FORM OF AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER among BOSTON SCIENTIFIC CORPORATION, BOSTON SCIENTIFIC SCIMED, INC., ADVANCED BIONICS CORPORATION, THE BIONICS TRUST and JEFFREY D. GOLDBERG AND CARLA WOODS (COLLECTIVELY IN THEIR CAPACITY AS THE...
EXHIBIT 10.2
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FORM
OF
AMENDMENT
NO. 1
TO
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among
BOSTON
SCIENTIFIC CORPORATION,
BOSTON
SCIENTIFIC SCIMED, INC.,
ADVANCED
BIONICS CORPORATION,
THE
BIONICS TRUST
and
XXXXXXX
X. XXXXXXXX AND XXXXX XXXXX (COLLECTIVELY IN THEIR CAPACITY AS THE STOCKHOLDERS’
REPRESENTATIVE)
Dated
as
of August 9, 2007
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ARTICLE
I. AMENDMENT
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1
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SECTION 1.01
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Amendment
to Article I
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1
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SECTION 1.02
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Amendment
to Section 2.11(e)
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3
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SECTION 1.03
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Amendment
to Section 2.11(f)
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3
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SECTION 1.04
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Amendment
to Section 5.03
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3
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SECTION 1.05
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Amendment
to Section 5.04
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4
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SECTION 1.06
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Amendment
to Section 8.04
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7
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ARTICLE
II. IMPLEMENTATION
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SECTION 2.01
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Termination
of Amendment Agreement
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ARTICLE
III. GENERAL PROVISIONS
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SECTION 3.01
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No
Further Amendment
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SECTION 3.02
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Counterparts
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i
This
AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER (this “Amendment
1”), dated as of August 9, 2007 and effective as of the Amendment 1
Effective Time, 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”), ADVANCED
BIONICS CORPORATION, a Delaware corporation and a wholly owned subsidiary of
Scimed (“Advanced Bionics”), the BIONICS TRUST (the
“Trust”) and XXXXX XXXXX and XXXXXXX X. XXXXXXXX
(such persons
acting together by majority vote, and any predecessor or successor persons
acting together by majority vote, solely in their capacity as Stockholders’
Representative under the Merger Agreement being the “Stockholders’
Representative”).
WHEREAS,
Parent, Scimed, Xxxxxx Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Scimed, Advanced Bionics, the Trust and the Stockholders’
Representative entered into that certain Agreement and Plan of Merger dated
as
of May 28, 2004 (the “Merger
Agreement”). Capitalized terms used herein but not defined
herein have the meaning ascribed to such terms in the Merger
Agreement. References herein to a specific Article, Section, Schedule
or Exhibit will refer, respectively, to Articles, Sections, Schedules or
Exhibits of the Merger Agreement unless otherwise specified.
WHEREAS,
this Amendment 1 is being executed and delivered pursuant to Section 2.01(a) of
that certain Amendment Agreement dated as of the date hereof (the
“Amendment Agreement”) among Parent, Scimed, Advanced Bionics,
the Trust and the Stockholders’ Representative to amend the Merger
Agreement.
WHEREAS,
if the Amendment Agreement terminates, and therefore the Closing (as
defined in the Amendment Agreement) does not occur, this Amendment 1 will
terminate and be of no further force or effect as of the date the Amendment
Agreement terminates, any amendment to the Merger Agreement effected by this
Amendment 1 will be null and void other than in respect of the period during
which Amendment 1 was effective, if any, and the Merger Agreement will not
be
deemed amended by this Amendment 1 in any respect whatsoever.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, and intending to be legally bound, the
parties hereto hereby agree as follows:
ARTICLE
I.
AMENDMENT
SECTION 1.01 Amendment
to Article I. Article
I will be amended to add the following definitions, which will be placed in
Article I in alphabetical order:
“Amendment
1” means Amendment No. 1 to this Agreement dated as of August 9, 2007
among the parties hereto (other than the Purchaser).
“Amendment
1 Effective Time” means 9:00 a.m. California time on the first Business
Day following the day that the Requisite Earn Out Recipient Approval (as defined
in the Amendment Agreement) has been obtained as described in Section 2.01(a)
of
the Amendment Agreement.
