EXHIBIT 10.1

 

 

I.	Purpose of the Plan

 

The purpose of the Plan is to align Boston Scientific and employee interests by providing incentives for the achievement of key business milestones and individual performance objectives and   to focus   attention   on companywide quality, all of which   are critical to the success of Boston Scientific. To this end, individual   performance objectives are established during the annual goal setting process.  All incentive eligible employees are required to develop a set of written, measurable, annual goals, including a Quality specific objective, that are agreed to and approved by their direct manager as part of the Performance Achievement and Development Review (PADR) process. Goal setting should be   completed within the required time frame.

 

 

II.	Eligible Participants

 

The Plan year runs from January 1 – December 31.  The Plan covers all United States employees determined by Boston Scientific to be regular salaried exempt (excluding all term employees) employees who are ineligible for commissions under any sales compensation plan. The Plan also covers those Boston Scientific International and expatriate/inpatriate employees selected by Boston Scientific for participation. The Plan does not include any other employees, including those in positions covered by sales compensation plans. The plan also does not include any employees who are eligible for any other Boston Scientific incentive plan or program unless the terms of that plan or program expressly permit participation in both that plan or program and this Plan. Employees who meet the above eligibility criteria and who have at least two full months of eligible service during the Plan year may participate in the Plan on a prorated basis, proration to be based on the percentage of time the employee was eligible to participate under all applicable criteria and in the following circumstances: if (1) they have less than one year of eligibility during the Plan year, or (2) they have changed their business unit during the Plan year.  Employees who have less than two full months of eligible service during the Plan year are not eligible to participate in the Plan. Boston Scientific may review Plan participation eligibility criteria from time to time and may revise such criteria at any time, even within a Plan year, with or without notice and within its sole discretion.

 

Employees and managers of those employees who do not timely complete the annual PADR goal setting process in a given calendar incentive year will be ineligible to participate in the Plan for that year.

 

The Boston Scientific Executive Steering Committee (which is made up of members of the Boston Scientific Executive Committee) will identify critical performance measures and the weighting of total Boston Scientific and Group/Division/Region/Country performance (See Performance Measurements and Funding document), as well as the incentive pool funding that will be established for each level of Boston Scientific and Group/Division/Region/Country performance.  Such performance measures and weighting will be identified in the form of an annual plan, which will include measures and weighting for the entire Plan year as well as measures and weighting for each of the four quarters within the Plan year.  The performance for each of the five measurement periods (the four quarterly and the one annual measurement period) will be measured against the performance targets and will be evaluated and funded separately.  Further, in determining the level of funding for the incentive pool for each of the five measurement periods, the Boston Scientific Executive Steering Committee will consider progress made toward achievement of Boston Scientific's quality objectives and the performance of Boston Scientific's companywide Quality System.   The total annual funding will be the sum of the funding for each of the five measurement periods.

 

 

 

 

 

Except as noted herein, any payments due to plan participants will be made by March 15, of the year following the Plan year. Incentive payments are typically paid in one installment.  The unweighted funding levels for Boston Scientific and Group/Division/Region/Country  performance will be based on the Performance Funding outlined in the Performance Measures and Funding document.

 

The Boston Scientific Executive Steering Committee has sole authority over administration and interpretation of the Plan and retains its right to exercise discretion as it sees fit.  The Boston Scientific Executive Steering Committee will recommend the final level of Plan funding to the Executive Compensation and Human Resources Committee of the Board of Directors for its approval.  Subject to the Board’s approval, the incentive payment for any participant will be based upon the overall funding available and the employee’s overall individual performance relative to other Plan eligible employees in the applicable business unit, as determined by Boston Scientific.   The Boston Scientific Executive Steering Committee further reserves the right to modify and/or eliminate the incentive pool funding (on a quarterly and/or an annual basis) based on its determination, within its sole discretion, of Boston Scientific's progress made toward achievement of Boston Scientific's quality objectives and the performance of Boston Scientific's companywide Quality System.

 

 

IV.	Incentive Targets

 

Incentive targets have been established for all eligible participants. These incentive targets represent the incentive payment (as a percent of base salary) that an individual is eligible to receive.  Funding calculation examples are contained in the Performance Measures and Funding document.

 

The incentive pool (see Performance Measures and Funding document) is funded by a weighted combination of Boston Scientific’s overall performance and the applicable Group/Division/Region/Country performance.  All incentive eligible employees must have established annual goals agreed to by their direct manager and which link to their appropriate level of accountability.  An individual participant’s incentive payment will be determined based on an assessment of the overall individual performance contribution in the context of the applicable incentive pool(s).

 

It is Boston Scientific’s aim to provide significant incentive and reward opportunities to employees for world-class performance achievement.  Since our business goals (e.g., sales, profit) are normally set at a level above our business competitors (aggressive but realistic), we have set our incentive targets aggressively as well. The incentive pool for performance may be funded as high as 150% of target in each of the five measurement periods. Above market rewards can be earned for above market performance.

 

Except as noted, nothing in this plan guarantees any incentive payment will be made to any individual. Receipt of an incentive payment in one year does not guarantee eligibility in any future year.

 

 

The incentive payment for any eligible employee may vary from the approved and applicable incentive pool funding based on that individual’s overall performance and achievement of objectives relative to other eligible employees in the applicable business unit.  However, the total of incentive payments to all eligible individuals may not exceed the total applicable funding pool(s).

 

 

VI.	Payment Criteria

 

A participant must be employed by Boston Scientific on December 31 of the Plan year to be eligible to receive any award pay-out under the Plan.  For example, a participant who is not required to report to work during any notification period applicable under any Boston Scientific severance or separation plan, but who is still an employee on December 31, will remain eligible to receive any award pay-out under the Plan.  A participant who specifically has been exempted under a specially designed, written Boston Scientific plan or program from the requirement to be employed on December 31 may remain eligible, depending on the terms of the applicable written plan document; in such cases, the terms of such written plan document will govern in all respects, including as to eligibility, timing and amount of any incentive payment.  Notwithstanding anything herein, this Plan does not confer eligibility on any employee on leave of absence status.

 

Also notwithstanding anything herein, a participant whose employment ceases prior to December 31 of the Plan year by reason of “layoff” as that term is defined by the Boston Scientific Corporation Severance Pay and Layoff Notification Plan (as Amended and Restated) but who otherwise met all Plan eligibility criteria may participate in the Plan on a prorated basis, proration to be based on the percentage of time the participant was employed and eligible to participate under the applicable criteria.

 

Also notwithstanding anything herein, a participant whose employment ceases prior to December 31 of the Plan year but who has otherwise met all Plan eligibility criteria and who, as of the date of such cessation of employment, (1), has attained age 50, (2) has accrued at least five years of service with Boston Scientific; and (3) whose age and years of service as of such date equals or exceeds 62, may participate in the Plan on a prorated basis, proration to be based on the percentage of time the participant was employed and eligible to participate under all applicable criteria; further, a participant whose employment ceases prior to December 31 of the Plan year by reason of death but who otherwise met all Plan eligibility criteria may participate in the Plan on a prorated basis, proration to be based on the percentage of time the participant was employed and eligible to participate under the applicable criteria.

