Exhibit 10.37


 


	
   

  	
  ***Text Omitted and

  
	
   

  	
  submitted

  
	
   

  	
  separately

  
	
   

  	
  pursuant to

  
	
   

  	
  confidential

  
	
   

  	
  treatment request

  
	
   

  	
  under 17 C.F.R.

  
	
   

  	
  Sections 200.80(b)(4)

  
	
   

  	
  and 230.406

  



 


MASTER
CONSULTING AND ADVISORY SERVICES AGREEMENT


 


THIS
MASTER CONSULTING AND ADVISORY SERVICES AGREEMENT
(the “Agreement”) is made and entered into effective as of this 18th day
of July, 2008  (the  “Effective
Date”), by and between CERBERUS OPERATIONS AND ADVISORY COMPANY LLC, a
Delaware limited liability company with offices at 299 Park Avenue, New York,
New York 10171  (“COAC”), and TALECRIS
BIOTHERAPEUTICS HOLDINGS CORP., a Delaware corporation, with offices at 4101
Research Commons, 79 T.W. Alexander Drive, Research Triangle Park, North
Carolina 27709, on behalf of itself and any of its wholly owned subsidiaries
which may sign and Engagement Letter as hereinafter defined (“Talecris”).  For purposes of this Agreement, COAC and
Talecris each may be referred to individually as a “Party” and together,
as the “Parties”.


 


RECITALS


 


A.            COAC
is a private consulting and advisory company that maintains a team of business
executives (the “Operations Executives”) who have significant knowledge,
experience, skills and training across a broad range of industries, companies
and functional areas of business activity;


 


B.            Talecris
is a global biotherapeutic and biotechnology company that discovers, develops
and produces critical care treatments for people with life-threatening
disorders in a variety of therapeutic areas;


 


C.            COAC
periodically makes the services of its Operations Executives available to its
direct parent company, Cerberus Capital Management, L.P. (“CCM”), as
well as to companies which CCM, or funds or accounts managed or controlled by
CCM or one or more of CCM’s management affiliates, holds investment interests
(each, a “Portfolio Company”, and collectively, the “Portfolio
Companies”), to help the Portfolio Companies address various business and
operations needs, including, among other things, company oversight and
management, leadership and/or staffing of special projects and/or significant
business activities, support for transactional due diligence and
acquisition/disposition planning, filling interim or full-time executive
officer and/or other positions within the Portfolio Companies and a wide
variety of other consulting and advisory services (collectively, the “Advisory
Services”); and


 


D.            Talecris
is a Portfolio Company and, with the approval of its Governance Board, has
previously retained, currently retains and in the future expects to continue to
retain the services of COAC and its Operations Executives to provide Talecris
with certain specific Advisory Services and COAC desires to continue to provide
such Advisory Services, in each case at the rates and upon the terms and
conditions set forth in this Agreement.


 


NOW,
THEREFORE, in consideration of the foregoing premises,
the mutual promises and undertakings set forth herein and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby covenant and
agree as follows:


 

















 


ARTICLE II

DEFINITIONS AND CONSTRUCTION


 


Section 2.1.            Structure.  This Agreement includes Exhibit 1
which is annexed hereto and is hereby incorporated into this Agreement as part
hereof.


 


Section 2.2.            Defined Terms.  The following capitalized terms shall have
the meanings set forth in this Section 2.2:


 


“Account Manager”
shall have the meaning set forth in Section 5.1 hereto.


 


“Advisory Services”
shall have the meaning set forth in Recital C hereto.


 


“Affiliate”
means, with respect to a specified Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person.  For purposes of this Agreement, an Affiliate of COAC shall (x) include,
without limitation, any entity that is owned or controlled by funds or accounts
managed, directly or indirectly, by CCM or one of its management affiliates
under common control with CCM, and (y) exclude the Company and any other
Portfolio Company.


 


“Agreement”
shall have the meaning set forth in the preamble to this Agreement.


 


“Applicable Law” means any law, statute,
ordinance, rule, regulation, code, order, judgment, injunction or decree
enacted, issued, promulgated, enforced or entered by a governmental entity or
self-regulatory organization.


 


“Background IP”
shall have the meaning set forth in Section 11.2 hereto.


 


“Billing Dispute Notice”
shall have the meaning set forth in Section 6.4 hereto.


 


“Billing Disputed Amounts”
shall have the meaning set forth in Section 6.4 hereto.


 


“Billing/Payment
Coordinator” shall have the meaning set forth in Section 6.3
hereto.


 


“Business Advisory Services”
shall have the meaning set forth in Section 3.1 hereto.


 


“Business Day” means a day, other than a
Saturday, Sunday or other day on which commercial banks in New York, New York
are authorized or required by applicable law to close.


 


“CCM” shall have
the meaning set forth in Recital C hereto.


 


“CCM Entities”
shall have the meaning set forth in Section 8.4(a) hereto.


 


“COAC” shall
have the meaning set forth in the preamble to this Agreement.


 


“COAC Indemnified Claims”
shall have the meaning set forth in Section 13.1 hereto.


 


“COAC Indemnified Party”
shall have the meaning set forth in Section 13.1 hereto.


 


“Confidential Information” means (a) all
information, data, agreements, documents, reports, trade secrets, patent
applications, “know-how,” interpretations, plans, studies, forecasts,
projections and records (whether in oral or written form, electronically stored
or otherwise) containing or otherwise reflecting information concerning the
Disclosing Party, any of its Affiliates, their respective businesses or assets
and other information not available to the public generally, whether received
before or after the date of this Agreement, and (b) all memoranda, notes,
analyses, compilations, studies or other documents which were developed based
upon or which include any such Confidential Information (whether in written
form, electronically stored 


 


2

















 


or otherwise), whether prepared by the Disclosing Party, the Receiving
Party or their respective Representatives or others which contain, reflect or
are based on any such Confidential Information. 
Notwithstanding the foregoing, the Parties understand and agree that the
term “Confidential Information” does not include (i) information which was
already in the possession of the Receiving Party or its Representatives prior
to the date of disclosure and which was not acquired or obtained from a source
that was known to the Receiving Party to be bound by a contractual, legal or
fiduciary obligation not to disclose the information to the Receiving Party, (ii) information
which is obtained  by the
Receiving Party or its Representatives from a source other than the Disclosing
Party or its Representatives unless such source is known to the Receiving Party
to be prohibited from transmitting the information to the Receiving Party or
its Representatives by a contractual, legal or fiduciary obligation to the
Disclosing Party, (iii) information which is or becomes generally
available to the public other than as a result of a disclosure by the Receiving
Party or its Representatives in violation of the provisions of this Agreement
or by disclosure by any other Person in violation of any contractual legal or
fiduciary obligation, or (iv) information developed independently by the
Receiving Party or its Representatives without use of Confidential Information.


 


“Conflict” shall
have the meaning set forth in Section 8.4(a) hereto.


 


“Copyright Act” means U.S. Copyright Act
of 1976, as amended.


 


“Corporate/Business Insurance” means,
with respect to a Person, any insurance products or services maintained by such
Person for the benefit of directors, officers, employees and other Persons
covered by such insurance in the ordinary course, including, for example, the
following kinds of coverage: professional liability, directors and officers
liability, employment practices liability, fiduciary and crime, fiduciary
liability, professional liability, and errors and omissions liability.


 


“Deliverables”
means all inventions, works or other materials or ideas created,
conceived or reduced to practice by COAC for the benefit of Talecris directly
in connection with the Advisory Services provided hereunder.


 


“Designated Representatives”
means the individuals selected by the Parties, respectively, to
resolve any Disputes, which such individuals shall have authority to settle Disputes
(such individuals may be or include, but need not be or include, the Account
Managers).