“Amendment
2 Effective Time” means the Closing (as defined in the Amendment
Agreement) and the receipt by the Trust of the First Earn Out
Payment, Earn Out Obligation and Reaffirmation (as each such term is
defined in the Amendment Agreement).
“Amendment
Agreement” means that certain Amendment Agreement dated as of August 9,
2007 among the parties hereto (other than the Purchaser).
“Auditory
Budget” means the Budget set forth on Exhibit 1
hereto.
“Auditory
Purchase Agreement” means the Cochlear Implant Purchase and Sale
Agreement dated as of August 9, 2007 among Parent, Scimed, the Company and
Advanced Bionics Holding Corporation.
“Cause”
means any of the following: (i) conviction of a felony involving moral
turpitude; (ii) commission of fraud or theft against, or embezzlement from,
Parent or any of its Affiliates; (iii) material misconduct involving xxxxxxx
xxxxxxx, sexual harassment, breach of confidentiality or material injury to
the
reputation of the Company; or (iv) the failure to perform and discharge an
employee’s duties and responsibilities as an employee of Parent or its
Affiliates after such employee has been provided with written notice of the
intent to terminate such employee’s employment for the failure described in the
notice and a period of two weeks to cure such failure to perform, if such
failure to perform is curable.
“Drug
Pump Purchase Agreement” means the Drug Pump Purchase and Sale
Agreement dated as of August 9, 2007 among Parent, Scimed, the Company and
Infusion Systems Holding Corporation, a California
corporation.
“EOR
Designee” initially means Xxxxxxx X. Xxxxxxx, and, if Xxxxxxx X.
Xxxxxxx is no longer serving as the President & Co-CEO of the Surviving
Corporation for one of the reasons described in Section 5.04(e)(iv) or
(v), then a successor individual designated by the Stockholders’
Representative in accordance with Section 5.04(e)(iv).
“Parent
Designee” initially means Xxxxxxx Xxxxxxxxx, and, if Xxxxxxx Xxxxxxxxx
is no longer serving as the President of the Retained Businesses for one of
the
reasons described in Section 5.04(e)(iv) or (v), then a successor
individual designated by Parent in accordance with Section
5.04(e)(iv).
“Purchase
Agreements” means the Auditory Purchase Agreement and the Drug Pump
Purchase Agreement.
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“Transferred
Businesses” means the “Transferred Business” as defined in the Auditory
Purchase Agreement plus the “Transferred Business” as defined in the Drug Pump
Purchase Agreement.
“Retained
Businesses” means the businesses of the Company, other than the
Transferred Businesses.
SECTION 1.02 Amendment
to Section 2.11(e). Section
2.11(e) will be amended to add the following sentence:
“Notwithstanding
the foregoing and Section 2.11(f), if at any time after the Amendment 1
Effective Time, Amendment 1 to this Agreement becomes of no further force and
effect following the termination of the Amendment Agreement, Scimed will reduce
the next Earn Out Payment to be paid to the Trust by the sum of (i) the amount
by which the expenses of the Transferred Business during the period between
the
Amendment 1 Effective Time and the termination of the Amendment Agreement in
respect of the line items relating to selling, marketing, distribution,
development, clinical and regulatory matters have exceeded the Auditory Budget
for such items (calculated on a pro rata basis for such period) , and (ii)
the
amount of the Separation Costs (as defined in the Separation Agreement (as
defined in the Auditory Purchase Agreement)) paid to third parties between
the
Amendment 1 Effective Time and the termination of the Amendment Agreement in
respect of services to the Transferred Business and allocated to Auditory
Products LLC pursuant to the Separation Agreement. Any disagreement
with respect to the amount of such reduction shall be resolved in accordance
with the procedures set forth in Sections 3.02 and 12.11 of the Auditory
Purchase Agreement.
SECTION 1.03 Amendment
to Section 2.11(f). Section
2.11(f) will be amended to add the following sentence:
“Notwithstanding
the foregoing, the Earn Out Payment in respect of the Additional Earn Out
Payment described in clause (i)(B) of the definition of Additional Earn Out
Payment will not be paid if and when due.”
SECTION 1.04 Amendment
to Section 5.03. Section
5.03 will be amended as follows:
(a) Section
5.03. Section 5.03 will be amended to read in its entirety
as follows:
Section
5.03. Public
Announcements.
