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
Title of Securities Proposed Maximum Aggregate Amount of Registration Fee
to be registered Offering Price (1)
--------------------------------------------------------------------------------
Deferred Compensation $25,000,000.00 $2,300.00
Obligations
================================================================================
|
(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
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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superseded for purposes of this Registration Statement to the extent that a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.
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.
II-1
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.
Not applicable.
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.
II-2
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.
Not applicable.
II-3
See Exhibit Index.
(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.
II-4
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
-------------------------------------------
Name: Lawrence C. Best
Title: Senior Vice President - Finance and
Administration and Chief Financial Officer
|
II-5
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.
|
II-6
/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) |
II-7
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).
|
BOSTON SCIENTIFIC
DEFERRED COMPENSATION OPTION PROGRAM
(effective October 1, 2002)
1. PURPOSE OF THE PLAN. This plan shall be known as the Boston Scientific Deferred Compensation Option Program (the "Plan"). The purpose of the Plan is to attract and retain the highest quality employees for positions of substantial responsibility and to provide additional incentives to a select group of management or highly compensated employees of Boston Scientific Corporation ("BSC" or "Company") so as to promote the success of the Company.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Administrator" shall mean the Board, or the person or persons appointed by Board to serve under paragraph 15, below.
(b) "Award Date" shall mean the effective date of the Participant's Option Agreement.
(c) "Board" shall mean the Board of Directors of Boston Scientific Corporation.
(d) "Cause" shall mean a felony conviction of a Participant or the failure of a Participant to contest prosecution for a felony, or a Participant's misconduct or dishonesty which is harmful to the business or reputation of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Company" shall mean Boston Scientific Corporation.
(g) "Disability" shall mean permanent and total disability as determined under the Company's long-term disability program for employees then in effect.
(h) "Employee" shall mean a key employee of the Company.
(i) "Immediate Family" shall mean an individual or entity included as a "family member" within the meaning of the Security and Exchange Commission's Form S-8, Registration Statement Under The Securities Act of 1933.
(j) "Option" shall mean an option granted pursuant to this Plan to purchase one or more Shares.
(k) "Option Agreement" means the written agreement evidencing the award of an Option under the Plan.
(l) "Option Price" shall mean the price to be paid by the Participant to exercise the Option and shall be expressed in dollars per Share.
(m) "Participant" shall mean any Employee who receives an Option under the Plan, as evidenced by an Option Agreement entered into between such Employee and the Company.
(n) "Plan" shall mean the Boston Scientific Deferred Compensation Option Program, as amended from time to time.
(o) "Retirement" shall mean that unless the Administrator expressly provides otherwise, cessation of employment or other service relationship with the Company and its Affiliates if, as of the date of such cessation, (i) the Participant has attained age 50 and has accrued at least five years of service with the Company and its Affiliates, and (ii) the sum of the Participant's age and years of service as of such date equals or exceeds 62.
(p) "Shares" shall mean certain shares of mutual funds and/or shares
of common or preferred stock as designated by a Participant from
a list of investments designated or subsequently redesignated by
the Administrator, and referenced in Exhibit A. Shares may
include stock or other equity interest or bonds in the Company or
any company related to the Company if so permitted by the Board.
IN NO EVENT, HOWEVER, MAY SHARES INCLUDE UNITS OF ANY MONEY
MARKET FUNDS OR OTHER CASH EQUIVALENTS. Shares subject to
purchase pursuant to any Option shall also include any reinvested
distributions on such shares subsequent to the Award Date.
3. TERM OF PLAN. The Plan shall become effective on the date it is adopted by the Board and shall continue in effect as amended from time to time until terminated pursuant to paragraph 17.
4. ELIGIBILITY. All Employees of the Company who are in the group of employees determined by the Administrator to be part of the select group of management or highly compensated employees are eligible to receive Options under the Plan. Employees of subsidiaries are eligible to participate in the Plan.
5. GRANT OF OPTIONS. The Administrator shall from time to time select
eligible Employees for participation in the Plan. The Administrator
shall grant Options under the Plan to a Participant based on (i) the
portion of the Participant's salary and/or bonus that the Participant
elects to defer, to the extent permitted by the Administrator, and
(ii) the Participant's selection of
investments. The grant of Options shall be evidenced by written Option Agreements containing such terms and provisions as are approved by the Board and specifying the number and types of Shares subject to Options. The Administrator of the Plan shall execute the Option Agreements on behalf of the Company upon instructions from the Board.