 

Except as noted above, all incentive payments will be based on a participant’s salary and incentive target as of December 31 of the Plan year.  Incentive payments will be made by March 15 of the year following the Plan year.

 

Effective for compensation awards made on or after February 20, 2007, to the extent permitted by governing law, the Board will seek reimbursement of incentive compensation paid to any executive officer in the event of a restatement of Boston Scientific’s financial results that reduced a previously granted award’s size or payment.  In that event, Boston Scientific will seek to recover the amount of the performance incentive award paid to the executive officers which is in excess of the amounts that would have been paid based on the restated financial results.

Boston Scientific may terminate, suspend or modify and if suspended, may reinstate with or without modification all or part of the Plan at any time, with or without notice to the participant.  Boston Scientific reserves the exclusive right to determine eligibility to participate in this Plan and to interpret all applicable terms and conditions, including eligibility criteria.

 

---

 

IX.

Other

 

This document sets forth the terms of the Plan and is not intended to be a contract or employment agreement between the participant and Boston Scientific.  As applicable, it is understood that both the participant and Boston Scientific have the right to terminate the participant’s employment with Boston Scientific at any time, with or without cause and with or without notice, in acknowledgement of the fact that their employment relationship is “at will.”

 

EXHIBIT 10.2

 

BOSTON SCIENTIFIC CORPORATION

401(k) RETIREMENT SAVINGS PLAN

SEVENTH AMENDMENT

Pursuant to Section 10.1 of the Boston Scientific Corporation 401(k) Retirement Savings Plan, as amended and restated effective January 1, 2001, and as further amended from time to time (the “Plan”), Boston Scientific Corporation hereby amends the Plan as follows:

1.   Effective June 1, 2008, Section 8.1 is deleted in its entirety and replaced with the following:

 

" 8.1                         Severance From Employment for Reasons Other Than Death .  Following a Participant's severance from employment of an Affiliated Employer for any reason other than death, the Participant will receive the vested portion of his or her Accounts in cash (or, effective June 1, 2008, if any portion of the Participant’s vested Accounts is invested in the Company Stock fund, in shares of Company Stock) or, if the Participant elects and the value of such portion exceeds $5,000, in monthly, quarterly, semi-annual, or annual installments, fixed installments or variable installments over a period certain not to exceed the Participant's life expectancy or  the joint life and last survivor expectancy of the Participant and his or her Beneficiary.  An election to receive monthly, quarterly, semi-annual, or annual installment distributions in lieu of a single sum, and the period over which such installments are to be made, shall be made by the Participant on a form approved by the Committee.  Notwithstanding the foregoing, for Plan Years beginning on or after January 1, 2002, the installment options described above shall be available only with respect to a Participant whose annuity starting date is earlier than the earlier of (i) the 90 th day after notice that such benefit forms will no longer be available is provided in accordance with Regulation section 1.411(d)-4, Q&A-2(e)(1) and (ii) the first day of the second Plan Year following the Plan Year in which the form of optional benefit is eliminated by amendment.”

 

2.   Effective June 1, 2008, Section 8.2 is deleted in its entirety and replaced with the following:

 

" 8.2.                        Time of Distributions .   Distribution with respect to a Participant's severance from employment for any reason other than death will be made in accordance with this Section 8.2.

 

(a)           If the Participant has attained Normal Retirement Age or the vested portion of the Participant’s Accounts is valued at $5,000 or less (or, effective March 28, 2005, valued at $1,000 or less), distribution of such vested portion will be made in cash (or, effective June 1, 2008, if any portion of the Participant’s vested Accounts is invested in the Company Stock fund, in shares of Company Stock) as soon as practicable after severance from employment.

 

(b)           Effective March 28, 2005, if the Participant has not yet attained Normal Retirement Age and the vested portion of the Participant’s Accounts is valued in excess of $1,000 but less than or equal to $5,000, the Participant may elect to receive distribution of the vested portion of his or her Accounts in cash (or, effective June 1, 2008, if any portion of the Participant’s vested Accounts is invested in the Company Stock fund, in shares of Company Stock) or to have such amount distributed directly to an eligible retirement plan in accordance with Section 8.6.  In the event that the Participant fails to make such an election pursuant to the procedures provided by the Committee, the Committee will distribute the vested portion of the Participant’s Accounts in a direct rollover to an individual retirement plan designated by the Committee.

 

(c)           If the Participant has not yet attained Normal Retirement Age and the vested portion of the Participant’s Accounts is valued in excess of $5,000, distribution of such vested portion may not be made under this paragraph unless

 

(i)           between the 30th and 180th day prior to the date distribution is to be made, the Committee notifies the Participant in writing that he or she may defer distribution until the Normal Retirement Age and provides the Participant with a written description of the consequences of failing to defer such receipt; and

 

(ii)          the Participant consents to the distribution in writing after the information described above has been provided to him or her, and files such consent with the Committee.

 

Notwithstanding the foregoing, such distribution may commence less than 30 days after the required notification described above is given, provided that (i) the Committee clearly informs the Participant that the Participant has a right to a period of at least 30 days after receiving the notice to consider whether or not to elect a distribution; and (ii) the Participant, after receiving the notice, elects a distribution.

For purposes of this Section 8.2, the vested portion of a Participant’s Accounts will be considered to be valued in excess of $1,000 or $5,000, as the case may be, if the value of the vested portion of such Accounts (excluding Rollover Contributions and any earnings thereon) exceeds such amount at the time of the distribution in question.  Distribution under this Section in all events will be made no later than the 60th day after the close of the Plan Year in which occurs the later of the Participant's severance from employment or the Participant's attainment of the Normal Retirement Age.  Notwithstanding the foregoing, periodically the Committee will distribute the vested portion of terminated Participants’ Accounts that no longer have a value in excess of $1,000, and will cause the direct rollover to individual retirement plans of the vested portion of terminated Participants’ Accounts that are valued in excess of $1,000 but less than or equal to $5,000.”

3.   Effective June 1, 2008, Section 8.4 is deleted in its entirety and replaced with the following:

 

"8.4                       Distributions After a Participant's Death .

 

(a)            Death Prior to Severance From Employment . If a Participant dies prior to his or her severance from the service of the Participating Employers, the Participant's Beneficiary will receive the Participant's Accounts in either of the following forms, as elected by the Beneficiary on a form approved by the Committee:

 

  (i)  in cash (or, effective June 1, 2008, if any portion of the Participant’s vested Accounts is invested in the Company Stock fund, in shares of Company Stock) as soon as practicable following the Participant's death (but in no event later than December 31 of the calendar year following the year of the Participant's death); or

 

  (ii)  in monthly, quarterly, semi-annual, or annual installments over a period certain not to exceed the life expectancy of the Beneficiary, such installments to begin not later than December 31 of the calendar year following the year of the Participant's death and to be made in amounts determined in the same manner as under Section 8.3(b) above.