 


“Disclosing
Party” means Talecris with respect to the Confidential Information
delivered by or on behalf of Talecris and COAC with respect to Confidential Information
delivered by or on behalf of COAC.


 


“Dispute” shall
have the meaning set forth in Section 10.1 hereto.


 


“Dispute Notice”
shall have the meaning set forth in Section 10.1 hereto.


 


“Effective Date”
shall have the meaning set forth in the preamble to this Agreement.


 


“Engagement”
shall have the meaning set forth in Section 5.2(a) hereto.


 


“Engagement Letter”
shall have the meaning set forth in Section 5.2(a) hereto.


 


“Expenses” shall
have the meaning set forth in Section 4.2 hereto.


 


“Force Majeure Condition”
shall have the meaning set forth in Section 15.6 hereto.


 


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“Governance Activities” means any
decision or action of any kind contemplated or taken by the Governance Board of
a Person in connection with the monitoring, oversight or management of the
property, business or affairs of such Person as required or permitted under
such Person’s Governance Documents or Applicable Law.


 


“Governance  Board”
means any board of directors, board of managers, supervisory board, executive
board or other similar entity that has overall responsibility for monitoring,
supervising and directing the property, business and affairs of a Person as set
forth in such Person’s Governance Documents.


 


“Governance Documents” means any articles
of incorporation, corporate by-laws, limited liability company operating
agreement, shareholder agreements, membership and partnership agreements and
other similar organizational documents of a Person, together with any
applicable charters, codes of conduct, governance guidelines and other similar
documents setting forth policies and practices relating to the management and
governance of such Person.


 


“Indemnification Coverage” means any
obligation of any kind to provide a Person with any sort of financial
protection against loss, damage or liability (whether actual or potential).


 


“Intellectual Property Rights” means all copyrights, trade secrets, mask
works, patents, patent applications and other intellectual property rights,
worldwide.


 


“Investment Activities”
means any decision or action of any kind relating to the outlay or receipt of
any money or other capital (whether tangible or intangible) to or from any
Person with respect to any investment transaction, including without
limitation, any release, waiver, modification, exercise or enforcement of any
right, claim or obligation arising from or relating to any investment
transaction under any verbal or written agreement or instrument or otherwise.


 


“Invoice” shall
have the meaning set forth in Section 6.1 hereto.


 


“New IP” shall
have the meaning set forth in Section 11.1 hereto.


 


“Notices” shall
have the meaning set forth in Section 15.8 hereto.


 


 “Operations Executive” shall have the meaning set forth in
Recital A hereto.


 


“Party” shall
have the meaning set forth in the preamble to this Agreement.


 


“Person” means any natural person and any
corporation (including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, governmental body or other entity of any kind.


 


“Portfolio Company”
shall have the meaning set forth in Recital C hereto.


 


“Receiving Party” means Talecris with
respect to Confidential Information delivered by or on behalf of Talecris and
COAC with respect to Confidential Information delivered by or on behalf of
COAC.


 


“Representative” of the Disclosing Party
or the Receiving Party means their respective members, managers, partners,
directors, officers, employees, attorneys, advisors, representatives and
Affiliates.


 


“Response” shall
have the meaning set forth in Section 10.1 hereto.


 


“Senior Party
Representatives” shall have the meaning set forth in Section 10.2
hereto.


 


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“Service Fees”
shall have the meaning set forth in Section 4.1 hereto.


 


“Talecris” shall
have the meaning set forth in the preamble to this Agreement.


 


Section 2.3.            Interpretation.


 


(a)           The definitions set
forth in this Agreement (including the Engagement Letter) shall apply equally
to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The words “will” and “shall” are used
interchangeably throughout this Agreement, and the use of either connotes a
mandatory requirement.  The use of one or
the other will not mean a different degree or right or obligation for either
Party.  Use of the word “or” means “and/or”.


 


(b)           References herein to
Articles, Sections and Exhibits shall be deemed to be references to Articles
and Sections of, and Exhibits to, this Agreement, unless the context shall
otherwise require.


 


(c)           The headings of the
Articles, Sections and Exhibits are inserted for convenience of reference only
and are not intended to be a part of or to affect the meaning or interpretation
of this Agreement.


 


(d)           Unless the context
otherwise requires, any reference to any agreement, appendix, schedule,
instrument, statute, rule or regulation shall be deemed to include such
agreement, appendix, schedule, instrument, statute, rule or regulation as
may be amended and supplemented from time-to-time (and, in the case of a
statute, rule or regulation, to any successor provision).


 


(e)           Unless the context
otherwise requires, references to this Agreement shall be deemed to include
references to any associated Engagement Letter.


 


ARTICLE III

SCOPE OF SERVICES


 


Section 3.1.            Services.  Subject to the terms and conditions of this
Agreement, COAC agrees to make its Operations Executives available to Talecris
for the purpose of providing the Advisory Services as Talecris may reasonably
request from time-to-time pursuant to the procedures set forth in Section 5.2
(Engagement Letters) below.  The specific
scope and nature of the Advisory Services may vary from time-to-time depending
on both the needs and interests of Talecris and the availability, experience
and skills of the Operations Executives at the time of the requested
services.  Generally, the Parties expect
that such Advisory Services will involve 
COAC making the Operations Executives available to provide a variety of
business-related advisory services (the “Business Advisory Services”),
including, among other things (i) guidance, direction and/or hands-on
operational support designed to help improve Talecris’ current and prospective
financial condition, performance and operations, including assistance relating
to specific business units, functions and/or activities; (ii) assistance
on specific projects designed to achieve particular business results, (iii) assistance
with respect to the identification,


 


5

















 


assessment,
development and execution of strategic plans and initiatives and (iv) such
other guidance, assistance and support as the Parties may agree from
time-to-time as reflected in an applicable Engagement Letter.


 


ARTICLE IV

FEES AND EXPENSES


 


Section 4.1.            Service Fees.  In
consideration of the Advisory Services provided under this Agreement, Talecris
shall pay to COAC the service fees (the “Service Fees”) specified in the
Engagement Letter under which such Advisory Services are rendered.  Such Service Fees shall be set at (i) a
rate per hour for each of the Operations Executives assigned to the relevant
Engagement, which rates shall be computed based on COAC’s actual cost to
support the assigned Operations Executives or (ii) such other rate
structure or rates as the Parties may agree in the applicable Engagement
Letter.  All such fees (including any
applicable per hour rates) shall be identified in a Schedule that shall be
appended to the Engagement Letter to which such fees relate.


 


Section 4.2.            Expenses.  In addition to the Service Fees described in Section 4.1
above, Talecris shall reimburse COAC for all reasonable and customary expenses
incurred by COAC and its Operations Executives in the performance of the
Advisory Services (the “Expenses”) including, but not limited to,
reasonable travel expenses incurred by Operations Executives in connection with
the Advisory Services, subject to the delivery by COAC to Talecris of
reasonable documentation verifying such charges.


 


ARTICLE V

INITIATION OF WORK ACTIVITIES AND STAFFING


 


Section 5.1.            Account Management.  Upon the Effective Date, each Party shall
provide the other with the name and contact information of one or more
individuals (each, an “Account Manager”) who shall have primary
responsibility for managing the relationship between the Parties under this
Agreement and any applicable Engagement Letter. 
Among other things, the Account Managers shall be responsible for (i)
executing, modifying and terminating any Engagement Letters, (ii) periodically
conferring with one another to assess the status of individual Engagements,
(iii) making any adjustments, modifications or amendments to this Agreement or
an Engagement as may be desired by the Parties, in each case subject to and in
accordance with any applicable requirements under Talecris’ Governance
Documents, (iv) in conjunction with the Billing Coordinators, assisting with
the review and  resolution of any issues
relating to billing or payment under this Agreement or any Engagement Letter
and (v) addressing all such other matters under this Agreement or an applicable
Engagement Letter as the Parties may determine from time-to-time are necessary
and appropriate.  Each Party in its sole
discretion may change its designated Account Manager upon written notice to the
other Party.