(a) So
long as this Agreement is in effect, the Trust and the Stockholders’
Representative on the one hand, and Parent on the other hand, will (and each
will cause their respective Affiliates to (other than the Excluded Xxxx
Affiliates, as defined in the Purchase Agreements, with respect to the
Stockholders' Representative or the Trust) consult with the other before issuing
any press releases or otherwise making public announcements with respect to
this
Agreement or the Amendment Agreement or any of the other, and, except for any
press release or public statement required by Law or any listing agreement
with
any U.S. or international securities exchange, including the New York Stock
Exchange, the American Stock Exchange or NASDAQ will not issue any press release
or make any public statement with respect to any of the foregoing matters
without the consent of the other, which consent will not be unreasonably
withheld, delayed or conditioned.
(b) If
a release, announcement or statement described in Section 5.03(a) is
required by Law or the rules or regulations of any applicable United States
or
international securities exchange or Governmental Authority to which the
relevant party is subject, the party required to make the release, announcement
or statement will notify Parent or the Stockholders’ Representative, as
applicable, by telephone, email or fax within two hours of any officers in
the
legal department, corporate communications department or similar department
of
such party that routinely performs such functions concluding that it is
reasonably likely that such party will issue a release, announcement or
statement and will use its reasonable best efforts to allow such other party
a
reasonable time to comment on such release, announcement or statement in advance
of such issuance and will accept the reasonable comments of such other Party
to
such release. Notwithstanding anything contained in this
Section 5.03(b), language in a release, announcement or statement
regarding this Amendment or the transactions contemplated by the Amendment
Agreement that is substantially similar to language that has been previously
reviewed in accordance with procedures set forth in this Section 5.03(b)
will not require notification to the Stockholders’ Representative
or Parent, as applicable, pursuant to this
Section 5.03(b). The notices provided for in this
Section 5.03(b) will describe the time frame of the release, announcement
or statement. Any reference to a "Party" referenced in a release,
announcement or statement in this Section 5.03 shall include such
Party and, to the extent applicable, its Affiliates.
SECTION 1.05 Amendment
to Section 5.04. Section
5.04 will be amended as follows:
(a) Section
5.04(a). Section 5.04(a) will be amended to read in its
entirety as follows:
(a) The
parties hereto acknowledge and agree that from and after the Amendment 1
Effective Time, the day-to-day management of the Retained Businesses will be
conducted by the Parent Designee and the day-to-day management of the
Transferred Businesses will be conducted by the EOR
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Designee;
provided, that (i) the Retained Businesses and the Transferred Businesses
will at all times be subject to the corporate practices, policies and procedures
of Parent solely in respect of internal financial controls, internal financial
reporting and compliance with the rules and regulations of the Securities and
Exchange Commission and the New York Stock Exchange, (ii) Parent will use its
commercially reasonable efforts to conduct the Retained Businesses in
a manner that causes the Retained Businesses to achieve the Retained
Businesses Budget and the Trust will use its commercially reasonable efforts
to
conduct the Transferred Businesses in a manner that causes the
Transferred Businesses to achieve the Auditory Budget, provided that the
Auditory Budget may be exceeded only by an aggregate amount up to the Maximum
Excess Amount in respect of the expenses for the line items relating to selling,
marketing, distribution, development, clinical and regulatory matters, and
the
Retained Business Budget may be exceeded without limitation, (iii) the
Transferred Businesses will not be permitted to take any of the actions set
forth on Exhibit 5.04(a)(1) without Executive Board approval and the
Retained Businesses will not be permitted to take any of the actions set forth
on Exhibit 5.04(a)(2) without Executive Board approval. The
parties hereto acknowledge and agree that the standard “commercially reasonable
efforts” in clause (ii) of the previous sentence will be determined in respect
of the Retained Businesses without any regard to the financial condition of
Parent and in respect of the Transferred Businesses without any regard to the
financial condition of Advanced Bionics Holding Corporation or any financing
efforts it may undertake in connection with the transactions contemplated by
the
Purchase Agreements. In addition to the Parent Designee, Parent may
appoint an employee of Parent with an appropriate level of seniority and
expertise to liaise with the EOR Designee for purposes of identifying whether
any particular resources should be made available to the Transferred Businesses
or the Retained Businesses, and assisting in the management of the separation
activities. The Parent Designee and the EOR Designee will meet no
less frequently than weekly to discuss the activities of the Retained Businesses
and the Transferred Businesses, respectively, and update each other on any
material developments relating thereto.
