Exhibit 10.21


 


EMPLOYMENT AGREEMENT


 


EMPLOYMENT AGREEMENT (as amended and restated
herein, the “Agreement”), originally entered into as of January 21, 2008
and now amended and restated as of November 26, 2008 between Talecris Biotherapeutics
Holdings Corporation (the “Company”) and Kari Heerdt (the “Executive”)
(together, the “Parties”).


 


WHEREAS, the Parties have previously entered into
this Agreement and they now wish to update its terms in order to establish its
compliance with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), with the understanding that this Agreement supersedes all
prior versions and hereinafter shall solely establish the terms of Executive’s
employment with the Company.


 


Accordingly, the Parties agree as follows:


 


1.              Employment and Acceptance. The Company
shall employ the Executive, and Executive shall accept employment, subject to
the terms of this Agreement, beginning on January 21, 2008 (the “Effective
Date”).


 


2.              Term. Subject to
earlier termination pursuant to Section 5 of this Agreement, this
Agreement and the employment relationship hereunder shall continue until April 1,
2010 (“Initial Term”) and shall renew for additional one (1) year
intervals upon written notification by the Chief Executive Officer (“CEO”). If
the CEO does not provide such written notification thirty days prior to the
expiration of the Term, then the Agreement shall not be extended. If the CEO
provides such written notification then the Agreement shall be so extended
unless the Executive provides written notification to the CEO that Executive
does not wish to extend the Term. Executive’s written notice of her desire not
to extend the Term shall be provided to the CEO by sixty (60) days prior to the
expiration of the Term or, if the CEO has not yet then provided such
notification, then by seven (7) days after written notification from the
CEO. As used in this Agreement, the “Term” shall refer to the period beginning
on the Effective Date and ending on the date the Executive’s employment terminates
in accordance with this Section 2 or Section 5. “Renewal Term” shall
refer to each additional one year interval following the expiration of the
Initial Term or the previous Renewal Term. In the event that the Executive’s
employment with the Company terminates for any reason, the Company’s obligation
to continue to pay all base salary, as adjusted, bonus and other benefits then
accrued shall terminate except as may be provided for in Section 5 of this
Agreement.


 


3.              Duties and Title.


 


3.1.      Title. The Company
shall employ the Executive to render exclusive and full-time services to the
Company and its subsidiaries. The Executive shall serve in the capacity of
Senior Vice President, Human Resources (HR), and shall report directly to the
Chief Executive Officer and to any committees of the Board of Directors (the
“Board”) as determined in the discretion of the Board.


 


3.2.      Duties. The Executive
will have such authority and responsibilities and will perform such executive
duties customarily performed by a head of HR of a company in similar lines of
business as the Company and its subsidiaries or as may be assigned to Executive
by the Chief Executive Officer. The Executive will devote all her full
working-time and attention to the performance of such duties and to the
promotion of


 


1

















 


the business and interests of the Company and its
subsidiaries except for directorships and similar positions approved by the
CEO, which approval may be revoked at any time. .


 


4.              Compensation and Benefits by
the Company. As compensation for all services rendered pursuant
to this Agreement, the Company shall provide the Executive the following during
the Term:


 


4.1.      Base Salary. The Company
will pay to the Executive an annual base salary of two hundred ninety five
thousand dollars ($295,000), payable in accordance with the customary payroll
practices of the Company (“Base Salary”). Executive’s Base Salary shall be
reviewed consistent with the normal merit and pay adjustment cycle for
executives, with the first such adjustment in the 2009 calendar year. In
evaluating adjustments to Executive’s Base Salary, such factors as corporate
performance, individual merit, inflation, and other appropriate considerations
shall be taken into account


 


4.2.      Bonuses. The Executive
will be eligible to receive an annual bonus (“Bonus”) under a plan established
by the Company in the amount determined by the Board based upon achievement of
performance measures derived from the annual business plan presented by
management and approved by the Board. The Executive’s target bonus shall be 50%
of base salary (the “Target Bonus”), with the actual amount of each Bonus being
determined under the Bonus Plan in effect at that time as approved by the
Board. Notwithstanding the above, for 2008 and 2009, the Minimum Bonus will be
40% and 25% of base pay respectively. In the first performance year, the Bonus
and Minimum Bonus shall be prorated for the period of employment and the
Executive shall receive such prorated Minimum Bonus independent of the
Company’s achievement of triggers under the Bonus Plan. Whereas the Bonus is
earned within a performance year, the payment of  the Bonus shall be in accordance with the Plan (and as of
the Effective Date, 60% of the Bonus is paid in the calendar year following the
performance year and 40% of the Bonus is paid in the following calendar year.)


 


4.3.      Sign-On Bonus. The Executive
shall receive a one-time cash sign-on bonus of $180,000 (“Cash Sign-on Bonus”)
payable in two installments. The first installment shall be paid within 30 days
of the Effective Date and the second installment shall be paid within ten days
of the one-year anniversary of the Effective Date. In the event Executive’s
employment terminates due to resignation without Good Reason (defined in Section 5.1
below) during her first year of employment, Executive must repay her entire
Cash Sign-on Bonus to the Company within ten (10) days of her Separation
from Service (as defined below). In the event Executive’s employment terminates
due to resignation without Good Reason prior to the completion of the Initial
Term but after her first year of employment, Executive must repay one-half of
her Cash Sign-on Bonus to the Company within ten (10) days of her
Separation from Service. The Company may, at its option, deduct any such amount
due to the Company from any monies (other than amounts that are not exempt from
Code Section 409A) due to Executive upon her termination. In addition to
the Cash Sign-On Bonus, the Compensation Committee of the Board (the
“Committee”) shall grant an equity award either in the form of restricted stock
or options to the Executive on or before June 1, 2008 with a value at the
time of grant of $180,000 as determined in the sole discretion


 


2

















 


of the Committee. To the extent the Committee does not make such grant
or to the extent the Executive elects not to accept such grant in her sole
discretion, than the second installment of the Cash Sign-on-Bonus shall be
increased to $270,000.


