EXHIBIT 10.2
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FORM OF
AMENDMENT NO. 1 TO
COCHLEAR IMPLANT BUSINESS
PURCHASE AND SALE AGREEMENT
This AMENDMENT NO. 1 to the COCHLEAR IMPLANT BUSINESS PURCHASE AND SALE
AGREEMENT (this "Amendment"), dated as of January 3, 2008, is entered into by
and among BOSTON SCIENTIFIC CORPORATION, a Delaware corporation ("Parent"),
BOSTON SCIENTIFIC SCIMED, INC. (formerly known as Scimed Life Systems, Inc.), a
Minnesota corporation and a wholly owned subsidiary of Parent ("Scimed"), BOSTON
SCIENTIFIC NEUROMODULATION CORPORATION (formerly known as Advanced Bionics
Corporation), a Delaware corporation and a wholly owned subsidiary of Scimed
(the "Seller"), ADVANCED BIONICS HOLDING CORPORATION, a California corporation
(the "Purchaser"), and ADVANCED BIONICS, LLC (formerly known as Auditory
Systems, LLC), a Delaware limited liability company (the "Company"). All
capitalized terms used herein but not defined herein have the meaning ascribed
to such terms in the Agreement (as hereinafter defined), and, except as
otherwise provided below, references herein to a specific Section or Schedule
will refer, respectively, to the corresponding Section or Schedule of the
Agreement.
WHEREAS, Parent, Scimed, the Seller, the Purchaser and the Company have
entered into the COCHLEAR IMPLANT BUSINESS PURCHASE AND SALE AGREEMENT (the
"Agreement"), dated as of August 9, 2007; and
WHEREAS, the parties hereto desire to amend the Agreement on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants in the Agreement and hereinafter set forth, and intending to be
legally bound, the parties hereto hereby agree as follows:
1. Change of Certain Names. From and after the effective date of this
Amendment, all references to the Company in the Agreement will be deemed to
refer to "Advanced Bionics, LLC" rather than "Auditory Systems, LLC." From and
after the effective date of this Amendment, all references to the Seller in the
Agreement will be deemed to refer to "Boston Scientific Neuromodulation
Corporation" rather than "Advanced Bionics Corporation."
2. Acknowledgement. The parties hereto hereby acknowledge and agree that
the forms of the Ancillary Agreements attached to the Agreement will be revised
to reflect the change of the name of the (a) Seller to "Boston Scientific
Neuromodulation Corporation" and (b) Company to "Advanced Bionics, LLC."
3. Amendment of Section 2.02(a)(iii). Section 2.02(a)(iii) is hereby
deleted in its entirety and replaced with the following:
"all the Receivables, including (for the avoidance of doubt) a Receivable
in the amount of approximately $25,414,884.27 held by the Seller from Advanced
Bionics Sarl (France)."
4. Amendment of Section 3.02(e). Section 3.02(e) is hereby deleted in its
entirety and replaced with the following:
"On the Closing Date, the Seller will pay to the Company $6,700,000 by wire
transfer of immediately available funds to a bank account designated by the
Company."
5. Amendment of Section 3.05(a)(i). Section 3.05(a)(i) is hereby deleted in
its entirety and replaced with the following:
"(i) a certificate evidencing 880 Class A Units issued by the Company in
the name of the Purchaser and an instrument duly executed by the Seller,
which assigns, transfers and delivers such Class A Units to the Purchaser,
in form and substance satisfactory to the Purchaser;"
6. Amendment of Section 3.05(a)(ix). The words ", and comparable
certificates, if available in the relevant jurisdiction, of good standing from
the jurisdictions applicable to the Parent Designated Affiliates" contained in
Section 3.05(a)(ix) are hereby deleted in their entirety.
