Exhibit
10.22


 


THIRD RESTATED EMPLOYMENT AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT between Talecris Biotherapeutics Holdings Corporation (the
“Company”) and Lawrence D. Stern (the “Executive”) (together, the “Parties”)
was effective as of April 1, 2005 (the “Effective Date”) and was amended
and restated as of April 1, 2007 (the “Original Restatement Date”), with
all terms retroactive to such date, was hereby amended and restated as of January 1,
2009, and is hereby further amended and restated as of April 1, 2009 (the “Third
Restatement Date”).


 


WHEREAS,
the Parties have previously entered into this Agreement and they now wish to
amend its terms 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, as
of the Effective Date.  From and after
the Third Restatement Date, “Agreement” shall refer to the terms of the
Executive’s employment with the Company as stated herein


 


2.               Term.  Subject to earlier termination pursuant to Section 5
of this Agreement, this Agreement and the employment relationship hereunder
shall continue until March 31, 2012 (the “Third Restatement Term”) and
shall renew for additional one (1) year intervals (each a “Subsequent Term”)
upon written notification by the Board of Directors (“Board”).  If the Board does not provide such written
notification thirty (30) days prior to the expiration of the Term, then the
Agreement shall not be extended.  If the
Board provides such written notification then the Agreement shall be so
extended unless the Executive provides written notification to the Board that
Executive does not wish to extend the Term. 
Executive’s written notice of his desire not to extend the Term shall be
provided to the Board by sixty (60) days prior to the expiration of the Term
or, if the Board has not then provided such notification, then by seven (7) days
after written notification from the Board. 
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.  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 services to the Company and its subsidiaries as Chairman and Chief
Executive Officer.  Executive shall
report to the Board.


 


3.2.           Duties.  The Executive will have such authority and
responsibilities and will perform such executive duties customarily performed
by individuals holding such roles in a company in similar lines of business as the
Company and its subsidiaries or as may be assigned to Executive by the
Board.  The Executive will devote all his
full working-time 


 


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and attention to the performance of such duties and to the promotion of
the business and interests of the Company and its subsidiaries.


 


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 from the Third Restatement Date:


 


4.1.           Base Salary.  The Company will pay to the Executive an
annual base salary of six hundred thousand dollars ($600,000) through September 5,
2009, and thereafter nine hundred and fifty thousand dollars ($950,000) (the “Base
Salary”).  The Base Salary shall be
payable (not less often than monthly) in accordance with the customary payroll
practices of the Company. Executive’s Base Salary shall be reviewed consistent
with the normal merit and pay adjustment cycle for executives.  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.           Performance Bonus.  The Executive will be eligible to receive an
annual performance bonus (“Performance 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, except as provided in Section 5 of
this Agreement.  The Executive’s target
Performance Bonus shall be two hundred percent (200%) through September 5,
2009, and thereafter one hundred percent (100%) of his Base Salary (the “Target
Performance Bonus”), with the actual amount of each Performance Bonus being
determined under the Bonus Plan in effect at that time as approved by the
Board.  The Performance Bonus shall be
paid to the Executive within two and one-half (21⁄2)
months after the end of the year to which the bonus relates.


 


4.3.           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 or
termination is consistent with the amendment, modification, suspension or
termination for other employees of the Company.


 


4.4.           Personal 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.


 


4.5.           Business Expense Reimbursement.   The Executive shall be entitled to receive
reimbursement for all appropriate business expenses incurred by him in
connection with his duties under this Agreement in accordance with the policies
of the Company as in effect from time to time. 
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 


 


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shall occur
not later than two and one-half (21⁄2) months after the end of the calendar year
to which the reimbursable expenses relate.


 


4.6.           Other Expense Reimbursement.


 


4.6.1.      Home Office Expenses.  The Company shall reimburse Executive for all reasonable
expenses he incurs for the maintenance of a home office.  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 (21⁄2) months after the end of the calendar year to which the
reimbursable expenses relate.