 


For purposes of this Agreement, “Separation from Service” shall mean
the termination of services provided by Executive, whether voluntary or
involuntary, as determined by the Company in accordance with Treas. Reg.
§1.409A-1(h). In determining whether the Executive has experienced a Separation
from Service, the following provisions shall apply:


 


(a)                    a Separation from Service
shall occur when the Executive experiences a termination of employment with the
Company and any affiliate in which the Company has more than a 50% ownership
interest (together with the Company, the “Employer”), which shall be considered
to have occurred when the facts and circumstances indicate that either (i) the
Executive is not reasonably expected to perform further services for the
Employer after a certain date, or (ii) that the level of bona fide
services the Executive will perform for the Employer after such date (whether
as an Employee or as an independent contractor) will permanently decrease to no
more than 20% of the average level of bona fide services performed by such
Executive (whether as an Employee or an independent contractor) over the immediately
preceding 36-month period (or full period of services to the Employer if the
Executive has been providing services to the Employer for less than 36 months).


 


(b)                   If the Executive is on
military leave, sick leave, or other bona fide leave of absence, the employment
relationship between the Executive and the Employer shall be treated as
continuing intact, provided that the period of such leave does not exceed six
months, or longer, so long as the Executive retains a right to reemployment
with the Employer under an applicable statute or by contract. If the period of
leave exceeds six months and the Executive does not retain a right to
reemployment under an applicable statute or by contract, the Executive will
incur a Separation from Service as of the first day immediately following the
end of such six-month period. However, where the Executive’s leave of absence
is due to his or her Disability, a 29-month period of absence will be
substituted for such six-month period. In applying the provisions of this
paragraph, a leave of absence shall be considered a bona fide leave of absence
only if there is a reasonable expectation that the Executive will return to
perform services for the Employer.


 


(c)                    Notwithstanding the
foregoing, if the Executive provides services to the Employer as both an
employee and a member of the Board, then to the extent permitted by Treasury Regulation
Section 1.409A-1(h)(5), the services provided by such Executive as a Board
member shall not be taken into account in determining whether the Executive
experiences a Separation from Service as an employee.


 


4.4.      Participation in Employee
Benefit Plans. The Executive shall be entitled, if and to the
extent eligible, to participate in all of the applicable benefit plans of the
Company, which may be available to other senior executives of the Company, on
the same terms as such other executives. The Company may at any time or from
time to time amend, modify, suspend or terminate any employee benefit plan,
program or arrangement for any reason without Executive’s consent if such
amendment, modification, suspension


 


3

















 


or termination is consistent with the amendment, modification,
suspension or termination for other employees of the Company. The Company
agrees to reimburse Executive for the cost of group health insurance coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA)
or similar employment gap health insurance for Executive and her spouse grossed
up for taxes, until such time as the Executive and her spouse are eligible for
coverage under the Company’s medical and dental plans. The Executive shall
apply for all reimbursements hereunder for a particular calendar year not later
than forty-five (45) days after it ends, and payment shall occur not later than
two and one-half months after the end of the calendar year to which the
reimbursable expenses relate.


 


4.5.      Paid Time Off. The Executive
shall be entitled to 30 days (240 hours) of Personal Time Off (PTO). PTO time
is to be used for vacation, sick leave, personal business, observance of
non-company holidays, and other time off. The PTO schedule assumes a maximum of
4 weeks (160 hours) of vacation, and 10 days (80 hours) for sick time, personal
holidays, and other personal business. The carry-over and accrual of PTO hours
shall be in accordance with Company policy as in effect from time to time,
except that 10 days of PTO will immediately accrue.


 


4.6.      Expense Reimbursement. The Executive
shall be entitled to receive reimbursement for all appropriate business
expenses incurred by her in connection with her duties under this Agreement in
accordance with the policies of the Company as in effect from time to time. In
any event, the Executive shall apply for all reimbursements hereunder for a
particular calendar year not later than forty-five (45) days after it ends, and
payment shall occur not later than two and one-half months after the end of the
calendar year to which the reimbursable expenses relate.


 


4.7.      Stock Options. The Executive
shall be eligible to participate in the 2005 Stock Option and Incentive Plan
established by the Company (the “Equity Incentive Plan”) pursuant to the terms
of the Equity Incentive Plan and any applicable agreements thereunder as
determined from time to time by the Board. The number of stock options granted
in the Initial Term and the estimated value of those options will be
approximately $295,000 annually, as determined in the sole discretion of the
Compensation Committee. Notwithstanding the foregoing, the fair market value of
the commons stock used to calculate the option value and the number of options
granted shall be consistent with that used for any sale of common stock by the
Company at or near the time of the grant. The vesting period grants at or below
the amounts estimated above made in the Initial Term will not exceed the
Initial Term.


 


4.8.      Relocation and Temporary
Living Expenses.


 


4.8.1.  Upon submission of appropriate receipts, all
reasonable relocation expenses up to a maximum of $150,000, incurred by
Executive will be reimbursed by the Company including (but not limited to):
relocation assistance fees, realtor and closing costs on the sale of
Executive’s primary residence and purchase of a primary residence within 35
miles of the Company’s headquarters, three family house hunting trips for the
Executive and actual moving date, trucking/moving expenses for belongings and up
to two personal vehicles, and car rental until relocated, storage and other reasonable
expenses incurred in the normal course of relocation (“Relocation 


 


4

















 


Expenses”). In addition, Executive will be reimbursed by the Company
for her and her spouse’s travel expenses and reasonable temporary quarters
until relocated (“Temporary Living Expenses”). Taxable Relocation Expenses and
Temporary Living Expenses will be grossed up to cover Executive’s federal and
state income tax liability. In the event Executive’s employment terminates
pursuant to provision 5.1 during her Initial Term, Executive must repay to the
Company within ten (10) days of her termination Relocation Expenses (but
not Temporary Living Expenses) incurred by the Company on a prorated basis
relative to the fraction of time employed in the two year period after the
Effective Date. The Company may, at its option, deduct any such amount due to
the Company from any monies due to Executive upon her termination. The
Executive shall apply for all reimbursements hereunder for a particular
calendar year not later than forty-five (45) days after it ends, and payment
shall occur not later than two and one-half months after the end of the
calendar year to which the reimbursable expenses relate.