 


Section 5.2.            Engagement Letters.


 


(a)           All Advisory Services to be performed
by COAC and the Operations Executives under this Agreement shall be specified
in one or more engagement letters (each, an


 


6

















 


“Engagement
Letter”), and all services and other work to be performed under a
particular Engagement Letter shall be referred to in this Agreement as an “Engagement”.


 


(b)           Each Engagement Letter shall
reference this Agreement and shall include, at a minimum, the following
information: (i) a unique set of tracking and billing codes to be provided by
COAC to Talecris, (ii) a general description of the project, any applicable
target dates or other milestones, and a short summary of any work-product to be
delivered in connection with the Engagement, as applicable, (iii) all fees and
charges applicable to such Engagement and (iv) contact information for the
individuals who will be serving as the primary contacts for each Party in
connection with such Engagement (if different from the Account Managers).


 


(c)           Attached to this Agreement as Exhibit
1 is the Engagement Letter to be entered into between COAC and
Talecris.  To the extent there is any
inconsistency between the terms of this Agreement and the terms of an Engagement
Letter (whether the Engagement Letter set forth as Exhibit 1 hereto or any
subsequent Engagement Letter), the terms of the applicable Engagement Letter
shall control.  Each Engagement Letter
shall be prepared initially by COAC for review and approval by Talecris.  If Talecris has any issues or concerns about
the format or substance of any Engagement Letter presented by COAC, the Parties
shall work together in good faith to promptly resolve such issues or concerns
in a manner satisfactory to both Parties.


 


Section 5.3.            Staffing of Engagements.  Upon
execution of an Engagement Letter (or such later time as the Parties may
agree in writing), COAC shall staff the Engagement with such Operations
Executives as COAC shall deem appropriate to satisfy the mutually agreed upon
objectives for the Engagement.  Unless an
Engagement Letter specifies specific Persons to provide Advisory Services
and/or specifies a specific period of time, COAC shall have the right, in its
sole discretion at any time and from time to time, to remove, substitute or
modify the Operations Executives who staff the Engagement and shall provide
advance notice of any such changes to Talecris. 
Unless otherwise specified in the Engagement Letter, COAC shall
periodically provide Talecris with a list of the Operations Executives assigned
to an Engagement.  If during the course
of an Engagement Talecris is objectively dissatisfied with the work performance
of an Operations Executive, Talecris will provide COAC with written notice of
such fact, directed to COAC’S designated Account Manager.  Promptly upon receipt of such notice, COAC
shall, at its option, either (i) establish a performance improvement plan
lasting no longer than thirty (30) calendar days after receipt of such
notification or (ii) remove the Operations Executive and provide a
replacement reasonably acceptable to Talecris. 
If, subsequent to the implementation of a performance improvement plan,
the relevant Operations Executive remains unacceptable to Talecris, COAC shall
remove such Operations Executive and provide a replacement reasonably
acceptable to Talecris.


 


ARTICLE VI

BILLING AND PAYMENT


 


Section 6.1.            Billing.  All Service Fees payable
under this Agreement shall be billed to Talecris on a monthly basis (each such
bill, an “Invoice”) at the rates and upon the terms and conditions set
forth in the applicable Engagement Letter.


 


7














 


Section 6.2.            Payment.  Except as provided in Section 6.4 below,
Talecris shall pay to COAC the amounts of each Invoice not later than thirty
(30) calendar days after the due date set forth on such Invoice.  All Service Fees and Expenses shall be paid
to COAC in U.S. dollars unless otherwise specified in an Engagement Letter.


 


Section 6.3.            Single Point of
Billing/Payment Contact. 
Promptly after the Effective Date of this Agreement, each Party shall
designate, in addition to the Account Manager, a single point of contact (each,
a “Billing/Payment Coordinator”) who shall have primary responsibility
on behalf of the designating Party for reviewing, responding to and resolving
any billing-related or payment-related inquiries that may arise during the
course of this Agreement or an Engagement, which such review, response and
resolution shall at all times be subject to and contingent upon the approval of
the Account Manager designated by the responding Party.  Each Party in its sole discretion may change
its designated Billing/Payment Coordinator upon written notice to the other
Party and either or both Parties may designate the same individual to serve as
both its Account Manager and its Billing/Payment Coordinator.


 


Section 6.4.            Billing/Payment Disputes.  If any portion of an amount due to COAC under
an Engagement Letter is subject to a bona fide dispute between the Parties,
Talecris shall, prior to the applicable date for payment, provide written
notice to COAC (the “Billing Dispute Notice”) of any amounts that Talecris
reasonably believes were not billed appropriately (such amounts, the “Billing
Disputed Amounts”) and shall include in such Billing Dispute Notice
specific detail regarding the basis for such dispute.  Talecris shall pay to COAC all undisputed
amounts as and when due, time being of the essence, and shall have the right to
withhold payment on any Billing Disputed Amounts.  If the Parties are unable to resolve the
issues related to a Billing Disputed Amount in the normal course of business
within ten (10) Business Days after delivery to COAC of the Billing
Dispute Notice (or such later date as the Parties may agree in writing), each
Party shall have the right to initiate the dispute resolution procedures set
forth in Article X (Dispute Resolution) below with respect to any Billing
Disputed Amounts.


 


ARTICLE VII

CONFIDENTIALITY


 


Section 7.1.            Restrictions on Disclosure
and Use of Confidential Information.


 


(a)           The Receiving Party shall treat the
Confidential Information as confidential and shall not, and shall cause its
Representatives not to, directly or indirectly, disclose, reveal, divulge,
publish or otherwise make known any of the Confidential Information of the
Disclosing Party to any other Person for any reason or purpose whatsoever,
except as provided in Section 7.1(c), Section 7.1(d) or Section 7.1(e) below.


 


(b)           The Receiving Party shall, and shall
cause its Representatives to, use the Confidential Information solely for the
purpose of providing or receiving the Advisory Services in accordance with the
terms of this Agreement.


 


(c)           Notwithstanding the provisions of Section 7.1(a) above,
the Receiving Party may disclose Confidential Information to its
Representatives who (i) need to know such 


 


8

















 


information to permit the
Receiving Party to provide or receive Advisory Services in accordance with the
terms of this Agreement, (ii) are informed of the confidential nature of
the Confidential Information and (iii) agree to maintain the
confidentiality of the Confidential Information.  The Receiving Party shall be fully
responsible for any breach of the provisions of this Article VII by any of
its Representatives.


 


(d)           Notwithstanding the provisions of Section 7.1(a) above,
if the Receiving Party or any of its Representatives are required to disclose
any Confidential Information pursuant to Applicable Law, the Receiving Party
shall promptly notify the Disclosing Party in writing of any such requirement,
if legally permissible, so that the Disclosing Party may seek an appropriate
protective order or other appropriate remedy or waive compliance with the
provisions of this Agreement.  The
Receiving Party shall, and shall direct its Representatives to, reasonably
cooperate with the Disclosing Party to obtain such a protective order or other
remedy and if such order or other remedy is not obtained, or the Disclosing
Patty waives compliance with the provisions of this Agreement, the Receiving
Party and its Representatives shall disclose only that portion of the Confidential
Information which they are advised by counsel that they are legally required to
so disclose and will use good faith efforts to obtain reliable assurance that
confidential treatment will be accorded the information so disclosed.


