any
communication with respect to any pending or threatened Proceeding in
connection with a Tax Liability (or an issue related thereto) for which Facet
may be responsible pursuant to this Agreement. PDL shall include with such
notification (and thereafter provide to Facet) a true, correct and complete
copy of any written communication, and an accurate and complete written summary
of any oral communication, received by PDL


 


6

















 


with respect to any such
Proceeding. The failure of PDL to timely forward such notification or further
communication in accordance with the immediately preceding sentence shall not
relieve Facet of its obligation to pay such Tax Liability or indemnify PDL
therefor, except and to the extent that the failure to timely forward such
notification or further communication actually prejudices the ability of Facet to
contest such Tax Liability or increases the amount of such Tax Liability.


 


4.2           Proceedings
Involving PDL. Except as limited in Section 4.2(a), (b),
and (c), PDL (or such member of the PDL Consolidated Group as PDL shall
designate) shall be entitled to control, settle, contest and designate counsel
with respect to any Proceeding with respect to a Tax Return filed by PDL or a
member of the PDL Consolidated Group (which, for the avoidance of doubt, shall
not include Facet or any Facet Subsidiary subsequent to the Distribution Date)
or which Proceeding relates to items for which PDL is responsible hereunder,
and PDL shall have the right to resolve any such Proceeding in its sole
discretion.


 


(a)           PDL shall allow Facet
and its counsel to participate at its own expense in any Proceeding relating to
a Tax Return filed for a PDL Consolidated Return Period, solely to the extent
that such Proceeding relates to Tax for which Facet would be liable under Section 2.2.


 


(b)           Facet shall be entitled
to control, settle, contest and designate counsel with respect to any
Proceeding with respect to a Tax Return that includes solely Facet, the Facet
U.S. Subsidiaries or PDL France and relates solely to items for which Facet is
responsible hereunder, and Facet shall have the right to resolve any such
Proceedings in its sole discretion.


 


(c)           Facet shall allow PDL
and its counsel to participate at its own expense in any Proceeding relating to
a Tax Return filed by Facet, to the extent that such Proceeding relates to Tax
for which PDL would be liable under this Agreement.


 


Article V


 


Refunds
and Tax Sharing Agreements


 


5.1           Refunds. Except
as set forth in this Section 5.1, PDL shall be entitled to all
Refunds (and any interest thereon received from the applicable Taxing
Authority) in respect of Taxes for all PDL Returns or Taxes which relate to
items for which PDL is responsible hereunder. Facet shall be entitled to all
Refunds (and any interest thereon received from the applicable Taxing
Authority) in respect of Taxes paid by Facet, the Facet U.S. Subsidiaries and
PDL France for all Post-Distribution Taxable Periods. A party receiving a
Refund to which another party is entitled, in whole or in part, pursuant to
this Section 5.1 shall pay the amount to which such other party is
entitled within ten (10) days after such Refund is received or used, as
the case may be. PDL shall be permitted to file, and Facet shall fully
cooperate with PDL in connection with, any claim for Refund in respect of a Tax
for which PDL is responsible hereunder.


 


7

















 


5.2           Tax Sharing
Agreements. Any tax sharing agreement (other than this Agreement) that
includes any member of the PDL Consolidated Group, on the one hand, and Facet
on the other hand shall be terminated as of the Distribution Date and will have
no further effect for any taxable year (whether the current year, a future
year, or a past year).


 


5.3           Compensation
Deductions. PDL (or the appropriate member of the PDL Consolidated Group)
shall claim all Tax deductions arising by reason of the exercise of options on,
or receipt or vesting of restricted shares of, PDL stock.


