Exhibit
10.9


 


AGREEMENT
TO PARTICIPATE IN THE


FACET
BIOTECH CORPORATION


RETENTION
AND SEVERANCE PLAN


Effective December 18, 2008


 


In consideration of the benefits provided by the Facet
Biotech Corporation Retention and Severance Plan (the “Plan”), the undersigned employee of Facet Biotech
Corporation (the “Company”)
and the Company agree that, as of the date written below, the undersigned shall
become a Participant in the Plan and shall be fully bound by and subject to all
of its provisions, subject to the modification of Section 6.1 thereof,
titled “Federal Excise Tax Under Section 4999 of the Code,” set forth in
Appendix A attached hereto.  All
references to a “Participant” in the Plan shall be deemed to refer to the
undersigned.


 


The undersigned employee acknowledges that the Plan
confers significant legal rights and may also constitute a waiver of rights
under other agreements with the Company; that the Company has encouraged the
undersigned to consult with the undersigned’s personal legal and financial advisors;
and that the undersigned has had adequate time to consult with the undersigned’s
advisors before executing this agreement.


 


The undersigned employee acknowledges that he or she
has received a copy of the Plan and has read, understands and is familiar with
the terms and provisions of the Plan. 
The undersigned employee further acknowledges that (1) by accepting
the arbitration provision set forth in Section 13 of the Plan, the
undersigned is waiving any right to a jury trial in the event of any dispute
covered by such provision and (2) except as otherwise established in an
employment agreement between a member of the Company Group and the undersigned,
the employment relationship between the undersigned and the Company Group is an
“at-will” relationship.


 


Executed on December 18, 2008.


 


	
  Participant

  	
   

  	
  Facet Biotech Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Faheem Hasnain

  	
   

  	
  By:

  	
  /s/ Francis Sarena

  
	
  Faheem Hasnain

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  Name:

  	
  Francis Sarena

  
	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President, General
  Counsel and Secretary

  
	
   

  	
   

  	
   

  



 


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APPENDIX
A


TO


AGREEMENT TO PARTICIPATE IN THE


FACET BIOTECH CORPORATION


RETENTION AND SEVERANCE PLAN


OF


FAHEEM HASNAIN


 


For all purposes of the participation of Faheem
Hasnain in the Facet Biotech Corporation Retention and Severance Plan (the “Plan”), Section 6.1 of
the Plan shall be deemed to read as follows:


 


6.1           Federal
Excise Tax Under Section 4999 of the Code.


 


(a)           Additional Payment. 
In the event that any payment or benefit received or to be received by
the Participant pursuant to this Plan or otherwise payable to the Participant
(collectively, the “Payments”)
would be subject to the excise tax imposed by Section 4999 of the Code, or
any similar or successor provision (the “Excise Tax”),
the Company shall pay to the Participant within ninety (90) days following the
date on which the Participant remits the Excise Tax, an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Participant from
the Payments and the Gross-Up Payment, after deduction of (a) any Excise
Tax on the Payments, (b) any federal, state and local income or employment
tax and Excise Tax on the Gross-Up Payment and (c) any interest, penalties
or additions to tax payable by the Participant with respect thereto, shall be
equal to the Payments.  Notwithstanding
the foregoing, if the Payments that would otherwise be subject to the Excise
Tax do not exceed the greatest amount of Payments that could be paid to the
Participant without giving rise to the Excise Tax (the “Reduced Amount”) by more than an amount equal to
the lesser of $100,000 or five percent of the Payments, then no Gross-Up
Payment shall be payable to the Participant and the Payments, in the aggregate,
shall be reduced to the Reduced Amount.


 


(b)           Determination of Amounts.


 


(1)           Determination by Accountants.  All
computations and determinations called for by this Section 6.1 shall be
promptly determined and reported in writing to the Company and the Participant
by independent public accountants selected by the Company and reasonably
acceptable to the Participant (the “Accountants”).  For the purposes of such determinations, the
Accountants may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code.  The Company and the Participant shall furnish
to the Accountants such information and documents as the Accountants may
reasonably request in order to make their required determinations.  The Company shall bear all fees and expenses
charged by the Accountants in connection with such services.


 


(2)           Determination of Applicability of Reduced Amount.  For purposes of determining whether the
Payments will be reduced to the Reduced Amount, any payments or benefits
received or to be received by the Participant in connection with transactions
contemplated by a Change in Control event or the Participant’s termination of
employment 


 


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(whether pursuant to the
terms of this Plan or any other plan, arrangement or agreement with the
Company), shall be treated as “parachute payments” within the meaning of Section 280G of the Code or any
similar or successor provision (“Section 280G”),
and all “excess
parachute payments”
within the meaning of Section 280G shall be treated as subject to the
Excise Tax, except to the extent that, in the opinion of the Accountants, such
payments or benefits otherwise constituting excess parachute payments represent
(in whole or in part) reasonable compensation for services actually rendered within
the meaning of Section 280G, or are otherwise not subject to the Excise
Tax.