 


4.6.2.      North Carolina Living and Travel Expenses.  The Company shall reimburse Executive for living expenses in North
Carolina (including housing and meals). 
In the alternative, if Executive determines to establish a secondary
residence in North Carolina, the Company shall reimburse Executive for documented
realtor and closing costs plus trucking/moving expenses.  In addition, Executive will be entitled to
reimbursement of travel expenses for weekly travel (for either Executive’s
travel or travel by his spouse) to and from Raleigh, North Carolina and Executive’s
then current primary residence.  To the
extent that the Company determines it must withhold tax on any such living or
travel expenses, the Company will “gross up” Executive for the amount of the
withholding taxes in accordance with the Company’s customary procedure.  The Executive shall apply for all
reimbursements described in this Section 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 (21⁄2) months after the end of the calendar year to
which the reimbursable expenses relate.


 


4.6.3.      Car Allowance.  The Company shall pay Executive a car
allowance of $750 per month.  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 (21⁄2) months after
the end of the calendar year to which the reimbursable expenses relate.


 


4.6.4.      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.  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 (21⁄2) months after
the end of the calendar year to which the reimbursable expenses relate.


 


4.7.          Equity Compensation.  The Executive shall be eligible to
participate in the 2009 Long-Term Incentive Plan established by the Company
(the “2009 Long-Term Plan”) pursuant to the terms of the 2009 Long-Term Plan
and any applicable agreements thereunder as determined from time to time by the
Board subject to the following:


 


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4.7.1.      The Executive shall receive grants under the 2009 Long-Term
Plan on the same intervals and with the same structure as executive officers of
the Company, except as otherwise provided in this Section 4.7.


 


4.7.2.      If the Company has completed an initial public offering,
annual grants to the Executive shall be designed to compensate Executive at the
60th percentile level for equity compensation as
reasonably determined by the Compensation Committee after soliciting market
compensation data of peer group companies.


 


4.7.3.      If the company has not completed an initial public offering,
annual grants to the Executive shall be designed to compensate Executive at one
half the award level for the 60th percentile level for equity compensation as
reasonably determined by the Compensation Committee after soliciting market
compensation data of peer group companies. 
For the avoidance of confusion, the award level shall be determined
based on data for the 60th percentile, not based on the 30th percentile.


 


4.7.4.      Grant Award Agreements under the 2009 Long-Term Plan made
with the Executive shall contain such terms and conditions as may be determined
by the Compensation Committee for Executive Officers of the Company, except
that for Executive such terms shall include the following:


 


4.7.4.1.                If (i) the Company terminates the Executive’s employment
with the Company for Cause (as defined below) or (ii) Executive terminates
his employment without Good Reason (as defined below), no Award shall continue
to vest after the termination date.


 


4.7.4.2.                If Executive’s employment with the Company terminates for any
reason (i) other than as provided in Section 4.7.4.1 including
non-renewal of this Agreement and (ii) Executive has been offered a
position which is that of a Key Person within the meaning of the 2005 Stock
Option Plan and in Continuous Service within the meaning of the 2006 Restricted
Stock Plan and the 2009 Long-Term Plan, then Awards shall continue to vest in
accordance with the terms of such plans. 
If in the circumstances described by this Section 4.7.4.2 Executive
is offered but does not accept a position which is that of a Key Person within
the meaning of the 2005 Stock Option Plan and in Continuous Service within the
meaning of the 2006 Restricted Stock Plan, then no Award shall continue to vest
after the termination date.


 


4.7.4.3.                If Executive’s employment with the Company terminates for any
reason (i) other than as provided in Section 4.7.4.1 including
non-renewal of this Agreement and (ii) Executive has not been offered a
position which is that of a Key Person within the meaning of the 2005 Stock
Option Plan and in Continuous Service within the meaning of the 2006 Restricted
Stock Plan and the 2009 Long-Term Plan, then all Awards under the 2009
Long-Term Plan that vest based on the passage of time shall immediately vest
and all Awards based on performance shall vest, if at all, at the time and to
the extent that such Awards would have vested had Executive remained in
Continuous Service.


 


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4.7.5.     Vesting of all unvested Stock Options granted to Executive on
July 25, 2007, shall be accelerated and shall fully vest on the Signing
Date.


