As filed with the Securities and Exchange Commission on August 26, 2002
File No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Boston Scientific Corporation
(Exact name of registrant as specified in its charter)
DELAWARE 04-2695240
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Boston Scientific Place
Natick, Massachusetts 01760-1537
(508) 650-8000
(Address of principal executive offices, including zip code)
BOSTON SCIENTIFIC DEFERRED COMPENSATION OPTION PROGRAM
(Full title of the plan)
Lawrence J. Knopf
Vice President and Assistant General Counsel
Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760-1537
(508) 650-8000
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(Name, Address and Telephone Number, including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Title of Securities Proposed Maximum Aggregate Amount of Registration Fee
to be registered Offering Price (1)
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Deferred Compensation $25,000,000.00 $2,300.00
Obligations
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(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(o).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended, (the "Securities Act") and the "Note" to
Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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Boston Scientific Corporation (the "Registrant" or the "Company") hereby
incorporates the following documents by reference:
(i) Annual Report on Form 10-K for the year ended December 31, 2001.
(ii) Quarterly Report on Form 10-Q for the quarter ended March 31, 2002.
(iii) Quarterly Report on Form 10-Q for the quarter ended June 30, 2002.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") subsequent to the effective date of this Registration Statement, prior to
the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered hereby have been sold or deregistering
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Registration Statement, except as so
modified or superseded.
Item 4. Description of Securities.
--------------------------
The securities being registered represent obligations (the "Obligations")
of the Registrant to deliver to participants in the Boston Scientific Deferred
Compensation Option Program (the "Plan"), upon participants' exercise of options
issued under the Plan, shares underlying such options or the fair market value
of such shares in cash, where the intrinsic value on the date of the grant
(i.e., the difference between the exercise price and the fair market value of
the underlying shares) represents a portion of salary or bonus the receipt of
which the participants have elected to defer. The Obligations also may represent
obligations of the Registrant to deliver upon exercise any distributions on
shares underlying options. Shares underlying options shall be shares in
investment companies registered under the Investment Company Act of 1940 as
designated by a participant from a list of investments designated or
subsequently redesignated by the Compensation Committee of the Board of
Directors, or such other person or persons whom the Board of Directors of the
Registrant shall appoint to serve as the Administrator of the Plan. The option
exercise price paid by the participants to exercise options issued under the
Plan may be a function of the fair market value of the shares on the date of the
grant, the fair market value of the shares on the date of exercise, a
determinable interest rate, or some combination of the foregoing. Participants
may exercise options and cause the Obligations to be payable during employment
and for specified periods ranging from twelve months to one hundred and twenty
months following separation from employment. There is no trading market for the
Obligations.
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The Obligations are unsecured general obligations of the Registrant and
rank PARI PASSU with other unsecured and unsubordinated obligations of the
Registrant. The Obligations are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment; provided, however, that a participant may, upon approval of the
Registrant, irrevocably transfer by gift, without consideration, any option or
portion thereof to certain family members or a trust established for the benefit
of such family members. With the exception of the foregoing, any attempt by any
person to transfer or assign benefits under the Plan, other than a claim for
benefits by a Participant or his or her beneficiary(ies), will be null and void.
Participants may be permitted to substitute options issued on certain
shares for options on other shares under the Plan. Otherwise, the Obligations
are not convertible into any other security of the Registrant. No trustee has
been appointed to take action with respect to the Obligations and each
participant in the Plan will be responsible for enforcing his or her own rights
with respect to the Obligations. The Registrant may establish a "rabbi trust" or
other vehicle to serve as a source of funds from which it can satisfy the
Obligations. Participants in the Plan will have no rights to any assets held by
a rabbi trust, except as general creditors of the Registrant. Assets of any
rabbi trust will at all times be subject to the claims of the Registrant's
general creditors.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Generally, Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to indemnify any person for claims arising
against the person for serving as a present or former director, officer,
employee, or agent of the corporation. Indemnity is available only if the person
acted in good faith and in a manner reasonably believed to be in, or not opposed
to, the best interests of the corporation. If the claim is a criminal action,
indemnification may be available only if the person had no reasonable cause to
believe his or her conduct was unlawful. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with the claim.
A Delaware corporation may also indemnify persons against expenses
(including attorneys' fees) incurred for actions brought by or on behalf of the
corporation subject to the conditions discussed above, except that no
indemnification is permitted in respect of any claim as to which the person
shall have been found to be liable to the corporation unless a court determines
that, in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity.
To the extent the person is successful in defending a claim described in
the preceding two paragraphs, the corporation must indemnify the person against
expenses (including attorneys' fees) actually and reasonably incurred. The
indemnification and advancement of expenses provided for in Section 145 is not
exclusive of any other rights to which the person may be entitled under any
By-law, agreement, vote of stockholders or disinterested directors, or
otherwise.
