Exhibit 10.33.1


 


Execution Copy


 


AMENDED AND RESTATED


MASTER SERVICES AGREEMENT


BETWEEN


BAYER HEALTHCARE LLC AND TALECRIS
BIOTHERAPEUTICS INC.


 


This Amended
and Restated Master Services Agreement (this “Agreement”) is made and entered
into as of April 1, 2006 by and between Bayer HealthCare LLC (“Bayer”)
and Talecris Biotherapeutics, Inc. (“Talecris”). Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Original Agreement (as defined below). Bayer and Talecris are sometimes
referred to herein collectively as the “Parties,” and individually as a “Party.”


 


WITNESSETH:


 


WHEREAS,
the Parties entered into that certain Master Services Agreement as of March 31,
2005 (the “Original Agreement”); and


 


WHEREAS,
the Parties wish to amend and restate the Original Agreement effective as of
April 1, 2006 (the “Effective Date”), to extend the provision of certain
services by Bayer and its affiliates to Talecris on the terms and subject to
the conditions set forth herein;


 


NOW,
THEREFORE, in consideration of the mutual covenants
and agreements contained herein, the Parties agree, intending to be legally
bound, as follows effective as of the Effective Date:


 


ARTICLE I

SERVICES TO BE PROVIDED


 


1.1                                 Services
to be Provided.


 


(a)                                  Bayer
HealthCare LLC. Bayer HealthCare LLC shall, or shall cause its Affiliates
to, provide to Talecris the services identified in Exhibit A hereto.


 


(b)                                 Bayer
Corporate and Business Services LLC. Bayer shall cause Bayer Corporate and
Business Services LLC or its Affiliates to provide to Talecris the services
identified in Exhibit B hereto.


 


(c)                                  Bayer
Pharmaceuticals Corporation. Bayer shall cause Bayer Pharmaceuticals
Corporation or its Affiliates to provide to Talecris, the services identified
in Exhibit C hereto.


 


(d)                                 Bayer
Vital. Bayer shall cause Bayer Vital or its Affiliates to provide to
Talecris the services identified in Exhibit D hereto.


 


(e)                                  Bayer
AG. Bayer shall cause Bayer AG or its Affiliates to provide to Talecris the
services identified in Exhibit E hereto.


 

















 


All of the
services set forth on the attached Exhibits A, B, C, D and E, as such
Exhibits may be amended from time to time pursuant to this Agreement, are
collectively hereinafter referred to as the “Services”. Only the
services described in those exhibits are being provided. Upon signing, this
Agreement supersedes in its entirety any obligation of Bayer or its Affiliates
or any rights of Talecris to request or demand any Services or Additional
Services provided for in Section 3.9 of the Original Agreement or elsewhere in
the Original Agreement after March 31, 2006.


 


Notwithstanding
the foregoing, neither Bayer nor its Affiliates shall have any obligation to
perform any Services enumerated in Exhibits A-2, A-3, C and D-1 if the performance
of any such Service would be unlawful or have the appearance of illegality or
would involve a conflict of interest or, in the case of Services that would be
inconsistent with Bayer or its Affiliates’ corporate practices, in the event
the parties have been unable to reach mutual agreement on a resolution of any
such inconsistencies.


 


1.2                                 Compensation
for Services. The amount that Talecris is obligated to Bayer and its
Affiliates for the Services is set forth on Exhibits A, B, C, D, and E. Except
as provided otherwise on Exhibits A, B, C, D, and E, all fees payable for
Services are fixed and inclusive of overhead, including without limitation
general and administrative costs, costs of facilities, information technology
and payroll costs as necessary to support the Services, Taxes and employee
costs (including compensation, benefits, travel and other related costs).


 


1.3                                 Audit.
Talecris shall have the right at its expense, directly or through
representatives, upon reasonable notice and during business hours, to audit
Bayer’s and its Affiliates books and records related to and reasonably
necessary to evaluate, with respect to those Services enumerated in Exhibit
A-3, (i) the invoiced volume of such services, the payment of which is based on
volume, and (ii) any out-of-pocket costs incurred in providing those Services
for which fees payable to Bayer are based on Bayer’s Direct Costs, provided
that (x) Talecris may only exercise this audit right only once during the Term
of this Agreement, (y) Talecris shall provide Bayer advance written notice of
its intent to conduct the audit and (z) Talecris and Bayer shall (and Bayer
shall cause any Affiliate to) cooperate as reasonably needed in order to
complete any such audit as promptly as reasonably possible under the
circumstances.