(b) Section
5.04(c). Section 5.04(c) will be amended to read in its
entirety as follows:
(c) Meetings
of the Executive Board may be held at any time, by written notice given by
any
Member to Parent, the Stockholders’ Representative and each other Member at
least five days prior to the meeting; provided that a Member will provide that
written notice only if the Parent Designee or the EOR Designee wishes to discuss
taking an action set forth in Exhibit 5.04(a)(1) or Exhibit
5.04(a)(2). Subject to appropriate confidentiality provisions,
the Members designated by the Stockholders’ Representative may consult with and
inform the Stockholders’ Representative regarding the matters discussed at
meetings of, and actions taken by, the Executive Board. No action
will be taken by the Executive Board without a Quorum. A
“Quorum” will consist of at least four Members, two of whom
have been
5
designated
by Parent and two of whom have been designated by the Stockholders’
Representative. All decisions of the Executive Board will require the
affirmative vote of all Members in attendance at the meeting at which a Quorum
is present. The Executive Board may establish subcommittees or
working groups that include non-Members; provided, that such
subcommittees and working groups will not be empowered to make any binding
decisions and will be limited to making recommendations to the Executive
Board.
(c) Section
5.04(d). will be amended to read in its entirety as follows:
(d) Subject
to the provisions of Section 5.04(g), the Executive Board will consider
in good faith whether to approve a request by a party to take any of the actions
set forth in Exhibit 5.04(a)(1) and Exhibit
5.04(a)(2).
(d) Section
5.04(e).Section 5.04(e) will be amended as follows:
(i) The
preamble to Section 5.04(e) will be amended as follows: “(e) The
parties hereto agree that, without the approval of Xxxx Xxxxxxxx and Xxxxxx
X.
Xxxx, neither Parent, including any of its Affiliates in respect of the Retained
Businesses, nor the Trust nor the EOR Designee with respect to the Transferred
Businesses, shall during the period between the Amendment 1 Effective Time
and
the earlier of the (i) Amendment 2 Effective Time and (ii) the termination
of
the Amendment Agreement:”
(ii) The
following will be added to the end of Section 5.04(e)(iv): “;
provided, that the parties hereto acknowledge and agree
that
from and after the Amendment 1 Effective Time, (A) if Xxxxxxx Xxxxxxxxx
is terminated, voluntarily resigns as the Parent Designee, dies, or becomes
disabled so that he cannot fulfill his obligations as the Parent Designee,
Parent will appoint a successor Parent Designee to conduct the Retained
Businesses that is (x) an employee of the Company as of the date of the
Amendment Agreement or (y) not an employee of the Company at such time, but
is
reasonably acceptable to the Stockholders’ Representative, and (B) if Xxxxxxx X.
Xxxxxxx is terminated, voluntarily resigns as the EOR Designee, dies, or becomes
disabled so that he cannot fulfill his obligations as the EOR Designee, the
Stockholders’ Representative will be permitted to appoint a successor EOR
Designee to conduct the Transferred Businesses that is (x) an employee of the
Company as of the date of the Amendment Agreement or (y) not an employee of
the
Company at such time, but is reasonably acceptable to Parent.”
(iii) The
following will be added to the end of Section
5.04(e)(v): “(provided that Parent will have the right to
terminate the employment of Xxxxxxx Xxxxxxxxx and the Stockholders’
Representative will have the right to terminate the employment of Xxxxxxx X.
Xxxxxxx, in each case without the approval of Messrs. Xxxxxxxx and
Xxxx.)”
(iv) Section
5.04(e)(ix) will be deleted in its entirety.
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(e) Section
5.04(f). Section 5.04(f)(ii) will be amended to read in
its entirety as follows:
(ii) from
and after the Amendment 1 Effective Time, Parent will (A) fund the Retained
Businesses in accordance with the Retained Businesses Budget and (B) fund the
Transferred Businesses in accordance with the Auditory Budget, and in excess
of
the expenses in that budget in respect of the line items relating to selling,
marketing, distribution, development, clinical and regulatory matters up to
a
maximum excess amount in the aggregate equal to $5 million (the “Maximum
Excess Amount”).