 

(b)            Death After Severance From Employment . If a Participant dies after severance from employment but before the complete distribution of his or her Accounts has been made, the Participant's Beneficiary will receive the vested portion of the Participant's Accounts.  Distribution will be made in cash (or, effective June 1, 2008, if any portion of the Participant’s vested Accounts is invested in the Company Stock fund, in shares of Company Stock) as soon as practicable following the Participant's death (but no later than December 31 of the calendar year following the year of the Participant's death) provided, however, that if distribution to the Participant had begun following his or her severance from employment in a form elected by the Participant, distribution will continue to be made to the Beneficiary at least as rapidly in such form unless the Beneficiary elects to receive the distribution in cash (or, effective June 1, 2008, if any portion of the Participant’s vested Accounts is invested in the Company Stock fund, in shares of Company Stock) as soon as practicable following the Participant's death.  Any such election must be made on a form approved by the Committee and must be received by the Committee within such period following the Participant's death as the Committee may prescribe.

 

Any distribution to a Beneficiary under this Section shall be determined as of the Valuation Date that authorized distribution directions are received by the Trustee.”

4.   Effective January 1, 2008, subsection (c) of Section 11.2 is deleted in its entirety and replaced with the following:

 

“(c)                    Except as permitted by Code section 414(v), the annual additions made on behalf of the Participant for any limitation year, when added to the annual additions, if any, to his or her account for such year under all other plans maintained by the Affiliated Employers (as determined under Regulation section 1.415(f)-1), shall not exceed the lesser of (i) the dollar limit under Code section 415(c)(1)(A), as adjusted for increases in the cost of living under Code section 415(d), or (ii) 100 percent of the Participant’s Compensation

for such limitation year from the Affiliated Employers.  The compensation limit referred to in (ii) above shall not apply to an individual medical benefit account (as defined in Code section 415(l)) or a post-retirement medical benefits account for a key employee (as defined in Code section 419A(d)(1)).”

 

5.   Effective January 1, 2008, subsection (f) of Section 11.2 is deleted in its entirety and replaced with the following:

 

“(f)                     Return of excess contributions .  If, as a result of a reasonable error in estimating a Participant's Compensation for a Plan Year or limitation year, a reasonable error in determining the amount of elective deferrals (within the meaning of Code section 402(g)(3)) that may be made with respect to any individual under the limits of Code section 415, or under such other facts and circumstances as may be permitted under regulation or by the Internal Revenue Service, the annual addition under the Plan for a Participant would cause the Code section 415 limitations for a limitation year to be exceeded, the excess amounts shall be corrected as determined by the Committee in a manner permitted under the correction programs under Revenue Procedure 2008-50 or other subsequently offered Internal Revenue Service correction programs.”

 

6.   Effective January 1, 2008, Section 14.8 is deleted in its entirety and replaced with the following:

 

              " 14.8                       'Compensation ' means,

 

(a)  for purposes of determining the Code section 415 limits, the amount of any minimum contribution under the special top-heavy provisions, and determining the status of an individual as a 'highly compensated employee' or a 'key employee', the Participant's wages as defined in Code section 3401(a) for purposes of income tax withholding at the source, but (i) determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed, and (ii) increased by any such amounts that would have been received by the individual from the Employer but for an election under Code section 125, 132(f)(4), 401(k), 402(h) or 403(b);

 

(b)  for purposes of the limits under Sections 11.4 and 11.5, 'compensation' as defined under Code section 414(s) and the Treasury regulations thereunder; and

 

(c)  for all other purposes under the Plan, the same as in (a) above, reduced by all of the following items (even if includable in gross income):  cost-of-living adjustments, reimbursements or other expense allowances, pay in lieu of vacation upon termination of employment, bonuses, deferred compensation, payments under a severance plan, amounts received upon the exercise of options to purchase Company Stock, and moving expenses.  Notwithstanding the foregoing, for purposes of allocating Discretionary Contributions for a Plan Year, commissions paid to any field sales commissioned Employee who is a Highly Compensated Employee for such Plan Year shall be taken into consideration only to the extent of the lesser of (i) fifty percent of the amount of the commissions so paid, or (ii) the amount, not in excess of the commissions so paid, which when added to all other amounts paid such Employee and qualifying as Compensation results in an aggregate amount of Compensation of $90,000 or less.

 

(d)  Compensation shall include only that compensation which is actually paid to the Participant during the applicable Plan Year and prior to the Participant’s severance from employment, except as provided in Regulation section 1.415(c)-(2)(e)(3).  For all purposes under the Plan, Compensation for any individual will be limited for any Plan Year as provided under Code section 401(a)(17).  If the period for determining Compensation used in calculating a Participant's allocation for a determination period is shorter than 12 months, the annual Compensation limit shall be an amount equal to the otherwise applicable limit multiplied by a fraction, the numerator of which is the number of months in the period, and the denominator of which is 12.  For a Participant's initial year of participation in the Plan, Compensation will be recognized for the entire Plan Year."

 

7.   Effective January 1, 2008, Section 14.21 is deleted in its entirety and replaced with the following:

 

              " 14.21                     'Leased Employee'  means any person who is not an employee of a Participating Employer (including, for purposes of this paragraph, Affiliated Employers) and who provides services to the Participating Employer, provided that (i) the services are provided pursuant to an agreement between the Participating Employer and any other person ("leasing organization"); (ii) the person has performed the services for the Company on a substantially full-time basis for a period of at least 1 year; and (iii) the services are performed under the primary direction and control of the Participating Employer; provided that, an individual shall not be considered a Leased Employee of the Participating Employer if (i) the employee is covered by a money purchase plan maintained by the leasing organization providing:  (1) a nonintegrated employer contribution rate of at least 10 percent of "compensation," as that term is defined in Section 14.8(a), (2) immediate participation, and (3) full and immediate vesting; and (ii) leased employees do not constitute more than 20 percent of the Participating Employer’s non-highly compensated workforce.”

 

8.   Effective June 1, 2008, Schedule A is amended by adding Guidant Corporation as a Participating Employer under the Plan, which corporation’s state of incorporation is Indiana.

 

9.   Effective June 1, 2008, Schedule B is amended by adding a new Section 13 which Section reads in its entirety as follows:

 

“13.                       The Guidant Employee Savings and Stock Ownership Plan

Effective as of the close of June 1, 2008, The Guidant Employee Savings and Stock Ownership Plan and Trust (the “Guidant ESSOP”) shall be merged into this Plan.

Special Participation rules (Section 2.1(c)): Yes

(i)  Any individual who is a participant in the Guidant ESSOP on May 31, 2008 shall become a Participant in the Plan as of June 1, 2008.

(ii)  Any individual who is an active employee of Guidant Corporation on May 31, 2008, but who has not yet become a participant in the Guidant ESSOP as of such date, shall become eligible to participate in the Plan as of June 1, 2008 and shall be subject to the Plan’s automatic election rules under Section 3.2.

(iii)  Each other employee of Guidant Corporation shall be subject to the Plan’s general participation rules under Section 2.1.

