EXHIBIT 10.12
FORM OF
BOSTON SCIENTIFIC CORPORATION
401(k) RETIREMENT SAVINGS PLAN
SECOND AMENDMENT
Pursuant to Section 10.1 of the Boston Scientific Corporation 401(k)
Retirement Savings Plan as amended and restated effective January 1, 2001 (the
"Plan"), and as further amended by the First Amendment thereto, Boston
Scientific Corporation hereby amends the Plan as follows:
1. Section 3.1 is amended by adding the following sentence to the end
thereof: "The Plan shall not be treated as failing to satisfy the provisions of
the Plan implementing the requirements of section 401(k)(3), 401(k)(11),
401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of the making
of such catch-up Elective Contributions."
2. Section 3.3 is amended, effective January 1, 2004, by deleting such
Section in its entirety and substituting the following therefor:
"3.3 MATCHING CONTRIBUTIONS.
(a) On a bi-weekly basis, each Participating Employer will
make a Matching Contribution to the Trust for the benefit of each
Participant on whose behalf it made Elective Contributions for the
period. The amount of Matching Contribution made by a Participating
Employer for the period shall be equal to (i) 200% of the Elective
Contributions made on behalf of the Participant for the period which do
not exceed 1% of the Participant's Compensation for the period, plus
(ii) 100% of the Elective Contributions made on behalf of the
Participant for the period which exceed 1% but do not exceed 2% of the
Participant's Compensation for the period, plus (iii) 50% of the
Elective Contributions made on behalf of the Participant for the period
which exceed 2% but do not exceed 4% of the Participant's Compensation
for the period. For purposes of this Section 3.3, catch-up Elective
Contributions described in Section 3.1 shall not be taken into account.
(b) If (i) a Participant is an Eligible Employee on the last
day of the Plan Year, and (ii) the aggregate Matching Contributions
made by his or her Participating Employer under paragraph (a) above to
the Trust for the benefit of such Participant with respect to such Plan
Year are less than the lesser of (1) 200% of the Participant's Elective
Contributions for such Plan Year which do not exceed 1% of the
Participant's Compensation for such Plan Year plus 100% of the
Participant's Elective Contributions for such Plan Year which exceed 1%
but do not exceed 2% of the Participant's Compensation for such Plan
Year plus 50% of the Participant's Elective Contributions for such Plan
Year which exceed 2% but do not exceed 4% of the Participant's
Compensation for such Plan Year; or (2) 4% of such Participant's
Compensation for such Plan Year, then the Participating Employer shall
make a further contribution to the Trust, for the benefit of such
Participant, to be credited to his or her Matching Contribution
Account, such that the aggregate Matching Contributions made by the
Participating Employer for the benefit of such Participant for the Plan
Year under this Section shall equal the lesser of the amounts set forth
in clauses (1) and (2) above."
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3. Article 8 is amended, effective January 1, 2003, by adding a new
Section 8.9, which Section reads in its entirety as follows:
"8.9 MINIMUM DISTRIBUTION REQUIREMENTS. This Section 8.9 will apply
for purposes of determining required minimum distributions for calendar years
beginning on or after January 1, 2003, and takes precedence over any other
provisions of the Plan to the contrary.
(a) Time and Manner of Distribution.
(1) Required Beginning Date. The payment of benefits
to the Participant will commence no later than the
Participant's Required Beginning Date.
(2) Death of Participant Before Distributions Begin.
If the Participant dies before distributions begin, the
Participant's entire interest will be distributed, or begin to
be distributed, no later than as follows:
(A) If the Participant's surviving spouse is
the Participant's sole designated Beneficiary, then
distributions to the surviving spouse will begin by
December 31 of the calendar year immediately
following the calendar year in which the Participant
died, or by December 31 of the calendar year in which
the Participant would have attained age 70 1/2, if
later.
(B) If the Participant's surviving spouse is
not the Participant's sole designated Beneficiary,
then distributions to the designated Beneficiary will
begin by December 31 of the calendar year immediately
following the calendar year in which the Participant
died.
(C) If there is no designated Beneficiary as
of September 30 of the year following the year of the
Participant's death, the Participant's entire
interest will be distributed by December 31 of the
calendar year containing the fifth anniversary of the
Participant's death.
(D) If the Participant's surviving spouse is
the Participant's sole designated Beneficiary and the
surviving spouse dies after the Participant but
before distributions to the surviving spouse begin,
this Section 8.9(a)(2), other than Section
8.9(a)(2)(A), will apply as if the surviving spouse
were the Participant.