(f) Section
5.04(g). Section 5.04(g) will be amended to read in its
entirety as follows:
(g) In
the event the Executive Board cannot reach agreement on a request related to
Exhibit 5.04(a)(1) or Exhibit 5.04(a)(2), the matter will be
referred to Xxxxx Xxxxxxxx and Xxxxxx X. Xxxx. Parent will cause
Xxxxx Xxxxxxxx (or his successor, to be designated by Parent) and the
Stockholders’ Representative will cause Xxxxxx X. Xxxx (or his successor, to be
designated by the Stockholders’ Representative), promptly, but in any event
within five Business Days following referral to them, to meet to resolve any
such issue directly. In the event Xx. Xxxxxxxx (or his successor) and
Xx. Xxxx (or his successor) are unable despite use of diligent efforts to
resolve the matter within five Business Days of it being submitted to them
for
resolution, the request will be deemed to have been denied.
SECTION 1.06 Amendment
to Section 8.04. Section
8.04 will be amended as follows:
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly given
upon
receipt as conclusively determined by the date shown on a signed receipt for
such notice) by delivery in person, by overnight courier, by registered or
certified mail (postage prepaid, return receipt requested), fax or e mail to
the
respective parties at the following addresses (or at such other address for
a
party as will be specified in a notice given in accordance with this Section
8.04):
if
to
any of Parent, Scimed or the Company:
Xxx
Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000-0000
Facsimile
No: (000) 000-0000
Attention: General
Counsel
Email: xxxx.xxxxxxx@xxxx.xxx
with
a copy to:
Shearman
& Sterling LLP
000
Xxxxxxxxx Xxxxxx
0
Xxx
Xxxx, XX 00000-0000
Facsimile
No: (000) 000-0000
Attention: Xxxxx
X’Xxxxx
Email: xxxxxxx@xxxxxxxx.xxx
if
to
the Trust or the Stockholders’ Representative:
Trustees
of the Bionics Trust or the Stockholders’ Representative, as
applicable
c/o
Advanced Bionics Corporation
Xxxx
Biomedical Park
00000
Xxx Xxxxxx Xxxx
Xxxxxxxx,
XX 00000
Facsimile
No: (000) 000-0000
Attention: Trustee
or the Stockholders’ Representative, as applicable
with
a copy to:
Xxxxxx,
Xxxx & Xxxxxxxx LLP
0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile
No: (000) 000-0000
Attention: Xxxxxxxx
X. Xxxxx
Email: XXxxxx@xxxxxxxxxx.xxx
ARTICLE
II.
IMPLEMENTATION
SECTION 2.01 Termination
of Amendment Agreement. The
parties hereto acknowledge and agree that in event the Amendment Agreement
is
terminated, this Amendment 1 will also terminate and be of no force or effect,
any amendment to the Merger Agreement effected by this Amendment 1 will be
null
and void and the Merger Agreement will not be deemed amended by this Amendment
1
in any respect whatsoever; and
(a) Notwithstanding
Section 2.01(a) of this Amendment 1, any action or failure to act
effected by any party hereto (including the Parent Designee and the EOR
Designee), after the date hereof but prior to the termination of the Amendment
Agreement, to the extent such action or failure to act is expressly permitted
by
the Merger Agreement as amended by this Amendment 1, will not be deemed a breach
or failure to comply with the Merger Agreement.
(b) Scimed
will reduce the next Earn Out Payment to be paid to the Trust by (i)
the amount by which the expenses of the Transferred Business during the period
between the Amendment 1 Effective Time and the termination of the Amendment
Agreement in respect of the line items relating to selling, marketing,
distribution, development, clinical and regulatory matters have exceeded the
Auditory Budget for such
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items
(calculated on a pro rata basis for such period) , and (ii) the amount of the
Separation Costs (as defined in the Separation Agreement (as defined in the
Auditory Purchase Agreement)) paid to third parties between the Amendment 1
Effective Time and the termination of this Amendment 1 in respect of services
to
the Transferred Business and allocated to the Auditory Products LLC pursuant
to
the Separation Agreement. Any disagreement with respect to the amount
of such reduction shall be resolved in accordance with the procedures set forth
in Sections 3.02(c) and 12.11 of the Auditory Purchase Agreement.