Special Matching Contribution Rules (Section 3.3):  Yes

In order to allocate the Financed Shares remaining in the Guidant ESSOP’s Suspense Account (as such terms are defined in the Guidant ESSOP) solely to individuals who were participants in the Guidant ESSOP as of May 31, 2008, all Matching Contributions under this Plan to individuals who were participants in the Guidant ESSOP as of May 31, 2008 shall be made in Shares instead of cash until such time as the Financed Shares are exhausted; provided, however, that any Participants in the Plan who receive Matching Contributions in the form of Shares shall have the same diversification rights with respect to such Shares as provided in Sections 5.06(b) and 19.14(b) of the Guidant ESSOP as in effect on May 31, 2008.  This portion of the Plan shall be deemed to be an employee stock ownership plan under Code section 4975(e)(7) and ERISA section 407(d)(6), and shall be administered in a manner consistent with the requirements applicable thereto, including without limitation those applicable to Shares purchased with the proceeds of an Exempt Loan.

Special Rules re allocation of transferred accounts

(Section 4.6(a)):  Yes

In order to administer special in-service withdrawal, diversification and distribution options with respect to Minimum Matching Contributions, Additional Matching Contributions and Basic Contributions made to Guidant ESSOP Participants’ ESOP Accounts (as such terms are defined in the Guidant ESSOP as of May 31, 2008), such amounts (and earnings thereon) shall be transferred into separate accounts or subaccounts under this Plan.

Special Vesting rules (Sections 5.6 and 14.40):  Yes

Any individual who is a participant in, and who has a forfeitable interest under, the Guidant ESSOP as of May 31, 2008 shall, as of the date on which he or she returns to the employ of an Affiliated Employer, have a 100% nonforfeitable interest in the portions of his or her Accounts under this Plan that are attributable to the transfer of such forfeitable interest; provided, that such return to the employ of an Affiliated Employer occurs prior to the date on which the individual incurs (or would have incurred) five consecutive One Year Periods of Severance within the meaning of Sections 10.01(a) and 19.08(b) of the Guidant ESSOP.

Special in-service withdrawal rules (Section 6.10(a)):  Yes

The Guidant ESSOP PAYSOP, ESOP Pre-Split Matching, Company Matching, Intermedics Matching Accounts (as such terms are defined in the Guidant ESSOP as of May 31, 2008) may be withdrawn in-service at any time, but not more than once per year.

Post-retirement, pre-distribution withdrawals shall be permitted consistent with Sections 10.01(b)(3) and 19.13(d) of the Guidant ESSOP as of May 31, 2008.

QJSA rules applicable (Section 8.7):  No

Optional forms of payment to preserve

(Sections 8.1 and 8.7):  Yes

Distributions rights that were applicable to a Participant’s ESOP Account, if any, under the Guidant ESSOP, as of May 31, 2008, shall continue to apply to the portion of such Participant’s Account under this Plan that is attributable to the transfer of his or her ESOP Account from the Guidant ESSOP.

Special Normal Retirement Agreement (Section 14.23):  Yes

The Normal Retirement Age shall be age 65 with respect to a Participant’s accounts transferred from the Guidant ESSOP.”

*  *  *  *  *

 

IN WITNESS WHEREOF, Boston Scientific Corporation has caused this amendment to be executed in its name and on its behalf effective as of the dates set forth herein by an officer or a duly authorized delegate.

 

		BOSTON SCIENTIFIC CORPORATION
		By:     ____________________________
		Title:  ____________________________
		Date:  ____________________________

 

EXHIBIT 10.3

EXHIBIT 10.4

 

 

BOSTON SCIENTIFIC CORPORATION

EXCESS BENEFIT PLAN

FIRST AMENDMENT

Pursuant to Article 9 of the Boston Scientific Corporation Excess Benefit Plan, as effective January 1, 2005 (the “Plan”), Boston Scientific Corporation hereby amends the Plan as follows:

1.   Effective January 1, 2008, Section 2.13 is amended in its entirety to read as follows:

 

“2.13                      “ Separation from Service ” means a "separation from service" (as that term is defined at Section 1.409A-1(h) of the Treasury Regulations) from the Company and from all other corporations and trades or businesses, if any, that would be treated as a single "service recipient" with the Company under Section 1.409A-1(h)(3) of the Treasury Regulations.  The Administrator may, but need not, elect in writing, subject to the applicable limitations under Section 409A, any of the special elective rules prescribed in Section 1.409A-1(h) of the Treasury Regulations for purposes of determining whether a “separation from service” has occurred.  Any such written election shall be deemed part of the Plan.”

 

2.   Effective January 1, 2008, Section 2.14 is amended in its entirety to read as follows:

 

“2.14                      “ Special Discretionary Contribution ” means the discretionary contribution to the 401(k) Plan described in section 3.14 thereunder, which discretionary contribution was a one-time special contribution made in 2005 in respect of the 401(k) Plan’s 2004 plan year.”

 

3.   Effective January 1, 2008, Section 4.1 is amended by inserting the words “during 2005” immediately following the words “As of the date”.

 

4.   Effective January 1, 2008, the last sentence of Section 6.2 is amended to read as follows:  “If an Eligible Employee’s termination of employment occurs before the Eligible Employee becomes a Participant under the Plan, the Eligible Employee will be treated as a Participant who has had a Separation from Service and the amount of the Participant’s Special Discretionary Credit will be paid, subject to Section 6.4, in cash in a single lump sum to the Participant as soon as practicable after the Special Discretionary Credit is credited to the Participant’s Account and in any case no later than December 31, 2005.”

 

5.   Effective January 1, 2008, Section 6.3 is amended in its entirety to read as follows:

 

“6.3                         Distribution after a Participant’s death .  Upon the death of the Participant, an amount equal to the balance of his or her Account will be paid in cash in a single lump sum to his or her Beneficiary within 90 days of the Participant’s death.  If an Eligible Employee dies before becoming a Participant, the amount of the Participant’s Special Discretionary Credit will be paid in cash in a single lump sum to the Participant’s Beneficiary as soon as practicable after the Special Discretionary Credit is credited to the Participant’s Account and in any case no later than December 31, 2005.”

 

6.   Effective January 1, 2008, Section 6.4 is deleted in its entirety and replaced with the following:

 

“6.4                         Key Employees .  Notwithstanding anything in the Plan to the contrary, in the case of a Participant who is an individual determined by the Administrator or its delegate to be a "specified employee" as defined in subsection (a)(2)(B)(i) of section 409A of the Code, payment of such Participant's benefit owing to a Separation from Service with the Company shall not be made or commence until the date which is six (6) months and one (1) day after the date of such Separation from Service or, if earlier than the end of such period, the date of death of such Participant.  The Administrator may, but need not, elect in writing, subject to the applicable limitations under section 409A of the Code, any of the special elective rules prescribed in section 1.409A-1(i) of the Treasury Regulations for purposes of determining “specified employee” status.  Any such written election shall be deemed part of the Plan.”

 

7.   Effective January 1, 2008, Article 9 is amended by adding the following sentence to the end thereto:  “Upon any termination of the Plan as a whole or with respect to any Participant or group of Participants, payments will be accelerated only to the extent permitted by section 409A of the Code.”

 

*  *  *  *  *

 

IN WITNESS WHEREOF, Boston Scientific Corporation has caused this amendment to be executed in its name and on its behalf effective as of the dates set forth herein by an officer or a duly authorized delegate.