 


4.8.2.  During the Initial Term (and not for any
Renewal Terms), the Executive may commute from a primary residence located in
Charlotte NC metro area or other location as approved by the CEO. The Executive
will be permitted to travel back and forth weekly, and the Company shall
reimburse the cost of such business travel. From time to time, the Executive
shall be expected to attend employee and/or community events over the weekend
in the greater Raleigh area. During the Initial Term, the Company will provide
temporary housing or reasonable reimbursement for temporary housing up to a
maximum of $4,000.00 per month or as periodically reviewed and approved by the
CEO. The Executive may apply such re-imbursement for an apartment, home or
other arrangement. The expenses described in Section 4.8.2. will be
grossed up to cover Executive’s federal and state income tax liability
consistent with company policy. The Executive is expected to pay for all other
local living expenses. The Executive shall apply for all reimbursements
hereunder for a particular calendar year not later than forty-five (45) days
after it ends, and payment shall occur not later than two and one-half months
after the end of the calendar year to which the reimbursable expenses relate.


 


4.9.      Continuing Professional
Education. The Company agrees to pay reasonable costs
associated with the continuing education requirements of maintaining the
Executive’s professional designation, including related professional
organization memberships, as well as seminars to advance the Executive’s
skills. Such costs include the reasonable costs of seminars, travel, lodging
and meals while attending such functions. Time associated with continuing education
requirements will not be considered PTO.


 


5.              Termination of Employment.


 


5.1.      By the Company for Cause or
by the Executive Without Good Reason. If: (i) the Company
terminates the Executive’s employment with the Company for Cause (as defined
below); or (ii) Executive terminates her employment without Good Reason
(as defined below), the Executive or the Executive’s legal representatives (as
appropriate), shall be entitled to receive the following:


 


5.1.1.  the Executive’s accrued but unpaid Base
Salary, and benefits set forth in Section 4.3, if any, to the date of
Separation of Service;


 


5

















 


5.1.2.  the Executive’s earned but unpaid bonus, if
any, for the performance years prior to termination and only if the Company and
not the Executive terminates employment;


 


5.1.3.  expenses reimbursable under Section 4.6
and Temporary Living Expenses under Section 4.8 incurred but not yet
reimbursed to the Executive to the date of Separation of Service; and


 


5.1.4.  payment for accrued unused PTO days, with
payment to be made within 60 days after the Executive’s Separation from
Service.


 


For the purposes of this Agreement, “Cause” means, as determined by the
Board (or a special committee of the Board which does not include employees of
the Company), with respect to conduct during the Executive’s employment with
the Company, whether or not committed during the Term, (i) commission of a
felony by Executive; (ii) acts of dishonesty by Executive resulting or
intending to result in personal gain or enrichment at the expense of the
Company or its subsidiaries; (iii) Executive’s material breach of her
obligations under this Agreement; (iv) conduct by Executive in connection
with her duties hereunder that is fraudulent, unlawful or grossly negligent,
including, but not limited to, acts of discrimination; (v) engaging in
personal conduct by Executive (including but not limited to employee harassment
or discrimination, the use or possession at work of any illegal controlled
substance) which discredits or damages the Company or its subsidiaries; (vi) contravention
of specific lawful direction from the Chief Executive Officer that would not
otherwise conflict with Executive’s responsibilities or duties or the material
failure to perform the duties to be performed by Executive under the terms of Section 3.2
of this Agreement or (vii) breach of the Executive’s covenants set forth
in Section 6 below before termination of employment; provided, that, the
Executive shall have fifteen (15) days after notice from the Company to cure
the deficiency leading to the Cause determination (except with respect to (i) and
(ii) above), if curable. A termination for “Cause” shall be effective
immediately (or on such other date set forth by the Company).


 


For the purposes of this Agreement, “Good Reason” means, without the
Executive’s consent, (i) a material reduction in the nature or status of
Executive’s responsibilities, authority, or duties; (ii) the Executive’s
removal from the position of head of Human Resources other than for Cause; (iii) a
material adverse reduction in the amount of aggregate compensation provided for
herein or failure to pay such compensation; (iv) the Company’s material
breach of the Agreement; provided that a suspension of the Executive and the
requirement that the Executive not report to work shall not constitute “Good
Reason” if the Executive continues to receive the compensation and benefits
required by this Agreement or (v) relocation of the Executive’s office
more than 50 miles from its location on the Effective Date (vi) the
failure by the Company to continue in effect any incentive compensation plan in
which the Executive participates unless an equitable alternative compensation
arrangement has been provided, except to the extent that participation in such
plans has been reduced or eliminated for all other eligible executives; (vii) except
as required by law, the failure by the Company to continue to provide Executive
with benefits at least as favorable as those enjoyed by Executive under the
employee benefit and welfare plans of the Company including, without
limitation, profit sharing, life insurance, medical, dental, health and
accident, disability, deferred compensation and savings plans commensurate with
those generally available to all


 


6

















 


Executives. Notwithstanding the foregoing, a reduction in the amount of
Executive’s aggregate compensation in an amount proportional to such a
reduction (but not to exceed 20 percent) in the aggregate compensation of other
senior executives shall not constitute Good Reason. Also, to the extent the
company modifies the reporting structure, such change in of itself shall not
constitute Good Reason. The Executive shall provide notice to the Company of
the existence of (i) through (vii) of this Section within ninety
(90) days of the initial existence of such condition, upon the notice of which
the Company shall have at least thirty (30) days within which to cure such
condition. If the Company fails to cure the condition within the cure period
specified in the preceding sentence, the Executive must terminate employment
within thirty (30) days of the Company’s failure to cure.