 


4.7.6        For the
avoidance of confusion, Executive will have no right to receive grants of
equity Awards as an employee following a Separation from Services regardless of
whether he remains a Key Person within the meaning of the 2005 Stock Option
Plan and in Continuous Service within the meaning of the 2006 Restricted Stock
Plan and the 2009 Long-Term Plan. 


 


4.8.           Parachute Payments. 
Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution in the nature of
compensation (within the meaning of section 280G(b)(2) of the Tax 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 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 section 409A of the Code); 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 shall use its reasonable
efforts to have any payments or distributions that would be reduced or
eliminated as a result of the application of this Section 4.8 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 4.8 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.               Termination.


 


5.1.          Termination of Employment 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 his employment without Good Reason (as defined below), the Executive
or the Executive’s legal representatives (as appropriate), shall be entitled to
receive, within 60 days of the Executive’s Separation from Service (subject to Section 9.10)
the following:


 


5.1.1.      Executive’s accrued but unpaid Base Salary to the date of
Separation from Service;


 


5.1.2.      payment for accrued unused PTO days, payable in accordance
with Company policy as in effect from time to time;


 


5.1.3.      Executive’s earned but unpaid Bonus, if any, for the
performance year prior to the date of Separation from Service and only if the
Company and not the Executive terminates employment;


 


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5.1.4.      expenses reimbursable under Sections 4.5 and 4.6 incurred but
not yet reimbursed to the Executive as of the date of Separation from Service;
and


 


5.1.5.      vesting and exercise of Stock Options, Restricted Stock, and
other equity incentives to the extent set forth in the relevant Award Agreements.


 


For the purposes of this
Agreement, “Cause” means, as determined by the Board (or its designee), 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 his obligations under this Agreement; (iv) conduct by
Executive in connection with his 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
Board of Directors that would not otherwise conflict with Executive’s
responsibilities or duties or the failure to adequately 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
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 removal of Executive,
without his consent, from the role and responsibilities of Chairman of the
Board 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) 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; or (vi) 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 Executives.  Notwithstanding the
foregoing, a reduction in the amount of Executive’s aggregate compensation in
an amount proportional to such a reduction in the aggregate compensation of
other senior executives shall not constitute Good Reason.  For the avoidance of confusion, the
appointment of a “Lead Director” shall not constitute Good Reason.  The Executive shall provide notice to the
Company of the existence of (i) through (vi) 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 


 


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condition
within the cure period specified in the preceding sentence, the Executive must
terminate his employment within thirty (30) days of the Company’s failure to
cure.


 


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 the
Executive is not reasonably expected to perform further services for the
Employer after a certain date.


 


(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 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)  For the avoidance
of doubt, a change of position from Chairman and Chief Executive Officer to a
role as a non-employee director, including as a non-executive chairman of the
board of directors, is anticipated to constitute a Separation from Service; but
so long as Executive remains in any of these positions, he will remain a Key
Person within the meaning of the 2005 Stock Option Plan and in Continuous
Service within the meaning of the 2006 Restricted Stock Plan and the 2009
Long-Term Plan.


 


5.2.           Termination of Employment Due to Death or Disability.  If: (i) the Executive’s employment
terminates due to his 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, 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 5.2 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),
with payment to be made within two and one-half (21⁄2) months 


 


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following the end of the year in which the Executive’s death or
Disability occurs, unless otherwise indicated below (subject to Section 9.10):


 


5.2.1.      unpaid portion of the Performance Bonus, if any, relating to
the calendar year prior to the calendar year of the Executive’s death or
Disability;


 


5.2.2.      if the Company achieves the performance objectives for the
year in which Executive’s employment is terminated as a result of Executive’s
death or Disability pursuant to this Section 5.2, a pro-rata share of the
Performance Bonus in such performance year (based upon the number of days he
was employed by the Company in the year in question) at 100% of Target
Performance Bonus;


 


5.2.3.      vesting and exercise of Stock Options, Restricted Stock, and
other equity incentives to the extent set forth in the relevant Award
Agreements;


 


5.2.4.      payment of all Special Recognition Bonus Compensation awarded
pursuant to the Special Recognition Bonus Plan effective as of October 1,
2006, which shall be paid no later than two and one-half (2 1⁄2) months after the
end of the calendar year in which the Executive’s right to the payment vests
hereunder; and


 


5.2.5.      payment of all of the Special Recognition Bonus Award made to
Executive on December 6, 2007, which shall be paid no later than two and
one-half (2 1⁄2) months after the end of the calendar year in which the Executive’s
right to the payment vests hereunder.