EXHIBIT 10.5

 

 

THE BOSTON SCIENTIFIC CORPORATION

EXECUTIVE RETIREMENT PLAN

FIRST AMENDMENT

Pursuant to Section 14 of the Boston Scientific Executive Retirement Plan, as effective May 9, 2005 (the “Plan”), Boston Scientific Corporation hereby amends the Plan as follows:

1.

Effective January 1, 2009, Section 3 is amended by adding at the end of the section the following:  “A Participant will not be considered to have Retired for purposes of this Plan unless the Participant’s actual date of  Retirement constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the Treasury Regulations.”

 

2.	Effective January 1, 2009, the last two sentences of Section 6 are amended to read as follows:  “Payment will be made to a retired Participant in the first payroll period after the last day of the six month period following the actual date of Retirement.”

 

3.	Effective January 1, 2009, the last sentence of Section 7 is amended to read as follows:  “Payment will be made in a lump sum in cash within 60 days following the death of the Participant.”

 

4.	Effective January 1, 2009, the third and fourth sentences of Section 13 are amended to read as follows:  “The retainer fee will be paid in a lump sum to the eligible participant in the first payroll period after the last day of the six month period following the actual date of Retirement.”

 

 

 

*  *  *  *  *

 

IN WITNESS WHEREOF, Boston Scientific Corporation has caused this amendment to be executed in its name and on its behalf effective as of the dates set forth herein by an officer or a duly authorized delegate.

 

 

 

BOSTON SCIENTIFIC CORPORATION

By:           ___________________________

Title:        ___________________________

Date:        ___________________________

EXHIBIT 10.6

 

 

(Date)

[Name of Executive]

[Address of Executive]

 

Re: Retention Agreement

Dear [Name of Executive]:

                     Boston Scientific Corporation (the " Company ") considers it essential to the best interests of its stockholders to foster the continuous employment of key management personnel.  Further, the Board of Directors of the Company (the " Board ") recognizes that the possibility of a change in control exists, and that such possibility, and the uncertainty and questions that it may raise among management, may result in the departure or distraction of management personnel to the detriment of the Company and its stockholders.

                     The Board has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of the management of the Company, including yourself, to their assigned duties without distraction in the face of potentially disturbing circumstances arising from any possible change in control of the Company.

                     In order to induce you to remain in the employ of the Company, the Company agrees that you shall receive the severance benefits set forth in this letter agreement (this " Agreement ") in the event your employment with the Company is terminated subsequent to a Change in Control (as defined herein) under the circumstances described below.

           1.        Termination Following Change in Control .  If a Change in Control occurs, you will be entitled to the benefits provided in Section 2 hereof upon the subsequent termination of your employment by the Company without Cause (as defined herein) or by you for Good Reason (as defined herein) during the two-year period following such Change in Control (the " Covered Period ").  Any purported termination of your employment by the Company or by you shall be communicated by a Notice of Termination to the other party hereto in accordance with Section 8 hereof.  For purposes of this Agreement, (i) references to termination of employment mean a “separation from service” (as defined in

 

Section 1.409A-1(h) of the Treasury Regulations) from the Company, and (ii) a " Notice of Termination " shall mean a written notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of your employment under the provision so indicated.

           2.        Compensation Upon Termination .

                     (a)                 Severance Benefits .  If your employment by the Company shall be terminated during the Covered Period by the Company without Cause or by you for Good Reason, then you shall be entitled to the following benefits:

(i)

Severance Payments .

(1)  Amount of Payment.  The Company shall pay you in cash the full amount of any earned but unpaid base salary through the Date of Termination at the rate in effect at the time of the Notice of Termination, plus a cash payment for all unused vacation time which you may have accrued as of the Date of Termination.  The Company shall also pay you in cash a pro rata portion of the annual bonus for the year in which your employment terminates, calculated on the basis of your target bonus for that year and on the assumption that all performance targets have been or will be achieved.  In addition, the Company shall pay you in a cash lump sum, an amount (the " Severance Payment ") equal to three times the sum of (A) your base salary on the Termination Date (without giving effect to any salary reductions which satisfy the definition of " Good Reason "), (B) the greater of (x) the most recent bonus paid to you (which shall be deemed to be the sum of (I) the cash bonus amount most recently paid to you and (II) the value of restricted stock (calculated as of the date of vesting) issued to you as bonus compensation that vested (other than restricted stock that vested solely by virtue of the Change in Control) within the immediately preceding year) plus the value of any other shares of stock issued to you without forfeiture provisions as bonus compensation within the immediately preceding year and (y) your target bonus in effect for the year in which the Change in Control occurred (calculated assuming that all performance targets have been or will be achieved) and (C) $25,000.  The Severance Payment shall be in lieu of any other severance payments which you are entitled to receive under any other severance pay plan or arrangement sponsored by the Company or any of its subsidiaries ; .

 

(ii)

Benefit Continuation .  Subject to your compliance with the non-solicitation and confidentiality provisions described in Section 6, you and your eligible dependents shall continue to be eligible to participate during the Benefit Continuation Period (as hereinafter defined) in the medical, dental, health, life and other welfare benefit plans and arrangements applicable to you immediately prior to your termination of employment on the same terms and conditions in effect for you and your dependents immediately prior to such termination; provided that the provision of such benefits in each calendar year during the Benefit Continuation Period does not affect the provision of such benefits in any other calendar year during the Benefit Continuation Period.  For purposes of the previous sentence, " Benefit Continuation Period " means the period beginning on the Date of Termination and ending on the earlier to occur of (i) the third anniversary of the Date of Termination and (ii) the date that you and your dependents are eligible for coverage under the plans of a subsequent employer which provide substantially equivalent or greater benefits to you and your dependents.  The right to participate in the benefit plans under this Section 2(a)(ii) is not subject to liquidation or exchange for any other benefit;

(iii)

Legal Fees and Expenses .  The Company shall also pay you in cash all legal fees and expenses, if any, incurred by you in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement if such expenses are incurred on or prior to the December 31 of the second calendar year following the calendar year in which the Date of Termination occurs, such payment(s) to be made on or before the December 31 of the third calendar year following the calendar year(s) in which the Date of Termination occurs; provided ,   however, that the amount of the payments and reimbursements under this Section 2(a)(iii) shall not exceed $100,000; and provided, further , that no

 

       (b)                Specified Employee .  Notwithstanding anything to the contrary in this Agreement, if you are a “specified employee” as hereinafter defined at the time of the Date of Termination, any and all amounts payable in connection with your termination of employment (including amounts payable under this Section 2 and Section 3) that constitute deferred compensation subject to Section 409A of the Code, as determined by the Committee in its sole discretion, and that would (but for this sentence) be payable within six months following the Date of Termination, shall instead be paid on the date that follows the Date of Termination by six months and one day (the “Specified Employee Payment Date”).  The provision of benefits pursuant to Section 2(a)(ii) that constitute deferred compensation under Section 409A of the Code will not be provided in-kind during the first six months following the Date of Termination, but rather will be continued by your payment of any applicable premiums for which you will be reimbursed on the Specified Employee Payment Date.  The provision of in-kind benefits will commence on the Specified Employee Payment Date in accordance with Section 2(a)(ii).  For purposes of this Agreement, the term “specified employee” means an individual who is determined by the Committee to be a specified employee as defined in Section 409A(a)(2)(B)(i) of the Code.  The Committee may, but need not, elect in writing, subject to the applicable limitations under Section 409A of the Code, any of the special elective rules prescribed in Section 1.409A-1(i) of the Treasury Regulations for purposes of determining “specified employee” status.  Any such written election shall be deemed part of this Agreement.