(c) Notwithstanding
Section 1.03 of this Amendment 1, if the Amendment Agreement is
terminated after the Amendment 1 Effective Time, and after the date on which
the
Earn Out Payment would have been payable upon the Company's achieving Aggregate
Net Sales for the immediately preceding twelve-month period of more than
$300,000,000 in accordance with clause (i)(B) of the definition of Additional
Earn Out Payment in the Merger Agreement, then, subject to Section
2.01(b) of this Amendment 1, Scimed will promptly, and in no event later
than two Business Days after such termination, deliver to the Trust such
previously foregone Earn Out Payment in cash, in immediately available funds
by
wire transfer to an account designated by the Trust.
ARTICLE
III.
GENERAL
PROVISIONS
SECTION 3.01 No
Further Amendment .
Except
as expressly amended hereby, all other provisions of the Merger Agreement will
be and remain in full force and effect.
SECTION 3.02 Counterparts. This
Amendment 1 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 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 1 to be duly executed as of the date first written above by such
party
or by any officer of such party thereunto duly authorized, as
applicable.
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BOSTON
SCIENTIFIC CORPORATION
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By:
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Title:
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BOSTON
SCIENTIFIC SCIMED, INC.
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By:
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Title:
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ADVANCED
BIONICS CORPORATION
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By:
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Title:
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THE
STOCKHOLDERS’ REPRESENTATIVE
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By:
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By:
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[AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER]
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BIONICS
TRUST
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By:
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By:
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[AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER]
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EXHIBIT
5.04(a)(1)
ACTIONS
THAT THE TRUST WILL ENSURE THE TRANSFERRED BUSINESSES DO NOT
TAKE
Unless
otherwise approved by Parent's Chief Operating Officer and the EOR
Designee:
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1.
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Assert
Intellectual Property against any
person.
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2.
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Respond
to or settle any Third Party Claim of infringement or misappropriation
of
Intellectual Property, it being agreed that the parties will cooperate
in
good faith in determining how to respond to such Third Party
Claim.
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3.
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Disclose
to any person any confidential or proprietary information of Parent
or any
of its Affiliates, including with respect to the drug eluting electrode
project.
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4.
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Enter
into, or amend the terms of, any transaction or arrangement in respect
of
the Transferred Business with any Affiliate of the Purchaser, including
any person controlled by Xxxxxx X.
Xxxx.
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5.
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Enter
into any consent order or decree that either (i) affects the Retained
Business or Parent or any of its Affiliates other than the Seller
solely
in respect of the Transferred Business or (ii) involves the payment
of any
money.
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6.
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Settle
any product liability claim in a manner that is inconsistent in any
material respect with past practice, including the settlement of
any
single claim in respect of HiRes 90K cochlear implants that contain
the
feedthrus made by Astro Seal for more than
$45,000.
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EXHIBIT
5.04(a)(2)
ACTIONS
THAT PARENT WILL ENSURE THAT THE RETAINED BUSINESSES DO NOT
TAKE
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1.
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Unless
otherwise approved by the EOR Designee and the Parent Designee, Parent
will not terminate the employment of any employee with the Surviving
Corporation with the title of Director or higher (including a Regional
Director in the Sales Department) who works for the Retained Businesses
in
the Research & Development Department or the Sales Department, or give
such employee Good Reason to leave the Surviving Corporation, in
each case
other than for Cause.
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2.
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Unless
otherwise approved by the EOR Designee and the Parent Designee, Parent
will not terminate the employment of more than three employees of
the
Surviving Corporation with a title below Director who work for the
Retained Businesses in the Research & Development Department, or give
such employees Good Reason to leave the Surviving Corporation, in
each
case other than for Cause.
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3.
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Unless
otherwise approved by the EOR Designee and the Parent Designee, Parent
will not terminate the employment of more than 15 employees with
the
Surviving Corporation with a title below Director who work for the
Retained Businesses in the Sales Department, or give such employees
Good
Reason to leave the Surviving Corporation, in each case other than
for
Cause.
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4.
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Unless
otherwise approved by the EOR Designee and the Parent Designee, Parent
will not terminate any research and development program for which
funding
is provided in the Retained Business
Budget.
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