Date] [Name of Executive] [Address of Executive] Re: Retention Agreement Dear [Name of Executive]:
Exhibit
10.1
[Date]
[Name
of
Executive]
[Address
of Executive]
Dear
[Name of Executive]:
Boston
Scientific Corporation (the “Company”)
considers it essential to the best interests of its stockholders to ▇▇▇▇▇▇
the
continuous employment of key management personnel. Further, the Board of
Directors of the Company (the “Board”)
recognizes that the possibility of a change in control exists, and that such
possibility, and the uncertainty and questions that it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of the Company and its stockholders.
The
Board
has determined that appropriate steps should be taken to reinforce and encourage
the continued attention and dedication of members of the management of the
Company, including yourself, to their assigned duties without distraction in
the
face of potentially disturbing circumstances arising from any possible change
in
control of the Company.
In
order
to induce you to remain in the employ of the Company, the Company agrees that
you shall receive the severance benefits set forth in this letter agreement
(this “Agreement”)
in the
event your employment with the Company is terminated subsequent to a Change
in
Control (as defined herein) under the circumstances described
below.
1. Termination
Following Change in Control.
If a
Change in Control occurs, you will be entitled to the benefits provided in
Section 2 hereof upon the subsequent termination of your employment by the
Company without Cause (as defined herein) or by you for Good Reason (as defined
herein) during the two-year period following such Change in Control (the
“Covered
Period”).
Any
purported termination of your employment by the Company or by you shall be
communicated by a Notice of Termination to the other party hereto in accordance
with Section 8 hereof. For purposes of this Agreement, a “Notice
of Termination”
shall
mean a written notice which shall indicate the specific termination provision
in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
2. Compensation
Upon Termination.
(a) Severance
Benefits.
If your
employment by the Company shall be terminated during the Covered Period by
the
Company without Cause or by you for Good Reason, then you shall be entitled
to
the following benefits:
(i) Severance
Payments.
The
Company shall pay you in cash within 5 days of the Date of Termination the
full
amount of any earned but unpaid base salary through the Date of Termination
at
the rate in effect at the time of the Notice of Termination, plus a cash payment
for all unused vacation time which you may have accrued as of the Date of
Termination. The Company shall also pay you in cash within five days of the
Date
of Termination a pro rata portion of the annual bonus for the year in which
your
employment terminates, calculated on the basis of your target bonus for that
year and on the assumption that all performance targets have been or will be
achieved. In addition, the Company shall pay you in a cash lump sum, within
five
days of the Date of Termination, an amount (the “Severance
Payment”)
equal
to three times the sum of (A) your base salary on the Termination Date (without
giving effect to any salary reductions which satisfy the definition of
“Good
Reason”),
(B)
the greater of (x) the most recent bonus paid to you (which shall be deemed
to
be the sum of (I) the cash bonus amount most recently paid to you and (II)
the
value of restricted stock (calculated as of the date of vesting) issued to
you
as bonus compensation that vested (other than restricted stock that vested
solely by virtue of the Change in Control) within the immediately preceding
year) plus
the
value of any other shares of stock issued to you without forfeiture provisions
as bonus compensation within the immediately preceding year and (y) your target
bonus in effect for the year in which the Change in Control occurred (calculated
assuming that all performance targets have been or will be achieved) and (C)
$25,000. The Severance Payment shall be in lieu of any other severance payments
which you are entitled to receive under any other severance pay plan or
arrangement sponsored by the Company or any of its subsidiaries;
(ii) Benefit
Continuation.
Subject
to your compliance with the non-solicitation and confidentiality provisions
described in Section 6, you and your eligible dependents shall continue to
be
eligible to participate during the Benefit Continuation Period (as hereinafter
defined) in the medical, dental, health, life and other welfare benefit plans
and arrangements applicable to you immediately prior to your termination of
employment on the same terms and conditions in effect for you and your
dependents immediately prior to such termination. For purposes of the previous
sentence, “Benefit
Continuation Period”
means
the period beginning on the Date of Termination and ending on the earlier to
occur of (i) the third anniversary of the Date of Termination and (ii) the
date that you and your dependents are eligible for coverage under the plans
of a
subsequent employer which provide substantially equivalent or greater benefits
to you and your dependents;
(iii) Legal
Fees and Expenses.