 


(e)           Notwithstanding the provisions of Section 7.1(a) and
Section 7.1(b) above, nothing set forth in this Article VII
shall operate or be construed to operate as restricting in any manner the
rights or ability of (i) COAC or its Operations Executives to disclose
Confidential Information of the Disclosing Party to CCM or its Affiliates or (ii) CCM
or its Affiliates to use any Confidential Information of the Disclosing Party
in connection with any Governance Activities or Investment Activities,
regardless of whether or not such activities relate to Talecris or its
Affiliates; provided however, COAC acknowledges it is aware and that its
Representatives have been advised that the United States securities laws and
securities law of other jurisdictions prohibit any Person who has material
non-public information about a company from purchasing or selling securities of
such company on the basis of such information or from communicating such
information to any other Person under circumstances in which it is reasonably
foreseeable that such Person may purchase or sell such securities.


 


Section 7.2.            Return or Destruction of
Confidential Information. Promptly upon written request of the
Disclosing Party, the Receiving Party shall, and shall cause its
Representatives to, at the election of the Receiving Party, return to the
Disclosing Party or destroy all Confidential Information in tangible form
(whether in written form, electronically stored or otherwise), and neither the
Receiving Party nor any of its Representatives shall retain any copies or
extracts thereof.  To the extent that the
Receiving Party elects to destroy such Confidential Information pursuant to the
terms of this Section 7.2, such destruction shall be certified by the
Receiving Party to the Disclosing Party in writing if so requested by the
Disclosing Party.  Notwithstanding the
foregoing, nothing set forth in this Section 7.2 shall require the
Receiving Party to destroy Confidential Information to the extent that the
Receiving Party believes, in good faith, that such information is necessary or
appropriate for the purpose of exercising or performing the Receiving Party’s
rights, claims or obligations under (i) this Agreement or any Engagement
Letter, (ii) any Governance Activities or (iii) any Investment
Activities.


 


9

















 


Section 7.3.            Specific Performance.  The Receiving Party hereby acknowledges and
agrees that the provisions set forth in this Article VII may be of a
special and unique nature, the loss of which may not be accurately compensated
for in damages by an action at law, and that the breach or threatened breach of
the provisions of this Agreement by the Receiving Party or any of its
Representatives may cause the Disclosing Party irreparable harm and that money
damages may not be an adequate remedy for any breach or threatened breach of
the provisions of this Agreement by the Receiving Party or any of its
Representatives.  The Receiving Party
hereby agrees on behalf of itself and its Representatives that the Disclosing
Party shall be entitled to seek equitable relief, including, without
limitation, an injunction or injunctions (without the requirement of posting a
bond, other security or any similar requirement or proving any actual damages),
to prevent breaches or threatened breaches of the confidentiality provisions
set forth in this Article VII by the Receiving Party or any of its
Representatives and to specifically enforce the confidentiality terms and
provisions of this Agreement, this remedy being in addition to any other remedy
to which the Disclosing Party may be entitled at law or in equity.


 


Section 7.4.            No Unintended Restrictions.  Notwithstanding the foregoing or any other
provision of this Agreement to the contrary, nothing set forth in this
Agreement or any Engagement Letter shall operate or be construed to operate to
release, waive, terminate, alter or in any way restrict in any manner any
rights, claims or benefits of CCM and/or its Affiliates under any Governance
Documents to which Talecris or its Affiliates are a party, including any right
or ability of CCM and/or its Affiliates to consider Confidential Information in
connection with any Governance Activities or Investment Activities, regardless
of whether or not such activities relate to Talecris or  its Affiliates; provided however, COAC
acknowledges it is aware and that its Representatives have been advised that
the United States securities laws and securities law of other jurisdictions
prohibit any Person who has material non-public information about a company from
purchasing or selling securities of such company on the basis of such
information or from communicating such information to any other Person under
circumstances in which it is reasonably foreseeable that such Person may
purchase or sell such securities.


 


ARTICLE VIII

ADDITIONAL UNDERSTANDINGS


 


Section 8.1.            Independent Contractor;
Benefits; Insurance.


 


(a)           (i) COAC and the Operations
Executives are acting solely as independent contractors in performing the
Advisory Services hereunder; (ii) neither COAC nor any Operations
Executive shall have the authority to act for, bind, or otherwise commit
Talecris or any of its Affiliates; and (iii) neither COAC nor any of its
Operations Executives shall hold itself or themselves out as having any such
authority, except in the case of items (ii) and (iii) above to
the extent that such authority has been granted to an Operations Executive by
Talecris.


 


(b)           COAC hereby acknowledges and agrees
that its employees and agents, including the Operations Executives (i) are
not, and shall not be by reason of this Agreement or any Engagement Letter,
employees or agents of Talecris, and (ii) except as provided in (c) below,
are not, and shall not be, entitled to compensation from, or employee benefits
of, Talecris in connection with the provision of any Advisory Services provided
hereunder.


 


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(c)           Talecris shall not (i) pay any
contributions to Social Security, unemployment insurance, or federal or state
withholding taxes with respect to the Operations Executives or the Service Fees
paid to COAC pursuant to this Agreement or (ii) carry workers’
compensation or other accident insurance to cover the Operations Executives or
provide any other contributions or benefits to COAC or the Operations
Executives that might be expected in an employer-employee relationship, and
COAC and the Operations Executives expressly waive any right to such
participation or coverage. 
Notwithstanding the forgoing or any other provision of this Agreement to
the contrary, COAC and the Operations Executives shall be entitled to the
benefits and protections of any Corporate/Business Insurance maintained by
Talecris or its Affiliates and Indemnification Coverage to the extent that such
policies and benefits cover independent contractors to Talecris or its
Affiliates.


 


Section 8.2.            No Exclusivity.  The Advisory Services to be provided by COAC
and the Operations Executives hereunder are not and shall not be deemed to be
exclusive to Talecris or its Affiliates and COAC and the Operations Executives
are and shall remain free to render similar services to other Persons and to
engage in all such activities as COAC and the Operations Executives deem
appropriate, provided that in doing so COAC and 
the Operations Executives do not breach any covenants or obligations of
COAC expressly set forth in this Agreement.


 


Section 8.3.            Limited Duties.


 


(a)           At all times during the term of an Engagement, COAC shall use, and
shall cause the Operations Executives to use, commercially reasonable efforts
when providing Advisory Services to (i) provide the Advisory Services in a
timely, competent and professional manner, in material compliance with any
Applicable Laws relevant to such services, in material compliance with Talecris’
general procedures provided by Talecris to COAC in writing from time to time
and in material compliance with the reasonable directions as the Operations
Executives may receive from Talecris’ officers or other designated
representatives, (ii) when working on-site at a Talecris location, ensure
that the Operations Executives or other COAC representatives conduct themselves
in a manner that complies with applicable policies of the Talecris relating to
the conduct of contractors when working on site, in each case to the extent
that such policies have been communicated to COAC in writing prior to
commencement of such activities, and (iii) refrain from disparaging
Talecris, its employees, products or services.


 


(b)           To the extent that an Operations
Executive, in rendering Business Advisory Services, is to have a fiduciary or
other similar duty to Talecris or its Affiliates beyond the specific covenants
and agreements set forth herein, such fiduciary or other similar duties shall
be expressly set forth and referenced on the Engagement Letter.  In such event, the Parties agree that such
Operations Executive shall be directed to conduct himself or herself in a
manner consistent with his or her fiduciary duties to Talecris or its
Affiliates, notwithstanding any other obligation he or she may owe to COAC or
its Affiliates.  Moreover, if an
Operations Executive owes any fiduciary duties to Talecris or its Affiliates
that conflict with any duties or obligations owed by such individual to COAC or
its Affiliates, the duties owed by such Operations Executive to Talecris or its
Affiliates shall take precedence over the duties owed by such Operations
Executive to COAC or its Affiliates.