 


ARTICLE II

MISCELLANEOUS PROVISIONS


 


2.1                                 Standard
of Performance. Each Service shall be provided in a timely, professional
and workmanlike manner and provided with a level of quality, degree of care,
and skill, diligence and timeliness that is not materially different than that
with which such service had been performed for the normal ongoing operations of
the Plasma Business during the twelve (12) month period immediately preceding
Closing.


 


2.2                                 Operational
Reporting. With respect to each Service, Bayer shall continue to provide to
Talecris copies of the reports, statements, activity summaries, or other forms,
Bayer or its Affiliates were providing to Talecris prior to the Effective Date
related to providing such Service (the “Service Reports”).


 


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2.3                                 Cooperation.


 


(a)                                  Talecris
shall make available on a timely basis to Bayer and to its employees,
representatives, Affiliates and Contractors (collectively, “Representatives”),
the information reasonably requested by Bayer to enable Bayer and its
Representatives to provide the Services. Talecris hereby represents and
warrants that all such information shall be true, complete and accurate in all
respects and will not contain any untrue information or fail to include any
information that would make such information false or misleading. Bayer and its
Representatives shall be entitled to rely on such information without further
inquiry. Talecris shall give Bayer and its Representatives reasonable access,
during normal business hours and at such other times as are reasonably required
and subject to such reasonable restrictions as Talecris may from time to time
prescribe, to Talecris’ premises solely to the extent reasonably necessary to
enable Bayer and its Representatives to provide the Services.


 


(b)                                 Except
with respect to those Services enumerated in Service Levels C-1 and C-2, Bayer
shall provide, and shall cause its Affiliates to provide, as appropriate,
Talecris and its Representatives reasonable access following the end of the
Term, during normal business hours and at such other times as are reasonably
required and subject to such reasonable restrictions as Bayer may from time to
time prescribe, to Bayer’s Representatives, books, records, offices, and
properties directly related to Bayer’s support of the Plasma Business and
reasonably required to permit Talecris or any contractor selected by Talecris
to develop and provide its own stand- alone services to replace the Services;
provided that Talecris shall reimburse Bayer for its Direct Costs plus 30% in
providing such access, except to the extent that Talecris is entitled to such
access without further payment under Sections 7.3 and 8.4(d) of the Joint
Contribution Agreement, in which case the relevant sections of the Joint
Contribution Agreement shall control.


 


(c)                                  For
training of Talecris employees in preparation for assumption of Services in
Exhibit C, Bayer and Talecris agree to work together with an objective of
limiting training hours in total to 150 hours for all Bayer Pharmaceuticals (“BP”)
employees and no more than 15% of any one employee’s time in any given month.
The training schedule shall be mutually agreed to by Bayer and Talecris to
allow for scheduling of resources and facilities. The training time will be
calculated as to each BP employee involved in training - i.e. if there are 2 BP
employees present, each hour of training will be counted as two hours (2
employees times 1 hour each). The training will take place at Bayer’s West Haven
facility and will include providing space for Talecris personnel adjacent to
the workspace for BP personnel performing the training.


 


(d)                                 “Direct
Costs” is defined herein to mean Bayer’s reasonable direct costs, which
includes all (i) employee costs (including, for example, salaries, benefits,
relocation, travel, and training and development) and employee supporting costs
(including, for example, computer and software, telephone usage, supplies, and 


 


3

















 


 


depreciation of office equipment and furnishings) for
employees working directly on such service, pro rated for the amount of time
spent by such employees working directly on such service, but in no event shall
this include any general overhead costs (including, for example, depreciation
for office building space, information technology infrastructure, site
maintenance, medical department, cafeteria, security, communications, safety,
heating and cooling, water and sewage, electricity, gas, and general administration),
and (ii) documented out-of-pocket costs incurred in the provision of such
service.


 