 


5.2.      Due to Death or Disability. If: (i) the
Executive’s employment terminates due to her death; or (ii) the Company
terminates the Executive’s employment with the Company due to the Executive’s
Disability (as defined below) and (i) the Executive honors all applicable
provisions of this Agreement following such termination due to Disability, (ii) Executive
agrees to make a good faith effort to the extent reasonably able to do so to
provide consulting services to the Company as requested by the Company during
the severance period at no additional payment or remuneration other than the
severance amount stated herein, (iii) Executive or Executive’s legal
representative executes, without revoking, a valid release agreement in a form
reasonably acceptable to the Company (but which does not require Executive or
Executive’s legal representative to release any rights under this section of
the Agreement or indemnification rights under section 8 of the Agreement or
under the articles of incorporation or by-laws of the Company or any of its
subsidiaries), the Executive or the Executive’s legal representatives (as
appropriate), shall be entitled to receive the incremental severance payments
set forth in this Section 5.2 (in addition to the payments upon
termination set forth in Section 5.1):


 


5.2.1.  the unpaid portion of the Bonus, if any, relating
to the calendar years prior to the calendar year of the Executive’s
termination, payable within 60 days after the Executive’s Separation from
Service;


 


5.2.2.  if the Company achieves the performance
objectives for the year in which Executive’s employment is terminated, a
pro-rata share of the Bonus in such performance year (based upon the number of
days she was employed by the Company in the year in question) at 100% of Target
Bonus, payable in the same manner and at the same time as other executives remaining
at the Company are paid, but in no event later than two and one-half months
after the end of the calendar year in which the Executive’s right to payment
vests hereunder; and


 


5.2.3.  the exercising of vested stock options as set
forth in Section 4.2 of Executive’s Stock Option Award Agreement.


 


For the purposes of this Agreement, “Disability” means
a reasonable determination by a physician reasonably acceptable to the Company
and in accordance with applicable law that as a result of a physical or mental
injury or illness, the Executive is unable to perform the essential functions
of her job with or without reasonable accommodation for a period of (i) 60
consecutive days; or (ii) 90 days in any one (1) year period.


 


7














 


5.3.      By the Company Without Cause
or By the Executive for Good Reason. If during the Term the
Company terminates Executive’s employment without Cause (which may be done at
any time without prior notice) or Executive terminates her employment for Good
Reason upon at least fifteen (15) days prior written notice, the Executive
shall receive the incremental severance payments set forth in this Section 5.3,
as described below (in addition to the payments upon termination specified in Section 5.2)
upon execution without revocation of a valid release agreement in a form
reasonably acceptable to the Company (but which does not require Executive to
release any rights under this section of the Agreement or indemnification
rights under section 8 of the Agreement or under the articles of incorporation
or by-laws of the Company or any of its subsidiaries) and provided that the
Executive honors all applicable provisions of this Agreement following
termination and that Executive agrees to provide consulting services to the
Company, upon request, of up to ten (10) hours of Executive’s time per
month during this eighteen (18) month time period, at no additional payment or
remuneration other than the severance amount stated herein:


 


5.3.1.  continued Base Salary for the greater of
eighteen (18) months after the date of termination or the remainder of the
number of months remaining in the then current contract term payable in a lump
sum on the last business day of the month following the Separation from
Service;


 


5.3.2.  Bonus payments in an aggregate amount equal
to the lesser of the Bonus amount earned by the Executive for the years prior
to the calendar year of the Executive’s termination (without regard to any pro
ration) or the Target Bonus, payable in a lump sum on the last business day of
the month following the Separation from Service, or if such prior year bonus
has not been determined at such time on the last business day of the month
following such determination in a lump sum.


 


5.3.3.  to the extent Executive elects to continue
her group health coverage pursuant to COBRA, the Company shall pay its usual
share of her group health insurance premium during the period in which Base
Salary is paid under Section 5.3.1 payable in a lump sum on the last
business day of the month following the Separation from Service, after which
Executive may exercise her rights (at her sole expense) to continuation
coverage of group health coverage pursuant to COBRA. Notwithstanding the
foregoing, the benefits provided under this Section 5.3.3, shall cease
when Executive is covered under another group health plan.


 


5.3.4.  to the extent the Company is publicly traded,
the Executive may exercise vested options until 90 days after termination and
to the extent the Company is not publicly traded at the time of termination,
the Executive shall exercise vested options until 90 days after the Company
becomes publicly traded, but in either case, not after the expiration date of
an option as set forth in the award agreement, and


 


5.3.5.  expenses reimbursable under Section 4.5
and Temporary Living Expenses under Section 4.7 incurred but not yet
reimbursed to the Executive to the date of termination.


 


5.4         Termination Due to
Completion of Term Without Renewal by Company. If the contract lapses due
to non-renewal by the Company (i) upon expiration of the Initial Term,
(ii)


 


8

















 


upon expiration of the first Renewal Term, or (iii) upon
expiration of any subsequent Renewal Term within six (6) months of a
Change in Control the Executive or the Executive’s legal representatives (as
appropriate) shall be entitled to receive the benefits set forth in section 5.3,
but specifically excluding the benefits set forth in section 5.3.2.