 

                     (c)                 No Mitigation .  You shall not be required to mitigate the amount of any payment or benefit provided for in this Section 2 by seeking other employment or otherwise.

           3.        Additional Payment .

                     (a)                 Gross-Up Payment .  Notwithstanding anything herein to the contrary, if it is determined that any Payment (as defined herein) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any interest or penalties thereon, is herein referred to as an " Excise Tax "), then you shall be entitled to an additional cash payment (a " Gross-Up Payment ") in an amount that will place you in the same after-tax economic position that you would have enjoyed if the Excise Tax had not applied to the Payment.  The amount of the Gross-Up Payment shall be determined by the Accounting Firm (as defined herein) in accordance with such formula as the Accounting Firm deems appropriate.  No Gross-Up Payments shall be payable hereunder if the Accounting Firm determines that the Payments are not subject to an Excise Tax.  The Accounting Firm shall be paid by the Company for services performed hereunder.  All payments made under this Section 3 shall be made in accordance with Section 1.409A-3(i)(1)(v) of the Treasury Regulations.

                     (b)                 Determination of Gross-Up Payment .  Subject to the provisions of Section 3(c), all determinations required under this Section 3, including whether a Gross-Up Payment is required, the amount of the Payments constituting “ excess parachute payments, ” and the amount of the Gross-Up Payment, shall be made by the Accounting Firm, which shall provide detailed supporting calculations both to you and the Company within fifteen days of any date reasonably requested by you or the Company on which a determination under this Section 3 is necessary or advisable.  The Company shall pay you in cash the initial Gross-Up Payment within five days of the receipt by you and the Company of the Accounting Firm's determination; provided, however, that in any event such payment will be made by the December 31 of the calendar year following the calendar year in which you pay the Excise Tax.  If the Accounting Firm determines that no Excise Tax is payable by you, the Company shall cause the Accounting Firm to provide you with an opinion that the Accounting Firm has substantial authority under the Code and Regulations not to report an Excise Tax on your federal income tax return.  Any determination by the Accounting Firm shall be binding upon you and the Company.  If the initial Gross-Up Payment is insufficient to completely place you in the same after-tax economic position that you would have enjoyed if the Excise Tax had not applied to the Payments (hereinafter an " Underpayment "), the Company, after exhausting its remedies under Section 3(c) below, shall promptly pay you in cash an additional Gross-Up Payment in respect of the Underpayment.

                     (c)                 Procedures .  You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment.  Such notice shall be given as soon as practicable after you know of such claim and shall apprise the Company of the nature of the claim and the date on which the claim is requested to be paid.  You agree not to pay the claim until the expiration of the thirty-day period following the date on which you notify the Company, or such shorter period ending on the date the Taxes with respect to such claim are due (the " Notice Period ").  If the Company notifies you in writing prior to the expiration of the Notice Period that it desires to contest the claim, you shall:  (i) give the Company any information reasonably requested by the Company relating to the claim; (ii) take such action in connection with the claim as the Company may reasonably request, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably acceptable to you; (iii) cooperate with the Company in good faith in contesting the claim; and (iv) permit the Company to participate in any proceedings relating to the claim.  You shall permit the Company to control all proceedings related to the claim and, at its option, permit the Company to pursue or forgo any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such claim.  If requested by the Company, you agree either to pay the tax claimed and sue for a refund or contest the claim in any permissible manner and to prosecute such contest to a determination  before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts as the Company shall determine; provided , however , that, if the Company directs you to pay such claim and pursue a refund, the Company shall advance the amount of such payment to you on an after-tax and interest-free basis (the " Advance ").  The Company's control of the contest related to the claim shall be limited to the issues related to the Gross-Up Payment and you shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or other taxing authority.  If the Company does not notify you in writing prior to the end of the Notice Period of its desire to contest the claim, the Company shall pay you in cash an additional Gross-Up Payment in respect of the excess parachute payments that are the subject of the claim, and you agree to pay the amount of the Excise Tax that is the subject of the claim to the applicable taxing authority in accordance with applicable law.  Any such additional Gross-Up Payment will be paid to you no later than the December 31 of the calendar year following the calendar year in which you pay the Excise Tax.

                     (d)                 Repayments .  If, after receipt by you of an Advance, you become entitled to a refund with respect to the claim to which such Advance relates, you shall pay the Company the amount of the refund (together with any interest paid or credited thereon after Taxes applicable thereto).  If, after receipt by you of an Advance, a determination is made that you shall not be entitled to any refund with respect to the claim and the Company does not promptly notify you of its intent to contest the denial of refund, then the amount of the Advance shall not be required to be repaid by you and the amount thereof shall offset the amount of the additional Gross-Up Payment then owing to you.

                     (e)                 Further Assurances .  The Company shall indemnify you and hold you harmless, on an after-tax basis, from any costs, expenses, penalties, fines, interest or other liabilities (" Losses ") incurred by you with respect to the exercise by the Company of any of its rights under this Section 3, including, without limitation, any Losses related to the Company's decision to contest a claim or any imputed income to you resulting from any Advance or action taken on your behalf by the Company hereunder.  The Company shall pay all legal fees and expenses incurred under this Section 3, and shall promptly, and no later than the December 31 of the calendar year following the calendar year in which you incur expenses, reimburse you for the reasonable expenses incurred by you in connection with any actions taken by the Company or required to be taken by you hereunder.  The Company shall also pay all of the fees and expenses of the Accounting Firm, including, without limitation, the fees and expenses related to the opinion referred to in Section 3(b).

           4.        Equity Incentive Awards .

                  (a)                 Options . All options granted to you under the Company’s equity incentive plans will immediately become exercisable upon a Change in Control (as defined herein).

    (b)                Restricted Stock Awards .  All restricted stock awards will immediately become free from restriction upon a Change in Control (as defined herein).

                     (a)                 Assumption By Successor .  The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.  Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle you to compensation from the Company in the same amount and on the same terms as you would be entitled hereunder if you had terminated your employment for Good Reason following a Change in Control, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination.  As used in this Agreement, " the Company " shall mean the Company as hereinbefore defined and any successor to its business or assets which assumes and agrees to perform this Agreement by operation of law, by agreement or otherwise.

                     (b)                 Enforceability By Beneficiaries .  This Agreement shall inure to the benefit of and be enforceable by your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.  If you should die while any amount would still be payable to you hereunder if you had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to your devisee, legatee or other designee or, if there is no such designee, to your estate.