 


Article VI


 


Cooperation and
Exchange of Information


 


6.1           Cooperation and
Exchange of Information.


 


(a)           Facet, on behalf of
itself and each of its affiliates, agrees to provide PDL (or its designee), at
PDL’s expense, with such cooperation or information as PDL (or its designee)
reasonably shall request in connection with the determination of any other
calculations described in this Agreement, the preparation or filing of any Tax
Return or claim for Refund, or the conduct of any Proceeding. Such cooperation
and information shall include (i) promptly forwarding copies of
appropriate notices and forms or other communications (including information
document requests, revenue agent reports and similar reports, notices of
proposed adjustments and notices of deficiency) received from or sent to any
Taxing Authority or any other administrative, judicial or governmental
authority, (ii) upon reasonable notice, providing copies of all relevant
Tax Returns, together with accompanying schedules and related workpapers,
documents relating to rulings or other determinations by taxing authorities,
and such other records concerning the ownership and tax basis of property, or
other relevant information that Facet or its affiliates may possess,
(iii) upon reasonable notice, providing of such additional information and
explanations of documents and information provided under this Agreement
(including statements, certificates and schedules delivered by either Party) as
shall be reasonably requested by PDL (or its designee), (iv) upon
reasonable notice, the providing of any document that may be necessary or
reasonably helpful in connection with the filing of a Tax Return, a claim for a
Refund, or in connection with any Proceeding, including such waivers, consents
or powers of attorney as may be necessary for PDL to exercise its rights under
this Agreement, and (v) upon reasonable notice, using reasonable efforts
to obtain any documentation from a governmental authority or a third party that
may be necessary or reasonably helpful in connection with any of the foregoing.
Upon reasonable notice, Facet shall make its, or shall cause its affiliates to
make their, employees and facilities available on a mutually convenient basis
to provide explanation of any documents or information provided hereunder. Any
information obtained under this Section 6.1(a) shall be kept
confidential, except as otherwise reasonably may be necessary in connection
with the filing of Tax Returns or claims for Refund or in conducting any
Proceeding.


 


8

















 


(b)           PDL, on behalf of
itself and each member of the PDL Consolidated Group (including Facet), agrees
to provide Facet (or its designee) with such cooperation or information as
Facet (or its designee), at Facet’s expense, reasonably shall request in
connection with the determination of any other calculations described in this
Agreement, the preparation or filing of any Tax Return or claim for Refund, or
the conduct of any Proceeding.  Such
cooperation and information shall include and upon reasonable notice, promptly
forwarding copies of appropriate notices and forms or other communications
(including information document requests, revenue agent’s reports and similar
reports, notices of proposed adjustments and notices of deficiency) received
from or sent to any Taxing Authority or any other administrative, judicial or
governmental authority, (ii) upon reasonable notice, providing copies of
all relevant Tax Returns, together with accompanying schedules and related
workpapers, documents relating to rulings or other determinations by taxing
authorities, and such other records concerning the ownership and tax basis of
property, or other relevant information that PDL or any member of the PDL
Consolidated Group may possess, (iii) upon reasonable notice, the
provision of such additional information and explanations of documents and
information provided under this Agreement (including statements, certificates
and schedules delivered by either Party) as shall be reasonably requested by
Facet (or its designee), (iv) upon reasonable notice, the providing of any
document that may be necessary or reasonably helpful in connection with the
filing of a Tax Return, a claim for a Refund, or in connection with any
Proceeding, including such waivers, consents or powers of attorney as may be
necessary for Facet to exercise its rights under this Agreement, and (v) the
use of PDL’s reasonable efforts to obtain any documentation from a governmental
authority or a third party that may be necessary or reasonably helpful in
connection with any of the foregoing. Upon reasonable notice, PDL shall make,
or shall cause each member of the PDL Consolidated Group to make, its employees
and facilities available on a mutually convenient basis to provide explanation
of any documents or information provided hereunder.  Any information obtained under this Section 6.1(b) shall
be kept confidential, except as otherwise reasonably may be necessary in
connection with the filing of Tax Returns or claims for Refund or in conducting
any Proceeding.