 


A Change in Control means the occurrence of any one
of the following:


 


(i)                                any Person,
other than a Permitted Investor, is or becomes a “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing (A) more than 30% of the total
voting power of the Company’s then outstanding securities generally eligible to
vote for the election of directors (the “Company Voting Securities”) and
(B) a greater percentage of the then outstanding Company Voting Securities
that are than held by all the Permitted Investors in the aggregate; provided,
however, that any of the following acquisitions shall not be deemed to
be a Change in Control: (1) by the Company or any subsidiary or affiliate,
(2) by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any subsidiary or affiliate, (3) by any
underwriter temporarily holding securities pursuant to an offering of such
securities, or (4) pursuant to a Non-Qualifying Transaction (as defined in
paragraph (ii));


 


(ii)                             the
consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or any of its subsidiaries
or affiliates (a “Business Combination”), unless immediately following
such Business Combination:


 


(A)                                   more than 50% of the total
voting power of (x) the corporation resulting from such Business
Combination (the “Surviving Corporation”), or (y) if applicable,
the ultimate parent corporation that directly or indirectly has beneficial
ownership of a majority of the voting securities eligible to elect directors of
the Surviving Corporation (the “Parent Corporation”), is represented by
Company Voting Securities that were outstanding immediately prior to such
Business Combination (or, if applicable, is represented by shares into which
such Company Voting Securities were converted pursuant to such Business
Combination), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Company Voting
Securities among the holders thereof immediately prior to the Business
Combination,


 


(B)                                     no Person, other than a
Permitted Investor or any employee benefit plan (or related trust) sponsored or
maintained by the Surviving Corporation or the Parent Corporation, is or
becomes the beneficial owner, directly or indirectly, of securities of the
Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) representing (A) 30% of the total voting power of the
securities then outstanding generally eligible to vote for the election of
directors of the Parent Corporation (or the Surviving Corporation) (the “Parent
Voting Securities”), and (B) a greater percentage of the then
outstanding Parent


 


9

















 


Voting Securities that are then held by all the
Permitted Investors in the aggregate, and


 


(C)                                     at least a majority of the
members of the board of directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) following the consummation of
the Business Combination were Incumbent Directors at the time of the Board’s
approval of the execution of the initial agreement providing for such Business
Combination; (any Business Combination which satisfies all of the criteria
specified in (A), (B) and (C) above shall be deemed to be a
“Non-Qualifying Transaction”) ;


 


(iii)                          the
shareholders of the Company approve a plan of complete liquidation or
dissolution of the Company; or


 


(iv)                         the consummation of a sale of all or
substantially all of the Company’s assets to an entity that is not an affiliate
of the Company (other than pursuant to a Non-Qualifying Transaction).


 


Notwithstanding the foregoing, a Change in Control of the Company shall
not be deemed to occur solely because any person acquires beneficial ownership
of more than 30% of Company Voting Securities as a result of the acquisition of
Company Voting Securities by the Company which reduces the number of Company
Voting Securities outstanding; provided, that if after such
acquisition by the Company such person becomes the beneficial owner of
additional Company Voting Securities that increases the percentage of
outstanding Company Voting Securities beneficially owned by such person, a
Change in Control of the Company may then occur.


 


The Company’s obligation to provide the payments and benefits set forth
above in Sections 5.2, 5.3 and 5.5 below will immediately cease in the event
the Executive engages in conduct constituting a breach of the provision of
Sections 5.6 or 6 of this Agreement.


 


5.5         Termination by Executive
following Change in Control. If Executive terminates
her employment during the 90-day period commencing six months after a Change in
Control not involving an Initial Public Offering, the Executive shall be
entitled to receive the incremental severance payments set forth in Section 5.3.


 


5.6         Termination Due to
Completion of Term Without Renewal by Executive. If the Executive terminates
her employment upon completion of the Initial Term or any Renewal Term, the
Executive or the Executive’s legal representatives (as appropriate), shall be
entitled to receive the benefits set forth in section 5.3, but specifically
excluding the benefits set forth in section 5.3.1, 5.3.2 and 5.3.3.


 


5.7         Compliance with 409A. This
Agreement is intended to comply with (or be exempt from) Code Section 409A,
and the Company shall have complete discretion to interpret and construe this
Agreement and any associated documents in any manner that establishes an
exemption from (or otherwise conforms them to) the requirements of Code Section 409A.
If, for any reason including imprecision in drafting, the Agreement does not
accurately reflect its intended establishment of an exemption


 


10

















 


from (or compliance with) Code Section 409A, as demonstrated by
consistent interpretations or other evidence of intent, the provision shall be
considered ambiguous and shall be interpreted by the Company in a fashion
consistent herewith, as determined in the sole and absolute discretion of the
Company. The Company reserves the right to unilaterally amend this Agreement
without the consent of any Executive in order to accurately reflect its correct
interpretation and operation, as well as to maintain an exemption from or
compliance with Code Section 409A. Nevertheless, and notwithstanding any
other provision of this Agreement, neither the Company nor any of its
employees, directors, or their agents shall have any obligation to mitigate,
nor to hold the Executive harmless from, any or all taxes (including any
imposed under Code Section 409A arising under this Agreement.


 


5.8         Parachute Payments. Anything in
the Agreement to the contrary notwithstanding, in the event it shall be
determined that any payments or distribution in the nature of compensation
(within the meaning of Section 280G(b)(2) of the Code) to or for the benefit
of the Executive, whether paid or payable pursuant to this Agreement (including,
without limitation, the accelerated vesting of incentive or equity awards held
by the Executive) or otherwise would be subject to the excise tax imposed by
Section 4999 of the Code, then the amount of “parachute payments” (as
defined in the Section 280G of the Code) payable or required to be
provided to the Executive shall be automatically reduced to the minimum extent
necessary to avoid imposition of such excise tax (with the types of benefits or
compensation that are reduced to be determined by the Company at its
discretion, which shall be exercised first with respect to compensation and
benefits that are not exempt from Code Section 409A); provided that this
reduction shall not apply if the Executive would be better off, on a net
after-tax basis, receiving the parachute payments that would otherwise be
reduced and paying such excise tax. Notwithstanding the foregoing, the Company
and Executive shall use their reasonable efforts to have any payments or
distributions that would be reduced or eliminated as a result of the
application of this Section 4.10 approved by the Company’s shareholders in
the manner contemplated by Q&A 7 of Treasury Regulation Section 1.280G
1. All determinations required to be made under this Section 4.10 shall be
made by the Company’s accounting firm (the “Accounting Firm”); provided that
the Executive may select which, if any, parachute payments shall be reduced.
The Accounting Firm shall provide detailed supporting calculations both to the
Company and the Executive. All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Absent manifest error, any determination by the
Accounting Firm shall be binding upon the Company and the Executive.