6. TIME OF GRANT OF OPTIONS. The date of grant of an Option under the Plan shall, for all purposes, be the date on which the Board awards the Option, as evidenced by the execution of an Option Agreement.
7. OPTION PRICE. The Option Price for each Share shall be expressed in
each Option Agreement, provided, however, the Option Price shall be no
lower than 25 percent of the fair market value of a Share on the date
of grant of the Option. Fair market value on any day of reference
shall be the closing price of the Share on such date, unless the
Board, in its sole discretion shall determine otherwise in a fair and
uniform manner. For this purpose, the closing price of a Share that is
a share of common or preferred stock shall be on any business day (i)
if the Share is listed or admitted for trading on any United States
national securities exchange or the Nasdaq National or SmallCap
Markets, the last reported sale price of the Share on such exchange or
system, as reported in any newspaper of general circulation, (ii) if
the Share is not listed or admitted for trading on any United States
national securities exchange or Nasdaq market, the average of the high
and low sale prices of the Share for such day reported on a
consolidated transaction reporting system, or if no sales are reported
for such day, such average for the most recent business day within
five business days before such day on which sales are reported, or
(iii) if neither clause (i) or (ii) is applicable, the average between
the lowest bid and highest asked quotations for the Share on such day
as reported by the National Quotation Bureau, Incorporated, if at
least two securities dealers have inserted both bid and asked
quotations for the Share on at least 5 of the 10 preceding business
days. The closing price of a Share that is a share of an open-end
mutual fund shall be, on any business day, the net asset value
reported for such fund for such day in any newspaper of general
circulation. The closing price of any other Share shall be determined
in good faith by the Administrator.
8. EXERCISE. Except as otherwise provided in an Option Agreement, all Options granted under the Plan will be vested at grant and therefore may be exercisable immediately, unless stated otherwise by the Board. A Participant may exercise Options in full or in part, in whole percentages, from the date of the grant as set forth in the Option Agreement. Participants may exercise Options, in whole or in part, no more than four (4) times in any calendar year. Reinvested dividends shall be attributed proportionally to the Shares and will be purchased when the underlying award is exercised. For example, if an original grant of an Option to purchase 500 Shares (after the payment of the exercise price) generated 100 additional Shares on such 500 Shares
from reinvested dividends, an exercise of one-fourth of the originally granted Option will result in the purchase (after the payment of the exercise price) of 150 Shares in order to proportionally include the resulting reinvested dividends. A Participant may exercise Options during employment. In addition, upon the Participant's separation from active service due to death, Disability, or Retirement, the Option will remain exercisable for a period of one hundred twenty (120) months following such separation. In the case of termination for cause, the Option will remain exercisable for a period of twelve (12) months following termination. Upon the Participant's separation from service for any reason other than those stated above, the Option will remain exercisable for a period of thirty-six (36) months following termination with exceptions only upon the Board's approval. In addition, all Options granted under the Plan may only be exercised subject to any other terms specified in the Option Agreement and if such terms conflict with the terms of this Plan, the terms of the Option Agreement control.
9. LIMITATIONS ON OPTION DISPOSITION. No Option granted under the Plan or the rights and privileges conferred therewith may be sold, transferred, encumbered, hypothecated or otherwise anticipated by the Participant other than by will or the laws of descent and distribution. Options shall not be made subject to, in whole or in part, the debts, contracts, liabilities, or torts of the Participant, nor shall they be subject to garnishment, attachment, execution, levy or other legal or equitable process. However, a Participant may, upon approval of the Board, transfer by gift any Option or part thereof to a member or members of the Participant's Immediate Family and/or to a trust established for the benefit of the Participant or an Immediate Family member or members, as defined in the Plan, provided such transfer is irrevocable, is made without consideration, and each Option so transferred by the Participant remains subject after transfer to the provisions of the Plan.
10. LIMITATIONS ON OPTION EXERCISE AND DISTRIBUTION. In the event that the listing, registration or qualification of an Option or Shares on any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body, or the availability of any exemption therefrom, is necessary as a condition of, or in connection with, the exercise of an Option, then the Option shall not be exercised in whole or in part until such listing, registration, qualification, consent or approval has been effected or obtained. Notwithstanding any provision of the Plan to the contrary, the Company shall have no obligation or liability to deliver any Shares under the Plan unless such delivery would comply with all applicable laws and all applicable requirements of any securities exchange or similar entity.
11. OPTION FINANCING. Upon the exercise of any Option granted under the Plan, the Participant may instruct the Administrator to sell, withhold
or deem to sell a number of Shares otherwise deliverable to the Participant and attributable to the exercise of the Option in order to pay the Option Price. The Board may, in its sole discretion, make financing available to the Participant to facilitate the exercise of the Option, subject to such terms as the Board may specify.
