Exhibit 10.32


 


*** TEXT OMITTED AND
SUBMITTED SEPARATELY


PURSUANT TO CONFIDENTIAL
TREATMENT REQUEST


UNDER 17 C.F.R. SECTIONS
200.80(b)(4) AND 230.406


 


AMENDED AND RESTATED
PLASMA SALE/PURCHASE AGREEMENT


 


This Amended and
Restated Plasma Sale/Purchase Agreement (the “Agreement”) is made, entered into
and effective as of the 13th day of October, 2006 (the “Effective Date”) by
and between Interstate Blood Bank, Inc. doing business as IBBI having an
address at 5700 Pleasant View Road, Memphis, TN 38134 (“Supplier”) and Talecris
Biotherapeutics, Inc., having an address at 79 T.W. Alexander Drive, 4101
Research Commons, Research Triangle Park, North Carolina 27709 (“Talecris”).
Supplier and Talecris are at times referred to in this Agreement individually
as a “Party” and collectively as the “Parties”.


 


RECITALS


 


WHEREAS,
Supplier is
in the business of collecting and producing Plasma from human donors at
Supplier’s collection facilities within the United States;


 


WHEREAS,
Talecris
desires to purchase Plasma (as defined hereinbelow) from Supplier and Supplier
desires to sell such Plasma to Talecris on the terms and conditions set forth
herein; and


 


WHEREAS,
the Parties
entered into a Plasma Sale/Purchase Agreement dated August 1, 2005 and
desire to amend and restate that agreement in its entirety by this Agreement.


 


NOW, THEREFORE, in consideration of the
foregoing premises, which are hereby incorporated as part of this Agreement,
and the mutual covenants, agreements and undertakings set forth herein, the
Parties intending to be legally bound hereby agree as follows:


 


1.                                       DEFINITIONS


 


The following
terms, wherever used in this Agreement, shall have the meanings set forth
below:


 


1.1                                 “Affiliate”  shall mean any subsidiary, parent company, or
other legal entity that directly or indirectly controls, is
controlled by, or is under common control with or of a Party. For purposes of
this definition, “control” means the direct or indirect ownership of more that
fifty percent (50%) of the outstanding voting securities of the legal entity,
the right to receive more than fifty percent (50%) of the profits or earnings
of the legal entity, or the right or power to direct the policy decisions of
the legal entity.


 


“Confidential Information”  shall mean the proprietary,
non-public information of a Party provided by such Party pursuant to or in
furtherance of this Agreement and designated as confidential by the disclosing
Party. Confidential Information shall specifically include the fact of the
Agreement as well as the terms and conditions hereof and all Schedules attached
hereto, as well as any other pricing or volume or other information arising out
of the relationship memorialized by this Agreement. “Confidential Information”
shall not include information that the receiving Party can demonstrate through
competent evidence was: (i) within the receiving Party’s knowledge or
possession prior to disclosure of such information by the disclosing Party; (ii) in
the public domain at the time of disclosure or subsequently entered the public
domain through no fault of the receiving Party, or (iii) disclosed to the
receiving Party by a third party with the right to make such disclosure.


 


“Plasma”  shall mean Normal Source Plasma that meets
the definitions and specifications set forth on Schedule 1.


 


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2.                                       SALE/PURCHASE OBLIGATIONS
OF THE PARTIES


 


2.1                                 Quantity.  Commencing on the Effective
Date and continuing through the end of the Term of this
Agreement, Supplier shall sell and Talecris shall purchase each calendar year
under this Agreement certain annual minimum quantities of Plasma from Supplier
Plasma centers that Supplier has dedicated to Talecris (“Talecris Approved
Centers”) as set forth on Schedule 2 (“Annual Minimum Quantity”).


 


All Plasma shall be
deliverable in
such increments as are available and as
Supplier and Talecris may from time to time agree as to the frequency and
schedule for pick-up/delivery. Supplier agrees to use its best efforts to
deliver the Annual Minimum Quantity as agreed hereunder throughout the Term of
this Agreement, provided, however, that Supplier will be in breach of this
Agreement if it tenders less than ninety percent (90%) of the Annual Minimum
Quantity. If Supplier cannot meet at least 90% of the Annual Minimum Quantity,
Supplier shall reimburse Talecris for the cost of purchasing replacement Plasma
in the open market.


 


In no event, however,
shall this provision apply with respect to any shortfall that is due to
circumstances beyond the control of the Supplier, including but not limited to
changes in regulations, implementation of new testing requirements, delay by
the United States Food and Drug Administration (FDA) in licensing new centers,
or any other cause within the scope of Section 6.1. However, this
exception for a delay in licensing cannot be due to quality and/or compliance
issues of the Supplier.


 


2.2                                 Delivery.  Except
as otherwise agreed in writing by the Parties, all deliveries of Plasma shall be FCA (Supplier’s warehouse or other Supplier
designated facility in the USA) (INCOTERMS 2000). The shipping agent or carrier
shall be selected and contracted by Talecris. Title to and risk of loss shall pass
from Supplier to Talecris when the purchased Plasma is provided to or placed
with Talecris’ shipping agent or on a transport carrier.


 


2.3                                 Price.  The
price that Talecris shall pay Supplier for the Plasma to be delivered during the remainder of the 2006 calendar year shall be [***] per
liter of Plasma. Such price is exclusive of freight and shipping charges, storage,
insurance, handling and forwarding agents’ fees, sales, value-added and other
taxes, tariffs and duties, and any other applicable transportation and delivery
costs, all of which shall be the sole burden and responsibility of Talecris.


 


For three (3) calendar
years commencing on January 1, 2007, the base price per liter of Plasma to
be supplied by Supplier shall be increased or decreased based on the average
price change in the cost of Plasma from Talecris’ other suppliers (excluding
ZLB Behring). Talecris shall provide the Supplier with its determination of the
price per liter change in the cost of Plasma from its other suppliers, which
shall be final and binding on the parties absent manifest accounting error. The
increase or decrease for 2007 and thereafter shall be based on the prior year
price (and for 2007, a base price of [***] per liter in 2006).