 


6.2           Retention
of Records.  Facet and PDL agree to
retain all Tax Returns, related schedules and workpapers, and all material
records and other documents as required under Code Section 6001 and the
Treasury Regulations promulgated thereunder (and any similar provision of
state, local, or foreign Tax Law) existing on the Distribution Date or created
in respect of (i) any taxable period that ends on or before or includes
the Distribution Date or (ii) any taxable period that may be subject to a
claim hereunder, in each case until the later of (x) the expiration of the
statute of limitations (including extensions) for the taxable periods to which
such Tax Returns and other documents relate and (y) the Final
Determination of any payments that may be required in respect of such taxable
periods under this Agreement.  From and
after the end of the period described in the preceding sentence of this Section 6.2,
if Facet wishes to dispose of any such records and documents, then Facet shall
provide written notice thereof to PDL and shall provide PDL the opportunity to
take possession of any such records and documents within ninety (90) days after
such notice is delivered; provided, however, that if PDL does not, within such
ninety (90) day period, confirm its intention to take possession of such
records and documents, 


 


9

















 


Facet
may destroy or otherwise dispose of such records and documents.  From and after the end of the period
described above in this Section 6.2, if PDL wishes to dispose of
any such records and documents, then PDL shall provide written notice thereof
to Facet and shall provide Facet the opportunity to take possession of any such
records and documents within ninety (90) days after such notice is delivered;
provided, however, that if Facet does not, within such ninety (90) day period,
confirm its intention to take possession of such records and documents, PDL may
destroy or otherwise dispose of such records and documents.


 


Article VII


 


Payments


 


7.1           Method
of Payment.  All payments required by
this Agreement shall be made by (a) wire transfer to the appropriate bank
account as may from time to time be designated by the Parties for such purpose;
provided that, on the date of such wire transfer, notice of the transfer is
given to the recipient thereof in accordance with Section 8.4, or (b) any
other method agreed to by the Parties. 
All payments due under this Agreement shall be deemed to be paid when
available funds are actually received by the payee.


 


7.2           Interest.  Any payment required by this Agreement that
is not made on or before the date required hereunder shall bear interest, from
and after such date through the date of payment, at the underpayment rate as in
effect at such time under Section 6621 of the Code.


 


7.3           Characterization
of Payments.  For all tax purposes,
the Parties agree to treat, and to cause their respective affiliates to treat, (i) any
payment required by this Agreement as a contribution by PDL to Facet or
distribution from Facet to PDL, as the case may be, occurring immediately prior
to the Distribution and (ii) any payment of interest or non-federal Taxes
by or to a Taxing Authority, as taxable to or deductible by, as the case may
be, the party entitled under this Agreement to receive such payment or required
under this Agreement to make such payment, in either case except as otherwise
mandated by applicable Law.  In the event
it is determined as a result of a Final Determination that any treatment
described under clause (i) or (ii) hereof is not permissible, the
payment in question shall be adjusted to place the Parties in the same
after-tax position they would have enjoyed absent such Final Determination.


 


7.4           Time
of Indemnification Payment.  To the
extent an indemnification obligation arises, the Indemnitee shall, upon at
least ten (10) days’ prior notice, make payment pursuant to such
indemnification obligation no later than five (5) days prior to the date
the Indemnitee makes a payment of Taxes, interest, or penalties with respect to
such Tax Liability, including a proposed adjustment of Taxes or an assessment
of Tax deficiency asserted or made by any Taxing Authority that is premised in
whole or part on such Tax Liability, or a payment made in settlement of an
asserted Tax deficiency.


 


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Article VIII


 


Miscellaneous
Provisions


 


8.1           Governing Law;
Jurisdiction.  This Agreement shall
be deemed to have been made in the State of Delaware and its form, execution,
validity, construction and effect shall be determined in accordance with the
Laws of the State of Delaware, without giving effect to the principles of conflicts
of Law thereof.


 


8.2           Assignability.  The provisions of this Agreement and the
obligations and rights hereunder shall be binding upon, inure to the benefit of
and be enforceable by (and against) the Parties and their respective successors
and permitted transferees and assigns. 
Notwithstanding the foregoing, this Agreement shall not be assignable,
in whole or in part, by any Party without the prior written consent of the
other Party, and any attempt to assign any rights or obligations arising under this
Agreement without such consent shall be null and void; provided, that (i) a
Party may assign this Agreement in connection with a merger transaction in
which such Party is not the surviving entity or the sale by such Party of all
or substantially all of its assets, and upon the effectiveness of such
assignment the assigning Party shall be released from all of its obligations
under this Agreement if the surviving entity of such merger or the transferee
of such assets shall agree in writing, in form and substance reasonably
satisfactory to the other Party, to be bound by all terms of this Agreement as
if named as a “Party” hereto.