7. Amendment of Section 3.05(a)(x). Section 3.05(a)(x) is hereby deleted in
its entirety and replaced with the following:
"valid instruments of conveyance duly executed by the Seller which evidence
the assignment, transfer and delivery to the Company of the securities of
the Transferred Subsidiaries, in form and substance satisfactory to the
Purchaser;"
8. Amendment of Section 7.07(a). The words "The Seller will change its name
within 10 Business Days after the Closing Date, and within three months after
the date on which such name change occurs, the Seller will cease to use the name
"Advanced Bionics," "Bionics" and "Bionic" in any public communications"
contained in the first sentence of Section 7.07(a) are hereby deleted in their
entirety and replaced with the following:
"The Seller will cease to use the names `Advanced Bionics,' `Bionics' and
`Bionic' in any public communications by February 16, 2008;"
9. Amendment of Section 8.02(a). The second sentence of Section 8.02(a) is
hereby deleted in its entirety and replaced with the following:
"On January 18, 2008, the Seller will pay to the recipients under the Cash
Bonus Plan (the "Cash Bonus Plan Recipients") an aggregate amount equal to
$2,189,660.00 (which represents $5.38 per Cash Bonus Plan Unit)."
10. Amendment of Section 8.02. The following new Section 8.02(c) is hereby
added after Section 8.02(b):
"The Seller will pay to the Company an amount of cash equal to 50% of the
French social Taxes paid by Advanced Bionics Sarl (France) to the
appropriate Governmental Authority in respect of the portion of the First
Earn Out Payment (as defined in the Amendment Agreement) and the Earn Out
Obligation (as
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defined in the Amendment Agreement) that is paid to former French option
holders of the Seller who are or were employees of Advanced Bionics Sarl
(France), to the extent that Advanced Bionics Sarl (France) determines that
it is obligated by applicable Law to pay such Taxes; provided that the
Seller will not be required to pay to either the Company or such
Governmental Authority any portion of any penalties, interest or legal fees
incurred or levied in respect of such Taxes. The Seller will make such
payment within five Business Days of its receipt from the Company of
evidence reasonably satisfactory to the Seller that such payment has been
made to such Governmental Authority."
11. Amendment of Schedule 1.01(a). The following names are hereby added to
Schedule 1.01(a):
----------------- ----------------------------- ---------------- ---------------
Country Xxxx Name Application # Registration #
----------------- ----------------------------- ---------------- ---------------
Argentina HARMONY 2,769,019 Not available
----------------- ----------------------------- ---------------- ---------------
United States HealingJourney 77/149,636 Not available
----------------- ----------------------------- ---------------- ---------------
United States Imagine the Possibilities 78/135,900 2,713,593
----------------- ----------------------------- ---------------- ---------------
12. Amendment of Schedule 1.01(c). The lease in respect of the address
"28460 Xxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000" is hereby deleted from
Schedule 1.01(c) in its entirety.
13. Amendment of Schedule 1.01(e)(i). Schedule 1.01(e)(i) is hereby deleted
in its entirety and replaced by Schedule 1.01(e)(i) attached hereto.
14. Amendment of Schedule 1.01(e)(ii). Schedule 1.01(e)(ii) is hereby
deleted in its entirety and replaced by Schedule 1.01(e)(ii) attached hereto.
15. Amendment of Schedule 1.01(f).
(a) The following are hereby added as items 4, 5, 6 and 7 to the section
entitled "Export" of Schedule 1.01(f):
"4. License No. CT-10425 issued by the United States Department of
Treasury, Cuban Assets Control Regulation, on August 31, 2007
5. Commodity Classification issued by the United States Department
of Commerce, BIS for the Harmony Cochlear Implant System on
August 31, 2007
6. Commodity Classification issued by the United States Department
of Commerce, BIS for the Cochlear Implant System on February 26,
2005
7. License No. IA-9831 for Iran filed with the United States Office
of Foreign Assets Control, on December 7, 2007 (as supplemented)"
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(b) The Section of Schedule 1.01(f) entitled "Reimbursement" and the phrase
"Medicare and Medicaid Provider Numbers" thereunder are hereby deleted in their
entirety.