2.4                                 Payment
Terms. Each month, Bayer or the appropriate Affiliate providing the Service
shall submit to Talecris an invoice setting forth the monthly fees for the
Services provided during the preceding calendar month. The foregoing shall not
limit Bayer’s or its Affiliate’s right to submit corrective invoices in the
event there are unbilled amounts owing for Services, or amounts to which Bayer
or its Affiliates is entitled to compensation or reimbursement hereunder which
were not previously invoiced. Payment of all amounts owed by Talecris shall be
remitted on or before thirty (30) days from the date the invoice therefore is
submitted to Talecris provided, however, that if Talecris in good faith
disputes the validity or amount of any charge on such invoice, other than for
Services which are provided on a fixed-fee basis, then Talecris shall (A)
promptly provide Bayer with written notice of such disputed item, which notice
shall specifically identify the disputed item and explain the reason for such
dispute, and (B) remit when due any undisputed amount. In the event of any such
dispute, Talecris’ and Bayer’s Contract Managers shall promptly discuss and
attempt to resolve any differences in good faith, To the extent that agreement
is reached within thirty (30) days of such dispute arising, Talecris shall
promptly pay (or Bayer shall promptly refund) such amount, if any, as shall be
so agreed, together with interest accruing thereon since the date such payment
was due or made, as applicable, at the London Inter-Bank Offered Rate. To the
extent no such agreement is reached within such thirty (30) day period, the
dispute shall be resolved in accordance with Section 2.19(c) and (d) hereof. No
such dispute shall affect the obligation of Bayer to continue to provide or
cause to be provided the Services in accordance with this Agreement, provided
that Talecris exercises good faith efforts to resolve such dispute on a timely
basis. Late payments shall accrue interest at the rate of 1.0% per month, pro
rated daily. All invoices shall be issued and paid in U.S. dollars. For
purposes of determining the U.S. dollar invoice amount for the services of
Bayer Vital and Bayer AG, the monthly payment obligations set forth in Euros on
Exhibits D and E shall be converted to U.S. dollars based on the exchange rate
published in the Wall Street Journal on the last
business day of the month for which such invoice is issued, which exchange rate
shall be determinate except in the case of manifest error.


 


2.5                                 Compliance
with Laws Licenses and Permits; Consents. Bayer and its Affiliates shall
perform all Services in compliance with all applicable statutes, Laws,
regulations, ordinances, rules, judgments, codes, orders, decrees, permits,
approvals, concessions, grants, franchises, licenses, guidance’s, agreements or
requirements of any Governmental Authority having jurisdiction over the matter
or matters in question and will, at its expense, maintain all permits and
licenses, and obtain all consents, reasonably necessary for the provision of
the Services.


 


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2.6                                 Confidentiality.


 


(a)                                  Confidentiality
Obligations. All information provided by one Party to the other Party in
connection with this Agreement shall be maintained in strict confidence by the
receiving Party. Such information shall remain the property of the providing
Party, and the receiving Party shall not make use of any such information
except for the purposes for which it was provided. At the termination of this
Agreement, upon request, the receiving Party shall promptly return to the
providing Party or destroy any physical embodiments (including copies) of any
such information. Each Party agrees to keep confidential the existence of this
Agreement, as well as all of its terms and conditions; provided that if a
public announcement or disclosure is required by law, rule, regulation, court
order, subpoena, interrogatory or other discovery request (including without
limitation applicable securities laws or stock exchange regulations), and
subject to Section 2.6(b)(v), the Party required to make the public
announcement or disclosure shall be permitted to make such disclosure and shall
provide prompt prior written notice of such requirement to the other Party, and
the Parties shall thereafter negotiate in good faith, to the extent appropriate
and feasible, the contents of the public announcement or disclosure.


 


(b)                                 Exceptions.
The covenants of the receiving Party contained in Section 2.6(a) shall not
apply to information which: (i) is already in the public domain at the time of
disclosure; (ii) becomes part of the public domain through no action or
omission of the receiving Party after disclosure to the receiving Party; (iii)
is already known to the receiving Party on a non-confidential basis at the time
of disclosure, as evidenced by the receiving Party’s written records, except
for information that was known to Bayer or its Affiliates prior to the date hereof;
(iv) has been or is disclosed to the receiving Party in good faith by a third
party who was or is not, at the time of disclosure, under any obligation of
confidence to the other Party hereto at the time the third party disclosed such
information, except for proprietary information concerning the Plasma Business
disclosed to Bayer or its Affiliates; or (v) is required to be disclosed by
law, provided that the receiving Party shall cooperate with the disclosing
Party (at the disclosing Party’s expense) in obtaining any available protection
for such information to be disclosed.


 


(c)                                  Plasma
Business Information. Talecris shall be deemed the providing Party and
Bayer and its Representatives shall be receiving Parties for purposes of the
rights and obligations set forth in Sections 2.6(a) and (b) as to Plasma
Business information supplied by Talecris to Bayer.


 


(d)                                 Term
of Obligations.  This Section 2.6
shall survive termination of this Agreement for a period of five (5) years.


 


(e)                                  Applicability
to Contractors. In the event either Party uses a Contractor, such Party
will cause such Contractor to acknowledge in writing that such Contractor
agrees to abide by the terms of this Section 2.6.


 


 


 


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2.7                                 Primary
Points of Contact.