 


11

















 


(c)           Nothing in this Agreement or any
Engagement Letter (or otherwise arising from the delivery or receipt of
Advisory Services) shall operate or be construed to operate to (i) create
any sort of fiduciary duties on the part of COAC or any Operations Executive to
Talecris unless expressly and specifically undertaken and set forth in an
Engagement Letter; (ii) create or expand the scope of any fiduciary duties
that may be applicable to COAC or the Operations Executives under Applicable
Law, legal agreement or otherwise or (iii) release, limit, alter or waive
any limitation on, disclaimer of, or protection against the creation,
acceptance or imposition of fiduciary duties or other obligations that may be
set forth in Talecris’ Governance Documents, all of which such limitations,
disclaimers and protections are expressly preserved.


 


Section 8.4.            Conflicts of Interest.


 


(a)           Talecris understands and agrees that (i) COAC
and the Operations Executives have a variety of corporate, business,
employment, investment and/or other relationships with CCM and its Affiliates
(the “CCM Entities”), including companies that may hold investment
interests in and/or do business with Talecris and its Affiliates or operate in
businesses and/or industries similar to or competitive with Talecris, and (ii) during
the course of an Engagement, COAC and/or various Operations Executives may
acquire information or knowledge about, or participate in, transactions,
business opportunities and/or other matters that could be of potential
relevance or interest to Talecris or its Affiliates, including matters that
could present an actual or potential conflict of interest (each, a “Conflict”)
between COAC and Talecris or its Affiliates. 
Talecris hereby acknowledges that COAC and its Operations Executives
intend to maintain these relationships, and that the mere existence of these
relationships alone does not present any actual or potential conflicts under
this Agreement or otherwise.


 


(b)           If during the term of an Engagement
either Party determines that either it or the other Party (or any person who
works for such Party) has an actual Conflict arising from or relating to the
delivery or receipt of Advisory Services under such Engagement, such
discovering Party shall disclose the fact of such Conflict to the other Party
and, in such event, the Parties shall work cooperatively to either (i) resolve
the Conflict in a manner satisfactory to both Parties, (ii) cease
providing or receiving the Advisory Services giving rise to such Conflict, or (iii) terminate
the Engagement giving rise to such Conflict.


 


(c)           Notwithstanding the foregoing or any
other provision of this Agreement to the contrary, neither COAC nor any of the
Operations Executives shall (i) have any duty or obligation to disclose to
Talecris or its Affiliates any confidential information that COAC or any
Operations Executive may acquire about the business, operations or activities
of any other Person, even if such information could be deemed material and
relevant information to Talecris or its Affiliates, (ii) have any
liability to Talecris or its Affiliates for breach of any duty or obligation by
reason of not disclosing such confidential information or (iii) have any
duty or obligation to communicate, offer or direct to Talecris or its
Affiliates any business opportunity of which COAC or an Operations Executive
may become aware, even if COAC or such Operations Executive has knowledge that
Talecris or its Affiliates might be interested in such business opportunity.


 


12

















 


ARTICLE IX

TERM AND TERMINATION


 


Section 9.1.            Term.  This Agreement shall become effective as
of the Effective Date and shall continue thereafter until written notice from
either Party terminating this Agreement in its entirety is provided to the
other Party.  Such termination of this
Agreement shall be effective fifteen (15) Business Days after the delivery of
written notice to the other Party.


 


Section 9.2.            Termination.
 Unless otherwise provided in an
Engagement Letter, either Party may terminate one or more Engagements under
this Agreement upon ten (10) Business Days prior written notice to the
other Party, indicating the specific Advisory Services and or Engagements that
are no longer desired, or will no longer be provided, as applicable, provided
however, that any such termination of one or more specific Advisory
Services or Engagements will not, in itself, cause the termination of this
Agreement.


 


Section 9.3.            Effect of Termination.  Upon the termination of any Engagement or of
this Agreement, Talecris shall promptly pay to COAC all amounts due to COAC for
Advisory Services, and all other amounts due to COAC, with respect to such
Engagement or this Agreement, as applicable, through the date of such
termination.  The provisions of ARTICLES
I, III, V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV of this Agreement
shall survive the termination of any Engagement and the termination of this
Agreement.


 


ARTICLE X

DISPUTE RESOLUTION


 


Section 10.1.          Dispute Notice and
Response.  Except as
otherwise provided herein, any dispute, claim or controversy (individually and
collectively, a “Dispute”) arising under or relating to this Agreement
(or any Engagement Letter) which has not been resolved during the ordinary
course of business between the Parties shall be resolved by such Party
providing to the other Party written notice (a “Dispute Notice”) setting
forth the position of the Party giving such Dispute Notice and a summary of
arguments supporting such position, as well as the name and title of such Party’s
Designated Representative.  Within
fifteen (15) calendar days after delivery of the Dispute Notice, the Party who
received the Dispute Notice shall submit to the other Party a written response
(the “Response”) setting forth the position of the Party responding to
such Dispute Notice and a summary of arguments supporting such position, as
well as the name and title of such Party’s Designated Representative.  Within fifteen (15) calendar days after the
delivery of the Response, the Designated Representatives of both Parties shall
meet at a mutually acceptable location and time, and thereafter as often as
they reasonably deem necessary, to attempt to resolve the Dispute through good
faith negotiation.  The Parties shall
cooperate in good faith with respect to any reasonable requests for exchanges
of information regarding the Dispute or a Response thereto.


 


Section 10.2.          Senior Party
Representatives.  If the
Dispute has not been resolved within sixty (60) calendar days after delivery of
the Dispute Notice, or if the Designated Representatives of each Party fail to
meet within fifteen (15) calendar days after delivery of the Response, the
Parties shall refer the Dispute to executives of each Party hereto who have


 


13

















 


authority to settle the
Dispute and who are at a higher level of management than the Designated
Representatives (the “Senior Party Representatives”).  Within fifteen (15) calendar days after the
Parties have referred the Dispute to the Senior Party Representatives, the
Senior Party Representatives of both Parties shall meet at a mutually
acceptable time and place, and thereafter as often as they reasonably deem
necessary, to attempt to resolve the Dispute.


 


Section 10.3.          Legal Action.  If the Dispute has not been resolved within
thirty (30) calendar days after the Parties referred the Dispute to the Senior
Party Representatives, or if the Senior Party Representatives of each Party
fail to meet within fifteen (15) calendar days after such referral, either
Party may commence legal action with respect to the Dispute subject to the
terms of this Agreement.


 


Section 10.4.          Settlement Discussions.  All negotiations, conferences and discussions
pursuant to this Article X shall be confidential and shall be treated as
compromise and settlement negotiations. 
Nothing said or disclosed, nor any document produced, in the course of
such negotiations, conferences and discussions that is not otherwise
independently discoverable shall be offered or received as evidence or used for
impeachment or for any other purpose at trial or in any current or future
arbitration, mediation or other proceeding.


 


Section 10.5.          Equitable Remedies.  Notwithstanding the foregoing or any other
provision of this Agreement to the contrary, nothing set forth in this Article X
shall operate or be construed to operate to prevent either Party from seeking
temporary equitable remedies, including temporary restraining orders, if, in
such Party’s judgment, such action is necessary to avoid irreparable harm.  Despite any such action, the Parties will continue
to participate in good faith in the dispute resolution procedures described in
this Article X.