 


Talecris shall increase
the price paid per liter of Plasma in an amount of [***] during the period of
time any amounts remain outstanding pursuant to the Term Loan (defined below)
in order for the Supplier to satisfy the principal and interest amounts due and
owning thereunder.


 


If
there are any significant increases or decreases in the donor fees offered at
competitors’ Plasma centers within a 10 mile radius of a Talecris Approved
Center, with the consent of Talecris (solely with respect to an increase),
Supplier shall increase or decrease, as the case may be, the base price per
liter of Plasma to


 






*** CONFIDENTIAL TREATMENT
REQUESTED


 


2

















 


account
for the changes in the donor fees only at the Talecris Approved Center impacted
by such change in donor fees.


 


Negotiations to
determine the purchase price of Plasma under this Agreement for the 2010
calendar year and for each calendar year thereafter during the Term of this
Agreement, shall commence in the fourth quarter of the preceding calendar year
and shall be negotiated by the Parties through the Parties’ respective Contract
Managers. Such price negotiations shall be undertaken in good faith by each
Party with the purpose of and intent to agree to a fair and reasonable price
reflective of the then-current fair market price for Plasma in the United
States. In this regard, the Parties shall take into account in such price
negotiations the then-current economic conditions and trends, within the Plasma
industry and otherwise, market prices, cost indices and other applicable
factors (collective, “Price Factors”). This process may be generally referred to or described as the Parties’ annual price negotiations,
which shall result in and be documented and reflected annually as an amendment
to the Agreement not later than thirty (30) days prior to the commencement of
the next following calendar year, provided, however, that in the event the
Parties are unable by the beginning of the following calendar year to mutually
agree to a price for the Plasma to be sold/purchased under this Agreement
during such calendar year, each Party shall then immediately designate an
authorized senior corporate officer to negotiate such price based upon the
stated Price Factors. In the event such senior corporate officers are unable to
mutually agree to a price within thirty (30) days, then the Parties shall
jointly submit the dispute for expeditious determination by three (3) experienced
arbitrators in accordance with the provisions of the American Arbitration
Association for the arbitration of commercial disputes and the stated Price
Factors. Each Party shall be entitled to designate one arbitrator for such
proceeding, and the two party-designated arbitrators shall then select the
third arbitrator who shall serve as chairman. The costs of any arbitration
hereunder, including administrative and arbitrators’ fees, shall be shared
equally by Supplier and Talecris. Each Party, however, shall bear in full its
own costs, expenses and attorneys’ fees. The final decision of the arbitration
tribunal convened in accordance herewith shall be final, binding and fully
enforceable against the Parties and neither the jurisdiction nor authority of
such tribunal, nor the validity of its decision or award shall be subject to
challenge or contest by either Party.


 


Moreover, and
notwithstanding any other provision of this Agreement, and specifically but
without limitation this section and section 2.15, in the event Supplier is
obligated by any regulatory body or agency or otherwise requested or compelled
by Talecris at any time during the Term of this Agreement to perform or
implement any new testing or other quality procedure not specifically
contemplated under this Agreement, which results in a material increase to
Supplier’s actual costs hereunder, the price then in effect under this
Agreement shall automatically and concurrently be proportionately increased to
reflect all of Supplier’s corresponding additional costs. Correspondingly, in
the event that Talecris at any time during the Term of this Agreement reduces
or eliminates any testing or other quality procedure so as to result in an
actual material decrease in Supplier’s incurred costs to procure, store,
provide or supply the Plasma hereunder to Talecris, the price then in effect
under this Agreement shall be decreased to reflect all of Supplier’s
corresponding cost savings.


 


2.4                                 Right of
First Refusal (Plasma).  Supplier hereby grants to
Talecris a right of first refusal to purchase any material quantities of Plasma
that Supplier has available for sale in excess of the Annual Minimum Quantity
to be supplied pursuant to Section 2.1 of this Agreement from the Talecris
Approved Centers. The purchase price of such excess Plasma, if any, shall be
the price then in effect for Plasma purchased by Talecris from
the
Talecris Approved Centers under the Agreement. In this regard, concurrent with
the annual price negotiations, Supplier shall provide Talecris with a


 


3

















 


good faith non-binding
estimate of Plasma that will be available over the coming year (“Available
Plasma”). Talecris shall have thirty (30) days following the final
determination of price, to commit to purchase part or all of the Available
Plasma at that year’s negotiated price. Whatever quantity of Available Plasma
Talecris does not elect to purchase, Supplier may sell to third parties without
restriction. However, in the event that more Plasma becomes available than was
anticipated in the original forecast, Supplier shall update its forecast and
provide Talecris with an additional thirty (30) days to purchase part or all of
the updated Plasma amounts in the same manner as specified above.


 


2.5                                 Right of
First Refusal (Talecris Approved Centers).  During
the Term of this Agreement, (a) should Supplier or
any of its Affiliates or any person acting on behalf of any of them receive
from or extend to any third party a bona fide offer (a “Transfer Offer”) to
which Supplier intends to give serious consideration for the direct or indirect
sale, lease, license, conveyance or other transfer of, or of a direct or
indirect controlling interest in, all or any asset or equity of Supplier
related to one or more Talecris Approved Centers or Future Approved Centers (a “Transfer”),
then Supplier shall promptly notify Talecris (and Supplier shall, upon receipt
from Talecris of a confidentiality agreement in customary and reasonable form,
provide Talecris a copy of such Transfer Offer, to the extent it is in
writing), and (b) neither Supplier nor any Affiliate of Supplier shall
enter into a binding agreement (a “Transfer Agreement”) providing for, or
consummate, a Transfer without first complying with the provisions of this Section 2.5.
Upon either a receipt or extension of a Transfer Offer, Supplier shall submit a
confidentiality agreement, in customary and reasonable form, to Talecris and,
upon receipt by Supplier of the executed confidentiality agreement, shall
inform Talecris in writing of the identity of the third party and the terms of
the proposed Transfer, and shall provide a copy of any proposed Transfer
Agreement, including all schedules and exhibits thereto and any related agreements,
if available.