 


(a)                                  Appointment
and Responsibilities. Each Party shall appoint an individual to act as the
primary point of operational contact for the administration and operation of
this Agreement, as follows:


 


(i)                                     The
individual appointed by Talecris as the primary point of operational contact
pursuant to this Section 2.7(a)(i) shall initially be Jim Moose (the “Talecris
Contract Manager”). The Talecris Contract Manager will have overall
responsibility for: (a) coordinating, on behalf of Talecris, all activities
undertaken by Talecris hereunder and the performance of the Talecris
obligations hereunder, (b) coordinating the performance of the Services with
Bayer and its Affiliates, (c) acting as a day-to-day contact with the Bayer
Contract Manager (as defined below), and (d) making available to Bayer the
data, facilities, resources, and other support services from Talecris required
for Bayer and its Affiliates to be able to perform the Services in accordance
with the terms of this Agreement. Talecris may replace the Talecris Contract
Manager from time to time upon written notice to Bayer. Talecris shall use
commercially reasonable efforts to provide at least thirty (30) days prior
written notice of any such change.


 


(ii)                                  The
individual appointed by Bayer as the primary point of operational contact
pursuant to this Section 2.8(a)(ii) shall initially be Johannes Frick (the “Bayer
Contract Manager”). The Bayer Contract Manager will have overall
responsibility for: (a) coordinating, on behalf of Bayer, all activities
undertaken by Bayer and its Affiliates hereunder and the performance of the
Bayer obligations hereunder, (b) coordinating the performance of the Services
with Talecris, (c) acting as a day-to-day contact with the Talecris Contract
Manager, and (d) providing Talecris with service performance information and
communicating with the Talecris Contract Manager regarding Service requirements
and Service management. Bayer may replace the Bayer Contract Manager from time
to time upon written notice to Talecris. Bayer shall use commercially reasonable
efforts to provide at least thirty (30) days prior written notice of any such
change.


 


(b)                                 Review
Meetings. The Bayer Contract Manager and the Talecris Contract Manager
(together, the “Contract Managers”) will meet periodically to review
Bayer’s performance of the Services under this Agreement, to discuss any
problems that are unresolved and any details concerning their expected
resolution, and to discuss the wind down and termination of the various
Services.


 


(c)                                  In
the event that the Mutual Recognition Procedure (the “MRP”) for the
expansion of the Gamunex and Prolastin registrations in the EU, and the
transfer of the associated marketing authorizations (the “Authorizations
Transfer”) to Talecris or it designee have, for any reason, not been
completed as of the expiration of the Term despite Talecris’s commercially
reasonable efforts to 


 


 


6

















 


complete the MRP and the Authorizations Transfer, then
any Service then being provided by Bayer Vital, Bayer AG or their respective
Affiliates and reasonably required by Talecris for completing the MRP and the
Authorizations Transfer shall be extended for an additional period of three (3)
months, with further monthly extensions as mutually (and reasonably) agreed
upon by the Parties, until such time as the MRP and the Authorizations Transfer
are completed. Such extended Services shall be provided on such terms as they
were provided during the Term, subject to adjustment in accordance with
subsection (e) of this Section 2.7.


 


(d)                                 In
the event that the clinical studies services provided to Talecris by Bayer
Vital, Bayer AG or their respective Affiliates as part of the Service during
the Term are reasonably required by Talecris after the expiration of the Term,
then such shall be extended for an additional period of one (1) year, with
further annual extensions as mutually (and reasonably) agreed upon by the
Parties but in no event for an aggregate period beyond March 31, 2009. Such
extended Services or shall be provided on such terms as they were provided
during the Term, subject to pro ration for any changes in the volume of such
services rendered during the extensions and further subject to adjustment in
accordance with subsection (e) of this Section 2.7.


 


(e)                                  [***]


 


2.8                                 Term.
Except as provided in the last sentence of this Section, this Agreement shall
end March 31, 2007; provided, however, that Talecris may earlier terminate any
of the levels of Service designated in the subnumbers to Exhibits A-E (the “Service
Levels”) upon at least three months’ (six months in the case of those Services
in Service Levels A-3 and D-1) prior written notice. For the avoidance of
doubt, certain Services included on Exhibit C to this Agreement shall terminate
as of the date set forth on those exhibits for such Services.


 


2.9                                 Termination;
Damage Limitations and Indemnity.


 


(a)                                  Damage
Limitations.


 


(i)                                     If
Bayer or any of its Affiliates commits a substantial breach or violation of any
material provision of this Agreement, and such breach or violation is not cured
within sixty days after receiving written notice thereof from Talecris,
Talecris will be entitled to recover from the breaching party all direct Losses
arising from such breach or violation, but not including lost 


 






*** CONFIDENTIAL TREATMENT REQUESTED


 


 


7

















 


                                                profits
or consequential damages, and provided that any such recovery shall be reduced
by the amount Talecris recovers with respect to such Losses under any insurance
it maintains and the maximum amount that Talecris may recover is the amount
that Talecris would have otherwise paid for such Service under this Agreement
from the time of such breach or violation until the end of the Term.