12. WITHHOLDING OF TAXES. The Company may make such provisions and take
such steps as it may deem necessary or appropriate for the withholding
of any taxes, which it is required by any law or regulation of any
governmental authority, whether federal, state or local, domestic or
foreign, to withhold in connection with any Option including, but not
limited to, (i) the withholding of the issuance of all or any portion
of such Shares until the Participant reimburses the Company for the
amount the Company is required to withhold with respect to such taxes,
(ii) canceling any portion of such issuance in an amount sufficient to
reimburse itself for the amount it is required to so withhold, or
(iii) taking any other action reasonably required to satisfy the
Company's withholding obligation.
13. MODIFICATION OF OPTION OR PLAN. At any time and from time to time the Board may execute an instrument providing for the modification, extension, or renewal of any outstanding Option and/or the Plan. No modification shall impair the rights of any Participant with respect to Options previously granted except to the extent necessary to comply with any provision of applicable federal or state laws, or except to the extent necessary to prevent detriment to the Company as so determined by the Board.
14. SUBSTITUTION OF OPTION. If a Participant has been granted an Option to purchase Shares under an Option Agreement, then except as limited by the terms of the Option Agreement, the Participant may direct that the Option be converted into an Option to purchase other Shares in whole percentages and without limitations on frequency of substitution as permitted by the Option Agreement. Such substitution shall only be allowed to the extent that, immediately following the substitution, the difference between the fair market value of the Shares subject to the substituted Option and the Option Price of the substituted Option is no greater than the difference which existed immediately prior to the substitution between the fair market value of the Shares subject to the original Option and the Option Price of the original Option.
15. ADMINISTRATION OF THE PLAN. The Board, in its sole discretion, is authorized to select the Employees who may receive Options. The Board, or the person or persons appointed by the Board to serve as Administrator, shall be the Administrator of the Plan. The Administrator, in its sole discretion, is authorized to interpret the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan and to the Options granted under the Plan, to determine the form and content of Options to be issued under the Plan, and to
make such other determinations and exercise such other power and authority as may be necessary or advisable for the administration of the Plan. No fee or compensation shall be paid to any person for services as the Administrator (but this does not prevent the payment of salary otherwise payable to an employee of the Company for other services as an employee of the Company). The Administrator in its sole discretion may delegate and pay compensation for services rendered relating to the ministerial duties of plan administration including, but not limited to, selection of investments available under the Plan. Any determination made by the Administrator pursuant to the powers set forth herein is final, binding and conclusive upon each Participant and upon any other person affected by such decision, subject to the claims procedure hereinafter set forth. The Administrator shall decide any question which may arise regarding the rights of Participants and beneficiaries, and the amounts of their respective interests, adopt such rules and to exercise such powers as the Administrator may deem necessary for the administration of the Plan, and exercise any other rights, powers or privileges granted to the Administrator by the terms of the Plan. The Administrator shall maintain full and complete records of its decisions. Its records shall contain all relevant data pertaining to the Participant and his or her rights and duties under the Plan. The Administrator shall have the duty to maintain Account records for all Participants. The Administrator shall cause the principal provisions of the Plan to be communicated to the Participants, and a copy of the Plan and other documents shall be available at the principal office of the Company for inspection by the Participants at reasonable times determined by the Administrator.
16. CONTINUED EMPLOYMENT NOT PRESUMED. Nothing in the Plan or any document describing it nor the grant of an Option via an Option Agreement shall give any Participant the right to continue in employment with the Company or affect the right of the Company to terminate the employment of any such person with or without cause.
17. AMENDMENT AND TERMINATION OF THE PLAN OR OPTION AGREEMENT. The Board, in its sole discretion, may amend, suspend or discontinue the Plan or Option Agreement. No amendment, suspension, or discontinuance shall impair the rights of any Participant except to the extent necessary to comply with any provision of applicable federal or state laws or except to the extent necessary to prevent detriment to the Company as so determined by the Board.
18. GOVERNING LAW. The Plan shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
19. SEVERABILITY OF PROVISIONS. Should any provision of the Plan be determined to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect the remaining provisions of the Plan, but such provision shall be fully severable, and the Plan shall be construed and enforced as if such provision had never been inserted herein.
