AMENDMENT TO SUBSCRIPTION AND STOCKHOLDER AGREEMENT
EXHIBIT
10.6
AMENDMENT
TO SUBSCRIPTION AND STOCKHOLDER AGREEMENT
THIS
AMENDMENT TO SUBSCRIPTION AND STOCKHOLDER AGREEMENT (this "Amendment"), dated
as
of April 21, 2006, between BOSTON SCIENTIFIC CORPORATION, a Delaware corporation
(“Boston Scientific”), and ▇▇▇▇▇▇ LABORATORIES, an Illinois corporation (“Abbott”).
WHEREAS,
Boston Scientific and Abbott are parties to that certain Subscription and
Stockholder Agreement dated as of the date hereof, pursuant to which Abbott
is
purchasing from Boston Scientific, and Boston Scientific is issuing and selling
to Abbott, shares of common stock, par value $0.01 per share of Boston
Scientific (the "Agreement"); and
WHEREAS,
Boston Scientific and Abbott desire to amend the Agreement as provided in this
Amendment in accordance with Section 7.11
of
the
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the promises and mutual
agreements contained in this Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
and
intending to be legally bound, the parties hereto agree as follows:
SECTION
1. Registration
Rights; Registration Procedures.
The
second sentence of Section 4.2(a) of the Agreement is hereby amended and
restated to read as follows:
"To
the
extent such issuance of the Shares has not been registered pursuant to an
effective Registration Statement on or prior to the Share Closing Date, Boston
Scientific shall, on or prior to the Share Closing Date, file with the SEC
a
"shelf" registration statement on Form S-3 pursuant to Rule 415
under
the
Securities Act (including the Registration Statement, to the extent it is used
as a resale shelf registration statement for the Shares, the "Shelf
Registration") with respect to the Shares issuable by Boston Scientific to
Abbott pursuant to this Agreement, and thereafter shall (x) use its reasonable
best efforts to (A)
have
the
Shelf Registration declared effective (or take such steps to make it
automatically effective) as soon as reasonably practicable thereafter, and
(B)
keep the Shelf Registration continuously effective from the date such Shelf
Registration is declared effective until at least the second anniversary of
such
effective date (the "Effectiveness Period") in order to permit the prospectus
forming a part thereof to be usable by Abbott and its Affiliates during such
period, (y) in addition to undertaking any other obligations pursuant to this
Section 4.2, (A) file on the Share Closing Date (but after the Share Closing)
with the SEC (and deliver an electronic copy of the same to Abbott) a prospectus
supplement to the automatic shelf registration statement filed by Boston
Scientific on March 22, 2006 (the "Automatic Shelf”) meeting the applicable
requirements of the Securities Act which shall provide for the resale of the
Shares issued to Abbott pursuant to Section 2.1
pursuant
to the Automatic Shelf and (B) with respect to the Shares to be issued to Abbott
pursuant to Section 2.3, to the extent Boston Scientific fails to
deliver
Shares registered under the Securities Act, file on the Interest Reimbursement
Issuance Date with the SEC (and deliver an electronic copy of the same to
Abbott) a prospectus supplement to the Automatic Shelf meeting the applicable
requirements of the Securities Act which shall provide for the resale of such
Shares pursuant to the Automatic Shelf and (z) pay the required SEC filing
fees
relating to the Shares issuable by Boston Scientific to Abbott pursuant to
this
Agreement within the time required by Rule 456(b)(1) under the Securities Act
in
accordance with Rules 456(b) and 457(r) under the Securities Act (except that
(A) with respect to such filing fees relating to the Shares issued to Abbott
pursuant to Section 2.1, such fees shall be paid on the Share Closing Date
and
(B) with respect to such filing fees relating to the Shares issued to Abbott
pursuant to Section 2.3, such fees, if applicable, shall be paid on the Interest
Reimbursement Issuance Date)."
SECTION
2. Ratification
of Agreement.
Except
as expressly provided in this Amendment, all of the terms, covenants, and other
provisions of the Agreement are hereby ratified and confirmed and shall continue
to be in full force and effect in accordance with their respective terms. From
and after the date hereof, all references to the Agreement shall refer to the
Agreement as amended by this Amendment. Capitalized terms used but not defined
in this Amendment shall have the meanings assigned to them in the Agreement.
SECTION
3. Governing
Law.
This
Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York. All Actions arising out of or relating
to this Amendment
shall be heard and determined exclusively in any New York federal court sitting
in the
Borough of Manhattan of The City of New York; provided, however, that if such
federal court
does not have jurisdiction over such Action, such Action shall be heard and
determined exclusively
in any New York state court sitting in the Borough of Manhattan of The City
of
New York.
SECTION
4. Counterparts.
This
Amendment may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate
counterparts, each of which when executed shall be deemed to be an original,
but
all of which
taken together shall constitute one and the same agreement.
[signature
page follows]
IN
WITNESS WHEREOF, Boston Scientific and Abbott have caused this Amendment to
be
executed as of the date first written above by their respective officers
thereunto duly authorized.
BOSTON
SCIENTIFIC CORPORATION
By:
/s/
Name: ▇▇▇▇▇▇▇▇
▇. Best
|
Title:
|
Executive
Vice President and Chief Financial
Officer
|
▇▇▇▇▇▇
LABORATORIES
By:
/s/
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Title:
|
Executive
Vice President, Finance and Chief Financial
Officer
|