 


In the event of a
Transfer Offer, Talecris shall have the greater of (i) ninety (90) days
following the date that Supplier tenders the confidentiality agreement for
signature or (ii) sixty (60) days following Supplier’s reasonable provision
for examination by Talecris of the documentation and materials of the Transfer
Offer (including the Transfer Agreement) in which to exercise this right of
first refusal (the “Right of First Refusal Period”) by submitting to Supplier a
notice of such exercise, together with copies of agreements necessary to effect
a Transfer to Talecris or its designee of the assets subject to such proposed
Transfer Agreement at a price, and on the other material terms and conditions
substantially equivalent to the terms and conditions of such Transfer Offer
(and Transfer Agreement if available); provided, however, that if any portion
of such price is to be paid in consideration other than cash, then Talecris
may, at its option, substitute cash for the fair market value of such
consideration. Upon an exercise by Talecris of its right of first refusal of a
Transfer, Supplier and Talecris shall cooperate in good faith to finalize and
execute such agreements, including negotiating in good faith over any material
issues contained therein; provided, however, that if such agreements are not
finalized after a reasonable period of time despite the Parties’ negotiating
good faith, then Talecris may provide to Supplier agreements that are
substantially similar to the proposed Transfer Offer (and Transfer Agreement,
if available), executed by Talecris or its designee, and, in the event such
agreements are proffered, Supplier shall be obliged to enter into them.


 


In
connection with this right of first refusal, Talecris shall have the right,
subject to the execution of the confidentiality agreement by Talecris, to (i) examine
documentation and information available to Supplier sufficient to establish the
credibility and terms of the Transfer Offer subject to the proposed Transfer
Agreement and of the person or persons party to such proposed Transfer
Agreement and (ii) conduct a reasonable


 


4

















 


investigation of the
business, operations, assets, liabilities, management, contracts and prospects
of the assets subject to the terms of the Transfer Offer and the proposed
Transfer Agreement as it shall reasonably request, including receiving copies
of such materials and data relating to Supplier and its operations and
financial condition, and such meetings with Supplier management as Talecris may
reasonably request and Supplier will use its reasonable best efforts to
cooperate with such investigation. In addition, to the extent that the proposed
Transfer Agreement also contemplates the Transfer of assets other than the
Talecris Approved Centers and Future Approved Centers, Supplier and Talecris
shall agree upon a qualified third party to determine the value properly
allocated to the Talecris Approved Centers and Future Approved Centers and
Talecris shall be entitled to exercise its right of first of first refusal only
with respect to that portion so allocated.


 


If Talecris exercises
the right of first refusal set forth in this Section 2.5, Supplier shall
be required to accept the offer from Talecris. If Talecris does not exercise
the right of first refusal set forth in this Section 2.5 within the period
specified herein, then for a period of one hundred twenty (120) days following
the expiration of the Right of First Refusal Period, Supplier shall have the
right to consummate the transaction subject to the proposed Transfer Agreement
on and subject to the terms thereof in the form provided to Talecris; provided,
that prior to such consummation such third party must expressly assume Supplier’s
obligations under this Agreement in a form reasonably acceptable to Talecris.
If such Transfer is not consummated within a period of one hundred twenty (120)
days following the expiration of the Right of First Refusal Period, or if the
terms or conditions of such Transfer Offer shall have been modified, amended or
supplemented in a manner materially adverse to Supplier or its Affiliates (as a
whole, taking into account all modifications, amendments and supplements), then
such revised Transfer offer shall again become subject to the requirements of
this Section 2.5 and may not be consummated without Supplier once again
complying with this Section 2.5.


 


Within a reasonable time
following the Effective Date, Supplier shall transfer all of the assets and
ownership of the Future Approved Centers and the Memphis-2, TN center to a new
entity owned by the principal owners of Supplier (“New Entity”), which New
Entity shall become a party to this Agreement. During the Term of this
Agreement, should the principal owners of Supplier or any of its Affiliates or
any person acting on behalf of any of them receive from or extend to any third
party a bona fide offer for, or enter into a binding agreement providing for or
consummate, the direct or indirect sale, lease, license, conveyance or other
transfer of, or of a direct or indirect controlling interest in, the New
Entity, including through the sale of an outstanding or newly issued equity
interest (or security or instrument convertible into or exchangeable or
exercisable for, or otherwise related to, such equity interest), merger or
consolidation, direct or indirect change of control or other similar mechanism,
the right of first refusal set forth in the paragraphs above shall apply to
such transaction, mutatis mutandis; provided,
however, that with respect to any such transaction involving the New Entity, as
a condition precedent to Talecris’ exercise of such right of first refusal and
to the extent, but only to the extent, necessary for Supplier to meet Plasma
supply obligations to persons other than Talecris, Talecris shall agree to
negotiate in good faith with Supplier and enter into agreements mutually
satisfactory to Supplier and Talecris with respect to the Talecris Approved
Centers owned by the New Entity supplying (or continuing to supply) Supplier
with its then-current Plasma requirements at a gross margin to Talecris of not
more than the gross margin at the center or centers.


 


If
Supplier receives from or extends to any third party a bona fide offer to sell,
transfer, convey, assign or otherwise dispose of all or substantially all of
the assets of Supplier whether through sale of stock, merger, change of control
or other


 


5

















 


mechanism (an “Equity
Offer”), such offer shall be treated as a Transfer Offer for the purposes of
this Section 2.5 and the requirements of the first paragraph of this Section 2.5
shall apply to such Equity Offer. The provisions of this paragraph will lapse
solely with respect to the Supplier, but not the New Entity, if the Supplier or
the principal owners of Supplier determine to create a wholly-owned subsidiary
that holds all of the material assets of the Talecris Approved Centers and
Future Approved Centers and all such assets are transferred to that subsidiary.


