Exhibit 10.2


 


AMENDMENT
TO
PURCHASE AGREEMENT


 


THIS AMENDMENT TO PURCHASE
AGREEMENT (this “Amendment”), dated as of April 21, 2006, between
GUIDANT CORPORATION, an Indiana corporation (“Guidant”), and ABBOTT
LABORATORIES, an Illinois corporation (“Abbott”).


 


WHEREAS, Guidant and Abbott
are parties to that certain Purchase Agreement dated as of the date hereof,
pursuant to which Abbott is acquiring certain assets and businesses and
assuming certain liabilities of Guidant (the “Agreement”); and


 


WHEREAS, Guidant and Abbott
desire to amend the Agreement as provided in this Amendment in accordance with
Section 11.07 of the Agreement.


 


NOW, THEREFORE, in
consideration of the foregoing and the promises and mutual agreements contained
in this Amendment, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and intending to be legally
bound, the parties hereto agree as follows:


 


SECTION 1. Certain
Definitions. Notwithstanding anything to the contrary in the Agreement, the
parties agree and acknowledge that (a) in Section 1.01 of the Agreement the
definitions of “License and Technology Transfer Agreement” and “Supply
Agreements” are hereby deleted, and (b) all other references to “Supply
Agreements” in the Agreement mean the provisions of Section 5.07 of the
Transaction Agreement and all other references to “License and Technology
Agreement” in the Agreement mean the provisions of Section 5.08 of the
Transaction Agreement.


 


SECTION 2. Intercompany
Receivables and Payables. For the avoidance of doubt, the parties hereby
agree and acknowledge that (a) notwithstanding Section 2.02(a)(ix), Section
2.02(a)(xii) and 2.02(c)(ii), the Purchased Assets shall include intercompany
receivables only to the extent such intercompany receivables are between
Transferred Subsidiaries, and (b) notwithstanding Section 2.03(b)(vi), the
Excluded Liabilities shall not include intercompany payables only to the extent
such intercompany payables are between Transferred Subsidiaries.


 


SECTION 3. Cash and Indebtedness.
Notwithstanding anything to the contrary in the Agreement, the parties agree
and acknowledge that (a) Assumed Liabilities shall include the indebtedness of
Guidant International Trading (Shanghai) Co. Ltd. as of the Deferred Local Closing
equal to (i) money borrowed under a Citibank credit line in the amount of
1,200,000.00 CNY, plus (ii) accrued interest as of the date of the Deferred
Local Closing (the “Outstanding China Borrowings”), and (b) the Assets
shall include an amount of cash of Guidant International Trading (Shanghai) Co.
Ltd. as of the Deferred Local Closing equal to the Outstanding China
Borrowings.


 


SECTION 4. Receipts and
Local Payments. Notwithstanding anything in the Agreement to the contrary,
the parties hereby agree that the receipt to be delivered by Guidant pursuant
to Section 2.07(d) shall exclude: (a) that portion of the Initial Purchase
Price attributable to Austria, India, Norway and Thailand (the “Local Cash
Consideration”) which shall be paid locally to the respective Asset Sellers
located in such countries by wire transfer in immediately available funds to
such Asset Sellers on or prior to two Business Days after the Closing, and each
such Asset Seller shall deliver a receipt for the Local Cash Consideration to
the relevant Asset Purchaser when such Asset Seller receives the Local Cash
Consideration in its bank account; (b) the portion of the Initial Purchase
Price allocated to a Deferred Local Closing (the “Deferred Cash
Consideration”) which shall be paid


 

















 


at the time of such Deferred
Local Closing, and Guidant or the applicable Asset Seller(s) shall deliver a
receipt for the Deferred Cash Consideration to the relevant Asset Purchaser
when the Deferred Cash Consideration is received; and (c) the portion of the
Initial Purchase Price set forth in Schedule 2.02(e), and Guidant shall deliver
a separate receipt for such portion to the applicable IP Purchaser.


 


SECTION 5. Exchange Rate.
Each of the parties agrees and acknowledges that: (a) for the Local Cash Consideration
allocated to India and Thailand, the exchange rate shall be determined as set
forth in Section 11.15; and (b) for the Local Cash Consideration allocated to
Austria and Norway, the exchange rate shall be approximately the exchange rates
between the Dollar and the Euro or the Norwegian Krone, as the case may be,
reported on the Bloomberg screen at 7:00 am EDT on the date of the Closing.


 


SECTION 6. Intellectual
Property Transfer Agreement. Notwithstanding anything to the contrary in
Section 2.02(e), Guidant Luxembourg S.a.r.l. shall be an IP Seller and the
Intellectual Property Transfer Agreement shall be executed at the Closing.


 


SECTION 7. Closing.
For the avoidance of doubt, the parties agree and acknowledge that the Closing
shall be effective as of the opening of business in each country on April 21,
2006.


 


SECTION 8. Ratification
of Agreement. Except as expressly provided in this Amendment, all of the
terms, covenants, and other provisions of the Agreement are hereby ratified and
confirmed and shall continue to be in full force and effect in accordance with
their respective terms. From and after the date hereof, all references to the
Agreement shall refer to the Agreement as amended by this Amendment.
Capitalized terms used but not defined in this Amendment shall have the
meanings assigned to them in the Agreement.


 


SECTION 9. Governing Law. This
Amendment shall be governed by, and construed in accordance with, the laws of
the State of New York. All Actions arising out of or relating to this Amendment
shall be heard and determined exclusively in any New York federal court sitting
in the Borough of Manhattan of The City of New York; provided, however, that if
such federal court does not have jurisdiction over such Action, such Action
shall be heard and determined exclusively in any New York state court sitting
in the Borough of Manhattan of The City of New York.


 


SECTION
10. Counterparts. This Amendment may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.


 


[signature page follows]


 


2

















 


IN WITNESS WHEREOF, Guidant and Abbott have
caused this Amendment to be executed as of the date first written above by
their respective officers thereunto duly authorized.


 


 


	
   

  	
  GUIDANT CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Bernard E. Kury

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Bernard E. Kury

  
	
   

  	
   

  	
  Title:

  	
  Vice President and General

  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABBOTT LABORATORIES

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Thomas C. Freyman 

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Thomas C. Freyman 

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President, 

  Finance and 

  Chief Financial Officer