           6.         Nonsolicitation; Confidentiality

                     (a)                 Nonsolicitation .  For three years following your Date of Termination, you shall not, without the prior written consent of the Company, directly or indirectly, as a sole proprietor, member of a partnership, stockholder or investor, officer or director of a corporation, or as an employee, associate, consultant, independent contractor or agent of any person, partnership, corporation or other business organization or entity other than the Company:  (i) solicit or endeavor to entice away from the Company or any of its affiliates or subsidiaries, any person or entity who is, or, during the then most recent

12-month period, was, employed by, or had served as an agent or key consultant of, the Company or any of its subsidiaries, or (ii) solicit or endeavor to entice away from the Company or any of its subsidiaries any person or entity who is, or was within the then most recent 12-month period, a customer or client (or reasonably anticipated (to your general knowledge or the public's general knowledge) to become a customer or client) of the Company or any of its subsidiaries.

                     (b)                 Confidentiality .  On and after the date of this Agreement, you will not, except in the performance of your obligations to the Company hereunder or as may otherwise be approved in advance by the Board, directly or indirectly, disclose or use (except for the direct benefit of the Company) any confidential information that you may learn or have learned by reason of your association with the Company, any customer or client of the Company or any of their respective subsidiaries and affiliates.  The term " confidential information " includes all data, analyses, reports, interpretations, forecasts, documents and information in any form concerning or otherwise reflecting information and concerning the Company and its affairs, including, without limitation, with respect to clients, products, policies, procedures, methodologies, trade secrets and other intellectual property, systems, personnel, confidential reports, technical information, financial information, business transactions, business plans, prospects or opportunities, but shall exclude any portion of such information that (i) was acquired by you prior to your employment by, or other association with, the Company or any affiliated or predecessor entity, (ii) is or becomes generally available to the public or is generally known in the industry or industries in which the Company or any customer or client of the Company operates, in each case other than as a result of disclosure by you in violation of this Section 6 or (iii) you are required to disclose under any applicable laws, regulations or directives of any government agency, tribunal or authority having jurisdiction in the matter or under subpoena or other process of law.  As used in this Section 6, an " affiliate " of a person or entity is a person or entity in control of, controlled by, or in common control with, such first person or entity.

           7.        Definitions .  For purposes of this Agreement, the following capitalized words shall have the meanings set forth below:

                     " Accounting Firm " shall mean the then-current independent auditors of the Company or, if such firm is unable or unwilling to perform such calculations, such other national accounting firm as shall be designated by agreement between you and the Company.

                     " Cause " shall mean the willful engaging by you in criminal or fraudulent acts or gross misconduct that is demonstrably and materially injurious to the Company, monetarily or otherwise.  No act or failure to act on your part shall be deemed " willful " unless done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company.  Notwithstanding the foregoing, you shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to you a copy of a resolution duly adopted by the affirmative vote of not less than three quarters of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice to you and an opportunity for you, together with your counsel, to be heard before the Board), finding that in the good faith opinion of the Board you were guilty of conduct set forth above in the first sentence of this subsection and specifying the particulars thereof in detail.

                     " Change in Control " shall mean the happening of any of the following:

(a)

The acquisition, other than from the Company, by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the " Exchange Act ")) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares of common stock of the Company (the " Outstanding Company Common Stock ") or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the " Company Voting Securities "); provided , however , that any acquisition by (x) any non-corporate shareholder of the Company as of the effective date of the initial registration of an offering of Stock under the Securities Act of 1933, (y) the Company or any of its affiliates or subsidiaries, or any employee benefit plan (or related trust) sponsored or maintained by the Company or any of its subsidiaries or (z) any corporation with respect to which, following such acquisition, more than 60% of, respectively, the then outstanding shares of common stock of such corporation and combined voting power of the then outstanding voting

 

(b)

Individuals who, as of the effective date of the initial registration of an offering of Stock under the Securities Act of 1933, constitute the Board (the " Incumbent Board ") cease for any reason to constitute at least a majority of the Board, provided that any individual becoming a director subsequent to such effective date whose election or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the Directors of the Company (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act); or

(c)

Consummation of a reorganization, merger, consolidation or similar transaction involving the Company (a " Business Combination "), in each case, with respect to which all or substantially all of the individuals and entities who were the respective beneficial owners of the Outstanding Company Common Stock and Company Voting Securities immediately prior to such Business Combination do not own beneficially, directly or indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination in substantially the same proportion as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and Company Voting Securities, as the case may be; or

(d)

A complete liquidation or dissolution of the Company or a sale or other disposition of all or substantially all of the assets of the Company other than to a corporation with respect to which, following such sale or disposition, more than 60% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directions is then owned beneficially, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Company Voting Securities immediately prior to such sale or disposition in substantially the same proportion as their ownership of the Outstanding Company Common Stock and Company Voting Securities, as the case may be, immediately prior to such sale or disposition.

Notwithstanding the foregoing, with respect to any amounts payable under this Agreement that are subject to Section 409A of the Code where the payment is to be accelerated in connection with the Change of Control, no event(s) set forth above shall constitute a Change in Control for purposes of the Agreement unless such event(s) also constitutes a “change in the ownership”, “change in the effective control” or a “change in the ownership of a substantial portion of the assets” of the Company as defined under Section 409A of the Code.

                      " Code " shall mean the Internal Revenue Code of 1986, as amended, and any successor provisions thereto.

                      " Date of Termination " shall be the date on which you experience a “separation from service” (as defined in Section 1.409A-1(h) of the Treasury Regulations) from the Company upon the termination of your employment by the Company without Cause or by you for Good Reason.  Such Date of Termination shall be the date specified in the Notice of Termination (which, in the case of a termination by the Company without Cause shall not be less than 30 days, and in the case of a resignation by you for Good Reason shall not be less than 30 nor more than 60 days from the date such Notice of Termination is given); provided , that if within 30 days after any Notice of Termination is given the party receiving such Notice of Termination notifies the other party that a dispute exists concerning the termination, the Date of Termination shall be the

date on which the dispute is finally determined, either by mutual written agreement of the parties, by a binding arbitration award, or by a final judgment, order or decree of a court of competent jurisdiction (which is not appealable or the time for appeal therefrom having expired and no appeal having been perfected); provided, further, that the Date of Termination shall be extended by a notice of dispute only if such notice is given in good faith and the party giving such notice pursues the resolution of such dispute with reasonable diligence.  Notwithstanding the pendency of any such dispute, the Company will continue to pay you your full compensation in effect when the notice giving rise to the dispute was given and continue you as a participant in all compensation, benefit, and insurance plans and perquisites in which you were participating when the notice giving rise to the dispute was given, until the dispute is finally resolved in accordance with this Subsection.  Amounts paid under this Subsection are in addition to all other amounts due under this Agreement and shall not be offset against or reduce any other amounts due under this Agreement.

" Good Reason " shall mean, without your express written consent, any of the following:

(a)

A meaningful and detrimental alteration in your position or in the nature or status of your responsibilities (including those as a director of the Company, if any) from those in effect immediately prior to the Change in Control;

(b)

A reduction by the Company in your annual base salary as in effect on the date hereof or as the same may be increased from time to time; a failure by the Company to increase your salary at a rate commensurate with that of other key executives of the Company; a reduction in your annual bonus (expressed as a percentage of base salary) below the target in effect for you immediately prior to the Change in Control; or any adverse change in your long-term incentive opportunities in comparison to those in effect prior to the Change in Control.