The
Company shall also pay you in cash all legal fees and expenses, if any, incurred
by you in contesting or disputing any such termination or in seeking to obtain
or enforce any right or benefit provided by this Agreement;
provided, however,
that the
amount of the payments and reimbursements under this Section 2(a)(iii) shall
not
exceed $100,000; and
provided, further,
that no
such legal fees or expenses shall be reimbursed if it is determined by the
applicable arbitral panel or other tribunal that your claim is entirely without
merit. Furthermore, nothing
shall
prohibit the arbitral panel or other tribunal from awarding legal fees in excess
of $100,000 if, in the interests of fairness and equity, the arbitral panel
or
other tribunal deems such award appropriate.
(b) No
Mitigation.
You
shall not be required to mitigate the amount of any payment or benefit provided
for in this Section 2 by seeking other employment or otherwise.
3. Additional
Payment.
(a) Gross-Up
Payment.
Notwithstanding anything herein to the contrary, if it is determined that any
Payment (as defined herein) would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties with respect to such
excise tax (such excise tax, together with any interest or penalties thereon,
is
herein referred to as an “Excise
Tax”),
then
you shall be entitled to an additional cash payment (a “Gross-Up
Payment”)
in an
amount that will place you in the same after-tax economic position that you
would have enjoyed if the Excise Tax had not applied to the Payment. The amount
of the Gross-Up Payment shall be determined by the Accounting Firm (as defined
herein) in accordance with such formula as the Accounting Firm deems
appropriate. No Gross-Up Payments shall be payable hereunder if the Accounting
Firm determines that the Payments are not subject to an Excise Tax. The
Accounting Firm shall be paid by the Company for services performed
hereunder.
(b) Determination
of Gross-Up Payment.
Subject
to the provisions of Section 3(c), all determinations required under this
Section 3, including whether a Gross-Up Payment is required, the amount of
the
Payments constituting excess parachute payments, and the amount of the Gross-Up
Payment, shall be made by the Accounting Firm, which shall provide detailed
supporting calculations both to you and the Company within fifteen days of
any
date reasonably requested by you or the Company on which a determination under
this Section 3 is necessary or advisable. The Company shall pay you in cash
the
initial Gross-Up Payment within five days of the receipt by you and the Company
of the Accounting Firm's determination. If the Accounting Firm determines that
no Excise Tax is payable by you, the Company shall cause the Accounting Firm
to
provide you with an opinion that the Accounting Firm has substantial authority
under the Code and Regulations not to report an Excise Tax on your federal
income tax return. Any determination by the Accounting Firm shall be binding
upon you and the Company. If the initial Gross-Up Payment is insufficient to
completely place you in the same after-tax economic position that you would
have
enjoyed if the Excise Tax had not applied to the Payments (hereinafter an
“Underpayment”),
the
Company, after exhausting its remedies under Section 3(c) below, shall promptly
pay you in cash an additional Gross-Up Payment in respect of the
Underpayment.
(c) Procedures.
You
shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of a Gross-Up
Payment. Such notice shall be given as soon as practicable after you know of
such claim and shall apprise the Company of the nature of the claim and the
date
on which the claim is requested to be paid. You agree not to pay the claim
until
the expiration of the thirty-day period
following
the date on which you notify the Company, or such shorter period ending on
the
date the Taxes with respect to such claim are due (the “Notice
Period”).
If
the Company notifies you in writing prior to the expiration of the Notice Period
that it desires to contest the claim, you shall: (i) give the Company any
information reasonably requested by the Company relating to the claim; (ii)
take
such action in connection with the claim as the Company may reasonably request,
including, without limitation, accepting legal representation with respect
to
such claim by an attorney reasonably selected by the Company and reasonably
acceptable to you; (iii) cooperate with the Company in good faith in contesting
the claim; and (iv) permit the Company to participate in any proceedings
relating to the claim. You shall permit the Company to control all proceedings
related to the claim and, at its option, permit the Company to pursue or forgo
any and all administrative appeals, proceedings, hearings, and conferences
with
the taxing authority in respect of such claim. If requested by the Company,
you
agree either to pay the tax claimed and ▇▇▇ for a refund or contest the claim
in
any permissible manner and to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one
or
more appellate courts as the Company shall determine; provided,
however,
that,
if the Company directs you to pay such claim and pursue a refund, the Company
shall advance the amount of such payment to you on an after-tax and
interest-free basis (the “Advance”).