 


2.6                                 Change in Control.  In the event of a Transfer described in Section 2.5,
if Talecris does not elect to exercise its right of first refusal in accordance
with that section, and the Transfer is subsequently consummated with a third
party in accordance with thereof, then Talecris shall have the right to demand
payment of all secured loans outstanding and as a condition of such Transfer.
In addition, the third party acquirer shall be obligated to the terms of this
Agreement for the longer of (1) the Term of this Agreement, or (2) two
years from the effective date of such Transfer.


 


2.7                                 Terms of Payment.  Talecris shall pay Supplier in full for each
delivery of Plasma hereunder within thirty (30) days of the date of Supplier’s
corresponding invoice. Such invoice shall not be dated or submitted prior to
delivery of the underlying Plasma. All payments shall be made in US Dollars.


 


2.8                                 Governing Documents.  All sales of Plasma hereunder shall be subject
solely to the terms and provisions of this Agreement and shall not be subject
to other terms, conditions or provisions contained in any other purchase order,
writings, etc. except to the extent setting forth or confirming quantity or
schedule for delivery. Furthermore, in the event of any inconsistency or discrepancy
between the terms and conditions of this Agreement and the schedule hereto, or
any other record, the terms of this Agreement shall prevail.


 


2.9                                 Records and Compliance Matters.  Supplier shall, at its expense, keep and
maintain detailed records pertaining to the amount and type of Plasma sold
hereunder during the Term of this Agreement and for a period of thirty-three
(33) years following the date of termination or expiration of this Agreement.
Such records shall be made available for inspection by Talecris during normal
business hours, on reasonable advance written notice.


 


Each Party shall obtain
all necessary licenses, permits, certificates of origin, and other requisite
documents, including approvals and registrations, and pay all applicable fees,
charges, customs duties and taxes incurred in the performance of its
obligations under this Agreement. Both Parties shall comply with all applicable
laws, regulations, rules, and guidelines pertaining to their performances under
this Agreement, including but not limited to those set forth in U.S. Code of
Federal Regulations, 21 C.F.R. §§600-640, and any other applicable local, state
or federal law, regulation or ordinance within the United States.


 


2.10                           Waivers, Modifications, and Additions.  No waiver, modification, or addition to the terms and
conditions of this Agreement or any Schedule hereto is or shall be binding
unless mutually agreed and accepted in writing by Supplier and Talecris.


 


2.11                           Talecris Approved Centers. Supplier will supply and Talecris shall accept Plasma
only from the Talecris Approved Centers set forth Schedule
2. For the purposes of this Agreement, a center is a Talecris Approved Center
if: (i) the operator and or the center has received all necessary
regulatory approvals and permits including FDA, IQPP, CLIA, required state
licensing, and licensing by applicable foreign authorities, (ii) the center has
been added by, and remains on the Talecris’ Compliance Department’s list of
Talecris Approved Centers, as may be amended from time to


 


6

















 


time by Talecris in
accordance with the terms and conditions herein and iii) the Talecris Approved
Center meets Talecris’ required automation standards. No center may be added as
a Talecris Approved Center under this Agreement without satisfying all the
requirements of this Agreement and of Talecris’ Compliance Department and
Talecris may not remove a center from the list of Approved Centers to alter
quantities deliverable under this Agreement. All Talecris Approved Centers
shall be listed on Schedule 2 attached and as may be amended and incorporated
hereto.


 


2.12                           Prepayment of Plasma at Future Approved Centers.


 


Pursuant to the terms of
the Agreement, Talecris shall pre-pay for Plasma produced at a Talecris
Approved Center that has not received FDA approval (each a “Future Approved
Center”), at the rate of [***] of the designated purchase price. Prepayments
outstanding by Talecris for Plasma at any one time under this provision may not
exceed [***] at any one Future Approved Center nor will Talecris pre-pay for
Plasma after the first anniversary date of opening or relocation of any Future
Approved Center. If pre-payments pursuant to this provision approach [***] with
respect to any one Future Approved Center or one Future Approved Center does
not receive FDA approval within twelve (12) months, Supplier shall notify
Talecris in writing and the Parties will negotiate in good faith to reach a
mutually beneficial agreement to revise the limit on pre-payments. Following at
least thirty (30) days of negotiations, if the Parties cannot reach agreement
to revise the limit on pre-payments, then Supplier may offer for sale to third
parties further Plasma produced at the Future Approved Centers until such
Future Approved Center is licensed.


 


In addition, as
incentive for expedited licensing approvals of the New Plasma Centers, if
Supplier receives FDA approval within six (6) months of the date of the
opening of a Future Approved Center, Talecris will pay Supplier a bonus of [***]
per Future Approved Center, to be paid thirty (30) days after receipt of
initial deliveries of Plasma for
such Future Approved Center following
written evidence of such FDA approval. If Supplier receives FDA approval more
than six (6) months, but at or less than nine (9) months, after the
date of the opening of the Future Approved Centers, Talecris will pay Supplier
a bonus of [***] per Future Approved Center, to be paid thirty (30) days after
receipt of initial deliveries of Plasma from such Future Approved Center
following written evidence of such FDA approval.


 


To receive a
pre-payment, Supplier shall submit an invoice to Talecris no less than once
every two weeks, specifying the volume of Plasma produced dedicated to
Talecris, the price per liter, and the pre-payment amount that is due. Talecris
will prepay for the invoiced Plasma within thirty (30) days of receipt of an
invoice from Supplier. In connection herewith, Supplier hereby agrees to grant
to Talecris, and Talecris shall have, a first priority security interest in the
prepaid Plasma at all Future Approved Centers.


 


2.13                           Talecris
Financing.  Talecris shall provide financing for the Future
Approved Centers and the relocation of the Supplier plasma center located in
Knoxville, Tennessee (each a “Financed Center”), but in no event shall the
amount of financing for any single Financed Center exceed one million dollars
($1,000,000) per Financed Center, and in no event shall the aggregate amount of
all such financings exceed three million dollars ($3,000,000) as set forth in
that certain Loan and Security Agreement (“Term Loan”) attached hereto as
Schedule 3. Any material breach of the Term Loan shall be deemed to be a
material breach of this Agreement.