For purposes of this Section 8.9(a)(2) and Section 8.9(c),
unless Section 8.9(a)(2)(D) applies, distributions are
considered to begin on the Participant's Required Beginning
Date. If Section 8.9(a)(2)(D) applies, distributions are
considered to begin on the date distributions are required to
begin to the surviving spouse under Section 8.9(a)(2)(A). If
distributions under an annuity purchased from an insurance
company irrevocably commence to the Participant before the
Participant's Required Beginning Date (or to the Participant's
surviving spouse before the date distributions are required to
begin to the surviving spouse under
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Section 8.9(a)(2)(A), the date distributions are considered to
begin is the date distributions actually commence.
(3) Forms of Distribution. Unless the Participant's
interest is distributed in the form of an annuity purchased
from an insurance company or in a single sum on or before the
Required Beginning Date, as of the first distribution calendar
year distributions will be made in accordance with Sections
8.9(b) and (c). If the Participant's interest is distributed
in the form of an annuity purchased from an insurance company,
distributions thereunder will be made in accordance with the
requirements of section 401(a)(9) of the Code and the Treasury
regulations.
(b) Required Minimum Distributions During a Participant's
Lifetime.
(1) Amount of Required Minimum Distribution For Each
Distribution Calendar Year. During the Participant's lifetime,
the minimum amount that will be distributed for each
distribution calendar year is the lesser of:
(A) the quotient obtained by dividing the
Participant's account balance by the distribution
period in the Uniform Lifetime Table set forth in
section 1.401(a)(9)-9 of the Treasury regulations,
using the Participant's age as of the Participant's
birthday in the distribution calendar year; or
(B) if the Participant's sole designated
Beneficiary for the distribution calendar year is the
Participant's spouse, the quotient obtained by
dividing the Participant's account balance by the
number in the Joint and Last Survivor Table set forth
in section 1.401(a)(9)-9 of the Treasury regulations,
using the Participant's and spouse's attained ages as
of the Participant's and spouse's birthdays in the
distribution calendar year.
(2) Lifetime Required Minimum Distributions Continue
Through Year of Participant's Death. Required minimum
distributions will be determined under this Section 8.9(b)
beginning with the first distribution calendar year and up to
and including the distribution calendar year that includes the
Participant's date of death.
(c) Required Minimum Distributions After Participant's Death.
(1) Death On or After Date Distributions Begin.
(A) Participant Survived by Designated
Beneficiary. If the Participant dies on or after the
date distributions begin and there is a designated
Beneficiary, the minimum amount that will be
distributed for each distribution calendar year after
the year of the Participant's death is the quotient
obtained by dividing the Participant's account
balance by the longer of the remaining life
expectancy of the Participant or the remaining life
expectancy of the Participant's designated
Beneficiary, determined as follows:
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(i) The Participant's remaining life
expectancy is calculated using the age of
the Participant in the year of death,
reduced by one for each subsequent year.
(ii) If the Participant's surviving
spouse is the Participant's sole designated
Beneficiary, the remaining life expectancy
of the surviving spouse is calculated for
each distribution calendar year after the
year of the Participant's death using the
surviving spouse's age as of the spouse's
birthday in that year. For distribution
calendar years after the year of the
surviving spouse's death, the remaining life
expectancy of the surviving spouse is
calculated using the age of the surviving
spouse as of the spouse's birthday in the
calendar year of the spouse's death, reduced
by one for each subsequent calendar year.
(iii) If the Participant's surviving
spouse is not the Participant's sole
designated Beneficiary, the designated
Beneficiary's remaining life expectancy is
calculated using the age of the Beneficiary
in the year following the year of the
Participant's death, reduced by one for each
subsequent year.
(B) No Designated Beneficiary. If the
Participant dies on or after the date distributions
begin and there is no designated Beneficiary as of
September 30 of the year after the year of the
Participant's death, the minimum amount that will be
distributed for each distribution calendar year after
the year of the Participant's death is the quotient
obtained by dividing the Participant's account
balance by the Participant's remaining life
expectancy calculated using the age of the
Participant in the year of death, reduced by one for
each subsequent year.
(2) Death Before Date Distributions Begin.