 


(c)           Notice and Contest of Claim.


 


(1)           The
Participant shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company
of a Gross-Up Payment.  Such notification
shall be given as soon as practicable but no later than sixty (60) calendar
days after the Participant is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date on which such
claim is requested to be paid.  The
Participant shall not pay such claim prior to the expiration of the thirty
(30) day period following the date on which the Participant gives such
notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due).  If the Company notifies the Participant in
writing prior to the expiration of such period that it desires to contest such
claim, the Participant shall:


 


(i)            give the
Company any information reasonably requested by the Company relating to such
claim;


 


(ii)           take such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company and reasonably satisfactory to the Participant;


 


(iii)          cooperate
with the Company in good faith in order to effectively contest such claim; and


 


(iv)          permit the
Company to participate in any proceedings relating to such claim;


 


provided, however, that the Company shall bear and pay
directly all costs and expenses (including, but not limited to, additional
interest and penalties and related legal, consulting or other similar fees)
incurred in connection with such contest and shall indemnify and hold the
Participant harmless, on an after-tax basis, for any Excise Tax or other tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses.


 


(2)           The
Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the
Participant to pay the tax claimed and sue for a refund or contest the claim in
any permissible manner, and the Participant 


 


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agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Participant to
pay such claim and sue for a refund, the Company shall advance the amount of
such payment to the Participant on an interest-free basis, and shall indemnify
and hold the Participant harmless, on an after-tax basis, from any Excise Tax or
other tax (including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to
such advance; and provided, further, that if the Participant is required to
extend the statute of limitations to enable the Company to contest such claim,
the Participant may limit this extension solely to such contested amount.  The Company’s control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable hereunder
and the Participant shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing
authority.  In addition, no position may
be taken nor any final resolution be agreed to by the Company without the
Participant’s consent if such position or resolution could reasonably be
expected to adversely affect the Participant (including any other tax position
of the Participant unrelated to the matters covered hereby).


 


(3)           Except
for amounts to be advanced by the Company in accordance with this Section 6.1(c),
all payments required to be made by the Company to the Participant pursuant to
this Section 6.1(c) shall be made prior to the end of the Participant’s
taxable year following the Participant’s taxable year in which the taxes which
are the subject of the claim are remitted by the Participant to the taxing
authority, or where no taxes are required to be remitted, the end of the
Participant’s taxable year following the Participant’s taxable year in which
the audit is completed or there is a final and nonappealable settlement or
other resolution of the litigation.


 


(d)           Adjustments.


 


(1)           In the
event that the Excise Tax is subsequently determined to be less than the amount
taken into account hereunder, the Participant shall repay to the Company, at
the time that the amount of such reduction in Excise Tax is finally determined,
the portion of the Gross-Up Payment attributable to such reduction (plus the
portion of the Gross-Up Payment attributable to the Excise Tax and federal,
state and local income and employment taxes imposed on the Gross-Up Payment
being repaid by the Participant to the extent that such repayment results in a
reduction in Excise Tax and/or a federal, state or local income or employment
tax deduction) plus interest on the amount of such repayment at the rate
provided in Section 1274(b)(2)(B) of the Code.


 


(2)           In the
event that the Excise Tax is subsequently determined to exceed the amount taken
into account hereunder (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up Payment), the
Company shall make an additional Gross-Up Payment in respect of such excess
(plus any interest, penalties or additions to tax payable by the Participant
with respect to such excess) within ninety (90) days following the date on
which the Participant remits such additional Excise Tax.


 


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(3)           In the
event that it is subsequently determined that, notwithstanding the Accountants’
good faith determination of the Reduced Amount pursuant to Section 6.1(b),
if applicable, the aggregate “parachute payments” within the meaning of Section 280G
paid to the Participant are in an amount that would result in any portion of
such parachute payments not being deductible by reason of Section 280G,
then the Participant shall pay to the Company an amount equal to the sum of (1) the
excess of the aggregate parachute payments paid to the Participant over the aggregate
parachute payments that could have been paid to the Participant without any
portion of such parachute payments not being deductible by reason of Section 280G;
and (2) interest on the amount determined pursuant to clause (1) of
this sentence at the rate provided in Section 1274(b)(2)(B) of the
Code from the date of the Participant’s receipt of such excess until the date
of such payment.  Notwithstanding the
foregoing, if the aggregate reduction in Payments resulting from the initial
application of Section 6.1(a) and the subsequent application of this Section 6.1(d)(3) would
exceed the lesser of $100,000 or five percent of the Payments, then this Section 6.1(d)(3) shall
not apply, and the Company shall direct the Accountants to compute and shall
pay the Gross-Up Payment in accordance with the provisions of Section 6.1(a).


 


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