 


For
the purposes of this Agreement, “Disability” means a reasonable determination
by a physician reasonably acceptable to the Company 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 his job with or
without reasonable accommodation for a period of (i) 60 consecutive days;
or (ii) 90 days in any one (1) year period.


 


5.3.          Termination of Employment 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 his employment for Good Reason upon at
least fifteen (15) days prior written notice, then the Executive shall receive,
subject to Section 9.10, the incremental severance payments set forth in
this Section 5.3, as described below (in addition to the payments upon
termination specified in Section 5.1) upon execution without revocation of
a valid release agreement in a form reasonably acceptable to the Company and
provided that the Executive honors all applicable provisions of this Agreement
following termination and that Executive has made a good faith effort to
support the transition including periodic consulting services to the Company
for a period of eighteen (18) months 
following a termination in accordance with Section 5.3, at no
additional payment or remuneration other than the severance amount stated
herein:


 


5.3.1.      a lump sum payment equal to Base Salary for the lesser of
eighteen (18) months after the date of Separation from Service or the remaining
Term, payable in a lump sum on the last business day of the month following the
Separation from Service;


 


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5.3.2.       Performance
Bonus payment in an aggregate amount equal to the lesser of the Performance
Bonus amount earned by the Executive for the year prior to the calendar year of
the Executive’s Separation from Service or the Target Performance Bonus,
payable in a lump sum on the last business day of the month following the
Separation from Service;


 


5.3.3.       reimbursement
of the cost of continuation coverage of group health coverage pursuant to COBRA
for a maximum of twelve (12) months to the extent Executive elects such
continuation coverage and is eligible and subject to the terms of the plan and
the law, payable in a lump sum on the last business day of the month following
the Separation from Service; and


 


5.3.4.       vesting and
exercise of Stock Options, Restricted Stock, and other equity incentives to the
extent set forth in the relevant Award Agreements;


 


5.3.5.       payment of
all Special Recognition Bonus Compensation awarded pursuant to the Special
Recognition Bonus Plan effective as of October 1, 2006, payable in a lump
sum on the last business day of the month following the Separation from
Service; and


 


5.3.6.       payment of
all of the Special Recognition Bonus Award made to Executive on December 6,
2007, payable in a lump sum on the last business day of the month following the
Separation from Service.


 


5.4.           Termination of
Employment Due to Completion of Term Without Renewal.  If this Agreement lapses due to non-renewal
by the Company upon expiration of the Third Restatement Term, the Executive or
the Executive’s legal representatives (as appropriate) shall be entitled to
receive the severance benefits set forth in Section 5.3 (in the time and
manner described in Section 5.3 and subject to Section 9.10), but the
benefits set forth in Section 5.3.2 (relating to Performance Bonus
Payments) shall be pro-rated for the period employed in the final year of
employment, upon execution without revocation of a valid release agreement in a
form reasonably acceptable to the Company and provided that the Executive
honors all applicable provisions of this Agreement following termination and
that Executive has made a good faith effort to support the transition including
periodic consulting services to the Company for a period of eighteen (18)
months following a termination in accordance with Section 5.4, at no
additional payment or remuneration other than the severance amount stated
herein.  Notwithstanding the foregoing,
Executive shall repay to Talecris, up to the amount of severance paid to
Executive under this Section 5.4, the amount of compensation that
Executive earns from other employment with Talecris, board of directors fees
from Talecris, or the provision of consulting services to Talecris during the
18 months following such termination (“Post-Termination Payments”) or shall agree
to waive the Post Termination Payments. 
For purposes of this paragraph Post Termination Payments shall include
all forms of cash compensation (e.g. base salary and bonus payments), but shall
not include equity grants and investment income earned by Executive.


 


5.5.           Conduct
Constituting a Breach.  The
Company’s obligation to provide the payments and benefits set forth above in
Sections 5.2, 5.3, and 5.4 will immediately cease in the event 


 


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the
Executive engages in conduct constituting a breach of the provision of Sections
5.8 or 6 of this Agreement.