 


ARTICLE XI

INTELLECTUAL PROPERTY


 


Section 11.1.          New IP.  Except as provided in Section 11.2 of
this Agreement, Talecris shall be the sole and exclusive owner of all
Deliverables and Intellectual Property Rights that are embodied therein
(collectively, the “New IP”). 
COAC shall not have any ownership, license or other interest in any New
IP.  COAC agrees and acknowledges that,
to the extent allowed under applicable law, all works created hereunder shall
be considered to be “works made for hire” as that phrase is defined in the
Copyright Act.  To the extent any
Intellectual Property Rights to such works or that are otherwise included in
the New IP would otherwise vest in COAC, COAC hereby assigns to Talecris all
right, title and interest in and to such Intellectual Property Rights.  Title to all New IP shall vest in Talecris
automatically upon creation.  To the
extent requested by Talecris, Operations Executive and/or COAC  shall sign, execute, and acknowledge or cause
to be signed, executed, and acknowledged without cost, but at the expense of
Talecris, any and all documents and shall perform such acts as may be necessary,
useful, or convenient for the purpose of securing to Talecris or its nominees,
patent, trademark, or copyright protection throughout the world upon all such
New IP.


 


Section 11.2.          COAC
Ownership.  COAC shall retain full, sole and exclusive
ownership of all inventions, works or other materials or ideas that have
been or are created, conceived or reduced to practice by COAC prior to, after
or independently of the services


 


14

















 


 provided under this Agreement and all
Intellectual Property Rights that are embodied therein (collectively, the “Background
IP”).  To the extent any Background IP is incorporated into any Deliverable, COAC
hereby grants Talecris a non-transferable, non-exclusive, royalty-free,
worldwide license to such Background IP to use the Deliverable.  Unless COAC notifies Talecris in writing of
the incorporation of any Background IP in a Deliverable, neither Talecris nor
its assignees shall have any liability to COAC for use of such Background IP.


 


ARTICLE XII

REPRESENTATIONS AND WARRANTIES; DISCLAIMER


 


Section 12.1.          Representations and
Warranties.


 


(a)           Each Party hereby represents and
warrants that, as of the Effective Date and at all times thereafter (i) each
Party has the legal authority to execute and perform this Agreement, (ii) this
Agreement constitutes a valid and binding obligation enforceable against such
Party according to its terms and (iii) the execution and delivery of this
Agreement does not, and the performance by each Party of its respective
obligations hereunder shall not, with or without the giving of notice or the
passage of time, or both (x) violate any judgment, writ, injunction, or
order of any court, arbitrator, or governmental agency applicable to such
Party, (y) conflict with, result in the breach of any provisions of or the
termination of, or constitute a default under, any agreement (including,
without limitation, any confidentiality, non-solicitation, non-competition or
similar agreement) to which the representing Party is a party or by which it
may otherwise be bound or (z) violate or conflict with any of the
representing Party’s Governance Documents.


 


(b)           Talecris hereby represents and
warrants to COAC that, as of the Effective Date and at all times thereafter (i) the
execution and delivery of this Agreement and each Engagement Letter and the
performance of Talecris’ obligations hereunder and thereunder shall have been
approved in all respects by the independent members of Talecris’ Governance
Board or, in the absence of such independent members, by such other members of
Talecris’ Governance Board as have been charged with reviewing and approving
transactions between or among Talecris and Affiliated entities.


 


Section 12.2.          Disclaimer.
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS Article XII, THE ADVISORY
SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND THE RECEIPT AND USE OF THE
ADVISORY SERVICES BY TALECRIS AND ITS AFFILIATES IS AT THEIR OWN RISK.  COAC DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY
AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED (BY OPERATION OF LAW OR
OTHERWISE) INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE AND ANY WARRANTIES
ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.


 


15

















 


ARTICLE XIII

INDEMNIFICATION


 


Section 13.1.          Indemnification of COAC
Parties.  Talecris shall
indemnify, defend and hold harmless COAC and its Affiliates and each of their
respective officers, directors, members, managers, employees, Operations
Executives and agents (each, a “COAC Indemnified Party”) from any and
all losses, suits, actions, judgments, penalties, fines, costs, damages,
liabilities or claims of any kind or nature, whether joint or several
(including, without limitation, reasonable legal and other expenses incurred by
a COAC Indemnified Party in connection with the preparation for or defense of
any action, claim or proceeding, whether or not resulting in any liability)(all
of the foregoing, the “COAC Indemnified Claims”) to which any COAC
Indemnified Party may become subject or liable or which may be incurred by or
assessed against any of the COAC Indemnified Parties under any statute, common
law, contract or otherwise, except to the extent that any such COAC Indemnified
Claim is directly caused by the gross negligence or intentional misconduct of
COAC or an Operations Executive.


 


Section 13.2.          Defense of Claims.  Promptly after receipt by COAC of notice of a
COAC Indemnified Claim, or any claim or the commencement of any action or
proceeding in respect of which indemnity may be sought against Talecris, COAC
shall notify Talecris in writing of the commencement thereof; provided, however,
that the failure of COAC to give timely notice hereunder shall not affect the
rights of the COAC Indemnified Parties to indemnification hereunder, except to
the extent that Talecris can demonstrate actual, material prejudice to Talecris
as a result of such failure.  COAC and
the COAC Indemnified Parties shall reasonably cooperate with appropriate
requests of Talecris with regard to the defense of any COAC Indemnified
Claim.  Talecris shall maintain authority
and control of the defense of any such Claim and the authority to settle or
otherwise dispose of any such COAC Indemnified Claim (provided that COAC shall
have the right to reasonably participate at its own expense in the defense or
settlement of any such COAC Indemnified Claim). 
In no event, however, may Talecris agree to any settlement of any COAC
Indemnified Claim that would affect any of COAC or any COAC Indemnified Party’s
rights or obligations, or that would constitute an admission of guilt or
liability on the part of the COAC or any COAC Indemnified Party, without COAC
or such COAC Indemnified Party’s, as applicable, express prior written consent.


 


Section 13.3.          Additional Rights.  The indemnity and expense reimbursement
agreements and obligations set forth herein shall be in addition to any other
rights, remedies or indemnification that the COAC Indemnified Parties may have
or be entitled to under Talecris’ Governance Documents or Corporate/Business
Insurance policies, at common law or otherwise, and shall remain operative and
in full force and effect regardless of any investigation made by or on behalf
of any of the COAC Indemnified Parties.


 


ARTICLE XIV

EXCLUSIONS AND LIMITATIONS OF LIABILITY


 


Section 14.1.          Exclusions.  Notwithstanding any other provision of this
Agreement to the contrary, other than in respect of indemnification as provided
in Article XIII for which this Article XIV shall not apply, neither
Party shall be liable to the other (or to any of the other Party’s Affiliates)
for any indirect, consequential, incidental, exemplary or special 


 


16

















 


losses or damages, punitive
damages, lost profits, lost revenues or diminution in value including, but not
limited to, loss of goodwill, even if such Party is advised or otherwise aware
of the potential for such losses or damages.


 


Section 14.2.          Limitation
on Damages.  The liability
of either Party for actual damages resulting from performance or
non-performance under this Agreement or any Engagement Letter, regardless of
the form of action, and whether in contract, tort (including, without
limitation, negligence), warranty or other legal or equitable grounds, shall be
limited in the aggregate to the preceding twelve (12) month’s revenues actually
received by COAC under this Agreement. 
Notwithstanding the foregoing, this limitation shall not apply to (i) losses
by either Party for death or bodily injury, (ii) damages suffered by a
Party as a result of the gross negligence or willful misconduct of the other
Party (iii) any breach of confidentiality obligations contained in this
Agreement or (iv) in respect of indemnification as provided in Article XIII.