16. Amendment of Schedule 1.01(g). Schedule 1.01(g) is hereby deleted and
replaced in its entirety by Schedule 1.01(g) attached hereto.
17. Amendment of Schedule 1.01(h).
(a) The contracts referred to in Attachment 1.01(h)-A attached hereto are
hereby added to the section of Schedule 1.01(h) entitled "Auditory Agreements."
(b) The contracts referred to in Attachment 1.01(h)-B attached hereto are
hereby added to the section of Schedule 1.01(h) entitled "Auditory Consulting
Agreements."
(c) The following contracts referred to in the section of Schedule 1.01(h)
entitled "Auditory Agreements" are hereby deleted in their entirety:
Name Effective Date Type of Agreement
---------------------------------- --------------------- -----------------------
Parter Sterilization Services 1/8/2007 Supplier Agreement
---------------------------------- --------------------- -----------------------
Quallion, LLC. 6/1/2004 Supplier Agreement
---------------------------------- --------------------- -----------------------
Air Liquide Industrial LP. 6/15/2007 Supplier Agreement
---------------------------------- --------------------- -----------------------
18. Amendment of Schedule 2.02(a)(xi). The time period
"10/1/2006-10/1/2007" listed under the column "Policy Period" in Schedule
2.02(a)(xi) is hereby deleted in its entirety and replaced by
"10/1/2006-1/31/2008."
19. Amendment of Schedule 2.02(a)(xviii). Section 3 of Schedule
2.02(a)(xviii) and the corresponding attachment to Schedule 2.02(a)(xviii) is
hereby deleted in its entirety.
20. Amendment of Schedule 2.04. Schedule 2.04 is hereby deleted in its
entirety and replaced by Schedule 2.04 attached hereto.
21. Other Provisions of the Agreement. Except as set forth in this
Amendment, all terms and conditions of the Agreement shall remain in full force
and effect.
22. Governing Law. This Amendment and all disputes or controversies arising
out of or relating to this Amendment or the transactions contemplated hereby
will be governed by, and construed in accordance with, the laws of the State of
New York. Except as provided in Sections 2.06(b), 3.02(c) and 3.03(b) of the
Agreement, all actions and proceedings arising out of or relating to this
Amendment will be heard and determined exclusively in any New York federal court
sitting in the Borough of Manhattan of The City of New York. In the event that
jurisdiction is not available in any federal court sitting in the Borough of
Manhattan of The City of New York, the parties agree that all such actions and
proceedings will be heard in the state courts of Delaware located in the City of
Wilmington. The parties hereby (a) submit to
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the exclusive jurisdiction of any federal 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 Amendment brought by any party (subject to the preceding
sentence), 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
Amendment or the transactions contemplated by this Amendment may not be enforced
in or by any of the above-named courts.
23. Counterparts. This Amendment may be executed and delivered (including
by facsimile transmission) in one or more counterparts, and by the different
parties in separate counterparts, each of which when executed will be deemed to
be an original but all of which taken together will constitute one and the same
agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties hereto has executed or caused this
Amendment to be duly executed as of the date first written above by their
respective officers thereunto duly authorized.
BOSTON SCIENTIFIC CORPORATION
By: __________________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President, Deputy General
Counsel and Assistant Secretary
BOSTON SCIENTIFIC SCIMED, INC.
By: __________________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Secretary
BOSTON SCIENTIFIC NEUROMODULATION CORPORATION
By: __________________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Vice President-Legal and Secretary
ADVANCED BIONICS HOLDING CORPORATION
By: __________________________________________
Name:
Title:
ADVANCED BIONICS, LLC
By: BOSTON SCIENTIFIC NEUROMODULATION CORPORATION, as
sole member
By: __________________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Vice President-Legal and Secretary