20. HEDGE OF LIABILITY CREATED BY THE OPTION PLAN. At the sole discretion of the Board, the liability created by the grant of the Options issued pursuant to the Plan may be offset by the Company entering into a hedging transaction. The hedging transaction may consist of the Company purchasing all or part of the Shares subject to the Options issued pursuant to the Plan, at date of grant of the Options or at any time during the Option exercise period.
21. CLAIMS PROCEDURE. In general, any claim for benefits under the Plan shall be filed by the Participant or beneficiary ("claimant") on the form prescribed for such purpose with the Administrator. If a claim for benefits under the Plan is wholly or partially denied, notice of the decision shall be furnished to the claimant by the Administrator within a reasonable period of time after receipt of the claim by the Administrator. The claims procedure shall be as follows:
(a) Any claimant who is denied a claim for benefits shall be furnished written notice setting forth:
(i) The specific reason or reasons for the denial;
(ii) Specific reference to the pertinent provision of the Plan upon which the denial is based;
(iii) A description of any additional material or information necessary for the claimant to perfect the claim; and
(iv) An explanation of the claim review procedure under the Plan.
(b) In order that a claimant may appeal a denial of a claim, the claimant or the claimant's duly authorized representative may:
(i) Request a review by written application to the Administrator, or its designate, no later than sixty (60) days after receipt by the claimant of written notification of denial of a claim;
(ii) Review pertinent documents; and
(iii) Submit issues and comments in writing.
(c) A decision on review of a denied claim shall be made not later than sixty (60) days after receipt of a request for review, unless special circumstances require an extension of time for processing, in which case a decision shall be rendered within a reasonable period of time, but not later than one hundred and twenty (120) days after receipt of a request for review. The decision on a review shall be in writing and shall include the specific reason(s) for the decision and the specific reference(s) to the pertinent provisions of the Plan on which the decision is based.
22. DESIGNATION OF BENEFICIARY. A Participant, by filing the prescribed form with the Administrator, may designate one or more beneficiaries and successor beneficiaries who shall be given the right to exercise Options in accordance with the terms of the Plan in the event of the Participant's death. In the event the Participant does not file a form designating one or more beneficiaries, or no designated beneficiary survives the Participant, the Option shall be exercisable by the individual to whom such right passes by will or the laws or descent and distribution.
23. INTENT. The Plan is intended to be unfunded and maintained by the Company solely to provide options to a select group of management or highly compensated employees as such group is described under Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee Retirement Income Security Act of 1974 ("ERISA") as interpreted by the U.S. Department of Labor. The Plan is not intended to be a plan described in Sections 401(a) or 457 of the Code. The obligation of the Company to deliver Shares subject to the Options granted under this Plan constitutes nothing more than an unsecured promise of the Company to fulfill such obligations and any property of the Company that may be set aside to permit it to fulfill such obligations under the Plan shall, in the event of the Company's bankruptcy or insolvency, remain subject to the claims of the Company's general creditors until such Options are exercised.
[Ropes & Gray Letterhead]
August 26, 2002
Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760-1537
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration statement on Form S-8, and all exhibits thereto (the "Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of obligations (the "Obligations") of Boston Scientific Corporation, a Delaware corporation (the "Company"), to deliver to participants in the Boston Scientific Deferred Compensation Option Program (the "Plan"), upon participants' exercise of options issued under the Plan, shares of mutual funds underlying such options or the fair market value of such shares in cash.
We have acted as counsel for the Company and are familiar with the actions taken by the Company in connection with the adoption of the Plan. For purposes of this opinion we have examined the Registration Statement, the Plan and such other documents, records, certificates and other instruments as we have deemed necessary.
We express no opinion as to the applicability of, compliance with or effect of Federal law or the law of any jurisdiction other than the Commonwealth of Massachusetts and the General Corporation Law of the State of Delaware.
Based on the foregoing, we are of the opinion that the Obligations, when
established pursuant to the terms of the Plan, will be valid and binding
obligations of the Company or of its participating subsidiaries to the extent
provided in the Plan, enforceable against the Company or such subsidiaries in
accordance with their terms and the terms of the Plan, except as enforceability
(i) may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally, and (ii) is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
We hereby consent to your filing this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
It is understood that this opinion is to be used only in connection with the offer and sale of the Obligations while the Registration Statement is in effect.
Very truly yours,
/s/ Ropes & Gray |
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Boston Scientific Deferred Compensation Option Program of our report dated January 29, 2002, with respect to the consolidated financial statements of Boston Scientific Corporation incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 2001 and of our report dated March 25, 2002 with respect to the financial statement schedule included in the above Annual Report, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
August 22, 2002
|