(c)

The relocation of the office of the Company where you are employed at the time of the Change in Control (the " CIC Location ") to a location which is more than 50 miles away from the CIC Location or the Company's requiring you to be based more than 50 miles away from the CIC Location (except for required travel on the Company's business to an extent substantially consistent with your customary business travel obligations in the ordinary course of business prior to the Change in Control);

(d)

The failure by the Company to continue in effect any incentive or deferred compensation plan in which you participate or the failure by the Company to continue your participation therein on at least as favorable a basis, both in terms of the amount of benefits provided and the level of your participation relative to other participants, as existed at the time of the Change in Control;

(e)

The failure by the Company to continue to provide you with benefits at least as favorable as those enjoyed by you under any of the Company's retirement, life insurance, medical, health and accident, disability or savings plans in which you were participating at the time of the Change in Control; the taking of any action by the Company that would directly or indirectly materially reduce any of such benefits or deprive you of any material perquisite enjoyed by you at the time of the Change in Control including without limitation, the use of a car, secretary, office space, telephones, expense reimbursement and club dues; or the failure by the Company to provide you with the number of paid vacation days to which you are entitled on the basis of years of service with the Company in accordance with the Company's normal vacation policy in effect at the time of the Change in Control;

(f)

The failure of the Company to pay you any amounts of salary, bonus or expense reimbursement then owed to you or the failure of the Company to adhere to its payroll and other compensation schedules in place just prior to the Change in Control;

(g)

The failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform this Agreement, as contemplated in Section 5 hereof or, if the business of the Company for which your services are principally performed is sold at any time after a Change in Control, the purchaser of such business shall fail to agree to provide you with the same or a comparable position, duties, compensation and benefits (as described in subsections (iv) and (v) above) as provided to you by the Company immediately prior to the Change in Control; or

(h)

Any purported termination of your employment which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 1 (and, if applicable, the requirements set out in the definition of " Cause " above); for purposes of this Agreement, no such purported termination shall be effective.

                      " Payment " means (i) any amount due or paid to you under this Agreement, (ii) any amount that is due or paid to you under any plan, program or arrangement of the Company and its subsidiaries, and (iii) any amount or benefit that is due or payable to you under this Agreement or under any plan, program or arrangement of the Company and its subsidiaries not otherwise covered under clause (i) or (ii) hereof which must reasonably be taken into account under Section 280G of the Code and the Regulations in determining the amount of the " parachute payments " received by you, including, without limitation, any amounts which must be taken into account under the Code and Regulations as a result of (x) the acceleration of the vesting of Options, restricted stock or other equity awards, (y) the acceleration of the time at which any payment or benefit is receivable by you or (z) any contingent severance or other amounts that are payable to you.

                      " Regulations " shall mean the proposed, temporary and final regulations under Section 280G of the Code or any successor provision thereto.

                      " Taxes " shall mean the federal, state and local income taxes to which you are subject at the time of determination, calculated on the basis of the highest marginal rates then in effect, plus any additional payroll or withholding taxes to which you are then subject.

           8.        Notice .  For the purpose of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by United States registered mail, return receipt requested, postage prepaid, addressed to, General Counsel, Boston Scientific Corporation, One Boston Scientific Place, Natick, MA 01760-1537, or to you at the address set forth on the signature page of this Agreement or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

           9.        Miscellaneous .  No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing.  No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.  No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party that are not expressly set forth in this Agreement and this Agreement shall supersede all prior agreements, negotiations, correspondence, undertakings and communications of the parties, oral or written, with respect to the subject matter hereof.  The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts.

           10.      Validity .  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

           11.      Counterparts .  This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.

           12.      Arbitration .  Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Boston in accordance with the rules of the American Arbitration Association then in effect.  Judgment may be entered on the arbitrator's award in any court having jurisdiction; provided, however , that you shall be entitled to seek specific performance of your right to be paid until the Date of Termination during the pendency of any dispute or controversy arising under or in connection with this Agreement.

           13.      No Contract of Employment .  Nothing in this Agreement shall be construed as giving you any right to be retained in the employ of the Company.

           14.      Headings .  The headings contained in this Agreement are intended solely for convenience and shall not affect the rights of the parties to this Agreement.

If this letter sets forth our agreement on the subject matter hereof, kindly sign and return to the Company the enclosed copy of this letter which will then constitute our agreement on this subject.

Sincerely,

 BOSTON SCIENTIFIC CORPORATION

 

 

By   /s/ James R. Tobin                                                                          

James R. Tobin

President and Chief Executive Officer

The foregoing is accepted and agreed to.

_________________________________                                                      

[Name of Executive]

EXHIBIT 10.7

 

 

AMENDMENT

 

TO

 

DEFERRED STOCK UNIT AGREEMENT

 

A.   The Deferred Stock Unit Agreement (the “Agreement”) dated as of February 28, 2006 by and between Boston Scientific Corporation (the “Company”) and James R. Tobin (the “Participant”) governing the award of 250,000 Deferred Stock Units is hereby amended as follows solely to reflect the requirements of Section 409A of the Internal Revenue Code of 1986, as amended:

 

1.   Section 3 of the Agreement is hereby amended by deleting the phrase “the Participant’s termination of employment” in the first sentence thereof and substituting therefor the phrase “the Participant’s Separation from Service as determined in accordance with the presumptions set forth in Treasury Regulations Section 1.409A-1(h) (‘Separation from Service’).”

 

2.   Section 8 of the Agreement is hereby amended by deleting the phrase “the Participant’s termination of employment” in the last sentence thereof and substituting therefor the phrase “the Participant’s Separation from Service.”

 

B.   Except as amended herein, the Agreement is confirmed in all other respects.

 

C.   The effective date of this Amendment is as of January 1, 2009.

 

Executed this __________ day of December, 2008 by the parties hereto and, in the case of the Company, by its duly authorized officer.

 

 

EXHIBIT 10.8

 

 

AMENDMENT

 

TO

 

DEFERRED STOCK UNIT AGREEMENT

 

A.   The Deferred Stock Unit Agreement (the “Agreement”) dated as of February 28, 2006 by and between Boston Scientific Corporation (the “Company”) and James R. Tobin (the “Participant”) governing the award of 2,000,000 Deferred Stock Units is hereby amended as follows solely to reflect the requirements of Section 409A of the Internal Revenue Code of 1986, as amended:

 

1.   Section 3 of the Agreement is hereby amended by deleting the second and third sentences thereof and substituting therefor the following:

 

“The issuance of shares of Stock with respect to vested Units may be deferred to a later date as elected by Participant irrevocably in writing no later than December 31, 2008.  Any shares of Stock to be issued to Participant on account of termination of employment for reasons other than death or Disability shall be issued in the seventh month after Participant’s Separation from Service as determined in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).”

 

B.   Except as amended herein, the Agreement is confirmed in all other respects.

 

C.   The effective date of this Amendment is as of January 1, 2009.

 

Executed this __________ day of December, 2008 by the parties hereto and, in the case of the Company, by its duly authorized officer.