Exhibit 10.5


 


Execution Copy


 


AMENDMENT TO SUBSCRIPTION AND STOCKHOLDER AGREEMENT


 


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


 


WHEREAS,
Boston Scientific and Abbott are parties to that certain Subscription and
Stockholder Agreement dated as of the date hereof, pursuant to which Abbott is
purchasing from Boston Scientific, and Boston Scientific is issuing and selling
to Abbott, shares of common stock, par value $0.01 per share of Boston
Scientific (the “Agreement”); and


 


WHEREAS,
Boston Scientific and Abbott desire to amend the Agreement as provided in this
Amendment in accordance with Section 7.11 of the Agreement.


 


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


 


SECTION 1. Registration
Rights; Registration Procedures. The second sentence of Section 4.2(a) of
the Agreement is hereby amended and restated to read as follows:


 


“To the extent such issuance of the Shares
has not been registered pursuant to an effective Registration Statement on or
prior to the Share Closing Date, Boston Scientific shall, on or prior to the
Share Closing Date, file with the SEC a “shelf” registration statement on Form
S-3 pursuant to Rule 415 under the Securities Act (including the Registration
Statement, to the extent it is used as a resale shelf registration statement
for the Shares, the “Shelf Registration”) with respect to the Shares
issuable by Boston Scientific to Abbott pursuant to this Agreement, and
thereafter shall (x) use its reasonable best efforts to (A) have the Shelf
Registration declared effective (or take such steps to make it automatically
effective) as soon as reasonably practicable thereafter, and (B) keep the Shelf
Registration continuously effective from the date such Shelf Registration is
declared effective until at least the second anniversary of such effective date
(the “Effectiveness Period”) in order to permit the prospectus forming a
part thereof to be usable by Abbott and its Affiliates during such period, (y)
in addition to undertaking any other obligations pursuant to this Section 4.2,
(A) file on the Share Closing Date (but after the Share Closing) with the SEC
(and deliver an electronic copy of the same to Abbott) a prospectus supplement
to the automatic shelf registration statement filed by Boston Scientific on
March 22, 2006 (the “Automatic Shelf”) meeting the applicable
requirements of the Securities Act which shall provide for the resale of the
Shares issued to Abbott pursuant to Section 2.1 pursuant to the Automatic Shelf
and (B) with respect to the Shares to be issued to Abbott pursuant to Section
2.3, to the extent Boston Scientific fails to deliver Shares registered under
the Securities Act, file


 

















 


on the Interest
Reimbursement Issuance Date with the SEC (and deliver an electronic copy of the
same to Abbott) a prospectus supplement to the Automatic Shelf meeting the
applicable requirements of the Securities Act which shall provide for the
resale of such Shares pursuant to the Automatic Shelf and (z) pay the required
SEC filing fees relating to the Shares issuable by Boston Scientific to Abbott
pursuant to this Agreement within the time required by Rule 456(b)(l) under the
Securities Act in accordance with Rules 456(b) and 457(r) under the
Securities Act (except that (A) with respect to such filing fees relating to
the Shares issued to Abbott pursuant to Section 2.1, such fees shall be paid on
the Share Closing Date and (B) with respect to such filing fees relating to the
Shares issued to Abbott pursuant to Section 2.3, such fees, if applicable,
shall be paid on the Interest Reimbursement Issuance Date).”


 


SECTION 2. Ratification of Agreement.
Except as expressly provided in this Amendment, all of the terms, covenants,
and other provisions of the Agreement are hereby ratified and confirmed and
shall continue to be in full force and effect in accordance with their
respective terms. From and after the date hereof, all references to the
Agreement shall refer to the Agreement as amended by this Amendment.
Capitalized terms used but not defined in this Amendment shall have the
meanings assigned to them in the Agreement.


 


SECTION 3. Governing Law. This Amendment
shall be governed by, and construed in accordance with, the laws of the State
of New York. All Actions arising out of or relating to this Amendment shall be
heard and determined exclusively in any New York federal court sitting in the
Borough of Manhattan of The City of New York; provided, however, that if such
federal court does not have jurisdiction over such Action, such Action shall be
heard and determined exclusively in any New York state court sitting in the
Borough of Manhattan of The City of New York.


 


SECTION 4. Counterparts. This
Amendment may be executed and delivered (including by facsimile transmission)
in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original,
but all of which taken together shall constitute one and the same agreement.


 


[signature page follows]


 

















 


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


 


 


	
   

  	
  BOSTON SCIENTIFIC
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lawrence C. Best

  	
   

  
	
   

  	
  Name:

  	
  Lawrence C. Best

  
	
   

  	
  Title:

  	
  Executive Vice President
  and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ABBOTT LABORATORIES

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 

















 


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


 


 


	
   

  	
  BOSTON SCIENTIFIC
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ABBOTT LABORATORIES

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas C. Freyman

  	
   

  
	
   

  	
  Name:

  	
  Thomas C. Freyman

  
	
   

  	
  Title:

  	
  Executive Vice President,
  Finance and

  Chief Financial Officer