The
Company's control of the contest related to the claim shall be limited to the
issues related to the Gross-Up Payment and you shall be entitled to settle
or
contest, as the case may be, any other issues raised by the Internal Revenue
Service or other taxing authority. If the Company does not notify you in writing
prior to the end of the Notice Period of its desire to contest the claim, the
Company shall pay you in cash an additional Gross-Up Payment in respect of
the
excess parachute payments that are the subject of the claim, and you agree
to
pay the amount of the Excise Tax that is the subject of the claim to the
applicable taxing authority in accordance with applicable law.
(d) Repayments.
If,
after receipt by you of an Advance, you become entitled to a refund with respect
to the claim to which such Advance relates, you shall pay the Company the amount
of the refund (together with any interest paid or credited thereon after Taxes
applicable thereto). If, after receipt by you of an Advance, a determination
is
made that you shall not be entitled to any refund with respect to the claim
and
the Company does not promptly notify you of its intent to contest the denial
of
refund, then the amount of the Advance shall not be required to be repaid by
you
and the amount thereof shall offset the amount of the additional Gross-Up
Payment then owing to you.
(e) Further
Assurances.
The
Company shall indemnify you and hold you harmless, on an after-tax basis, from
any costs, expenses, penalties, fines, interest or other liabilities
(“Losses”)
incurred by you with respect to the exercise by the Company of any of its rights
under this Section 3, including, without limitation, any Losses related to
the
Company's decision to contest a claim or any imputed income to you resulting
from any Advance or action taken on your behalf by the Company hereunder. The
Company shall pay all legal fees and expenses incurred under this Section 3,
and
shall promptly reimburse you for the reasonable expenses incurred by you in
connection with any actions taken by the Company or required to be taken by
you
hereunder. The Company shall also pay all of the fees and expenses of the
Accounting
Firm, including, without limitation, the fees and expenses related to the
opinion referred to in Section 3(b).
4. Equity
Incentive Awards.
(a) Options.
All
options granted to you under the Company’s equity incentive plans will
immediately become exercisable upon a Change in Control (as defined
herein).
(b) Restricted
Stock Awards.
All
restricted stock awards will immediately become free from restriction upon
a
Change in Control (as defined herein).
5. Successors;
Binding Agreement.
(a) Assumption
By Successor.
The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required
to
perform it if no such succession had taken place. Failure of the Company to
obtain such assumption and agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle you to
compensation from the Company in the same amount and on the same terms as you
would be entitled hereunder if you had terminated your employment for Good
Reason following a Change in Control, except that for purposes of implementing
the foregoing, the date on which any such succession becomes effective shall
be
deemed the Date of Termination. As used in this Agreement, “the
Company”
shall
mean the Company as hereinbefore defined and any successor to its business
or
assets which assumes and agrees to perform this Agreement by operation of law,
by agreement or otherwise.
(b) Enforceability
By Beneficiaries.
This
Agreement shall inure to the benefit of and be enforceable by your personal
or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If you should die while any amount would
still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with
the
terms of this Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.
6. Nonsolicitation;
Confidentiality
(a) Nonsolicitation.
For
three years following your Date of Termination, you shall not, without the
prior
written consent of the Company, directly or indirectly, as a sole proprietor,
member of a partnership, stockholder or investor, officer or director of a
corporation, or as an employee, associate, consultant, independent contractor
or
agent of any person, partnership, corporation or other business organization
or
entity other than the Company: (i) solicit or endeavor to entice away from
the Company or any of its affiliates or subsidiaries, any person or entity
who
is, or, during the then most recent 12-month period, was, employed by,
or
had
served as an agent or key consultant of, the Company or any of its subsidiaries,
or (ii) solicit or endeavor to entice away from the Company or any of its
subsidiaries any person or entity who is, or was within the then most recent
12-month period, a customer or client (or reasonably anticipated (to your
general knowledge or the public's general knowledge) to become a customer or
client) of the Company or any of its subsidiaries.