Section 145 of the DGCL also provides that a corporation may maintain
insurance against liabilities for which indemnification is not expressly
provided by the statute. The Registrant maintains reasonable levels of insurance
against liabilities for indemnification which it may incur under its Second
Restated Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), Restated By-laws (the "By-laws") and indemnification
agreements.
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Article Tenth of the Registrant's Certificate of Incorporation provides
that the Registrant will indemnify, defend and hold harmless directors,
officers, employees and agents of the Registrant to the fullest extent currently
permitted under the DGCL.
In addition, Article Ninth of the Registrant's Certificate of
Incorporation, as permitted by Section 102(b) of the DGCL, provides that neither
the Registrant nor its stockholders may recover damages from the Registrant's
directors for a breach of their fiduciary duty in the performance of their
duties as directors of the Registrant, unless the breach relates to (i) the
director's duty of loyalty, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the DGCL or (iv) any transactions for which the director
derived an improper benefit. The Registrant's By-laws provide for
indemnification of the Registrant's directors, officers, employees and agents on
the terms permitted under Section 145 of the DGCL summarized above.
The Registrant has entered into indemnification agreements with its
directors and executive officers. These agreements provide rights of
indemnification that are substantially similar to those provided by the
Registrant's Certificate of Incorporation and By-laws. Additionally, the
agreements provide that (i) within thirty days of a written demand for
indemnification, and within five business days of a request for an advance of
expenses, the Registrant shall either make payment or determine that the
relevant standards for indemnification have not been met; (ii) in any action
brought by an indemnitee to enforce the right to indemnification or advances,
the burden of proving that any indemnification or advance is not appropriate
shall be on the Registrant; (iii) neither the timing of the Registrant's
decision whether to indemnify nor any determination by the Registrant shall
create any presumption that the indemnitee has not met the applicable standards;
and (iv) the indemnitee's expenses incurred in bringing an action to recover
expenses under any directors' and officers' liability insurance policies
maintained by the Registrant shall also be indemnified by the Registrant.
Item 7. Exemption From Registration Claimed.
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Not applicable.
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Item 8. Exhibits.
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See Exhibit Index.
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement to include any material
information with respect to the plan of distribution
not previously disclosed in the Registration Statement
or any material change to such information in the
Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering
thereof;
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Natick, The Commonwealth of Massachusetts, on
this 26th day of August, 2002.
BOSTON SCIENTIFIC CORPORATION
By: /s/ Lawrence C. Best
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Name: Lawrence C. Best
Title: Senior Vice President - Finance and
Administration and Chief Financial Officer
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SIGNATURE AND POWER OF ATTORNEY
We, the undersigned officers and Directors of Boston Scientific
Corporation, hereby severally constitute and appoint Lawrence C. Best, Paul W.
Sandman and Lawrence J. Knopf, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below the Registration Statement on
Form S-8 filed herewith and any and all pre-effective and post-effective
amendments to said Registration Statement, and generally to do all such things
in our names and on our behalf in our capacities as officers and Directors to
enable Boston Scientific Corporation to comply with the provisions of the
Securities Act, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures, as they may be signed by our
said attorneys or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities indicated on the 26th day of August, 2002.
SIGNATURE TITLE
---------------------------- Director, Founder
John E. Abele
/s/ Lawrence C. Best
---------------------------- Senior Vice President - Finance and
Lawrence C. Best Administration and Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Ursula M. Burns
---------------------------- Director
Ursula M. Burns
/s/ Joseph A. Ciffolillo
---------------------------- Director
Joseph A. Ciffolillo
/s/ Joel L. Fleishman
---------------------------- Director
Joel L. Fleishman
/s/ Marye Anne Fox
---------------------------- Director
Marye Anne Fox, Ph.D.
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/s/ Ray J. Groves
---------------------------- Director
Ray J. Groves
/s/ Lawrence L. Horsch
---------------------------- Director
Lawrence L. Horsch
/s/ Ernest Mario
---------------------------- Director
Ernest Mario, Ph.D.
/s/ N. J. Nicholas, Jr.
---------------------------- Director
N. J. Nicholas, Jr.
/s/ Peter M. Nicholas
---------------------------- Director, Founder and Chairman of the Board
Peter M. Nicholas
/s/ Uwe E. Reinhardt
---------------------------- Director
Uwe E. Reinhardt, Ph.D.
/s/ Warren B. Rudman
---------------------------- Director
Warren B. Rudman
/s/ James R. Tobin
---------------------------- Director, President and Chief Executive
James R. Tobin Officer (Principal Executive Officer)
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF DOCUMENT
4.1 The Boston Scientific Deferred Compensation Option Program.
5.1 Opinion of Ropes & Gray.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ropes & Gray (contained in the opinion filed as
Exhibit 5.1 to this registration statement).
24 Power of Attorney (included on signature page).