 






*** CONFIDENTIAL TREATMENT
REQUESTED


 


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2.14                           Additional
Centers.  Until all three (3) Future Approved
Centers have been opened and
operating and the Supplier plasma center located in Knoxville, Tennessee has
been relocated, opened and operating, Supplier shall not enter into any
agreement for the construction of any new plasma centers on behalf of any other
party unless the Supplier complies with the provisions set forth in this Section 2.14.
If the Supplier receives a proposal to build a new plasma center for a third
party which Supplier wishes to accept, Supplier shall promptly notify Talecris
of the proposal and provide a copy of such proposal including all schedules and
exhibits thereto and any related agreements, if available (a “Plasma Center Proposal”)
to Talecris and Talecris shall have the right, and Supplier shall have the
obligation, to force Supplier to build an additional plasma center for the
benefit of Talecris on substantially similar terms and conditions in addition
to the construction of the plasma center included in the Plasma Center
Proposal.


 


In the event of a Plasma
Center Proposal, Talecris shall have ninety (90) days following the date that
Supplier accepts the Plasma Center Proposal and provides a copy of the Plasma
Center Proposal to Talecris in which to exercise this right by submitting to
Supplier a notice of such exercise. Upon an exercise by Talecris of its right
to have a plasma center built on its behalf, Supplier and Talecris shall
cooperate in good faith to finalize and execute such agreements, including
negotiating in good faith over any material issues contained therein, including
location, size, etc.; provided, however, that if such agreements are not
finalized after a reasonable period of time despite the Parties’ negotiating
good faith, then Talecris may provide to Supplier agreements that are
substantially similar to the agreements executed in connection with the Plasma
Center Proposal, executed by Talecris or its designee, and, in the event such
agreements are proffered, Supplier shall be obliged to enter into them.


 


If Talecris exercises
the rights set forth in this Section 2.14, Supplier shall be required to
accept the offer from Talecris. If Talecris does not exercise the rights set
forth in this Section 2.14 within the period specified herein, then
Supplier shall have the right to consummate the transaction subject to the
Plasma Center Proposal, provided however, if the terms or conditions of Plasma
Center Proposal shall have been materially modified, amended or supplemented,
then such revised Plasma Center Proposal shall again become subject to the
requirements of this Section 2.14 and may not be consummated without
Supplier once again complying with this Section 2.14.


 


2.15                           Quality.  Any
and all revisions
sought by Talecris to the initial specifications set forth on Schedule 1 shall
be sent to Supplier for review and approval. Talecris shall advise Supplier of
any and all anticipated changes to specifications as soon as practicable and so
as to provide Supplier with as much advanced notice as possible. Supplier shall
have fifteen (15) days to agree to implement or respond to Talecris with its
reasons for refusing to implement such revisions. In the event Supplier and
Talecris cannot resolve any disputes as to the implementation of any revision,
other than the impact on pricing in accordance with Section 2.3, either
Party may terminate this Agreement upon thirty (30) days notice to the other
Party. If any center is closed as a result of regulatory sanctions placed on
Supplier by the FDA or equivalent foreign regulatory body, or if Supplier or
any center receives a warning letter or consent decree from the FDA or any such
body, fails an audit conducted on or behalf of any foreign regulatory body or
any accrediting body, or is otherwise the subject of similar quality concerns,
Supplier must notify Talecris immediately, and in any event not later than five
(5) Business Days after the earlier of Supplier’s receipt of the relevant
communication or the date it learns of such quality concern. A “Business Day”
means any day other than a Saturday, Sunday or public holiday under the laws of
the State of North Carolina.


 


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Prior to opening of any
Future Approved Center, Talecris shall audit such center. If such center is
found by Talecris to be materially deficient in its compliance with applicable
procedures, Supplier shall correct such deficiencies and Talecris shall re-audit
the center prior to the opening of such center.


 


If any center is found
by Talecris to be materially deficient in its compliance with applicable
procedures, Supplier will have thirty (30) Business Days to provide, in
writing, a corrective action plan acceptable to Talecris. If the action plan is
unacceptable or if the center cannot provide Plasma within ninety (90) days of
any such event, then, at Talecris’ option, this Agreement can be modified to
eliminate such center. During the period of time in which such corrective plan
is being developed and implemented, Talecris shall have the right, in its
reasonable discretion, to suspend such center’s status as a Talecris Approved
Center or to otherwise limit shipments from such center. In the event of such suspension
or limitation, the Parties shall work in good faith to minimize overall
shortfalls in quantities of Plasma delivered to Talecris, but any such
shortfall shall remain the responsibility of Supplier.


 


3.                                       WARRANTIES,
REPRESENTATIONS & INDEMNIFICATION


 


3.1                                 Warranties
and Representations.  Each
Party represents and warrants that:


 


(a)                        Such Party is a corporation duly
organized, validly existing, and in good standing under the laws of
jurisdiction in which it is incorporated.


 


(b)                  Such Party has the corporate and legal power and authority
to enter into this Agreement and to perform its obligations hereunder including
the extension of rights granted pursuant to this Agreement, and such Party has
taken all necessary corporate action to authorize the execution and delivery of
this Agreement and to perform its obligations hereunder. This Agreement, once
executed and delivered by the Party shall constitute a legal, valid and binding
obligation enforceable against such Party in accordance with the terms hereof,


 


(c)                   All necessary consents, approvals, registrations, and
authorizations of all governmental authorities and other persons and entities
required of such Party in connection with this Agreement have been obtained.


 


(d)                  The execution and delivery of this Agreement and the
performance of such Party’s obligations hereunder to not conflict with or
violate any applicable law or regulation and do not conflict with, or
constitute a default under, and contractual obligation of such Party.