 


5.6.           Compliance with
Code Section 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 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 the 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.


 


5.7.           Removal from
any Boards and Position.  If the
Executive’s employment is terminated for any reason under this Agreement, he
shall be deemed to resign (i) if a member, from the 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.


 


5.8.           Non-disparagement.  The Company and Executive agree that neither
party will not 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 his
spouse, or in the case of the Company 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 


 


10

















 


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 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),
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 


 


11

















 


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 his 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 Executive’s Separation of
Service from the Company 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 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 against 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, or 5.4, 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 his name to be
used by, act as a consultant or 


 


12

















 


advisor
to, render services which are materially similar to his 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, 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 him or coming into
his possession during his employment by the Company or its subsidiaries 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
his 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 his possession or control.


 


6.5.           Sections 6.1,
6.2, 6.3, and 6.4 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, 6.3, and 6.4 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 him for such breaches or threatened or attempted
breaches.  In addition, without 


 


13

















 


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 Sections 5.2, 5.3, and 5.4
if the Executive has breached the covenants applicable to the Executive
contained in Section 5.8 or 6.  The
Executive will immediately return to the Protected Parties any such payments
previously received under Sections 5.2, 5.3, and 5.4 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,and 5.4.


 


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 his 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 his authority or were plainly
contrary to instructions provided him by the Board then the Company shall not
be obligated to either defend or indemnify Executive for the Indemnified Claim
and its responsibilities under this Section of the Agreement are null and
void.


 


9.               Other
Provisions.


 


9.1.           Notices.  Any notice or other communication required or
which may be given hereunder shall be in writing and shall be delivered
personally, telegraphed, telexed, sent by facsimile transmission or sent by
certified, registered or express mail, postage prepaid or overnight mail and
shall be deemed given when so delivered personally, telegraphed, telexed, or
sent by facsimile transmission or, if mailed, four (4) days after the date
of mailing or one (1) day after overnight mail, as follows:


 


If
the Company, to:


 


Attn.: General Counsel


P.O. Box 13887


79 TW Alexander Drive


4101 Research Commons


Research Triangle Park


Raleigh, NC  27709


Fax:  (919) 316-6669


 


9.1.1                   If the Executive, to:


 


9.1.2                   Executive’s
home address reflected in the Company’s records.


 


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9.2.           Entire
Agreement.  This
Agreement contains the entire agreement between the Parties with respect to the
subject matter hereof and supersedes all prior agreements, written or oral,
with respect thereto.


 


9.3.           Representations
and Warranties by Executive.  The Executive represents and warrants that he
is not a party to or subject to any restrictive covenants, legal restrictions
or other agreements in favor of any entity or person which would in any way
preclude, inhibit, impair or limit the Executive’s ability to perform his
obligations under this Agreement, including, but not limited to,
non-competition agreements, non-solicitation agreements or confidentiality
agreements.


 


9.4.           Waiver and
Amendments.  This
Agreement may be amended, modified, superseded, canceled, renewed or extended,
and the terms and conditions hereof may be waived, only by a written instrument
signed by the Parties or, in the case of a waiver, by the party waiving
compliance.  No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any right, power or
privilege hereunder, nor any single or partial exercise of any right, power or
privilege hereunder, preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.


 


9.5.           Governing Law,
Dispute Resolution and Venue. This Agreement shall be
governed and construed in accordance with the laws of the State of North
Carolina.  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 


 


15

















 


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
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.


 


16

















 


IN WITNESS WHEREOF, the Parties hereto,
intending to be legally bound hereby, have executed this Agreement on August 19,
2009 (“Signing Date”) to be effective as of the Third Restatement Date.


 


	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/ Lawrence
  D. Stern

  
	
   

  	
  Name:
  Lawrence D. Stern

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  August 19,
  2009

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Talecris
  Biotherapeutics Holdings Corp

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ W.
  Brett Ingersoll

  
	
   

  	
  Name:  W. Brett Ingersoll

  
	
   

  	
  Title:  Chairman, Compensation Committee

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  August 19,
  2009

  



 


17