AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 10, 2003
File No. 333-_____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
BOSTON SCIENTIFIC CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware 04-2695240
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
One Boston Scientific Place
Natick, Massachusetts 01760-1537
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(Address of Principal Executive Offices)
2003 Long-Term Incentive Plan
Boston Scientific Corporation 401(k) Retirement Savings Plan
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(Full title of the plan)
LAWRENCE J. KNOPF
Vice-President, Assistant Secretary and Assistant General Counsel
Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760-1537
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(Name and address of agent for service)
(508) 650-8000
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price Per Share(*) Offering Price(*) Registration Fee
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Common Stock, $.01 par value
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Boston Scientific Corporation 50,000,000 Shares $34.84 $1,742,000,000 $140,928
2003 Long-Term Incentive Plan
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Boston Scientific Corporation 10,000,000 shares $34.84 $348,400,000 $28,185
401(k) Retirement Savings Plan
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Total 60,000,000 shares $2,090,400,000 $169,113
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In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans described herein.
* This estimate is made pursuant to Rule 457((h) solely for the purpose of
determining the registration fee. It is not known how many shares will be
purchased under the Boston Scientific Corporation 2003 Long-Term Incentive Plan
and the Boston Scientific Corporation 401(k) Retirement Savings Plan, or at what
price such shares will be purchased. The above calculation is based on the
offering of 60,000,000 shares at a purchase price of $34.84 per share, which is
the average of the high and low prices of the Registrant's Common Stock as
reported in the New York Stock Exchange Composite on December 9, 2003.
This Registration Statement registers shares of common stock available for
issuance under the Boston Scientific Corporation (the "Registrant") 2003 Long
Term Incentive Plan (the "LTIP"), which was approved by the Registrant's
stockholders on May 6, 2003. On July 29, 2003, the Board of Directors approved a
"two-for-one" common stock split effected in the form of a 100% stock dividend
on November 5, 2003. The number of shares approved by stockholders and reserved
for issuance under the LTIP have been adjusted to reflect the stock dividend in
accordance with the terms of the LTIP. This Registration Statement also covers
shares to be issued by the Boston Scientific Corporation 401(k) Retirement
Savings Plan for the benefit of employees that participate in the Plan.
Part I
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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, and the "Note" to Part I of Form S-8.
Part II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3: Incorporation of Documents by Reference
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The following documents filed by the Registrant or the Registrant's 401(k)
Retirement Savings Plan (the "Plan") with the Securities and Exchange Commission
are hereby incorporated by reference in this Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2002;
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2003, June 30, 2003, and September 30, 2003;
3. The Registrant's Current Report on Form 8-K filed on September 15,
2003;
4. The Registrant's Proxy Statement filed on April 4, 2003;
5. The Plan's Annual Report on Form 11-K for the year ended December 31,
2002; and
6. The description of the Common Stock as set forth in the Registrant's
Registration Statements pursuant to Section 12 of the Exchange Act,
and any amendment or report filed for the purposes of updating any
such description.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all of such securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents. Any statement
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for the purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4: Description of Securities
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Not applicable.
Item 5: Interests of Named Experts and Counsel
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Legal matters in connection with the issuance of Common Stock offered
hereby have been passed upon for the Registrant by Lawrence J. Knopf, Vice
President, Assistant Secretary and Assistant General Counsel of the Registrant.
Mr. Knopf holds shares and options to purchase shares of the Registrant's Common
Stock and is compensated by the Registrant as an officer of the Registrant.
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 the claim, the corporation may 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 Certificate
of Incorporation, By-laws and indemnification agreements.
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 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.
Item 8: Exhibits
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The following exhibits are filed as part of this Registration Statement:
*4.1 Boston Scientific Corporation 2003 Long-Term Incentive Plan.
4.2 Boston Scientific Corporation 401(k) Savings Plan, as amended and
restated (Exhibit 10.12, Annual Report on Form 10-K for the year ended
December 31, 2002, File No. 1-11083).
*5.1 Opinion and Consent of Assistant General Counsel as to the legality of
the securities being registered.
*23.1 Consent of Ernst & Young LLP.
23.2 Consent of Assistant General Counsel (contained in his opinion filed
as Exhibit 5.1).
24 Power of Attorney (contained on the signature page of this
Registration Statement).
* Filed herewith
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 and the Plan's annual report on Form 11-K 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 Securities and Exchange
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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Natick, The Commonwealth of Massachusetts on the 10th
day of December, 2003.
BOSTON SCIENTIFIC CORPORATION
By: /s/ Lawrence C. Best
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Lawrence C. Best
Senior Vice President -
Finance and Administration,
and Chief Financial Officer
Pursuant to the requirements of the Securities Acts of 1933, the
trustee (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the undersigned
thereunto duly authorized, in the City of Natick, The Commonwealth of
Massachusetts, on the 10th day of December, 2003.
BOSTON SCIENTIFIC CORPORATION
401(K) RETIREMENT SAVINGS PLAN
By: /s/ Lawrence C. Best
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Lawrence C. Best
Plan Administrator and Senior Vice
President - Finance and Administration
and Chief Financial Officer of
Boston Scientific Corporation
POWER OF ATTORNEY
We, the undersigned officers and Directors of Boston Scientific
Corporation, hereby severally constitute and appoint 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 this
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, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
SIGNATURE TITLE DATE
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/s/ John E. Abele Director, Founder December 10, 2003
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John E. Abele
/s/ Lawrence C. Best Senior Vice President - December 10, 2003
--------------------------- Finance and Administration,
Lawrence C. Best and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Ursula M. Burns Director December 10, 2003
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Ursula M. Burns
/s/ Joseph A. Ciffolillo Director December 10, 2003
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Joseph A. Ciffolillo
/s/ Joel L. Fleishman Director December 10, 2003
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Joel L. Fleishman
/s/ Marye Anne Fox Director December 10, 2003
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Marye Anne Fox
/s/ Ray J. Groves Director December 10, 2003
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Ray J. Groves
/s/ Ernest Mario Director December 10, 2003
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Ernest Mario
/s/ N.J. Nicholas, Jr. Director December 10, 2003
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N.J. Nicholas, Jr.
/s/ Peter M. Nicholas Director, Founder and December 10, 2003
--------------------------- Chairman of the Board
Peter M. Nicholas
/s/ John E. Pepper Director December 10, 2003
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John E. Pepper
/s/ Uwe E. Reinhardt Director December 10, 2003
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Uwe E. Reinhardt
/s/ Warren B. Rudman Director December 10, 2003
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Warren B. Rudman
/s/ James R. Tobin Director, President and December 10, 2003
--------------------------- Chief Executive Officer
James R. Tobin (Principal Executive Officer)
Exhibit Index
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Exhibit No. Description of Documents Page No.*
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*4.1 Boston Scientific Corporation 2003 Long-Term Incentive Plan.
4.2 Boston Scientific Corporation 401(k) Savings Plan, as amended
and restated (incorporated by reference to Exhibit 10.12 to
the Registrant's Annual Report on Form 10-K for the year ended
December 31, 2002, File No. 1-11083).
*5.1 Opinion and Consent of Assistant General Counsel as to the
legality of the securities being registered.
*23.1 Consent of Ernst & Young LLP.
23.2 Consent of Assistant General Counsel (contained in his opinion
filed as Exhibit 5.1).
24 Power of Attorney (contained in the signature page of this
Registration Statement).
* Filed herewith