 


5.9         Removal from any Boards and
Position. If the Executive’s employment is terminated for
any reason under this Agreement, she shall be deemed to resign (i) if a
member, from the Board or board of directors of any subsidiary of the Company
or any other board to which he has been appointed or nominated by or on behalf
of the Company and (ii) from any position with the Company or any
subsidiary of the Company, including, but not limited to, as an officer of the
Company and any of its subsidiaries.


 


5.10   Non-disparagement. The Company
and Executive agree that neither party will at any time (whether during or
after the Term) publish or communicate to any person or entity except in the
case of the Executive to her spouse, or in the case of the Company


 


11

















 


and Executive to legal counsel, any Disparaging (as defined below)
remarks, comments or statements concerning the Executive or the Company,
Cerberus Capital Management, L.P., Ampersand Ventures, their parents,
subsidiaries and affiliates, and their respective present and former members,
partners, directors, officers, shareholders, employees, agents, attorneys, successors
and assigns, except as required by law or an order of a court or governmental
agency with jurisdiction, “Disparaging” remarks, comments or statements are
those that impugn the character, honesty, integrity or morality or business
acumen or abilities in connection with any aspect of the operation of business
of the individual or entity being disparaged.


 


6.  Restrictions and Obligations of the
Executive


 


6.1.      Confidentiality. (a) During
the course of the Executive’s employment by the Company (prior to and during
the Term), the Executive has had and will have access to certain trade secrets
and confidential information relating to the Company and its subsidiaries (the
“Protected Parties”) which is not readily available from sources outside the
Company. The confidential and Proprietary information and, in any material
respect, trade secrets of the Protected Parties are among their most valuable
assets, including but not limited to, their customer, supplier and vendor
lists, databases, competitive strategies, computer programs, frameworks, or
models, their marketing programs, their sales, financial, marketing, training
and technical information, their product development (and proprietary product
data) and any other information, whether communicated orally, electronically,
in writing or in other tangible forms concerning how the Protected Parties
create, develop, acquire or maintain their products and marketing plans, target
their potential customers and operate their retail and other businesses. The
Protected Parties invested, and continue to invest, considerable amounts of
time and money in their process, technology, know-how, obtaining and developing
the goodwill of their customers, their other external relationships, their data
systems and data bases, and all the information described above (hereinafter
collectively referred to as “Confidential Information”), and any
misappropriation or unauthorized disclosure of Confidential Information in any
form would irreparably harm the Protected Parties. The Executive acknowledges
that such Confidential Information constitutes valuable, highly confidential,
special and unique property of the Protected Parties, The Executive shall hold
in a fiduciary capacity for the benefit of the Protected Parties all
Confidential Information relating to the Protected Parties and their
businesses, which shall have been obtained by the Executive during the
Executive’s employment by the Company or its subsidiaries and which shall not
be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). Except as
required by law or an order of a court or governmental agency with
jurisdiction, the Executive shall not, during the period the Executive is
employed by the Company or its subsidiaries or at any time for five (5) years
thereafter, disclose any Confidential Information, directly or indirectly, to
any person or entity for any reason or purpose whatsoever, nor shall the
Executive use it in any way, except in the course of the Executive’s employment
with, and for the benefit of, the Protected Parties or to enforce any rights or
defend any claims hereunder or under any other agreement to which the Executive
is a party, provided that such disclosure is relevant to the enforcement of
such rights or defense of such claims and is only disclosed in the formal
proceedings related thereto. The Executive


 


12

















 


shall take all reasonable steps to safeguard the Confidential
Information and to protect it against disclosure, misuse, espionage, loss and
theft. The Executive understands and agrees that the Executive shall acquire no
rights to any such Confidential Information. (b) All files, records,
documents, drawings, specifications, data, computer programs, evaluation
mechanisms and analytics and similar items, except for those evaluation
mechanisms and analytics and similar items which are of prior art or common
practice within the Executive’s professional capacity, relating thereto or to
the Business (for the purposes of this Agreement, “Business” shall be as
defined in Section 6.3 hereof), as well as all customer lists, specific
customer information, compilations of product research and marketing techniques
of the Company and its subsidiaries, whether prepared by the Executive or
otherwise coming into the Executive’s possession, shall remain the exclusive
property of the Company and its subsidiaries, and the Executive shall not
remove any such items from the premises of the Company and its subsidiaries,
except in furtherance of the Executive’s duties under any employment agreement.
(c) It is understood that while employed by the Company or its
subsidiaries, the Executive will promptly disclose to it, and assign to it the
Executive’s interest in any invention, improvement or discovery made or
conceived by the Executive, either alone or jointly with others, which: (i) relate
in any manner to the existing or contemplated business, research or activities
of the Company; (ii) are suggested by or result from Executive’s work with
the Company, or (iii) result from the Executive’s use of the Company’s
time, materials, information, employees or facilities even if made or conceived
during other than working hours. At the Company’s request and expense, the
Executive will assist the Company and its subsidiaries during the period of the
Executive’s employment by the Company or its subsidiaries and thereafter in
connection with any controversy or legal proceeding relating to such invention,
improvement or discovery and in obtaining domestic and foreign patent or other
protection covering the same. (d) As requested by the Company and at the
Company’s expense, from time to time and upon the termination of the
Executive’s employment with the Company for any reason, the Executive will
promptly deliver to the Company and its subsidiaries all copies and
embodiments, in whatever form, of all Confidential Information in the
Executive’s possession or within her control (including, but not limited to,
memoranda, records, notes, plans, photographs, manuals, notebooks,
documentation, program listings, flow charts, magnetic media, disks, diskettes,
tapes and all other materials containing any Confidential Information)
irrespective of the location or form of such material. If requested by the
Company, the Executive will provide the Company with written confirmation that
all such materials have been delivered to the Company as provided herein.