(A) Participant Survived by Designated
Beneficiary. If the Participant dies before the date
distributions begin and there is a designated
Beneficiary, the minimum amount that will be
distributed for each distribution calendar year after
the year of the Participant's death is the quotient
obtained by dividing the Participant's account
balance by the remaining life expectancy of the
Participant's designated Beneficiary, determined as
provided in Section 8.9(c)(1).
(B) No Designated Beneficiary. If the
Participant dies before the date distributions begin
and there is no designated Beneficiary as of
September 30 of the year following the year of the
Participant's death, distribution of the
Participant's entire interest will be completed by
December 31 of the calendar year containing the fifth
anniversary of the Participant's death.
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(C) Death of Surviving Spouse Before
Distributions to Surviving Spouse Are Required to
Begin. If the Participant dies before the date
distributions begin, the Participant's surviving
spouse is the Participant's sole designated
Beneficiary, and the surviving spouse dies before
distributions are required to begin to the surviving
spouse under Section 8.9(a)(2)(A), this Section
8.9(c)(2) will apply as if the surviving spouse were
the Participant.
(d) Requirements of Treasury Regulations Incorporated. All
distributions required under this Section 8.9 will be determined and
made in accordance with the Treasury regulations under section
401(a)(9) of the Code.
(e) Definitions: For purposes of this Section 8.9, the
following definitions shall apply:
(1) Designated Beneficiary. The individual who is
designated as the Beneficiary under Section 14.3 of the Plan
and is the designated Beneficiary under section 401(a)(9) of
the Code and section 1.401(a)(9)-4 of the Treasury
regulations.
(2) Distribution calendar year. A calendar year for
which a minimum distribution is required. For distributions
beginning before the Participant's death, the first
distribution calendar year is the calendar year immediately
preceding the calendar year which contains the Participant's
Required Beginning Date. For distributions beginning after the
Participant's death, the first distribution calendar year is
the calendar year in which distributions are required to begin
under Section 8.9(a)(2). The required minimum distribution for
the Participant's first distribution calendar year will be
made on or before the Participant's Required Beginning Date.
The required minimum distribution for other distribution
calendar years, including the required minimum distribution
for the distribution calendar year in which the Participant's
Required Beginning Date occurs, will be made on or before
December 31 of that distribution calendar year.
(3) Life Expectancy. Life expectancy as computed by
use of the Single Life Table in section 1.401(a)(9)-9 of the
Treasury regulations.
(4) Participant's account balance. The account
balance as of the last valuation date in the calendar year
immediately preceding the distribution calendar year
(valuation calendar year) increased by the amount of any
contributions made and allocated or forfeitures allocated to
the account balance as of dates in the valuation calendar year
after the valuation date and decreased by distributions made
in the valuation calendar year after the valuation date. The
account balance for the valuation calendar year includes any
amounts rolled over or transferred to the plan either in the
valuation calendar year or in the distribution calendar year
if distributed or transferred in the valuation calendar year.
(5) Required Beginning Date. The date specified in
Section 14.34 of the Plan."
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4. Section 11.3(a) is amended, effective January 1, 2003, by deleting
the first sentence thereof and by substituting the following therefore:
"(a) In general. The maximum amount of Elective Contributions
made on behalf of any Participant for any calendar year, when added to
the amount of elective deferrals under all other plans, contracts and
arrangements of an Affiliated Employer with respect to the Participant
for the calendar year, shall in no event exceed the maximum applicable
limit in effect for the calendar year under Code section 402(g)(1),
provided, however, that catch-up Elective Contributions described in
Section 3.1 shall not be taken into account for purposes of compliance
with Code section 402(g)(1)."
5. Section 14.8 is amended, effective January 1, 2004, by deleting such
Section in its entirety and substituting the following therefor:
"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 the
Supplemental Severance Plan, amounts received upon the exercise of
options to purchase Company Stock, and moving expenses, provided
however that any elective contributions made by the Participating
Employer that are not includible in gross income by reason of Code
section 125 or 402(e)(3) shall in all cases be includible as
"Compensation" for purposes of this paragraph (c). 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. For
all purposes under the Plan,
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Compensation for any individual will be limited for any Plan Year as
provided under Code section 401(a)(17) (which for the 2003 Plan Year is
$200,000 and for the 2004 Plan Year is $205,000). 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."
* * * * *
IN WITNESS WHEREOF, Boston Scientific Corporation has caused this
amendment to be executed in its name and on its behalf this _____ day of
December, 2003.
BOSTON SCIENTIFIC CORPORATION
By: _________________________
Title: ______________________
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