 


ARTICLE XV

MISCELLANEOUS


 


Section 15.1.          No
Waiver.  The forbearance,
delay, or failure of either Party to object to or take action with regard to
any breach or noncompliance with any provision of this Agreement, or to
exercise any right or remedy available to it, does not constitute and shall not
be construed as a waiver or modification of that or any other breach or
noncompliance, or a waiver of any right or remedy for the breach or
noncompliance or otherwise.


 


Section 15.2.          Severability.
 If any provision of this Agreement
is determined by any court of competent jurisdiction to be invalid, illegal, or
unenforceable in whole or in part, and such determination becomes final, such
provision or portion thereof shall be deemed to be severed or limited to the
extent required to render the remaining provisions and portions of this
Agreement valid, legal or enforceable, and the Agreement shall be enforced to
give effect to the intention of the Parties to the maximum extent possible.


 


Section 15.3.          Applicable
Law, Jurisdiction and Waiver of Jury Trial.  This Agreement and all related Engagement
Letters are made under and shall be construed and interpreted in accordance
with, and governed by, the internal laws of the State of New York without
regard to its conflicts of laws principles. 
The United States District Court for the Southern District of New York
shall have exclusive jurisdiction over any litigation arising out of this
Agreement (and any Engagement Letter) and the Parties agree to submit to the personal
jurisdiction of such court and all appellate courts having jurisdiction
thereover.  To the extent the United
States District Court for the Southern District of New York does not have
jurisdiction over any litigation arising out of this Agreement (and any
Engagement Letter), the Parties agree to submit any such claims to the personal
jurisdiction of the courts of the State of New York, located in Manhattan and
to all appellate courts having jurisdiction thereover.  EACH OF THE PARTIES HEREBY WAIVES ITS RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY OR ON
BEHALF OF A PARTY WITH RESPECT TO ANY MATTER RELATING TO OR ARISING OUT OF THE
ENGAGEMENT OR THE PERFORMANCE OR NON-PERFORMANCE OF THE PARTIES HEREUNDER.


 


17














 


Section 15.4.          Entire
Agreement.  Except as otherwise provided herein, this
Agreement and any related Engagement Letter, including any exhibits and
schedules thereto, contain the entire understanding of the Parties with respect
to its subject matter, and supersedes and replaces any prior agreements,
understandings or promises relating to the subject matter hereof and thereof.


 


Section 15.5.          Amendment.  This Agreement may be
supplemented or amended only upon mutual agreement of the Parties in a writing
signed by authorized representatives of both Parties.


 


Section 15.6.          Force
Majeure.  Neither COAC nor Talecris shall be liable for
any delay in performance or failure to perform any obligation under this
Agreement to the extent such delay is due to causes beyond its control and is
without its fault or negligence including, but not limited to, natural
disasters, governmental regulations or orders, civil disturbance, war
conditions, acts of terrorism or strikes, lock-outs or other labor disputes (a “Force
Majeure Condition”).  The performance
of any obligation suspended due to a Force Majeure Condition will resume as
soon as reasonably possible as and when such Force Majeure Condition subsides.


 


Section 15.7.          Successors
and Assigns.  This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective permitted successors
and assigns.  Notwithstanding the
foregoing, neither Party may assign, delegate, or otherwise transfer any of its
rights or obligations under this Agreement, by operation of law or otherwise,
to any Person other than one of its direct or indirect Affiliates without the
written consent of the other Party, which consent shall not be unreasonably
withheld, delayed, conditioned or denied. 
Any assignment or transfer to any Affiliate shall not relieve the
assigning or transferring Party of its obligations under this Agreement.


 


Section 15.8.          Notices.  All notices, requests and
other communications to any Party hereunder (“Notices”) shall be in
writing (including facsimile or similar writing) and shall be given to such
Party at its address or facsimile number as set forth below, or such other
address or facsimile number as such Party may hereinafter specify for the
purpose of giving notice hereunder to the Party giving such Notice.  Each such Notice shall be deemed delivered (i) if
given by facsimile, when such facsimile is transmitted to the facsimile number
specified pursuant to this Section 15.8 and the appropriate facsimile
confirmation is received, (ii) if given by U.S. mail, three (3) days
after such Notice is deposited in the mail, certified mail, return receipt
requested, postage prepaid, addressed as set forth below, (iii) if given
by personal delivery, when personally delivered, (iv) if given by
nationally recognized overnight courier, on the Business Day after such notice
is delivered to such courier or (v) if given by any other means, when
delivered, at the address as follows:


 


If to Talecris:


 


Talecris Biotherapeutics, Inc.


4101 Research Commons


79 T.W. Alexander Drive


Research Triangle Park, NC 27709


Facsimile: 
253.390.6623


 


18

















 


Attention: 
General Counsel


 


If to COAC:


 


Cerberus Operations and Advisory Company LLC


299 Park Avenue


New York, NY 10171


Facsimile: 
212.750.5212


Attention: 
Lisa Gray, Esq., General Counsel


 


Section 15.9.          Third-Party
Beneficiaries. 
Nothing in this Agreement, whether express or implied, confers upon any
Person, other than the Parties and their successors and permitted assigns, any
rights or remedies under or by reason of this Agreement, except as and to the
extent set forth in Article VIII (Additional Understandings), Article XIII
(Indemnification) and Article XIV (Exclusions and Limitations on
Liability), each of which such Articles shall inure to the benefit of CCM and
its Affiliates as third-party beneficiaries with rights to enforce the
provisions set forth thereunder.


 


Section 15.10.        Counterparts;
Facsimile or Electronic Signature.  This Agreement may be
executed in two or more counterparts, any of which may be signed and exchanged
by facsimile or e-mail, and all of which together shall constitute one and the
same agreement.


 


Section 15.11.        No Strict
Construction.  This Agreement is the joint work product of
COAC and Talecris and has been negotiated by the Parties and their respective
counsel and will be fairly interpreted in accordance with its terms.  In the event of any ambiguity regarding the
terms or intent of any provisions of this Agreement (or any Engagement Letter),
this Agreement (and such Engagement Letter) shall not be strictly construed
against, and no inferences shall be drawn against, any Party by reason of the
fact that such Party may have drafted such particular provision.


 


[remainder of
page intentionally left blank; signature page follows]


 


19

















 


IN WITNESS WHEREOF, each of the Parties hereto
has caused this Master Consulting and Advisory Services Agreement to be
executed by its duly authorized officer as of the date first above written.


 


	
   

  	
  TALECRIS BIOTHERAPEUTICS HOLDINGS

  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lawrence Stern

  
	
   

  	
   

  	
  Name:
  Lawrence Stern

  
	
   

  	
   

  	
  Title:
  Chairman and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CERBERUS
  OPERATIONS AND ADVISORY

  COMPANY, LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lisa Gray

  
	
   

  	
   

  	
  Name:
  Lisa Gray

  
	
   

  	
   

  	
  Title:
  General Counsel

  



 


20

















 


EXHIBIT 1


 


Engagement
Letter


 


Billing Code:
[          ]


 


Tracking Code:
[            ]


 


This letter of engagement (the “Engagement Letter”)
is made and entered into effective as of this
       day of July, 2008 (the “Engagement Effective Date”), by and
between TALECRIS BIOTHERAPEUTICS, INC. (“Talecris”) and CERBERUS
OPERATIONS AND ADVISORY COMPANY LLC (“COAC”).


 


This Engagement Letter is entered into pursuant to that
certain Master Consulting and Advisory Services Agreement by and between
Talecris and COAC, dated as of July     , 2008 (the “Master
Agreement”), for the services provided herein (the “Engagement”).  Capitalized terms used but not otherwise
defined in this Engagement Letter shall have the meanings ascribed to such
terms in the Master Agreement.  To the
extent there exists any inconsistency between the terms of this Engagement
Letter and the terms of the Master Agreement, the terms of this Engagement
Letter shall control.