 


6.2.      Non-Solicitation or Hire. During the
Term and for a period of twenty-four (24) months following the termination of
the Executive’s employment for any reason, the Executive shall not solicit or
attempt to solicit or induce, directly or indirectly: (a) any person or
entity who is a customer of the Company or its subsidiaries, or who was a
customer of the Company or its subsidiaries at any time during the twelve (12)
month period immediately prior to the date the Executive’s employment
terminates for any reason, to market, sell or provide to any such person or
entity any services or products offered by or available from the Company or its
subsidiaries (provided that if the Executive intends to solicit any such person
or entity for any other purpose, he shall


 


13

















 


notify the Company of such intention and receive prior written approval
from the Company); (b) any supplier to the Company or any subsidiary to
terminate, reduce or alter negatively its relationship with the Company or any
subsidiary or in any manner interfere with any agreement or contract between
the Company or any subsidiary and such supplier; or (c) any employee of
the Company or any of its subsidiaries or any person who was an employee of the
Company or any of its subsidiaries during the twelve (12) month period
immediately prior to the date the Executive’s employment terminates for any
reason, to terminate such employee’s employment relationship with the Protected
Parties in order, in either case, to enter into a similar relationship with the
Executive or any other person or any entity in competition with the Business of
the Company or any of its subsidiaries.


 


6.3.      Non-Competition. During the
Term and following the Executive’s Separation from Service with the Company for
any reason, Executive, for the greater of eighteen (18) months or the period in
which the Company is making payments to the Executive in accordance with
sections 5.2, 5.3 and 5.5 above, shall not, whether individually, as a
Director, Manager, member, stockholder, partner, owner, employee, consultant or
agent of any business, or in any other capacity, other than on behalf of the
Company or its subsidiaries, directly or indirectly organize, establish, own,
operate, manage, control, engage in, participate in, invest in, permit her name
to be used by, act as a consultant or advisor to, render services which are
materially similar to her services provided to the Company under this Agreement
for, alone or in association with any person, firm, corporation or business
organization, including but not limited to Baxter (if it then engages in or
owns, invests in, operates, manages or controls any venture or enterprise which
engages or proposes to engage in any business conducted by the Company or any
of its subsidiaries), CSL, Octapharma, Grifols, Biotest, Kedrion, Kamada and
Sanguine or otherwise assist any person or entity that engages in or owns,
invests in, operates, manages or controls any venture or enterprise which
engages or proposes to engage in any business conducted by the Company or any
of its subsidiaries on the date of the Executive’s termination of employment or
within eighteen (18) months of the Executive’s termination of employment in the
geographical areas of: (i) Johnston and Wake Counties, North Carolina; (ii) the
State of North Carolina; (iii) the states of Pennsylvania, California, New
York and Florida; (iv) the United States of America; and (v) any
geographic locations where the Company and its subsidiaries engage, in such
business (the “Business”). Notwithstanding the foregoing, nothing in this
Agreement shall prevent the Executive from owning for passive investment
purposes not intended to circumvent this Agreement, less than five percent (5%)
of the publicly traded common equity securities of any company engaged in the
Business (so long as the Executive has no power to manage, operate, advise,
consult with or control the competing enterprise and no power, alone or in
conjunction with other affiliated parties, to select a director, manager,
general partner, or similar governing official of the competing enterprise
other than in connection with the normal and customary voting powers afforded
the Executive in connection with any permissible equity ownership).


 


6.4.      Property. The Executive
acknowledges that all originals and copies of materials, records and documents
generated by her or coming into her possession during her employment by the
Company or its subsidiaries and which relate to the business of the


 


14

















 


Company or its subsidiaries (excluding this Agreement and other
documents relating to Executive’s employment relationship with the Company) are
the sole property of the Company and its subsidiaries (“Company Property”).
During the Term, and at all times thereafter, the Executive shall not remove,
or cause to be removed, from the premises of the Company or its subsidiaries,
copies of any record, file, memorandum, document, computer related information
or equipment, or any other item relating to the business of the Company or its
subsidiaries, except in furtherance of her duties under the Agreement. When the
Executive’s employment with the Company terminates for any reason, or upon
request of the Company at any time, the Executive shall promptly deliver to the
Company all copies of Company Property in her possession or control.


 


6.5.      Sections 6.1, 6.2, and 6.3
of this Agreement, including each provision within those sections, are
independent and severable. In the event that a court of competent jurisdiction
finds any provision of Sections 6.1, 6.2, or 6.3 of this Agreement to be
overbroad or unenforceable for any reason, Executive and Company hereby
specifically agree and request that the court modify each such provision in a
manner that will make each such provision enforceable to the maximum extent
allowed by law.