 


(ii)                                  If
Talecris or any of its Affiliates commits a substantial breach or violation of
any material provision of this Agreement (other than default in payment under
Section 2.4), and such breach or violation is not cured within sixty days after
receiving written notice thereof from Bayer, Bayer will be entitled to recover
from the breaching party all direct Losses arising from such breach or
violation, but not including lost profits or consequential damages, and
provided that any such recovery shall be reduced by the amount Bayer recovers
with respect to such Losses under any insurance it maintains and the maximum
amount that Bayer may recover is the amount that Bayer would have otherwise
been paid for such Service under this Agreement from the time of such breach or
violation until the end of the Term.


 


(b)                                 Bayer
Right to Terminate. If Talecris commits a substantial breach or violation
of its obligation to pay for the Services, and such breach or violation is not
cured within sixty days after receiving written notice thereof from Bayer,
Bayer may terminate this Agreement and will be entitled to recover from
Talecris its direct Losses, including an amount equal to the most recent month’s
fees for Services under this Agreement multiplied by three (multiplied by six
in the case of those Services in Service Levels A-3 and D-1).


 


(c)                                  Other
Remedies. In addition to, and not in limitation of, the rights and remedies
set forth in this Section 2.10, each Party shall have such non-monetary rights
and remedies provided under this Agreement or under law or in equity for
breaches of the Agreement, but only limited to the remedy of specific
performance.


 


(d)                                 Exception.
It is understood and agreed that a good faith dispute concerning billing or
invoice matters under Section 2.4 shall not constitute a breach, violation or
termination of this Agreement for purposes of this Section 2.10.


 


(e)                                  Indemnities.


 


(i)                                     Talecris
hereby agrees to indemnify, save, defend and hold harmless Bayer and its
Affiliates and its and their respective directors, officers, managers,
employees, representatives, consultants, stockholders, controlling persons,
attorneys and agents and each of their respective heirs, executors, successors
and assigns (together the “Bayer Group”) harmless from and against any and all
claims, suits, actions, liabilities, expenses and/or Losses, including punitive
or exemplary damages and attorneys’ fees and expenses (“Claims”; each, a “Claim”)
asserted by a 


 


 


8

















 


 


                                                person
or entity other than a member of the Bayer Group arising from or attributable
to, directly or indirectly to any act or omission of Talecris or any Service
provided by the Bayer Group hereunder, except where such Claim arises out of a
material breach by Bayer or its Affiliates of Bayer’s obligations under this
Agreement.


 


(ii)           Bayer
hereby agrees to indemnify, save, defend and hold harmless Talecris and its
Affiliates and its and their respective directors, officers, managers,
employees, representatives, consultants, stockholders, controlling persons,
attorneys and agents and each of their respective heirs, executors, successors
and assigns (together the “Talecris and Affiliates”) harmless from and against
any and all Claims, asserted by a person or entity other than Talecris and Affiliates
to the extent arising from or attributable to, directly or indirectly a
material breach by Bayer or its Affiliates of Bayer’s obligations under this
Agreement.


 


(iii)          Notwithstanding
anything to the contrary in this Agreement, nothing herein shall be deemed to
alter the rights of any party under Sections 8.2 or 8.3 of the Amended and
Restated Joint Contribution Agreement by and between Bayer HealthCare LLC and
Talecris Holdings LLC, Talecris BioTherapeutics Holdings Corp., and Talecris
BioTherapeutics, Inc. of March 30, 2005 (“Restated Joint Contribution Agreement”).


 


(f)            Special
Indemnity. Talecris represents and
warrants that all information provided to Bayer and its Affiliates in
connection with the Services shall be true, complete and accurate and will not
include any untrue information or fail to include any information that would
make such information false or misleading. Bayer and its
Affiliates shall be entitled to rely on such information without further
inquiry. Talecris hereby agrees to indemnify,
save, defend and hold harmless the Bayer Group from and against any and all
Claims asserted by a person or entity other than a member of the Bayer Group
arising from or attributable to, directly or indirectly any claims arising out
of the treatment given any transaction as directed by Talecris and serviced by
Bayer or its Affiliates pursuant to this Agreement that is different from the
treatment Bayer and its Affiliates had followed in connection with the same or
similar transaction.