 


ADVISORY
SERVICES


 


Talecris has in the past retained, currently retains and
desires to continue to retain the services of COAC and its Operations
Executives with respect to, among other things,  (i) strategy
for the creation and implementation of operating improvements at its existing
plasma collection centers, (ii) strategy for the development of new plasma
collection centers, (iii) implementation of best practices for efficient
operation of its plasma collection centers, (iv) development of cost containment
and cost reduction plans and policies, (v) assessment of potential
acquisitions, divestitures and securities offerings, (vi) review and
analysis of existing and potential new technology, (vii) review, analysis
and implementation of human resource improvements and (viii) general
strategic development, guidance, consultative and advisory services.


 


The parties hereto understand and agree that the specific
scope and nature of the Advisory Services required for this Engagement may vary
from time-to-time depending on the needs and interests of Talecris and the
availability and skills of the Operations Executives at the time of the
requested services, as more particularly set forth in the Master Agreeement.


 


Attached hereto as Schedule A is the current list of
COAC Operations Executives tasked with providing the Advisory Services to
Talecris, the scope of their respective assignments, the expected time frame
for such assignments and the Daily Service Fees associated therewith.  Notwithstanding Section 5.3 of the
Master Agreement, COAC commits to providing the specific individuals listed in
Schedule A for the time periods indicated as long as such individuals are
employed by or affiliated with COAC.


 


21

















 


ACCOUNT
MANAGEMENT


 


The name and contact information for each of the
Party’s respective Account Manager and Billing/Payment Coordinator is as
follows:


 


Talecris:


 


Account
Manager:
 Lawrence Stern

Chairman and Chief Executive Officer

4101 Research Commons

79 T.W. Alexander Drive

Research Triangle Park, NC 27709

919-316-9666

Lawrence.Stern@talecris.com


 


Billing/Payment
Coordinator:


 


Stella Laurella

Sr. Director Finance

4101 Research Commons

79 T.W. Alexander Drive

Research Triangle Park, NC 27709

919-316-6131

stella.laurella@talecris.com


 


COAC:


 


Account
Manager:


 


James Renna

299 Park Avenue, 22 Floor

New York, NY 10171

212-891-2100

jrenna@cerberusoperations.com


 


Billing/Payment
Coordinator:


 


James Renna

299 Park Avenue, 22 Floor

New York, NY 10171

212-891-2100

jrenna@cerberusoperations.com


 


This Engagement
shall commence as of the Effective Date and shall continue thereafter until
terminated by either Party upon ten (10) Business Days prior written
notice to the other Party, provided that upon termination of this Engagement
Letter, Talecris shall pay to COAC all amounts provided for through the
termination date, in accordance with the Master Agreement.  This Engagement Letter shall automatically
terminate upon the expiration or termination of the Master Agreement.


 


22

















 


AMENDMENTS


 


This
Engagement Letter may be supplemented or amended only upon mutual agreement of
the Parties in a writing signed by both parties.


 


COUNTERPARTS


 


This Engagement Letter may be
executed in counterparts and such counterparts may be delivered in electronic
format (including facsimile).  The
execution and delivery of such counterparts shall be conclusive proof of the
intent to be bound hereby and each such counterpart and copies thereof shall
have the same effect as an original.


 


IN
WITNESS WHEREOF, the Parties have caused this Engagement Letter to
be executed by their duly authorized officers as of the date first above
written.


 


	
   

  	
  TALECRIS BIOTHERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lawrence Stern

  
	
   

  	
   

  	
  Name:
  Lawrence Stern

  	
   

  
	
   

  	
   

  	
  Title:
  Chairman and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CERBERUS
  OPERATIONS AND ADVISORY

  COMPANY, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lisa Gray

  
	
   

  	
   

  	
  Name:
  Lisa Gray

  	
   

  
	
   

  	
   

  	
  Title:
  General Counsel

  	
   

  



 


23














 


Schedule A


 


Talecris - July 2008


 


	
  Last

  	
   

  	
  First

  	
   

  	
  Scope

  	
   

  	
  Timeframe

  	
   

  	
  Daily

  Service

  Fees

  	
   

  	
  Last

  Updated

  	
   

  	
  Status

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Process and capacity
  reengineering of plasma collection centers. Implementation of best practices
  for efficient running of centers. Improve customer experience and through put
  through technology enhancements. Estimated assignment end date: 10/08

  	
   

  	
  Through
  October of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Head Best Practices Team

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Responsible for process improvement
  and cost cutting for company expenses. Implementing cost containment, new
  policies, and technology to enhance current expense program. Estimated
  assignment end date 7/08

  	
   

  	
  Through
  July of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Cost Out / Support

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Responsible for new center
  development. New center development consists of; onboarding, training,
  compliance, recruiting, etc. After assignment in NCD, transition to SOP
  rollout and other project activities.

  	
   

  	
  Through
  March of 2009

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Managing New Center
  Development

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Responsible for new center
  development. New center development consists of; onboarding, training,
  compliance, recruiting, etc. Estimated assignment end date: 3/09

  	
   

  	
  Through
  March of 2009

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Head - New Center
  Development

  	
   

  



 






***         Confidential
Treatment Requested


 


 

















 


	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Responsible for business
  development work. Work closely with CEO on potential acquisitions, securities
  offerings, and sales. Estimated assignment end date: 6/09

  	
   

  	
  Through
  June of 2009

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  PMO Alto Deal/IPO

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Process and capacity
  reengineering of plasma collection centers. Implementation of best practices
  for efficient running of centers. Improve customer experience and through put
  through technology enhancements. Estimated assignment end date: 10/08

  	
   

  	
  Through
  October of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Best Practices Team

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Process and capacity
  reengineering of plasma collection centers. Implementation of best practices
  for efficient running of centers. Improve customer experience and through put
  through technology enhancements. Estimated assignment end date: 12/08

  	
   

  	
  Through
  December of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Managing New Center
  Development

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Responsible for HR related
  improvements around new center development. New center development consists
  of onboarding, training, compliance, recruiting, etc. Estimated assignment
  end date: 7/08

  	
   

  	
  Through
  July of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  HR Support

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Process and capacity
  reengineering of plasma collection centers. Implementation of best practices
  for efficient running of centers. Improve customer experience and through put
  through technology enhancements. Wrapping up a roadmap and IT strategy for
  TPR. Estimated assignment end date: 12/08

  	
   

  	
  Through
  December of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  TPR Chief of Staff

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Responsible for donor
  matrix. Working on referral awards program for the collection centers.
  General level strategy development. Estimated assignment end date: 12/08 Full
  time through August 25-50% through December

  	
   

  	
  Through
  December of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Best Practices Team

  	
   

  



 






***         Confidential
Treatment Requested


 

















 


	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Process and Supply
  reengineering of the Company’s Cold Chain. Implementation of best practices
  for efficient movement and storage of the Company’s Plasma. Estimated
  assignment end date: 10/08

  	
   

  	
  Through
  December of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Re Tooling Supply Chain

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [***]

  	
   

  	
  [***]

  	
   

  	
  Process and capacity
  reengineering of plasma collection centers. Implementation of best practices
  for efficient running of centers. Improve customer experience and through put
  through technology enhancements. Estimated assignment end date: 10/08

  	
   

  	
  Through
  October of 2008

  	
   

  	
  $

  	
  [***]

  	
   

  	
  7/    /2008

  	
   

  	
  Best Practices Team

  	
   

  



 






***         Confidential
Treatment Requested