(b) Confidentiality.
On and
after the date of this Agreement, you will not, except in the performance of
your obligations to the Company hereunder or as may otherwise be approved in
advance by the Board, directly or indirectly, disclose or use (except for the
direct benefit of the Company) any confidential information that you may learn
or have learned by reason of your association with the Company, any customer
or
client of the Company or any of their respective subsidiaries and affiliates.
The term “confidential
information”
includes all data, analyses, reports, interpretations, forecasts, documents
and
information in any form concerning or otherwise reflecting information and
concerning the Company and its affairs, including, without limitation, with
respect to clients, products, policies, procedures, methodologies, trade secrets
and other intellectual property, systems, personnel, confidential reports,
technical information, financial information, business transactions, business
plans, prospects or opportunities, but shall exclude any portion of such
information that (i) was acquired by you prior to your employment by, or other
association with, the Company or any affiliated or predecessor entity,
(ii) is or becomes generally available to the public or is generally known
in the industry or industries in which the Company or any customer or client
of
the Company operates, in each case other than as a result of disclosure by
you
in violation of this Section 6 or (iii) you are required to disclose under
any applicable laws, regulations or directives of any government agency,
tribunal or authority having jurisdiction in the matter or under subpoena or
other process of law. As used in this Section 6, an “affiliate”
of
a
person or entity is a person or entity in control of, controlled by, or in
common control with, such first person or entity.
7. Definitions.
For
purposes of this Agreement, the following capitalized words shall have the
meanings set forth below:
“Accounting
Firm”
shall
mean the then-current independent auditors of the Company or, if such firm
is
unable or unwilling to perform such calculations, such other national accounting
firm as shall be designated by agreement between you and the
Company.
“Cause”
shall
mean the willful engaging by you in criminal or fraudulent acts or gross
misconduct that is demonstrably and materially injurious to the Company,
monetarily or otherwise. No act or failure to act on your part shall be deemed
“willful”
unless
done, or omitted to be done, by you not in good faith and without reasonable
belief that your action or omission was in the best interest of the Company.
Notwithstanding the foregoing, you shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to you a copy of
a
resolution duly adopted by the affirmative vote of not less than three quarters
of the entire membership of the Board at a meeting of the Board called and
held
for such purpose (after reasonable notice to you and an opportunity for you,
together with your counsel, to be heard before the Board), finding that in
the
good faith opinion of the Board you were guilty of conduct
set
forth
above in the first sentence of this subsection and specifying the particulars
thereof in detail.
“Change
in Control”
shall
mean the happening of any of the following:
(a) The
acquisition, other than from the Company, by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”))
of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (i) the then outstanding shares of common
stock of the Company (the “Outstanding
Company Common Stock”)
or
(ii) the combined voting power of the then outstanding voting securities of
the
Company entitled to vote generally in the election of directors (the
“Company
Voting Securities”);
provided,
however,
that
any acquisition by (x) any non-corporate shareholder of the Company as of the
effective date of the initial registration of an offering of Stock under the
Securities Act of 1933, (y) the Company or any of its affiliates or
subsidiaries, or any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries or (z) any corporation
with
respect to which, following such acquisition, more than 60% of, respectively,
the then outstanding shares of common stock of such corporation and combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Company Voting Securities immediately prior to such
acquisition in substantially the same proportion as their ownership, immediately
prior to such acquisition, of the Outstanding Common Stock and Company Voting
Securities, as the case may be, shall not constitute a Change in Control of
the
Company; or
(b) Individuals
who, as of the effective date of the initial registration of an offering of
Stock under the Securities Act of 1933, constitute the Board (the “Incumbent
Board”)
cease
for any reason to constitute at least a majority of the Board, provided that
any
individual becoming a director subsequent to such effective date whose election
or nomination for election by the Company's shareholders, was approved by a
vote
of at least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the Directors of the Company (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act);
or
(c) Consummation
of a reorganization, merger, consolidation or similar transaction involving
the
Company (a “Business
Combination”),
in
each case, with respect to which all or substantially all of the individuals
and
entities who were the respective beneficial owners of the Outstanding Company
Common Stock and Company
Voting
Securities immediately prior to such Business Combination do not own
beneficially, directly or indirectly, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such Business
Combination in substantially the same proportion as their ownership immediately
prior to such Business Combination of the Outstanding Company Common Stock
and
Company Voting Securities, as the case may be; or
(d) A
complete liquidation or dissolution of the Company or a sale or other
disposition of all or substantially all of the assets of the Company other
than
to a corporation with respect to which, following such sale or disposition,
more
than 60% of, respectively, the then outstanding shares of common stock and
the
combined voting power of the then outstanding voting securities entitled to
vote
generally in the election of directions is then owned beneficially, directly
or
indirectly, by all or substantially all of the individuals and entities who
were
the beneficial owners, respectively, of the Outstanding Company Common Stock
and
Company Voting Securities immediately prior to such sale or disposition in
substantially the same proportion as their ownership of the Outstanding Company
Common Stock and Company Voting Securities, as the case may be, immediately
prior to such sale or disposition.
Notwithstanding
the foregoing, with respect to any amounts payable under this Agreement
that are
subject to Section 409A of the Code where the payment is to be accelerated
in
connection with the Change of Control, no event(s) set forth above shall
constitute a Change in Control for purposes of the Agreement unless such
event(s) also constitutes a “change in the ownership”, “change in the effective
control” or a “change in the ownership of a substantial portion of the assets”
of the Company as defined under Section 409A of the
Code.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended, and any successor provisions
thereto.
“Date
of Termination”
shall
mean, if your employment is terminated by the Company without Cause or by you
for Good Reason, the date specified in the Notice of Termination (which, in
the
case of a termination by the Company without Cause shall not be less than 30
days, and in the case of a resignation by you for Good Reason shall not be
less
than 30 nor more than 60 days from the date such Notice of Termination is
given); provided,
that if
within 30 days after any Notice of Termination is given the party receiving
such
Notice of Termination notifies the other party that a dispute exists concerning
the termination, the Date of Termination shall be the date on which the dispute
is finally determined, either by mutual written agreement of the parties, by
a
binding arbitration award, or by a final judgment, order or decree of a court
of
competent jurisdiction (which is not appealable or the time for appeal therefrom
having expired and no appeal having been perfected); provided,
further,
that the
Date of Termination shall be extended by a notice of dispute only if such notice
is given in good faith and
the
party
giving such notice pursues the resolution of such dispute with reasonable
diligence. Notwithstanding the pendency of any such dispute, the Company will
continue to pay you your full compensation in effect when the notice giving
rise
to the dispute was given and continue you as a participant in all compensation,
benefit, and insurance plans and perquisites in which you were participating
when the notice giving rise to the dispute was given, until the dispute is
finally resolved in accordance with this Subsection. Amounts paid under this
Subsection are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
“Good
Reason”
shall
mean, without your express written consent, any of the following:
(i) A
meaningful and detrimental alteration in your position or in the nature or
status of your responsibilities (including those as a director of the Company,
if any) from those in effect immediately prior to the Change in Control;
(ii) A
reduction by the Company in your annual base salary as in effect on the date
hereof or as the same may be increased from time to time; a failure by the
Company to increase your salary at a rate commensurate with that of other key
executives of the Company; a reduction in your annual bonus (expressed as a
percentage of base salary) below the target in effect for you immediately prior
to the Change in Control; or any adverse change in your long-term incentive
opportunities in comparison to those in effect prior to the Change in
Control.
(iii) The
relocation of the office of the Company where you are employed at the time
of
the Change in Control (the “CIC
Location”)
to a
location which is more than 50 miles away from the CIC Location or the Company's
requiring you to be based more than 50 miles away from the CIC Location (except
for required travel on the Company's business to an extent substantially
consistent with your customary business travel obligations in the ordinary
course of business prior to the Change in Control);
(iv) The
failure by the Company to continue in effect any incentive or deferred
compensation plan in which you participate or the failure by the Company to
continue your participation therein on at least as favorable a basis, both
in
terms of the amount of benefits provided and the level of your participation
relative to other participants, as existed at the time of the Change in
Control;
(v) The
failure by the Company to continue to provide you with benefits at least as
favorable as those enjoyed by you under any of the Company's retirement, life
insurance, medical, health and accident, disability or savings plans in which
you were participating at the time of the Change in Control; the taking of
any
action by the Company that would directly or indirectly materially reduce any
of
such benefits or deprive you of any material perquisite enjoyed by you at the
time of the Change in Control including without limitation, the use of a car,
secretary, office space, telephones,
expense
reimbursement and club dues; or the failure by the Company to provide you with
the number of paid vacation days to which you are entitled on the basis of
years
of service with the Company in accordance with the Company's normal vacation
policy in effect at the time of the Change in Control;
(vi) The
failure of the Company to pay you any amounts of salary, bonus or expense
reimbursement then owed to you or the failure of the Company to adhere to its
payroll and other compensation schedules in place just prior to the Change
in
Control;
(vii) The
failure of the Company to obtain a satisfactory agreement from any successor
to
assume and agree to perform this Agreement, as contemplated in Section 5 hereof
or, if the business of the Company for which your services are principally
performed is sold at any time after a Change in Control, the purchaser of such
business shall fail to agree to provide you with the same or a comparable
position, duties, compensation and benefits (as described in subsections (iv)
and (v) above) as provided to you by the Company immediately prior to the Change
in Control; or
(viii) Any
purported termination of your employment which is not effected pursuant to
a
Notice of Termination satisfying the requirements of Section 1 (and, if
applicable, the requirements set out in the definition of “Cause”
above);
for purposes of this Agreement, no such purported termination shall be
effective.
“Payment”
means
(i) any amount due or paid to you under this Agreement, (ii) any amount
that is due or paid to you under any plan, program or arrangement of the Company
and its subsidiaries, and (iii) any amount or benefit that is due or payable
to
you under this Agreement or under any plan, program or arrangement of the
Company and its subsidiaries not otherwise covered under clause (i) or (ii)
hereof which must reasonably be taken into account under Section 280G of the
Code and the Regulations in determining the amount of the “parachute
payments”
received by you, including, without limitation, any amounts which must be taken
into account under the Code and Regulations as a result of (x) the
acceleration of the vesting of Options, restricted stock or other equity awards,
(y) the acceleration of the time at which any payment or benefit is receivable
by you or (z) any contingent severance or other amounts that are payable to
you.
“Regulations”
shall
mean the proposed, temporary and final regulations under Section 280G of the
Code or any successor provision thereto.
“Taxes”
shall
mean the federal, state and local income taxes to which you are subject at
the
time of determination, calculated on the basis of the highest marginal rates
then in effect, plus any additional payroll or withholding taxes to which you
are then subject.
8. Notice.
For the
purpose of this Agreement, notices and all other communications provided for
in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered or mailed by United States registered mail, return receipt
requested,
postage prepaid, addressed to, General Counsel, Boston Scientific Corporation,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, or to you at the address
set
forth on the signature page of this Agreement or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon
receipt.
9. Miscellaneous.
No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by
such other party shall be deemed a waiver of similar or dissimilar provisions
or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party that are not expressly
set
forth in this Agreement and this Agreement shall supersede all prior agreements,
negotiations, correspondence, undertakings and communications of the parties,
oral or written, with respect to the subject matter hereof. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the Commonwealth of Massachusetts.
10. Validity.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
11. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.
12. Arbitration.
Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in Boston in accordance with the rules
of
the American Arbitration Association then in effect. Judgment may be entered
on
the arbitrator's award in any court having jurisdiction;
provided, however,
that
you shall be entitled to seek specific performance of your right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
13. No
Contract of Employment.
Nothing
in this Agreement shall be construed as giving you any right to be retained
in
the employ of the Company.
14. Headings.
The
headings contained in this Agreement are intended solely for convenience and
shall not affect the rights of the parties to this Agreement.
If
this
letter sets forth our agreement on the subject matter hereof, kindly sign and
return to the Company the enclosed copy of this letter which will then
constitute our agreement on this subject.
Sincerely,
BOSTON
SCIENTIFIC CORPORATION
By
_________________________________
▇▇▇▇▇
▇.
▇▇▇▇▇
President
and Chief Executive Officer
The
foregoing is accepted and agreed to.
__________________________________________
[Name
of
Executive]