 


(e)                   There are no adverse proceedings, claims,
or actions pending or, to the best of such Party’s knowledge, threatened which
would adversely impact the ability of such Party to perform its obligations
hereunder.


 


(f)                     Such Party has not made and, during the Term of this
Agreement, will not make any commitments to any other person or entity that is
or may be inconsistent or in conflict with any rights granted under this
Agreement.


 


3.2                                 Warranty and
Representation.  Supplier warrants and
represents that the Plasma delivered hereunder shall conform to the Plasma
specifications set forth on Schedule 1 and shall have collected, stored and
delivered to or placed with the Talecris’ designated agent/carrier in
accordance with applicable laws, rules, regulations and current Good
Manufacturing Practices regulations as published and/or amended from


 


9

















 


time
to time by the FDA. Supplier further warrants and represents that the Plasma
delivered hereunder shall not, as of the date of delivery to or placement with
Talecris’ agent/carrier, be adulterated or misbranded with the meaning of the
Federal Food, Drug and Cosmetic Act, shall be in full compliance with the
Biological Products section of the Public Health Service Act, and applicable
regulations and shall be in full compliance with any applicable international,
federal, state, or local laws or regulations.


 


Talecris
shall be entitled to audit Supplier’s collection and/or testing facilities, if
any, upon not less than fifteen (15) Business Days request, and in no event
shall such audits occur more frequently than once every twelve (12) months. No
audit shall continue in duration for more than three (3) Business Days.


 


3.3                                 Insurance.  Supplier and Talecris shall procure and maintain insurance at its
own expense with duly licensed and reputable insurance
carriers throughout the Term of this Agreement as required by any government or
regulatory body, but in no event shall such insurance be less than the
following:


 


(a)                   Commercial General Liability coverage: [***] per incident and [***] in
aggregate.


 


(b)                  Workers’ compensation as required by
federal, state and local law. Employers Liability limits of [***] per incident.


 


Supplier
shall notify Talecris in writing within five (5) Business Days of Supplier’s
receipt of any claims in excess of [***] under Supplier’s self-insurance
coverage.


 


3.4                                 Limitation of Liability.  Except with regards to obligations of
Confidentiality and the Rights of First Refusal contained herein,
in no event shall either Party incur monetary liability to the other, annually
in the aggregate, for breach or violation of this Agreement, or for any other
acts or omissions in connection with any performances under this agreement, in
excess of the gross value of the Plasma delivered and, based on the most recent
rolling forecast, to be delivered in the calendar year in which the incident
occurred.


 


4.                                                               TERM AND TERMINATION


 


4.1                                 Term of Agreement.  The term of this Agreement shall commence on
the Effective Date and shall continue in full force and
effect until December 31, 2016 unless terminated earlier in accordance
with this Agreement (the “Term”).


 


4.2                                 Termination for Cause.  Either Party shall have the right to
immediately terminate this Agreement in the event the other Party
fails to perform any of its material obligations under this Agreement and such
failure to perform is not cured within thirty (30) days of written notice of
such failure. The right of any Party to terminate this Agreement pursuant to
this Section 4.2 shall not be affected in any way by its waiver or failure
to take action with respect to any prior default. The Party not in default
shall be entitled to terminate this Agreement without prejudice to any other
rights conferred on it by this Agreement or under law or equity. A termination
of this Agreement shall not relieve a Party from any obligations under this
Agreement, which shall survive termination or expiration of this Agreement.


 


4.3                                 Provisions Surviving Termination.  The provisions of this Agreement shall survive
any termination to the degree necessary to permit their complete
fulfillment or discharge.


 






*** CONFIDENTIAL TREATMENT REQUESTED


 


10

















 


5.                                       CONFIDENTIALITY


 


5.1                                 Confidentiality.  Except as expressly provided herein, each Party
agrees, for itself and its successors, assigns and Affiliates, that for the
Term of this Agreement and for two (2) years thereafter, it shall keep
completely confidential and shall not publish or otherwise disclose and shall
not use, for any purpose other than for performing hereunder, any Confidential
Information. Notwithstanding, a Party may disclose Confidential Information to
the extent such disclosure is reasonably necessary to prosecute or defend
litigation and to comply with applicable governmental law or regulation;
provided, however, if a Party intends to make a disclosure of Confidential
Information under any circumstance, that Party shall give reasonable advance
notice to the other of such intended disclosure, and the disclosing Party shall thereafter use its best efforts to
secure confidential treatment (whether through protective orders,
confidentiality agreements or otherwise) of such Confidential Information in
connection with any disclosure or potential disclosure.


 


5.2                                 Disclosures to Employees.  Each Party may disclose Confidential Information
to their employees, contractors, consultants and agents on a need to know
basis, provided that such disclosing Party shall require that any individual or
entity receiving such Confidential Information protect it is the same manner
and to the same extent as that individual or entity would treat its own or its
principal’s confidential information.


 


6.                                       MISCELLANEOUS


 


6.1                                 Force Majeure.  A Party’s failure to perform its obligations
under this Agreement due to “acts of God,” acts of governments, riots, wars,
accidents, deficiencies in supplies, materials or transportation or other
causes of any nature beyond such Party’s control, including with limitation
acts of terrorism, civil commotion, national emergency epidemics, hurricane,
embargo, flood, fire, or any law, proclamation, regulation, ordinance or other
act or order of any court, government or governmental agency, shall not be
deemed to be a breach of this Agreement, provided that the non-performing Party
(i) provide the other Party timely written notice of the existence and
nature of any reason for nonperformance, and (ii) resume performance
immediately upon the elimination of the impeding force majeure. In the event
that performance under this Agreement is prevented one hundred eighty (180)
consecutive days or one hundred eighty (180) days in any calendar year period
by virtue of a force majeure, either Party may then, upon five
(5) Business Days written notice to the other Party, terminate this
Agreement.


 


6.2                                 Assignment.  Neither Party may, without the prior express
written consent of the other, assign or transfer this Agreement or any
respective right(s) or obligation(s) hereunder, which consent may not
be unreasonably withheld, other than as specifically set forth in
Section 2.5 above. Notwithstanding the above, subject to any Rights of
First Refusal contained herein, either Party may assign or transfer this
Agreement (i) to a successor entity, solely in the event of an acquisition
or merger by or with another entity, upon thirty (30) days prior written notice
to the non-assigning Party, provided the non-assigning Party thereafter
provides its written consent to such assignment or transfer, which consent
shall not be unreasonably withheld, and that the assignee agrees in writing
addressed to the non-assigning Party to assume all of the rights and the
obligations of the assigning Party; or (ii) to an Affiliate of the
assigning Party, without consent of the other Party. In no event shall any
assignment, whether with or without required consent by the non-assigning
Party, relieve in any form or part the assigning Party from continued liability
and responsibility for its performances and obligations under the terms and
conditions of this Agreement.


 


11

















 


6.3                                 Successors.  This Agreement shall be binding upon and inure
to the benefit of each Party’s successors and permitted assigns. Nothing in
this Agreement, whether express or implied, is intended nor shall be deemed or
construed to confer upon any person, other than the Parties and permitted
successors and assigns, any right, remedy or claim under or by reason of this
Agreement.


 


6.4                                 Independent Contractor.  The relationship between Supplier and Talecris
in connection with this Agreement is and shall at all times remain that of
vendor and vendee as independent contractors. Nothing contained in or resulting
from this Agreement or the performances called for hereunder shall be deemed or
construed to create an employer/employee, fiduciary, joint venture,
partnership, co-owner or other such relationship between the Parties Further,
nothing within or deriving from this Agreement shall (i) give either Party
the power to direct or control the day-to-day activities, expressly including
marketing activities, of the other or (ii) allow either Party to create or
assume any obligation on behalf of the other for any purpose whatsoever, except
to the extent, if any, expressly so set forth in this Agreement.


 


6.5                                 Governing Law and Disputes.  This Agreement shall be governed by and
construed in accordance with laws (substantive,
procedural and/or otherwise) of the State of North Carolina, without regard to
its conflicts of law principles.


 


6.6                                 Contract Management.  During the Term of this Agreement, both Parties
shall cause their representatives (with an agreed number from each Party) to
meet at least once per quarter as a “Contract Management Committee” to discuss
the Parties’ joint and respective performance under the Agreement. The Contract
Management Committee shall operate by consensus and not by majority vote,
provided that the contract management committee shall have no authority to
amend this Agreement in any part. Notwithstanding, the Contract Management Committee
shall act in good faith throughout the Term of this Agreement to resolve any
disputes between the parties with respect to this Agreement.


 


6.7                                 Notices.  As of the Effective Date, each Party shall
nominate and designate its own respective “Contract Manager” who shall be
deemed hereunder to be primarily responsible for such party’s administration
and correspondence under this Agreement. All notices, reports, requests,
statements, or communication required, permitted, or sought to be given by or
to a Party with regard to this Agreement shall be in writing and shall be
addressed to the designated Contract Managers and each Party’s legal
departments. Either Party may amend its designated Contract Manager upon proper
notice hereunder to the other. Delivery of notice hereunder may be made by
personal service, registered mail with return receipt, or fax with confirmed
answer-back, and shall be deemed effective upon receipt.


 


6.8                                 Entire Understanding.  This Agreement, along with the Schedules
attached hereto and incorporated herein, as may be amended from time to time,
contain the entire understanding of the Parties with respect to the subject
matter of this Agreement. There are no representations, promises, covenants or
understanding other than those expressly set forth herein. No rights or duties
on the part of either Party shall be implied, inferred or created beyond those
expressly provided for in this Agreement. The Parties may, from time to time
during the Term of this Agreement, modify, vary, alter or amend any of the
provisions of this Agreement, including the Schedules, but only through a
written agreement therefore duly executed by both Parties. No waiver of any
term, provision, condition, or default of this Agreement shall be construed as
a waiver of any other term, provision, condition, or default.


 


6.9                                 Severance.  If any provision of the Agreement is determined
by any tribunal with competent jurisdiction to be
unenforceable or in conflict with the law of any


 


12

















 


jurisdiction, the
validity or enforceability of the remaining provisions hereof shall not be
affected or otherwise impaired by such determination. Rather, the affected
provision shall be severed from the Agreement, and in the event such severed provision
materially affects the consideration of either Party hereunder, the Parties
shall thereupon negotiate in good faith and agreement for an acceptable
amendment to replace such severed provision so as to maintain the intentions of
the Parties hereunder at all times.


 


6.10                           Headings.  The headings of each section, paragraph or
article within this Agreement are intended for convenience only and shall not
be construed or deemed in any way to affect the interpretation of any provision
of the Agreement.


 


6.11                           Singular and Plural Terms.  Where required by context of this Agreement,
singular terms shall be considered plural and plural terms shall be considered
singular.


 


6.12                           Counterparts.  This Agreement may be executed in counterparts,
each of which shall be deemed an original, but both of which together shall
constitute one instrument representing the Agreement.


 


[SIGNATURE PAGE FOLLOWS]


 


13

















 


IN
WITNESS WHEREOF, the
Parties to hereby respectively cause this Agreement to be executed and
delivered by their duly authorized officers.


 


	
  Talecris
  Biotherapeutics, Inc. 

  	
   

  	
  Interstate Blood
  Bank, Inc.

  
	
  (“Talecris”)

  	
   

  	
  (“Supplier”)

  
	
  signed by its duly
  authorized 

  	
   

  	
  signed by it’s duly
  authorized

  
	
  Representative,

  	
   

  	
  Representative,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Alberto Martinez

  	
   

  	
  By:

  	
  /s/ Larry Moss

  
	
   

  	
   

  	
   

  
	
  Name: Alberto Martinez

  	
   

  	
  Name: Larry Moss

  
	
   

  	
   

  	
   

  
	
  Title: President and CEO

  	
   

  	
  Title: Pres.