 


2.10         Inconsistency. To the extent the terms of the Restated Joint Contribution
Agreement are inconsistent with the terms of this Agreement, the terms of this
Agreement shall control. If the
Restated Joint Contribution Agreement contains terms applicable to the Parties’
rights and obligations under this Agreement, and this Agreement does not
address such terms, the terms set forth in the Joint Contribution Agreement
shall control.


 


2.11         Expenses
Related to Negotiation of Extension. Each Party
shall be responsible for all fees, costs and expenses incurred by it in
connection with the negotiation and execution of this Agreement.


 


 


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2.12         Relationship
of Parties. In providing the Services, each
Person doing so is acting as and shall be considered an independent contractor. Nothing herein contained shall be deemed or construed by
Bayer, Talecris or any other Person as creating the relationship of principal
and agent, partnership, joint employers or joint venture between the Parties. All employees and representatives of Bayer or its
Affiliates or Contractors, as applicable, shall be deemed for all purposes
(including compensation and employee benefits) to be employees or
representatives solely of Bayer or its Affiliates or Contractors, as
applicable, and not to be employees or representatives of Talecris. In
performing their respective duties hereunder, all such employees and
representatives of Bayer or its Affiliates or Contractors, as applicable, shall
be under the direction, control and supervision of Bayer or its Affiliates or
Contractors, as applicable (and not of Talecris), and Bayer or its Affiliates
or Contractors, as applicable, shall have the sole right to exercise all
authority with respect to the employment (including termination of employment),
assignment and compensation of such employees and representatives. Bayer is not
authorized to, and none of Bayer’s or its Affiliates’ or Contractors’ employees
or representatives shall at any time attempt to, (i) act on behalf of Talecris
other than as authorized by Talecris, or (ii) bind Talecris in any manner
whatsoever to any obligations. None of Bayer, its Affiliates or Contractors or
their respective employees or representatives shall engage in any acts that may
lead any person to believe that such party is an officer, employee or
representative of Talecris.


 


2.13                           Entire
Agreement; Amendment; Waiver. This
Agreement (including Exhibits hereto) constitutes the entire understanding
between the Parties with respect to the subject matter hereof and supersedes
all prior agreements and understandings relating to such subject matter,
including the Original Agreement and any and all service level agreements, as
of the Effective Date. No provision
of this Agreement shall be deemed waived, amended, supplemented or modified by
any Party, unless such waiver, amendment, supplement or modification is in
writing and signed by the authorized representative of the Party against whom
it is sought to enforce such waiver, amendment, supplement or modification. No delay of or omission in the exercise of any right,
power or remedy accruing to either Party as a result of any breach or default
by the other Party under this Agreement shall impair any such right, power or
remedy, nor shall it be construed as a waiver of or acquiescence in any such
breach or default, or of any similar breach or default occurring later; nor
shall any waiver of any single breach or default be deemed a waiver of any
other breach or default occurring before or after that waiver.


 


2.14                           Headings. The article, section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.


 


2.15                           Counterparts. This Agreement may be executed in counterparts which,
taken together, shall constitute the whole agreement. Executed
signatures to this Agreement may be delivered by any standard electronic means
and any such electronically delivered signatures shall be construed as manually
executed signatures.


 


2.16                           Severability. In the event that any provision or requirement of this
Agreement is in violation of any law or regulation or otherwise found to be
invalid or unenforceable in 


 


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any jurisdiction, (a) such provision or requirement
shall not be enforced except to the extent it is not in violation of such laws
or regulations or otherwise invalid or unenforceable, (b) the Parties will
promptly renegotiate to restore such provision or requirement of this Agreement
as near as possible to its original interest and effect, and (c) all other
provisions and requirements of this Agreement shall remain in full force and
effect.


 


2.17                           Setoff. No Party shall have any right of set-off with respect to
amounts it has an obligation to pay hereunder.


 


2.18                           Notices. All notices and other communications hereunder shall be in
writing (including facsimile or similar writing) and shall be sent, delivered
or mailed, addressed or faxed:


 


	
  (a)

  	
  if to Talecris, to:

  	
  Talecris BioTherapeutics, Inc.

  Attn.: General Counsel

  P.O. Box 110526

  79 TW Alexander Drive

  4101 Research Commons Research

  Triangle Park

  Raleigh, NC 27709

  Fax: (919) 316-6677

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  if to Bayer, to:

  	
  Paul R. Berry

  General Counsel and Secretary

  Bayer HealthCare LLC

  400 Morgan Lane

  West Haven, CT 06516-4175

  Fax: (203)812-2795

  

  with a copy (which shall not constitute notice) to:

  

  Johannes Frick

  VP Business Planning & Administration

  Bayer HealthCare LLC

  800 Dwight Way

  Berkeley, CA 94710

  

  Marilyn Mooney, Esq.

  Fulbright & Jaworski L.L.P.

  801 Pennsylvania Avenue, N.W.

  Washington, D.C. 20004

  Fax: (202) 662-4643

  



 


Each such
notice or other communication shall be given (i) by hand delivery, (ii) by
nationally recognized courier service, or (iii) by facsimile, receipt confirmed. Each such notice or communication shall be effective (x)
if delivered by hand or by nationally recognized courier service, when
delivered at the address specified in this Section 2.18 (or in accordance with
the 


 


 


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latest
unrevoked direction from such Party), and (y) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section 2.18
(or in accordance with the latest unrevoked direction from such Party), and
confirmation is received; provided that, the transmission of all pages
is complete prior to 5:00 p.m. Eastern Standard Time, on a Business Day (as
defined in the Joint Contribution Agreement), and if complete after such time
or on a non-Business Day, then such transmission shall be effective as of the
next succeeding Business Day.


 


2.19                           Dispute
Resolution.


 


(a)                                  The
Parties shall attempt in good faith to resolve any controversy or claim arising
out or relating to this Agreement promptly by negotiations between representatives
and managers of the Parties who have authority to settle the controversy.


 


(b)                                 If
a controversy or claim should arise, the Contract Managers will meet at least
once within ten (10) days of the date the controversy arose and will attempt to
resolve the matter. The Contract Managers will make
every good faith effort to meet as soon as reasonably possible at a mutually
agreed time and place.


 


(c)                                  If
the dispute is not resolved by the Contract Managers within thirty (30) days of
their first meeting, or if the Talecris Contract Manager and the Bayer Contract
Manager earlier agree that the dispute will not be resolved by them, the
Contract Managers shall refer the matter to senior executives within their
respective organizations. Thereupon,
the Contract Managers shall promptly prepare and exchange memoranda stating (i)
the issues in dispute and their respective position, summarizing the evidence
and arguments supporting their positions, and the negotiations which have taken
place, and attaching relevant documents, and (ii) the name and title of the
senior executive who will represent that Party. The
senior executives shall meet for negotiations (which may be held
telephonically) at a mutually agreed time and place within fourteen (14) days
of the end of the thirty day period referred to above and thereafter as often
as they deem reasonably necessary to exchange relevant information and to
attempt to resolve the dispute.


 


(d)                                 If
the matter has not been resolved within thirty (30) days of the meeting of the
senior executives, or if either Party will not meet within thirty (30) days of
the end of the thirty day period referred to in the preceding paragraph, the
dispute shall be referred to and finally resolved by arbitration conducted in
accordance with the rules set forth in Sections 11.7(b) through 11.7(m) of the
Restated Joint Contribution Agreement. The decision
and award of the arbitral tribunal shall be made by majority decision and shall
be final, nonappealable and binding on both Parties and their successors and
assigns.


 


2.20                           Governing
Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed therein, without giving effect to the
principles of conflicts of law thereof.


 


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2.21                           Jurisdiction
and Venue. Any action or proceeding with
respect to this Agreement or for recognition and enforcement of any judgment or
arbitration award in respect thereof brought by any Party or its successors or
assigns, shall be brought and determined in a New York state court or U.S. federal district court in New York, and each of the
Parties hereby irrevocably submits with regard to any such action or proceeding
for itself, generally and unconditionally, to the exclusive jurisdiction of the
aforesaid courts; provided, however, that such consent to jurisdiction is
solely for the purpose referred to in this Section 2.21 and shall not be deemed
to be general submission to the jurisdiction of said courts or in the State of
New York other than for such purpose.


 


2.22                           Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the Parties hereto and their
respective successors and assigns, and it is not intended to confer upon any
other person any rights or remedies hereunder. Neither
this Agreement nor any of the rights, interests or obligations hereunder may be
assigned by any of the Parties without the prior written consent of the other Party
hereto, except that each Party may at any time assign any or all of its rights
or obligations hereunder to one of its wholly owned subsidiaries (but no such
assignment shall relieve such Party of any of its obligations under this
Agreement). Notwithstanding the foregoing,
Talecris may assign this Agreement and any or all rights or obligations
hereunder to (i) any affiliate of Talecris provided that any such affiliate
becomes a party to this Agreement, (ii) any lender of Talecris as collateral
security or (iii) any successor in interest to Talecris, provided that any such
successor becomes a party to this Agreement; provided that no assignment under
(i), (ii) or (iii) above shall relieve Talecris from any obligation hereunder
and, in the case of (i) and (iii) above, such assignee has qualifications and
capabilities needed to perform Talecris’s obligations hereunder. Bayer may assign this Agreement and any or all rights or
obligations hereunder to (i) any affiliate of Bayer provided that any such
affiliate becomes a party to this Agreement or (ii) any successor in interest
to Bayer provided that any such successor becomes a party to this Agreement;
provided that no assignment under (i) or (ii) above shall relieve Bayer from
any obligation hereunder, and in the case of (i) and (ii), such assignee has
qualifications and capabilities needed to perform Bayer’s or its Affiliates’
obligations hereunder. Any purported
assignment in contravention of this Section 2.22 shall be void.


 


2.23                           Force
Majeure. For the purpose of this Agreement, “Force Majeure” shall mean only (i)
acts of God, acts of the public enemy, insurrections, riots, sabotage, strike,
work stoppage or other labor dispute and natural disasters and (ii) explosions,
fires, flood damage, or loss of electric power not resulting from the
negligence of the Party invoking Force Majeure, either of (i) or (ii) which
prevents a Party from performing its obligations under this Agreement. Notwithstanding anything in this Agreement to the
contrary, except Section 2.7, the Party experiencing the Force Majeure shall be
excused from the performance of each of its obligations under this Agreement
upon a Force Majeure, but only to the extent performance of any such obligation
is necessarily prevented, hindered or delayed thereby and only during the
continuance of any such Force Majeure, and shall have no liability for damages
arising from non-performance of any obligation excused by a Force Majeure. The Party suffering such Force Majeure shall invoke this
provision by promptly notifying the other Party in writing of the nature and
estimated duration of the suspension period, as well as the extent to which it
will be unable to fulfill its obligations


 


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under the Agreement. Each Party
shall be relieved of performance of its obligations under this Agreement during
the time when it is prevented from performing by the failure of the other Party
to perform its obligations or because of any event of Force Majeure.


 


(a)                                  In
the event that Bayer or any of its Affiliates providing any Service suffers a
Force Majeure with respect to such Service, and any facilities, personnel, or
other resources that are existing resources used by Bayer or such Affiliate in
performing activities and functions on behalf of itself or other parties that
are included in or similar to such Service, Bayer or such Affiliate shall use
such commercially reasonable efforts to use such facilities, personnel, and
resources in continuing to provide such Service on a pro rata basis with other
uses of such facilities, personnel, and resources, and a failure to comply with
this requirement shall not be excused by such Force Majeure. For
the avoidance of doubt, (i) this provision shall not require Bayer and its
Affiliates to provide such Service where it has previously been performed by an
independent Contractor but shall require Bayer and its Affiliates to use such
reasonable efforts to cause such independent Contractors also performing
similar Services for Bayer and its Affiliates to comply with this subsection
(b), and (ii) in such circumstances, in no event shall Bayer or any of its
Affiliates be required to acquire additional assets, equipment, rights or
properties other than in its ordinary course of business.


 


2.24                           Non
Solicitation. With respect to those employees
of Bayer or its Affiliates engaged in the performance of services, the
provisions of Section 11.5(e) of the Joint Contribution Agreement shall apply
until the termination of the provision of such services.


 


2.25                           Transfer
of Records. Bayer may continue to retain
only those Plasma Business records of Talecris as are necessary in order for
Bayer to perform the Services. At the
conclusion of the term of this Agreement, Bayer will transfer such Plasma
Business records that are necessary in order for Bayer to provide the Services
to Talecris in hard copy or, if available, electronic format. For the avoidance of doubt, the business records of Bayer
regarding the performance of the Services hereunder shall remain with Bayer;
provided that on reasonable advance notice and subject to reasonable
restrictions as Bayer may prescribe, in the event of a reasonable business need
therefore, Bayer will provide Talecris with reasonable access to such records,
provided that (i) such records are readily and reasonably available and (ii)
that Talecris shall reimburse Bayer for its costs in providing such access.


 


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IN WITNESS
WHEREOF, the Parties have caused this Agreement to be signed by their
respective officers thereunto duly authorized, all as of the date first written
above.


 


	
  TALECRIS BIOTHERAPEUTICS, INC.

  	
   

  	
  BAYER HEALTHCARE LLC

  
	
   

  	
   

  	
   

  
	
  BY:

  	
  /s/ Authorized Signatory

  	
   

  	
  BY:

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
  TITLE:

  	
  Authorized Signatory

  	
   

  	
  TITLE:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
  DATE:

  	
  6/27/06

  	
   

  	
  DATE:

  	
  6/19/06

  
										



 


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Amended and Restated Master Services Agreement

Exhibits A-E: [***]


 


[*** 7
pages redacted]


 






***
CONFIDENTIAL TREATMENT REQUESTED


 


16