 


7.             Remedies; Specific
Performance. The Parties acknowledge and agree that the
Executive’s breach or threatened breach of any of the restrictions set forth in
Section 6 will result in irreparable and continuing damage to the
Protected Parties for which there may be no adequate remedy at law and that the
Protected Parties shall be entitled to equitable relief, including specific
performance and injunctive relief as remedies for any such breach or threatened
or attempted breach. The Executive also agrees that such remedies shall be in
addition to any and all remedies, including damages, available to the Protected
Parties against her for such breaches or threatened or attempted breaches. In
addition, without limiting the Protected Parties’ remedies for any breach of
any restriction on the Executive set forth in Section 6, except as
required by law, the Executive shall not be entitled to any payments set forth
in Section 5.2, 5.3 or 5.5 hereof if the Executive has breached the
covenants applicable to the Executive contained in Section 5.10 or 6, the
Executive will immediately return to the Protected Parties any such payments
previously received under Sections 5.2, 5.3 or 5.5 upon such a breach, and, in
the event of such breach, the Protected Parties will have no obligation to pay
any of the amounts that remain payable by the Company under Sections 5.2, 5.3
or 5.5.


 


8.             Indemnification. The Company
agrees, to the extent permitted by applicable law and its organizational
documents, to indemnify, defend and hold harmless the Executive from and
against any and all losses, suits, actions, causes of action, judgments,
damages, liabilities, penalties, fines, costs or claims of any kind or nature
(“Indemnified Claim”), including reasonable legal fees and related costs incurred
by Executive in connection with the preparation for or defense of any
Indemnified Claim, whether or not resulting in any liability, to which
Executive may become subject or liable or which may be incurred by or assessed
against Executive, relating to or arising out of her employment by the Company
or the services to be performed pursuant to this Agreement, provided that: (i) the
Company shall only defend but not indemnify or hold Executive harmless from and
against an Indemnified Claim in the event there is a final, non-appealable
determination that Executive’s liability with respect to such Indemnified Claim
resulted from Executive’s gross misconduct or gross negligence; and (ii) in
the event that the Executive’s actions, inactions, decisions or directions
which gave rise to the Indemnified Claim were outside the scope of her
authority


 


15

















 


9.5.      Governing Law, Dispute
Resolution and Venue (a) This Agreement shall be governed and
construed in accordance with the laws of the State of North Carolina. (b) The
parties agree irrevocably to submit to the exclusive jurisdiction of the United
States Federal District Court of North Carolina, Eastern Division, or if no
federal jurisdiction exists, to the state courts located in the city of
Raleigh, North Carolina for the purposes of any suit, action or other
proceeding brought by any party arising out of any breach of any of the
provisions of this Agreement and hereby waive, and agree not to assert by way
of motion, as a defense or otherwise, in any such suit, action, or proceeding,
any claim that it is not personally subject to the jurisdiction of the
above-named courts, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is
improper, or that the provisions of this Agreement may not be enforced in or by
such courts. In addition, the parties agree to the waiver of a jury trial.


 


9.6.      Assignability by the Company
and the Executive. This Agreement, and the rights and obligations
hereunder, may not be assigned by the Company or the Executive without written
consent signed by the other party; provided that the Company may assign the
Agreement to any successor that continues the business of the Company.


 


9.7.      Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument.


 


9.8.      Headings. The headings
in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning of terms contained herein.


 


9.9.      Severability. If any term,
provision, covenant or restriction of this Agreement, or any part thereof, is
held by a court of competent jurisdiction of any foreign, federal, state, county
or local government or any other governmental, regulatory or administrative agency
or authority to be invalid, void, unenforceable or against public policy for
any reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected or impaired or invalidated. The Executive acknowledges that the
restrictive covenants contained in Section 6 are a condition of this
Agreement and are reasonable and valid in temporal scope and in all other
respects.


 


9.10.                                  Tax Withholding. The Company
or other payor is authorized to withhold from any benefit provided or payment
due hereunder, the amount of withholding taxes due any federal, state or local
authority in respect of such benefit or payment and to take such other action
as may be necessary in the opinion of the Board to satisfy all obligations for
the payment of such withholding taxes. The Executive is solely responsible for
the payment of any tax liability (including any taxes and penalties arising
under Code Section 409A) that Executive incurs as a result of any payments
or benefits that the Executive receives pursuant to this Agreement. The Company
shall not have any obligation to pay the Executive for any such tax
liabilities. If, at the time of Executive’s Separation from Service, the
Executive is a “specified employee” (within the meaning of Code Section 409A
and Treas. Reg. §1.409A-3(i)(2)), the Company will not pay or provide any
“Specified Benefits” (as defined herein) during the six-month period (the “409A
Suspension Period”) beginning immediately after the Executive’s Separation from
Service. For purposes of this Agreement, “Specified


 


16

















 


Benefits” are any amounts or benefits that would be subject to Section 409A
penalties if the Company were to pay them, pursuant to this Agreement, on
account of the Executive’s Separation from Service.


 


Within 14 calendar days after the end of the 409A Suspension Period,
the Company will make a lump-sum payment to the Executive, in cash, in an
amount equal to any payments and benefits that the Company does not make on
account of the 409A Suspension Period. At the close of the 409A Suspension
Period, the Executive will receive any remaining payments and benefits due
pursuant to Section 4 in accordance with the terms of that Section (as
if there had not been any suspension beforehand). Notwithstanding the
foregoing, in the event that this Agreement or any payment or benefit paid to
the Executive hereunder is deemed to be subject to Section 409A of the
Code, Executive and the Company agree to negotiate in good faith to adopt such
amendments that are necessary to comply with Section 409A of the Code or
to exempt such payments or benefits from Section 409A of the Code.


 


IN WITNESS WHEREOF, the Parties hereto, intending to
be legally bound hereby, have executed this Agreement as of the day and year
first above mentioned.


 


	
   

  	
  EXECUTIVE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/
  Kari Heerdt.

  	
   

  
	
   

  	
  Name:
  Kari Heerdt.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Talecris
  Biotherapeutics Holdings Corp

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lawrence D. Stern

  	
   

  
	
   

  	
  Name:

  	
  Lawrence
  D. Stern

  	
   

  
	
   

  	
  Title:

  	
  Chairman
  and Chief Executive Officer

  	
   

  



 


17