 


8.3           Third Party
Beneficiaries.  Except for the
indemnification rights under this Agreement of any PDL Indemnitee or Facet Indemnitee
in their respective capacities as such, (i) the provisions of this
Agreement are solely for the benefit of the Parties and are not intended to
confer upon any Person except the Parties any rights or remedies hereunder, and
(ii) there are no third party beneficiaries of this Agreement and this
Agreement shall not provide any third party with any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.


 


8.4           Notices.  All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed effectively
given:  (i) upon personal delivery
to the Party to be notified, (ii) when sent by confirmed facsimile, (iii) five
(5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. 
All communications shall be sent to the respective Parties at the
addresses set forth below (or at such other addresses as shall be specified by
notice given in accordance with this Section):


 


	
  If to PDL, to:

  	
   

  	
  PDL
  BioPharma, Inc.

  
	
   

  	
   

  	
  Attention: General
  Counsel

  
	
   

  	
   

  	
  1400 Seaport Boulevard

  
	
   

  	
   

  	
  Redwood City, CA 94063

  
	
   

  	
   

  	
  Facsimile: 650-454-1468

  



 


11

















 


	
  with a copy to:

  	
   

  	
  Shearman &
  Sterling LLP

  
	
  (not
  to constitute notice)

  	
   

  	
  Attention:
  Peter Lyons

  
	
   

  	
   

  	
  599
  Lexington Avenue

  
	
   

  	
   

  	
  New
  York, NY 10022

  
	
   

  	
   

  	
  Facsimile:
  212-848-7179

  
	
   

  	
   

  	
   

  
	
  If to Facet, to:

  	
   

  	
  Facet Biotech
  Corporation

  
	
   

  	
   

  	
  Attention: General
  Counsel

  
	
   

  	
   

  	
  1400 Seaport Boulevard

  
	
   

  	
   

  	
  Redwood City, CA 94063

  
	
   

  	
   

  	
  Facsimile: 650-454-1468

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  DLA Piper LLP (US)

  
	
  (not to constitute notice)

  	
   

  	
  Attention: Howard Clowes

  
	
   

  	
   

  	
  153 Townsend Street, Suite 800

  
	
   

  	
   

  	
  San Francisco, CA 94107-1957

  
	
   

  	
   

  	
  Facsimile: 415- 659-7410

  
				



 


8.5           Severability.  If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof or thereof, or the application of such provision to Persons
or circumstances or in jurisdictions other than those as to which it has been
held invalid or unenforceable, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, so long as the economic
or legal substance of the transactions contemplated hereby or thereby, as the
case may be, is not affected in any manner adverse to any Party. Upon such
determination, the Parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to affect the original intent of
the Parties.


 


8.6           Waivers of Default.  The failure of either Party to require strict
performance by the other Party of any provision in this Agreement will not
waive or diminish such Party’s right to demand strict performance thereafter of
that or any other provision hereof.


 


8.7           Amendments.  This Agreement may not be modified or amended
except by an agreement in writing signed by each of the Parties.


 


8.8           Construction.


 


(a)           This
Agreement has been prepared jointly and shall not be strictly construed against
either Party.


 


(b)           For
purposes of this Agreement, whenever the context requires:  the singular number shall include the plural,
and vice versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine 


 


12

















 


and neuter genders; and the neuter gender shall
include the masculine and feminine genders.


 


(c)           Except
as otherwise indicated, all references in this Agreement to “Articles” and
“Sections” are intended to refer to Articles, Sections, Exhibits and
Attachments to this Agreement.


 


(d)           The
words “include” and “including,” and variations thereof, shall not be deemed to
be terms of limitation, but rather shall be deemed to be followed by the words
“without limitation.”


 


(e)           The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.


 


8.9           Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument. 
Any executed counterpart delivered by facsimile or other means of
electronic transmission shall be deemed an original for all purposes.


 


13

















 


IN
WITNESS WHEREOF, the Parties have caused this Tax Sharing and Indemnification
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.


 


 


	
   

  	
  PDL
  BioPharma, Inc.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Facet
  Biotech Corporation,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: