Exhibit 10.4


 


FINAL
FORM


 


SUBSCRIPTION
AND STOCKHOLDER AGREEMENT


 


THIS SUBSCRIPTION AND
STOCKHOLDER AGREEMENT (this “Agreement”) dated as of April 21, 2006, is
by and between BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (“Boston
Scientific”) and ABBOTT LABORATORIES, an Illinois corporation (“Abbott”).


 


WHEREAS, Boston Scientific
and Abbott are parties to that certain Transaction Agreement dated as of
January 8, 2006 (as amended to date and as may be further amended, restated,
supplemented or otherwise modified from time to time, the “Transaction
Agreement”), pursuant to which Abbott agreed, through itself or one if its
affiliates, to acquire the vascular intervention and endovascular solutions
businesses of Guidant Corporation (“Guidant”) on the terms and subject
to the conditions set forth in the Transaction Agreement and the Purchase
Agreement (as hereinafter defined);


 


WHEREAS, the Transaction
Agreement provides that, at the Closing, Abbott shall purchase from Boston
Scientific, and Boston Scientific shall issue and sell to Abbott, shares of
common stock, par value $0.01 per share (the “Common Stock”), of Boston
Scientific;


 


WHEREAS, Abbott desires to
purchase from Boston Scientific, and Boston Scientific desires to sell to
Abbott, the Shares (as hereinafter defined) upon the terms and subject to the
conditions set forth herein; and


 


WHEREAS, the parties hereto
desire to restrict the sale or transfer of the Shares and to provide for
certain rights and obligations in respect of the Shares, all as hereinafter
provided.


 


NOW, THEREFORE, in
consideration of the promises and the mutual agreements and covenants set forth
herein, and intending to be legally bound, the parties hereto agree as follows:


 


ARTICLE
I


 


DEFINITIONS


 


Section 1.1            Definitions. (a) Capitalized
terms used herein and not defined shall have the meanings ascribed to them in
that Purchase Agreement, dated as of the date hereof, between Guidant and
Abbott (the “Purchase Agreement”), unless otherwise indicated.


 


(b)
For purposes of this Agreement, all references to “Abbott” shall refer to
Abbott Laboratories and any of its Affiliates that Abbott Laboratories
designates to purchase Shares in lieu of Abbott in accordance with Section 7.9.


 

















 


ARTICLE II


 


SALE OF STOCK; SHARE
CLOSING; ADDITIONAL ISSUANCES


 


Section 2.1            Purchase and Sale. (a) On the
basis of the representations, warranties, covenants and agreements herein, at
the Share Closing (as defined below), Abbott shall purchase from Boston
Scientific, and Boston Scientific shall issue and sell to Abbott, 56,000,000
shares of Common Stock (the “Shares”) at a purchase price of $25.00 per
Share, for an aggregate purchase price of $1,400,000,000 (the “Aggregate
Stock Purchase Price”); provided that if the average of the per
share closing prices of the shares of Common Stock on the New York Stock
Exchange during the five consecutive trading days ending (and including) the
date that is three trading days prior to the Share Closing Date (as defined
below) is less than $25.00, Abbott shall purchase from Boston Scientific, and
Boston Scientific shall issue and sell to Abbott, the number of shares of
Common Stock (which shall be deemed to be Shares for purposes of this
Agreement) that is equal to the quotient obtained by dividing $1,400,000,000 by
such average per share closing price (the per Share purchase price payable by
Abbott or the applicable Purchaser under this Section 2.1(a) being, the “Stock
Purchase Price”). In no event shall the number of Shares acquired by Abbott
pursuant to this Section 2.1(a) equal or exceed 5% of the number of shares of
Common Stock outstanding immediately following the issuance of Shares pursuant
to this Section 2.1 and the consummation of the Merger, and, in such event, the
number of Shares to be purchased by Abbott hereunder and the Aggregate Stock
Purchase Price shall be reduced accordingly.


 


(b)
At the Share Closing, (i) Abbott shall pay the Aggregate Stock Purchase Price
by wire transfer of immediately available funds to a bank account designated in
writing by Boston Scientific to Abbott not fewer than three Business Days prior
to the Share Closing Date, and (ii) Boston Scientific shall deliver to Abbott
the Shares in either book entry form or evidenced by stock certificates having
the legend described in Section 3.3, as determined by Boston Scientific not
fewer than ten business days prior to the Share Closing Date; provided,  however,
that in the event that Boston Scientific determines to issue the Shares
evidenced by stock certificates, Boston Scientific shall deliver such stock
certificates to Abbott or an agent of Abbott (which agent shall be designated
by Abbott not fewer than five business days prior to the Share Closing Date),
and Boston Scientific shall bear any risk of loss related to such delivery.


 


Section
2.2            Time and Place of Share
Closing; Conditions Precedent. (a) The closing with respect to the purchase
and sale of the Shares (the “Share Closing”) shall take place
simultaneously with, and at the same location as, the Closing contemplated by
the Purchase Agreement, or on such other date and at such other location as
mutually agreed between the parties (the date of the Share Closing, the “Share
Closing Date”), provided that the conditions set forth in Section 2.2(b)
and 2.2(c) have been satisfied or waived.


 


(b) The obligation of Boston
Scientific to consummate the transactions contemplated by this Agreement is
subject to the satisfaction or written waiver by Boston Scientific, at or prior
to the Share Closing, of the following conditions:


 


(i)            each of the representations and
warranties of Abbott contained in this Agreement shall be true and correct in
all material respects as of the Share


 


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Closing Date, with the same
force and effect as if made as of the Share Closing Date (other than such
representations and warranties as are made as of another date, which shall be
true and correct in all material respects as of such date), except in either
case where any failure of such representations and warranties to be so true and
correct would not materially delay or prevent the consummation of the
transactions contemplated hereby, and the covenants and agreements contained in
this Agreement to be complied with by Abbott on or before the Share Closing
Date shall have been complied with in all material respects;


 


(ii)           all of the respective conditions to
Boston Scientific’s, Sub’s and Guidant’s obligations to consummate the Merger,
as set forth in the Merger Agreement, shall have been satisfied or waived, and
each of Boston Scientific and Sub shall have notified Guidant, and Guidant
shall have notified Boston Scientific and Sub, in writing (with copies of such
notices having been delivered to Abbott) that it is ready, willing and able to
consummate the Merger and that it intends to consummate the Merger immediately
following the consummation of the transactions contemplated by this Agreement,
the Purchase Agreement and the Transaction Agreement; and


 


(iii)          all of the respective conditions to
Abbott’s and Guidant’s obligations to consummate the transactions contemplated
by the Purchase Agreement, as set forth in the Purchase Agreement, shall have
been satisfied or waived, and each party thereto shall have notified the other
party in writing (with copies of such notices having been delivered to Boston
Scientific) that it is ready, willing and able to consummate the transactions
contemplated by the Purchase Agreement and that it shall consummate such
transactions simultaneously with the consummation of the transactions
contemplated by this Agreement.


 


(c) The obligation of Abbott
to consummate the transactions contemplated by this Agreement is subject to the
satisfaction or written waiver by Abbott, at or prior to the Share Closing, of
the following conditions:


 


(i)            each of the representations and
warranties of Boston Scientific contained in this Agreement shall be true and
correct in all material respects as of the Share Closing Date, with the same
force and effect as if made as of the Share Closing Date (other than such
representations and warranties as are made as of another date, which shall be
true and correct in all material respects as of such date), except in either
case where any failure of such representations and warranties to be so true and
correct would not materially delay or prevent the consummation of the
transactions contemplated hereby, and the covenants and agreements contained in
this Agreement to be complied with by Boston Scientific on or before the Share
Closing Date shall have been complied with in all material respects;


 


(ii)           all of the respective conditions to
Boston Scientific’s, Sub’s and Guidant’s obligations to consummate the Merger,
as set forth in the Merger Agreement, shall have been satisfied or waived, and
each of Boston Scientific and


 


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Sub shall have notified
Guidant, and Guidant shall have notified Boston Scientific and Sub, in writing
(with copies of such notices having been delivered to Abbott) that it is ready,
willing and able to consummate the Merger and that it intends to consummate the
Merger immediately following the consummation of the transactions contemplated
by this Agreement, the Purchase Agreement and the Transaction Agreement; and


 


(iii)          all of the respective conditions to
Abbott’s and Guidant’s obligations to consummate the transactions contemplated
by the Purchase Agreement, as set forth in the Purchase Agreement, shall have
been satisfied or waived, and Guidant shall have notified Abbott in writing
that it is ready, willing and able to consummate the transactions contemplated
by the Purchase Agreement and that it shall consummate such transactions
simultaneously with the consummation of the transactions contemplated by this
Agreement.


 


(d)
In the event that Boston Scientific, Sub and Guidant do not complete the Merger
on the same day as, or on the first Business Day following, the Share Closing
Date, then on the second Business Day following the Share Closing Date, Boston
Scientific shall repurchase all of the Shares sold to Abbott pursuant to
Section 2.1 for an amount equal to the Aggregate Stock Purchase Price plus
interest compounded daily on such amount for the period from and including the
Share Closing Date and ending on the date of repayment at the rate publicly
announced by JPMorgan Chase Bank, N. A. as its prime rate in effect at its
principal office in New York City.


 


Section 2.3            Additional Issuance of Common
Stock; Interest Reimbursement. (a) On the date (such date, the “Interest
Reimbursement Issuance Date”) that is eighteen months following the Share
Closing Date, Boston Scientific shall issue to Abbott a number of shares of
Common Stock, as calculated by Abbott and set forth in a written notice sent by
Abbott to Boston Scientific within three Business Days prior to the Interest
Reimbursement Issuance Date (which notice shall set forth any relevant
calculations), that is equal to the quotient obtained by dividing the Cost of
Borrowing (as defined below) by the average of the per share closing prices of
shares of Common Stock on the New York Stock Exchange during the twenty
consecutive trading days ending (and including) the date that is five trading
days prior to the Interest Reimbursement Issuance Date (and such shares of
Common Stock shall be included in the definition of “Shares” herein (other than
with respect to Section 3.5)) (such price, the “Interest Reimbursement Share
Price”). Any Shares issued to Abbott pursuant to this Section 2.3 shall, at
the time of issuance to Abbott, be registered under the Securities Act (as
defined below). For purposes of this Section 2.3, the “Cost of Borrowing”
means Abbott’s weighted average actual cost of borrowing on a principal amount
equal to the Aggregate Stock Purchase Price during the period commencing on the
Share Closing Date and ending on the Interest Reimbursement Issuance Date,
using for purposes of determining the weighted average actual cost of borrowing
the interest rates payable by Abbott pursuant to borrowings incurred by it
during the period commencing 30 days prior to the Share Closing Date and ending
30 days prior to the Interest Reimbursement Issuance Date; provided that
Boston Scientific will only be required to reimburse Abbott pursuant to this
Section 2.3 with respect to any Cost of Borrowing greater than $10 million and
less than or equal to $70 million; provided  further that, for
purposes of calculating the Cost of Borrowing, (i) the Net Proceeds (as defined
below) to Abbott or any of its


 


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Affiliates from sales of
Shares that are retained by Abbott as described in Section 3.5 shall be deemed
to have been applied by Abbott (minus any Taxes) to reduce the amount of Abbott’s
borrowing in respect of the Aggregate Stock Purchase Price, and (ii) such
calculation shall be based solely on the actual cost of borrowing and shall not
be offset by any earnings or other interest income received by or due to Abbott
in respect of any investments or otherwise. Nothing contained in this Section
2.3 shall require Abbott to make any actual payment with respect to such
borrowing.


 


(b)
Each fiscal quarter following the Share Closing, Abbott shall notify Boston
Scientific in writing of its Cost of Borrowing during the immediately preceding
fiscal quarter. The calculation of the Cost of Borrowing shall be subject to a
one-time audit on or after the Interest Reimbursement Issuance Date by a third
party designated by Boston Scientific and reasonably acceptable to Abbott. The
costs of any such third party audit shall be shared equally by Boston Scientific
and Abbott. In the event the audit discloses that too many or too few Shares
were issued by Boston Scientific pursuant to this Section 2.3 as the result of
a miscalculation of the Cost of Borrowing, Abbott (in the case of an
overissuance of Shares) or Boston Scientific (in the case of an underissuance
of Shares), as applicable, shall make a cash payment to the other party,
calculated based on the Interest Reimbursement Share Price and the number of
excess or shortfall Shares, as applicable, to account for such miscalculation.


 


ARTICLE
III


 


CERTAIN RESTRICTIONS ON TRANSFER AND VOTING; USE OF PROCEEDS ON


TRANSFER
OF SHARES


 


Section 3.1            Sale Restrictions. (a)  Neither Abbott nor any of its Affiliates
shall sell, transfer, assign or otherwise dispose of, directly or indirectly (“Transfer”),
any Shares during the six-month period following the Share Closing; provided
that if the average of the per share closing prices of shares of Common Stock
on the New York Stock Exchange during any consecutive twenty trading days
during the six-month period following the Share Closing is greater than $30.00,
Abbott may sell Shares in accordance with Article IV during such six-month
period. Subject to the second proviso in Section 4.2(b), neither Abbott nor any
of its Affiliates shall Transfer, during any one-month period following the
Share Closing, a number of Shares that is greater than 8.33% of the Shares
acquired by Abbott at the Share Closing (such number of Shares, the “Monthly
Sale Volume Limitation”); provided, however, that such
restrictions on the ability of Abbott or any of its Affiliates to Transfer
Shares shall terminate on the date that is eighteen months following the Share
Closing Date. The provisions of this Section 3.1(a) may be amended or waived at
any time in accordance with Section 7.11.


 


(b)
Nothing in Section 3.1(a) shall prevent Abbott from Transferring any of its
Shares in any change of control transaction involving Boston Scientific or from
tendering its Shares into any tender offer for the Shares commenced by Boston
Scientific or any other Person.


 


Section
3.2            Violation of Transfer
Restrictions. Notwithstanding anything herein to the contrary, Abbott shall
not Transfer any Shares unless such Transfer is made in accordance with
applicable securities laws. Any attempt to Transfer any Shares in violation of
the terms of this Agreement shall be null and void, and neither Boston
Scientific nor any transfer


 


5

















 


agent shall
register upon its books any Transfer of Shares by Abbott to any Person except a
Transfer in accordance with this Agreement.


 


Section 3.3            Legends.
(a) Each certificate representing Shares shall, except as otherwise provided in
this Section 3.3, be stamped or otherwise imprinted with a legend substantially
in the following form:


 


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON DISPOSITION OF A SUBSCRIPTION AND STOCKHOLDER AGREEMENT DATED
AS OF APRIL 21, 2006, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, BETWEEN
ABBOTT LABORATORIES AND BOSTON SCIENTIFIC CORPORATION.”


 


(b) Each
certificate representing shares of Registrable Stock (as defined below) shall,
except as otherwise provided in this Section 3.3, be stamped or otherwise
imprinted with legends substantially in the following form:


 


(i)            “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS ON
DISPOSITION OF A SUBSCRIPTION AND STOCKHOLDER AGREEMENT DATED AS OF APRIL 21,
2006, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, BETWEEN ABBOTT LABORATORIES
AND BOSTON SCIENTIFIC CORPORATION.”; and


 


(ii)           “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS THEY HAVE BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE.”


 


(c)  Boston Scientific shall, at the request of
Abbott, (i) remove from each certificate evidencing Shares or Registrable Stock
the legend described in Section 3.3(a) and 3.3(b)(i), as applicable, on the
earlier to occur of (A) such time as Abbott and its Affiliates own fewer than
8.33% of the Shares acquired by Abbott at the Share Closing, and (B) the 18
month anniversary of the Share Closing, and (ii) remove from each certificate
evidencing Registrable Stock the legend described in Section 3.3(b)(ii) if in
the opinion of counsel satisfactory to Boston Scientific Registrable Stock
evidenced thereby may be publicly sold without registration under the
Securities Act or if it is registered. Boston Scientific shall reasonably
cooperate with Abbott to remove the legends described in Section 3.3(a) and (b)
so as to allow Abbott or its Affiliates to Transfer Shares as permitted by
Section 3.1.


 


Section 3.4            Agreement to Vote; Proxies.
As of the Share Closing, Abbott shall grant to Boston Scientific or any of its
designees an irrevocable proxy and shall appoint Boston Scientific or any of
its designees as attorney-in-fact for Abbott and each of its Affiliates that
beneficially owns Shares received pursuant to Sections 2.1 and 2.3, for so long
as Abbott and


 


6

















 


such Affiliates beneficially
own such Shares, with respect to any matter to be voted on by stockholders of
Boston Scientific. All such Shares shall be voted proportionately with the vote
cast by all other stockholders of Boston Scientific entitled to vote and voting
on such matter. Upon the sale, transfer, assignment or other disposition of
such Shares by Abbott or any Affiliate to an unaffiliated third party, the
proxy granted pursuant to this Section 3.4 with respect to such Shares so
transferred, assigned or disposed shall be automatically revoked, and the
appointment pursuant to this Section 3.4 as attorney-in-fact with respect to
such Shares shall be automatically terminated.


 


Section
3.5            Use of Proceeds on Sale;
Loan Prepayment. (a)  If, at any time
during the term of the Note, Abbott or any of its Affiliates sells any Shares
issued pursuant to Section 2.1 to any unaffiliated third party, then Abbott and
Boston Scientific shall share in the proceeds per share (net of any
underwriting discounts and commissions) (the “Net Proceeds”) as follows:


 


(i)            if the Net Proceeds to Abbott or
such Affiliates from any such sales are less than or equal to 110% of the Stock
Purchase Price, Abbott shall retain all of such Net Proceeds;


 


(ii)           if the Net Proceeds to Abbott or such
Affiliates from any such sales are greater than 110% but equal to or less than
120% of the Stock Purchase Price, Abbott shall retain the portion of the Net
Proceeds equal to 110% of the Stock Purchase Price, and the portion of the Net
Proceeds in excess of 110% of the Stock Purchase Price (minus any Taxes imposed
on Abbott on or with respect to gain on the Net Proceeds in excess of 110% of
the Stock Purchase Price) shall be immediately applied by Abbott to reduce any
amounts then outstanding under the Note in accordance with Section 3(a)
thereof; and


 


(iii)          if the Net Proceeds to Abbott or such
Affiliates from any such sales are greater than 120% of the Stock Purchase
Price, Abbott shall retain the portion of the Net Proceeds equal to 110% of the
Stock Purchase Price, the portion of the Net Proceeds in excess of 110% but
less than or equal to 120% of the Stock Purchase Price (minus any Taxes imposed
on Abbott on or with respect to gain on the Net Proceeds in excess of 110% of
the Stock Purchase Price but less than or equal to 120% of the Stock Purchase
Price) shall be immediately applied by Abbott to reduce any amounts then
outstanding under the Note in accordance with Section 3(a) thereof, and, with
respect to all Net Proceeds in excess of 120% of the Stock Purchase Price, 50%
of such excess amount shall be retained by Abbott, and the remaining 50% (minus
any Taxes imposed on Abbott on or with respect to gain on the remaining 50% of
the Net Proceeds in excess of 120% of the Stock Purchase Price) shall be
immediately applied by Abbott to reduce any amounts then outstanding under the
Note in accordance with Section 3(a) thereof.


 


(b) Abbott shall determine
the amount of such Taxes due any Governmental Authority with respect to any
such sale referred to in Section 3.5(a) above (using for this purpose the
highest marginal tax rate under applicable Law) and shall notify Boston
Scientific in writing


 


7

















 


within three Business Days
of any sale of Shares by it or any of its Affiliates, and shall include in such
notice the number of Shares sold by it or such Affiliates, the selling price
for such Shares and Net Proceeds for such Shares and the amount of Taxes
payable by Abbott or its Affiliates with respect to such sale (collectively,
the “Sales Information”).


 


(c) If a Governmental
Authority ultimately determines that the amount of Taxes imposed on a sale of
the Shares is greater than the amount computed by Abbott, the principal amount
of the Note shall be increased to reflect the increase in Taxes attributable to
proceeds applied by Abbott to reduce amounts outstanding under the Note
(including any Taxes attributable to the increase of the Note). If the Note is
no longer outstanding at the time when Abbott becomes liable for such increase
in Taxes, Boston Scientific shall indemnify Abbott for any such increase in
Taxes, including such Taxes attributable to any such indemnity payment.


 


(d) Boston Scientific may
request that Abbott provide access to its books and records to an
internationally recognized accounting firm reasonably acceptable to Abbott for
the purpose of verifying the Sales Information. In the event that the results
of any such verification indicate that the aggregate amount of Net Proceeds
applied by Abbott in accordance with this Section 3.5 and pursuant to
Section 3(a) of the Note to reduce amounts outstanding under the Note is


 


(i)                                     less than the amount calculated by such third
party to be so applied by Abbott, then


 


(A)                             the principal amount of the Note shall be
decreased by an amount equal to such difference, or


 


(B)                               if the Note is no longer outstanding at the
time such verification is completed, Abbott shall pay in cash to Boston
Scientific an amount equal to such difference within three Business Days of the
delivery to each of Boston Scientific and Abbott of the final determination by
such third party of the results of its verification; or


 


(ii)                                  greater than the amount calculated by such
third party to be so applied by Abbott, then


 


(A)                             the principal amount of the Note shall be
increased by an amount equal to such difference (taking into account any
adjustments previously made due to the imposition of increased Tax liability by
a Governmental Authority as provided above), or


 


(B)                               if the Note is no longer outstanding at the
time such verification is completed, Boston Scientific shall pay in cash to
Abbott an amount equal to such difference (taking into account any adjustments
or indemnity payments previously made due to the imposition of increased Tax
liability by a Governmental Authority as provided above) within three Business
Days of the delivery to each of Boston Scientific and Abbott of the final determination
by such third party of the results of its verification. Any costs associated


 


8

















 


with verification of the
Sales Information by the accounting firm shall be borne equally by Boston
Scientific and Abbott.


 


Section 3.6             Full Sale and Divestiture of Shares. Subject to Section 3.l(a), Abbott agrees to
Transfer all Shares received pursuant to Sections 2.1 and 2.3 hereof to an
unaffiliated third party no later than 30 months following the Share Closing.


 


Section 3.7             Consistent Reporting for Tax Purposes. Consistent with the provisions of Section
3.5 regarding the use of the Net Proceeds from the sale of the Shares, Boston
Scientific and Abbott agree that for Tax purposes, Boston Scientific is selling
a partial interest in the Shares to Abbott, and Boston Scientific is retaining
the residual interest in the Shares. Accordingly, upon a sale of the Shares,
Abbott and Boston Scientific agree that each party will report a sale of the
Shares on its Tax returns in the following manner: (a) Abbott will treat as its
amount realized from the sale of the Shares the amount that corresponds to the
Net Proceeds it is entitled to retain under Section 3.5 (not including the
amounts that are required under Section 3.5 to be applied to reduce the
outstanding amounts under the Note), (b) Boston Scientific will treat as its
amount realized from the sale of Shares the amount that corresponds to the Net
Proceeds it is entitled to receive under Section 3.5 and that is applied to
reduce the outstanding amounts under the Note, and (c) both Abbott and Boston
Scientific agree to treat the portion of the Net Proceeds that are applied to
reduce the amounts outstanding under the Note pursuant to Section 3.5 as having
been received by Boston Scientific in exchange for its residual interest in the
Shares and then transferred to Abbott as payment of the amounts outstanding
under the Note. The parties further agree not to take any Tax position that is
inconsistent with the foregoing, provided, however, that Boston Scientific
shall bear all costs of defending such Tax position on audit and in litigation.


 


ARTICLE
IV 


 


REGISTRATION
RIGHTS


 


Section 4.1             Definition of Registrable Stock.
For purposes of this Agreement, “Registrable Stock” means the Shares
acquired by Abbott pursuant to Section 2.1 or 2.3 as to which the Registration
Statement (as defined in Section 4.2) has not become effective prior to the
Share Closing Date, and any securities issued or issuable with respect to such
Shares by way of conversion, exchange, replacement, stock dividend, stock split
or other distribution or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
Any Registrable Stock shall cease to be Registrable Stock when (i) a
registration statement covering such Registrable Stock has been declared or
automatically becomes effective and such Registrable Stock has been disposed of
pursuant to such effective registration statement, (ii) such Registrable Stock is
sold by a Person in a transaction in which the rights of Abbott under this
Article IV are not assigned, or (iii) such Registrable Stock is sold pursuant
to Rule 144(k) (or any similar provision then in force, but not Rule 144A)
under the Securities Act of 1933, as amended (the “Securities Act”)
without registration under the Securities Act.


 


Section 4.2             Registration Rights;
Registration Procedures. (a)   
Boston Scientific shall (i) file with the Securities and Exchange
Commission (the “SEC”) on or prior to


 


9

















 


the Share Closing Date an
automatic shelf registration statement (as defined in Rule 405 of the
Securities Act) on Form S-3 under the Securities Act (the “Registration
Statement”) which in addition to other securities of Boston Scientific,
shall include shares of Common Stock for the issuance of the Shares issuable by
Boston Scientific to Abbott pursuant to this Agreement and (ii) prior to each
of the Share Closing Date and the Interest Reimbursement Issuance Date, shall
pay the required SEC filing fees relating the Shares issuable by Boston
Scientific to Abbott pursuant to this Agreement on such dates, respectively, within
the time required by Rule 456(b)(l) under the Securities Act in
accordance with Rules 456(b) and 457(r) under the Securities Act. 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, as promptly as practicable on or following 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 and (y) 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)(l) under the
Securities Act in accordance with Rules 456(b) and 457(r) under the Securities
Act. Boston Scientific shall use its reasonable best efforts to list the Shares
issuable by Boston Scientific to Abbott pursuant to this Agreement on the New
York Stock Exchange.


 


(b) Notwithstanding anything
to the contrary contained herein, Boston Scientific shall have the right to
defer or delay filing the Shelf Registration for a period of not more than 60
days, or suspend sales under the Shelf Registration filed hereunder or defer
the updating of such filed Shelf Registration during no more than two periods
aggregating not more than 60 days, in the event that Boston Scientific
furnishes to Abbott a certificate signed by an authorized officer of Boston
Scientific stating that, in the good faith opinion of the Board of Directors of
Boston Scientific, such filing, sale or update would interfere with any
material transaction then being pursued by Boston Scientific or would otherwise
require disclosure of any material event that Boston Scientific would not
otherwise be required to disclose; provided, however, that Boston
Scientific shall extend the Effectiveness Period by the number of days, if any,
during with the registration rights contemplated hereunder are subject to a
deferral or suspension as set forth in this Section 4.2(b); and provided
further that in the event of any such deferral or suspension set forth
in this Section 4.2(b), the Monthly Sale Volume Limitation for each month
during the period commencing on the end of such deferral or suspension and
ending on the date on which the Monthly Sale Volume Limitation is terminated
pursuant to Section 3.1 (such period, the “Post-Suspension Period”)
(treating any partial month period and the next full month following the end of
such deferral or suspension as one month) shall be increased proportionately so
that the aggregate number of Shares which Abbott may sell during the
Post-Suspension Period is equal to the number of Shares which Abbott otherwise
would have been able to sell pursuant to Section 3.1 during the Post-Suspension
Period and the period of such deferral or suspension had such deferral or
suspension not occurred.


 


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(c) Subject to Section
4.2(b), if Boston Scientific files a Shelf Registration pursuant to Section
4.2(a), Boston Scientific shall, as promptly as practicable:


 


(i)            supplement or amend the Shelf
Registration and the prospectus used in connection therewith (A) as required by
the registration form utilized by Boston Scientific or by the instructions
applicable to such registration form or by the Securities Act, (B) as required
for any given offering or to correct any untrue statement of a material fact or
to remedy any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made and (C) to include in such Shelf Registration
any additional securities that become Registrable Stock by operation of the
definition thereof;


 


(ii)           notify Abbott (A) when the Shelf
Registration or any amendment thereto has been filed or becomes effective, the
prospectus or any amendment or supplement to the prospectus has been filed, (B)
of any request by the SEC for amendments or supplements to the Shelf
Registration or the prospectus or for additional information, (C) of the
issuance by the SEC of any stop order or cease trade order suspending the
effectiveness of the Shelf Registration or any order preventing or suspending
the use of any preliminary prospectus or prospectus, including the receipt of
any notice of objection by the SEC to the use of the Shelf Registration or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act or the initiation or, to the extent known by Boston Scientific,
threatening, of any proceedings for such purposes, and (D) of the receipt by
Boston Scientific of any written notification with respect to the suspension of
the qualification of the Registrable Stock for offering or sale in any
jurisdiction or the initiation or threatening of any proceedings for such
purposes;


 


(iii)          use its reasonable best efforts to
obtain the withdrawal of any stop order, cease trade order or other order
suspending the use of any preliminary prospectus or prospectus or suspending
any qualification of the Registrable Stock covered by the Shelf Registration or
the resolution of any objection of the SEC pursuant to Rule 401(g)(2) and
provide prompt notice to Abbott of such withdrawal or resolution;


 


(iv)          furnish to Abbott such numbers of
copies of the Shelf Registration and the prospectus included therein, including
each preliminary prospectus and any amendments or supplements thereto in
conformity with the requirements of the Securities Act, any exhibits filed
therewith and such other documents and information as Abbott may reasonably
request;


 


(v)           use all reasonable best efforts to
register or qualify the Registrable Stock covered by the Shelf Registration
under such other securities or blue sky Laws of such jurisdiction within the
United States as shall be reasonably appropriate for the distribution of the
Registrable Stock covered by the Shelf Registration; provided, however,
that Boston Scientific shall not be required in connection therewith or as a
condition thereto to qualify to do business in or to


 


11

















 


file a general consent to
service of process in any jurisdiction wherein it would not but for the
requirements of this paragraph 4.2(c)(v) be obligated to do so; and provided
further, that Boston Scientific shall not be required to qualify such
Registrable Stock in any jurisdiction in which the securities regulatory
authority requires that Abbott or any of its Affiliates submit any Registrable
Stock to the terms, provisions and restrictions of any escrow, lockup or
similar agreement(s) for consent to sell Registrable Stock in such jurisdiction
unless Abbott or such Affiliate agrees to do so;


 


(vi)         promptly notify Abbott upon becoming
aware of the happening of any event as a result of which the prospectus
included in such Shelf Registration, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and, at the request of
Abbott, promptly prepare and furnish to Abbott (and file such supplement or
amendment with the SEC if required) a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made. In the event Boston Scientific shall give such notice, Boston Scientific
shall extend the Effectiveness Period by the number of days during the period
from and including the date of the giving of such notice to the date when
Boston Scientific shall make available to Abbott such supplemented or amended
prospectus; and


 


(vii)        enter into customary agreements and take
such other actions as are reasonably required in order to expedite or
facilitate the disposition of the Registrable Stock to be so included in the
Shelf Registration. Boston Scientific shall take any such other actions as are
necessary to otherwise comply with all applicable rules and regulations of the
SEC.


 


(d) It shall be a condition
precedent to the obligations of Boston Scientific to take any action pursuant
to this Section 4.2 that Abbott and its Affiliates shall furnish to Boston Scientific
such information regarding themselves, the Registrable Stock held by them, and
the intended method of disposition of such securities as Boston Scientific
shall reasonably request and as shall be required in connection with the action
to be taken by Boston Scientific hereunder.


 


(e) All expenses incurred in
connection with the Registration Statement and Shelf Registration, if any,
excluding underwriters’ discounts and commissions, but including all registration,
filing and qualification fees (including SEC and New York Stock Exchange fees
and expenses), word processing, duplicating, printers’ and accounting fees,
listing fees, messenger and delivery expenses, all fees and expenses of complying
with state securities or blue sky Laws and the fees and disbursements of
counsel for Boston Scientific, shall be paid by Boston Scientific. Abbott shall
bear and pay the underwriting commissions and discounts applicable to Registrable
Stock offered for its account and the fees and disbursements of its counsel in connection
with any registrations, filings and qualifications made pursuant to this
Agreement.


 


12

















 


(f) Boston Scientific shall
indemnify and hold harmless Abbott and its Affiliates, officers and directors
against any losses, claims, damages or liabilities, joint or several, to which they
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or proceedings in respect thereof)
arise out of or are based on any untrue or alleged untrue statement of any
material fact contained in the Registration Statement or the Shelf
Registration, as applicable, including any prospectus filed under Rule 424
under the Securities Act, any preliminary prospectus, any free writing
prospectus (as defined in Rule 405 under the Securities Act) or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
Securities Act or any amendments or supplements thereto or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse Abbott and its Affiliates, officers and
directors for any legal or other expenses reasonably incurred by them (but not
in excess of expenses incurred in respect of one counsel for all of them (in
addition to local counsel)) in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that
the indemnity agreement contained in this Section 4.2(f) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of Boston Scientific (which consent
shall not be unreasonably withheld); provided, further, that
Boston Scientific shall not be liable to Abbott or its Affiliates, officers or
directors in any such case for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in connection
with such Registration Statement, Shelf Registration, preliminary prospectus,
final prospectus or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished to Boston Scientific or its
representatives expressly for use in connection with such registration by
Abbott or any of its Affiliates or representatives.


 


(g) Abbott shall indemnify
and hold harmless Boston Scientific, its Affiliates, officers and directors and
each agent and any underwriter for Boston Scientific (within the meaning of the
Securities Act) against any losses, claims, damages or liabilities, joint or
several, to which Boston Scientific or any such Affiliate, officer, director,
agent or underwriter may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement
or Shelf Registration, as applicable, including any prospectus filed under Rule
424 under the Securities Act, any preliminary prospectus, any free writing
prospectus (as defined in Rule 405 under the Securities Act) or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
Securities Act or any amendments or supplements thereto or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in such Registration
Statement, Shelf Registration, preliminary or final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished to Boston Scientific or its representatives by or on
behalf of Abbott or any of its Affiliates expressly for use in connection with
such registration; and Abbott shall reimburse any legal or other expenses
reasonably incurred by Boston Scientific or any such Affiliate, officer,
director, agent or underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this


 


13

















 


Section 4.2(g) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of Abbott (which
consent shall not be unreasonably withheld).


 


(h) Promptly after receipt
by an indemnified party under Section 4.2(f) or (g), as applicable, of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against any indemnifying party under Section 4.2(f)
or (g), as applicable, notify the indemnifying party in writing of the
commencement thereof, and the indemnifying party shall have the right to
participate in and assume the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the indemnified party (unless
(i) such indemnified party reasonably objects to such assumption on the grounds
that there may be defenses available to it which are different from or in
addition to those available to such indemnifying party, (ii) the indemnifying
party and such indemnified party shall have mutually agreed to the retention of
such counsel or (iii) in the reasonable opinion of such indemnified party,
representation of such indemnified party by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such counsel
in such proceeding, in which case the indemnified party shall be reimbursed by
the indemnifying party for the reasonable expenses incurred in connection with
retaining separate legal counsel); provided, however, that an
indemnified party shall have the right to retain its own counsel, with all fees
and expenses thereof to be paid by such indemnified party, and to be apprised
of all progress in any proceeding the defense of which has been assumed by the
indemnifying party, it being understood that the indemnifying party will
control such defense. The failure to notify an indemnifying party promptly of
the commencement of any such action shall not relieve the indemnifying party
from any liability in respect of such action which it may have to such
indemnified party on account of the indemnity contained in Section 4.2(f) or
(g), as applicable, unless (and only to the extent) the indemnifying party was
prejudiced by such failure, and in no event shall such failure relieve the
indemnifying party from any other liability which it may have to such
indemnified party. No indemnifying party shall, without the prior written
consent of the indemnified party (which consent will not be unreasonably
withheld), effect any settlement, compromise or discharge of any claim or
pending or threatened proceeding in respect of which the indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement, compromise or discharge
includes an unconditional release of such indemnified party from all liability
arising out of such claim or proceeding.


 


(i) To the extent any
indemnification by an indemnifying party is prohibited or limited by Law, the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties’ relative intent, knowledge, access to
information and opportunity to


 


14

















 


correct or prevent such
action. The amount paid or payable by a party as a result of the losses,
claims, damages or liabilities referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding. In no event shall the liability of any
indemnifying party be greater in amount than the amount for which such
indemnifying party would have been obligated to pay by way of indemnification
if the indemnification provided for under Section 4.2(f) or (g) hereof had been
available under the circumstances. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section 4.2(i) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in this
Section 4.2(i). No person guilty of fraudulent misrepresentation (within the
meaning of Section 1l(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.


 


(j)
The indemnification provided in this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or Affiliate of such indemnified party and will
survive the Transfer of the securities.


 


(k)
The obligations in Sections 4.2(f) through (i) shall be in addition to any
liability that any party may otherwise have to any party.


 


Section 4.3            Rule 144 Sales. If the
issuance of the Shares has not been registered pursuant to an effective
Registration Statement on or prior to the Share Closing, then, following the
expiration of the Effectiveness Period of the Shelf Registration, Boston
Scientific shall (a) timely file with the SEC all reports and other filings
required under the Exchange Act for Abbott or its Affiliates to sell Shares
pursuant to Rule 144 or any similar rule or regulation hereafter adopted by the
SEC, and (b) take such further action and shall offer all reasonable and
necessary assistance including, without limitation, the delivery of a legal
opinion letter and instructions to Boston Scientific’s stock transfer agent to
enable the sale by Abbott or its Affiliates of Registrable Stock pursuant to
said Rule 144 or any similar rule or regulation.


 


ARTICLE
V


 


REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF BOSTON
SCIENTIFIC


 


Boston Scientific hereby
represents and warrants to Abbott as follows:


 


(a)           Boston Scientific is a corporation duly incorporated,
validly existing and in good standing under the Laws of the State of Delaware.


 


(b)           Boston Scientific has all requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery by Boston Scientific of this Agreement, the performance by Boston
Scientific of its obligations hereunder and the consummation by Boston
Scientific of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate proceedings on the part of Boston
Scientific and no other corporate action on the part of Boston Scientific is
necessary for the execution, delivery


 


15

















 


and performance by Boston
Scientific of this Agreement and the consummation by Boston Scientific of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Boston Scientific, and assuming the due authorization, execution
and delivery hereof by Abbott, constitutes a legal, valid and binding
obligation of Boston Scientific, enforceable against it in accordance with its
terms except to the extent that its enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting creditors’ rights generally and by general equity principles.


 


(c)
(i) At the time of filing the Registration Statement (or the Shelf Registration,
to the extent an automatic shelf registration statement (as defined in Rule 405
of the Securities Act)), (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act
(whether such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) or form of prospectus), and (iii) at the
time Boston Scientific or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) under the Securities Act) made any offer
relating to the Shares in reliance on the exemption of Rule 163 under the
Securities Act, Boston Scientific was, or is (as the case may be), a “well-known
seasoned issuer” as defined in Rule 405 under the Securities Act; and (B) at the
earliest time after the filing of the Registration Statement (or the Shelf
Registration, to the extent an automatic shelf registration statement (as
defined in Rule 405 of the Securities Act)) that Boston Scientific or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the Securities Act) of the Shares, Boston Scientific was not an
“ineligible issuer” as defined in Rule 405 under the Securities Act.


 


(d)
All Shares issued pursuant to Sections 2.1 and 2.3 shall, when issued, be validly
issued, fully paid and nonassessable, and shall be free and clear of any liens,
claims, charges and encumbrances other than those imposed as a result of any
action by Abbott or any of its Affiliates.


 


ARTICLE
VI


 


REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ABBOTT


 


Abbott hereby represents and
warrants to Boston Scientific as follows:


 


(a)
Abbott is a corporation duly incorporated, validly existing and in good standing
under the Laws of the State of Illinois.


 


(b) Abbott has all requisite
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery by Abbott of this Agreement, the performance
by Abbott of its obligations hereunder and the consummation by Abbott of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate proceedings on the part of Abbott and no other corporate
action on the part of Abbott is necessary for the execution, delivery and
performance by Abbott of this Agreement and the consummation by Abbott of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Abbott, and assuming the due authorization, execution and


 


16

















 


delivery hereof by Boston
Scientific, constitutes a legal, valid and binding obligation of Abbott,
enforceable against it in accordance with its terms except to the extent that
its enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting creditors’ rights generally
and by general equity principles.


 


ARTICLE
VII


 


MISCELLANEOUS


 


Section
7.1            Acknowledgement. The
parties hereby acknowledge that this Agreement is being entered into by the
parties pursuant to Article VI of the Transaction Agreement. The parties
further acknowledge and agree that the entry of the parties hereto into this
Agreement shall in no way affect the effectiveness of the Transaction Agreement
and the Transaction Agreement shall remain in full force and effect pursuant to
the terms thereof; provided, however, that to the extent that any
of the provisions of this Agreement conflict with any provisions of the
Transaction Agreement, the provisions herein shall control.


 


Section
7.2            No Inconsistent
Agreements. Boston Scientific will not hereafter enter into any agreement
with respect to its securities that would materially impede the rights granted
to Abbott in this Agreement.


 


Section
7.3            Recapitalization,
Exchanges, etc. In the event that any capital stock or other securities
issued in respect of, in exchange for, or in substitution of, any Shares by
reason of any reorganization, recapitalization, reclassification, merger,
consolidation, spin-off, partial or complete liquidation, stock dividend,
split-up, sale of assets, distribution to stockholders or combination of the
Shares or any other change in capital structure of Boston Scientific,
appropriate adjustments shall be made with respect to the relevant provisions
of this Agreement so as to fairly and equitably preserve, as far as
practicable, the original rights and obligations of the parties hereto under
this Agreement, and the term “Shares,” as used herein, shall be deemed to
include shares of such capital stock or other securities, as appropriate.


 


Section 7.4            Expenses. Except as otherwise
specified in this Agreement, all costs and expenses, including fees and
disbursements of counsel, incurred in connection with this Agreement and the
transactions contemplated hereby shall be borne by the party incurring such
costs and expenses, whether or not the Share Closing shall have occurred.


 


Section 7.5            Notices. All notices,
requests, claims, demands and other communications hereunder shall be in
writing and shall be given or made (and shall be deemed to have been duly given
or made upon receipt) by delivery in person, by an internationally recognized
overnight courier service, by facsimile, by e-mail or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties hereto at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section 7.5):


 


17

















 


(i)            if to Abbott:


 


Abbott
Laboratories


Dept. 0392,
Bldg. AP6D


100 Abbott
Park Road


Abbott Park,
Illinois 60064-3500


Fax: (847)
935-8207


Attention:
Chief Operating Officer, Medical Products


Group


 


with a copy
to:


 


Abbott
Laboratories


Dept. 364,
Bldg. AP6D


100 Abbott
Park Road


Abbott Park,
Illinois 60064-6020 USA


Fax: (847)
938-6277


Attention:
General Counsel


 


and


 


Abbott
Laboratories


Dept. 312,
Bldg. AP6D


100 Abbott
Park Road


Abbott Park,
Illinois 60064-6028 USA


Fax: (847)
938-6307


Attention:
Treasurer


 


and a copy to:


 


Simpson
Thacher & Bartlett LLP


425 Lexington
Avenue


New York, NY
10017-3903


Fax: (212)
455-2502


Attention:
Charles I. Cogut


 William E. Curbow


 


(ii)           if to Boston Scientific:


 


Boston
Scientific Corporation


One Boston
Scientific Place


Natick,
Massachusetts 01760


Fax: (508)
650-8960


Attention:
General Counsel


 


18

















 


with a copy to:


 


Shearman & Sterling LLP


599 Lexington Avenue


New York, NY 10022-6069


Fax: (212) 848-7179


Attention: Peter D. Lyons 


 Clare O’Brien


 


Section 7.6            Public Announcements. Each
party to this Agreement shall consult with the other party before issuing, and
shall provide the other party the opportunity to review and comment upon, any
press release or other public announcement in respect of this Agreement or the
transactions contemplated hereby and shall not issue any press release or other
public statements or otherwise communicate with any news media regarding this
Agreement and/or the transactions contemplated hereby without the consultation
and prior written consent of the other party unless otherwise required by Law
or applicable stock exchange regulation and then only with such advance notice
to and consultation with the other party as is practical. The parties to this
Agreement shall cooperate as to the timing and contents of any such press
release, public announcement or communication. Notwithstanding the foregoing,
neither party shall have any obligation to consult with the other party or
provide the other party with an opportunity to review and comment upon any
press release or other public announcement announcing a termination of this
Agreement, and such party may issue such press release or public announcement
or otherwise communicate with any news media regarding such termination without
the consent of the other party; provided, however, that the non-terminating
party shall have received advance written notice of the other party’s intention
to terminate this Agreement.


 


Section
7.7            Term; Termination. This
Agreement shall terminate in full on the earlier of (i) the fifth anniversary
of the date hereof; or (ii) that time when Abbott ceases to beneficially own any
Shares purchased pursuant to this Agreement (or other securities issued in
substitution or exchange therefor pursuant to Section 7.3). This Agreement will
also terminate at any time prior to the Share Closing:


 


(a) by mutual written
consent of Boston Scientific and Abbott;


 


(b)
by either Boston Scientific or Abbott, if the Share Closing shall not have occurred
by September 30, 2006; provided, however, that the right to
terminate this Agreement under this Section 7.7(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement shall
have been the cause of, or shall have resulted in the failure of the Share
Closing to occurring prior to such date;


 


(c)
by either Boston Scientific or Abbott in the event that any Governmental Order
restraining, enjoining or otherwise prohibiting the transactions contemplated
by this Agreement and/or the Purchase Agreement shall have become final and
non-appealable; or


 


(d)
immediately, without any action by either Boston Scientific or Abbott, upon any
termination of the Merger Agreement.


 


19

















 


Notwithstanding the
foregoing, any termination pursuant to this Section 7.6 will not relieve any
party for any liability arising from a breach of representation, warranty,
covenant or agreement in this Agreement occurring prior to such termination.


 


Section
7.8            Severability. If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any Law or public policy, all other terms and provisions of
this Agreement shall nevertheless remain in full force and effect for so long
as the economic or legal substance of the transactions contemplated by this
Agreement is not affected in any manner materially adverse to either party
hereto. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated by this Agreement are consummated as originally
contemplated to the greatest extent possible.


 


Section
7.9            Entire Agreement.
This Agreement, the Transaction Agreement and the Purchase Agreement constitute
the entire agreement of the parties hereto with respect to the subject matter
hereof and thereof and supersede all prior agreements and undertakings, both
written and oral, between Boston Scientific and Abbott with respect to the
subject matter hereof and thereof.


 


Section
7.10          Assignment. This
Agreement may not be assigned without the express written consent of Boston
Scientific and Abbott (which consent may be granted or withheld in the sole
discretion of Boston Scientific or Abbott), as the case may be; provided,
however, that Abbott may, without the consent of Boston Scientific,
assign its rights and obligations, in whole or in part, under this Agreement to
one or more of its controlled Affiliates, except that no such assignment shall
relieve Abbott from the performance of its obligations hereunder. Any purported
assignment in contravention of this provision shall be null and void.


 


Section
7.11          Amendment. This
Agreement may not be amended or modified except (a) by an instrument in writing
signed by, or on behalf of, Boston Scientific and Abbott or (b) by a waiver in
accordance with Section 7.12.


 


Section 7.12          Waiver. Each party to this
Agreement may (a) extend the time for the performance of any of the obligations
or other acts of the other party, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or (c) to
the extent permitted by applicable Law, waive compliance with any of the
agreements of the other party or conditions to such party’s obligations
contained herein. Any such extension or waiver shall be valid only if set forth
in an instrument in writing signed by the party to be bound thereby. Any waiver
of any term or condition shall not be construed as a waiver of any subsequent
breach or a subsequent waiver of the same term or condition, or a waiver of any
other term or condition of this Agreement. The failure of either party hereto
to assert any of its rights hereunder shall not constitute a waiver of any of
such rights.


 


Section 7.13           No Third Party Beneficiaries.
This Agreement shall be binding upon and inure solely to the benefit of the
parties hereto and their respective successors and permitted assigns and
nothing herein is intended to or shall confer upon any other Person any


 


20

















 


legal or equitable right,
benefit or remedy of any nature whatsoever, including any rights of employment
for any specified period, under or by reason of this Agreement.


 


Section
7.14          Other Remedies; Specific
Performance. Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by Law or equity upon such
party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy. The parties hereto agree that irreparable damage
would occur in the event that any provision of this Agreement is not performed
in accordance with its specific terms or is otherwise breached. It is
accordingly agreed that the parties shall be entitled to seek an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at Law or in equity.


 


Section 7.15          Interpretive Rules. The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this Agreement
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and all Article and Section references are to this Agreement unless
otherwise specified. The words “include,” “includes” and “including” will be
deemed to be followed by the phrase “without limitation.” The table of contents
and headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. No
provision of this Agreement shall be construed to require either party or their
respective officers, directors, subsidiaries or Affiliates to take any action
which would violate or conflict with any applicable Law. The word “if” means “if
and only if.” The word “or” shall not be exclusive. The meanings given to terms
defined herein will be equally applicable to both the singular and plural forms
of such terms. Whenever the context may require, any pronoun includes the
corresponding masculine, feminine and neuter forms. Except as otherwise expressly
provided herein, all references to “$” will be deemed references to the lawful
money of the United States of America.


 


Section 7.16          Governing Law. This Agreement
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 Agreement 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. Consistent with the preceding
sentence, the parties hereto hereby (a) submit to the exclusive jurisdiction of
any federal or state court sitting in the Borough of Manhattan of The City of
New York for the purpose of any Action arising out of or relating to this
Agreement brought by either party hereto and (b) irrevocably waive, and agree not
to assert by way of motion, defense, or otherwise, in any such Action, any
claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution,
that the Action is brought in an inconvenient forum, that the venue of the
Action is improper, or that this Agreement or the transactions contemplated by
this Agreement may not be enforced in or by any of the above-named courts. Each
party further irrevocably consents to the service of process out of any of the
aforementioned courts in any such Action by the mailing of copies thereof by
mail to such party at its address set forth in this


 


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Agreement, such service of
process to be effective upon acknowledgment of receipt by registered mail;
provided, however, that nothing in this Section 7.16 shall affect the right of
any party to serve legal process in any other manner permitted by law. The
consent to jurisdiction set forth in this Section 7.16 shall not constitute a
general consent to service of process in the State of New York and shall have
no effect for any purpose except as provided in this Section 7.16.


 


Section
7.17          Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE
PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
7.17.


 


Section 7.18          Counterparts. This Agreement
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.


 


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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of
each of the parties as of the day first above written.


 


	
   

  	
  BOSTON SCIENTIFIC
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence C. Best

  	
   

  
	
   

  	
  Name:

  	
  Lawrence C. Best

  
	
   

  	
  Title:

  	
  Executive
  Vice President and

  Chief Finanacial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ABBOTT
  LABORATORIES

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas
  C. Freyman

  	
   

  
	
   

  	
  Name:

  	
  Thomas
  C. Freyman

  
	
   

  	
  Title:

  	
  Executive Vice President, Finance and

  Chief Financial Officer