  
	
   

  	
   

  	
   

  
	
  APPROVED AS TO LEGAL FORM

  	
   

  	
   

  
	
  Illegible signature

  	
   

  	
   

  
	
  TALECRIS BIOTHERAPEUTICS LAW DEPT

  	
   

  	
   

  



 


14














 


SCHEDULE 1


 


Plasma Specifications


 


Protocol for NAT
Investigational Studies, SOP #RS-000-AA-011, Revision #9, Effective Date July 27,
2005.


 


Plasma Supplier
Supplemental Directions, SOP #CS-000-BE-053, Revision #11, Effective date March 31,
2006.


 


General
Specifications — Source Plasma, Revision #22, Effective date March 31,
2006 which includes Specifications CS-000-AR-027 and CS-000-BE-057 and others
as directed.


 


15

















 


SCHEDULE 2


 


Annual Minimum Quantity (in Liters)


 


	
  Talecris
  Approved

  Centers

  	
   

  	
  2007

  	
   

  	
  2008

  	
   

  	
  2009
  + beyond(1)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Existing
  Talecris Approved Centers:

  Asheville, NC 

  Columbia, MO

  Jackson, TN

  Johnson City, TN

  Knoxville, TN

  Memphis-2, TN

  Muskegon, MI

  Wilkes-Barre, PA

  Madison-1, WI

  Owensboro, KY

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Future
  Approved
  Centers:

  Murfreesboro, TN

  Nashville, TN

  Madison-2, WI 

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
  [***]

  	
   

  	
  [***]

  	
   

  	
  330,000

  	
   

  



 






(1) For years 2010
to 2016, if Talecris purchases either 3 or 4 of the following Talecris Approved
Centers: Johnson City, TN, Muskegon, MI, Wilkes-Barre, PA and Owensboro, KY (“Purchasable
Plasma Centers”) pursuant to the Term Loan between the Parties, then Supplier
will guarantee [***] liters of Plasma from its remaining FDA-licensed plasma
centers. If Talecris does not buy any of the Purchasable Plasma Centers,
Supplier shall provide [***] of the production of the 13 Talecris Approved
Centers, which are expected to produce at least [***] liters of Plasma
annually.


 






***
CONFIDENTIAL TREATMENT REQUESTED


 


16

















 


SCHEDULE
3


 


Term
Loan


 


See
the attached Term Loan, and the related $3,000,000 Secured Promissory Note,
Guaranty and Side Letter Agreement.


 


17

















 


	
  

  	
   

  	
   

  
	
   

  	
   

  	
  PO Box 110526

  4101 Research Commons

  79 T.W. Alexander Drive

  Research Triangle Park

  North Carolina 27709

  
	
  November 12, 2007 

  	
   

  	
   

  
	
  

  Larry A. Moss

  President

  Interstate Blood Bank, Inc.

  5700 Pleasant View Rd.

  Memphis, TN 38134

  	
   

  	
  James A. Moose

  SVP Plasma Suppliers and Services

  Tel 919.316.6508

  Fax 919.316.6511

  jim.moose@talecris.com

  



 


Re: 2008 Pricing for
Normal Source Plasma


 


Dear Larry:


 


The current plasma purchase agreement between IBBI and
Talecris calls for IBBI to receive the average price increase of our other
suppliers with the exception ZLB, in determining the price for plasma in 2008.
After excluding ZLB, Talecris has six plasma suppliers including IBBI, who will
deliver plasma to Talecris in 2007 and 2008. Based on the existing contracts
and current negotiations, the average price increase from 2007 to 2008 for
Talecris suppliers other than IBBI and ZLB is [***].


 


In April of 2007 Talecris and IBBI agreed to a
pricing structure designed to provide volume incentives for IBBI, in which IBBI
would receive [***] for the first [***] L delivered each month and [***] for
incremental liters above [***] L each month. With the growth that IBBI has
demonstrated, the average price paid in the third quarter of 2007 was [***].
Therefore, the target price for 2008, based on the current contractual formula,
would be [***] for a volume of [***] liters.


 


Talecris proposes that we maintain a tiered monthly
pricing approach for 2008, similar to the one currently in place. However, in
the spirit of the partnership which we have tried to institute this year, we
are proposing a tiered price structure with significantly higher pricing than
the amount which would be calculated using the formula above.


 


We propose that
Talecris pay IBBI [***] for a volume up to [***] liters per month, equivalent
to [***] liters per year. We will pay [***] for volumes above [***] liters each
month.


 


Under this formula, IBBI would receive an average
price of [***] for delivering the contractual volume of [***] liters during
2008. This represents [***] year-to-year, vs. a [***] which would be applied
using the formula in the contract. At [***] liters delivered in the year, IBBI
would receive an additional [***] using this approach compared to the contract
formula. Of course, should IBBI deliver in excess of that contractual volume,
the incremental price per liter of [***] would provide even greater benefit.


 






***
CONFIDENTIAL TREATMENT REQUESTED


 

















 


We have been
pleased with your company’s progress this year, both in relocating centers to
allow future growth, and in the continuous ramp-up of your weekly delivery
volumes. We hope you will accept our proposal as an indication of the value we
place on our partnership.


 


Please sign both
copies of this letter as acceptance, return one to my attention, and retain the
other for your records. As always, please let me know if you have any questions
or comments.


 


	
  Best regards,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ James A. Moose

  	
   

  	
   

  
	
  James A. Moose

  	
   

  	
   

  
	
  SVP, Plasma Suppliers
  and Services

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  APPROVED AS TO
  LEGAL FORM

  	
   

  	
   

  
	
  Illegible
  signature

  	
   

  	
   

  
	
  TALECRIS
  BIOTHERAPEUTICS LAW DEPT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Reviewed and agreed to on behalf of IBBI,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Larry A. Moss / 11/26/07

  	
   

  	
   

  
	
  Larry A. Moss        Date

  	
   

  	
   

  
	
  President

  	
   

  	
   

  



 


	
  cc:

  	
  Jeff Danner

  
	
   

  	
  Dawn Hendrick