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Exhibit 10.16
BOSTON SCIENTIFIC CORPORATION
1992 EMPLOYEE STOCK PURCHASE PLAN
(Incorporating Amendments Thru February, 1995)
1. Purpose. The Plan is intended to encourage ownership of Stock by
employees of the Company and any Related Corporations and to provide additional
incentive for the employees to promote the success of the business of the
Company and any Related Corporations. It is intended that the Plan shall be an
"employee stock purchase plan" within the meaning of Section 423 of the Code.
2. Definitions. As used in this Plan, the following terms shall have the
meanings set forth below:
(a) Beneficiary means the person designated as beneficiary on the
Optionee's Membership Agreement or, if no such beneficiary is named or no
such Agreement is in effect at the Optionee's death, his or her beneficiary
as determined under the provisions of the Company's program of life
insurance for employees.
(b) Board means the Board of Directors of the Company.
(c) Code means the Internal Revenue Code of 1986, as amended, or any
statute successor thereto, and any regulations issued from time to time
thereunder.
(d) Committee means a committee of the Board consisting of not less
than two directors of the Company who are not employees of the Company or
any Related Corporation, each appointed by the Board from time to time to
serve at its pleasure for the purpose of carrying out the responsibilities
of the Committee under the Plan. For any period during which no such
committee is in existence, all authority and responsibility assigned the
Committee under this Plan shall be exercised, if at all, by the Board.
(e) Company means Boston Scientific Corporation, a Delaware
corporation (or any successor corporation).
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(f) Compensation means the total taxable cash compensation of an
Optionee, exclusive of expense reimbursement or relocation allowances, for
the calendar year last ended prior to the Offering Commencement Date.
(g) Eligible Employee means a person who is eligible under the
provisions of Section 7 to receive an Option as of a particular Offering
Commencement Date.
(h) Fair Market Value means, as of any given date, the last reported
sales price of the Stock as reported in The Wall Street Journal for such
date or, if either no such sale is reported or the stock is not publicly
traded on or as of such date, the fair market value of the Stock as
determined by the Committee in good faith based on the available facts and
circumstances at the time.
(i) Membership Agreement means an agreement whereby an Optionee
authorizes a Participating Employer to withhold payroll deductions from his
or her Compensation and otherwise is in such form as the Committee may
specify.
(j) Offering Commencement Date means any date on which Options are
granted under the Plan as determined by the Committee pursuant to Section
8.
(k) Offering Period means a period of approximately six months
duration, beginning on an Offering Commencement Date and ending on the last
business day of the sixth calendar month ending after such date, during
which Options are granted and outstanding under the Plan pursuant to a
determination by the Committee under Section 4.
(l) Offering Termination Date means the last business day of an
Offering Period, on which Options must, if ever, be exercised.
(m) Option means an option to purchase shares of Stock granted under
the Plan.
(n) Optionee means an Eligible Employee to whom an Option is granted.
(o) Option Shares means shares of Stock purchasable under an Option.
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(p) Participating Employer means the Company or any Related
Corporation which is designated by the Committee as a corporation whose
Eligible Employees are to receive Options as of a particular Offering
Commencement Date.
(q) Plan means this Boston Scientific Corporation 1992 Employees'
Stock Purchase Plan, as set forth herein and as it may be amended from time
to time.
(r) Related Corporation means any corporation which is or during the
term of the Plan becomes a parent corporation of the Company, as defined in
Section 424(e) and (g) of the Code, or a subsidiary corporation of the
Company, as defined in Section 424(f) and (g) of the Code.
(s) Stock means the Class B non-voting common stock, $.01 par value
per share, of the Company.
3. Term of Plan. The Plan shall become effective upon approval of the Plan
by the shareholders of the Company. No option shall be granted under the Plan on
or after the tenth anniversary of such approval but Options theretofore granted
may extend beyond that date.
4. Administration. The Plan shall be administered by the Committee, which
shall determine from time to time whether to grant Options under the Plan as of
any date otherwise qualifying as an Offering Commencement Date. The Committee
shall further determine which (if any) Related Corporation shall be
Participating Employers as of each Offering Commencement Date. The Committee
shall have authority in its discretion to interpret the Plan, to prescribe,
amend and rescind rules and regulations relating to the Plan, to resolve all
disputes arising under the Plan, to determine the terms of Options granted under
the Plan, and to make all other determinations necessary or advisable for the
administration of the Plan. Any determination of the Committee shall be final
and binding upon all persons having or claiming any interest under the Plan or
under any Option granted pursuant to the Plan.
5. Amendment and Termination. The Board may terminate or amend the Plan at
any time and from time to time; provided, however, that the Board may not,
without approval of the shareholders of the Company in a manner satisfying the
requirements of Section 423 of the Code, increase the maximum number of shares
of Stock purchasable under the Plan or change the description of individuals
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eligible to receive Options. No termination of or amendment to the Plan may
adversely affect the rights of an Optionee with respect to any Option held by
the Optionee as of the date of such termination or amendment without the
Optionee's consent.
6. Shares of Stock Subject to the Plan. No more than an aggregate of
500,000 shares of Stock may be issued or delivered pursuant to the exercise of
Options granted under the Plan. Shares to be delivered upon the exercise of
Options may be either shares of Stock which are authorized but unissued or
shares of Stock held by the Company in its treasury. If an Option expires or
terminates for any reason without having been exercised in full, the unpurchased
shares subject to the Option shall become available for other Options granted
under the Plan. The Company shall, at all times during which Options are
outstanding, reserve and keep available shares of Stock sufficient to satisfy
such Options, and shall pay all fees and expenses incurred by the Company in
connection therewith. In the event of any capital change in the outstanding
Stock as contemplated by Section 9.6, the number and kind of shares of Stock
reserved and kept available by the Company shall be appropriately adjusted.
7. Eligibility. Each employee of a Participating Employer shall be granted
an Option on each Offering Commencement Date on which such employee meets all of
the following requirements:
(a) The employee is customarily employed by a Participating Employer
for more than twenty hours per week and has been employed by one or more
Participating Employers for at least twelve consecutive months prior to the
applicable Offering Commencement Date.
(b) The employee will not, after grant of the Option, own stock
possessing five or more percent of the total combined voting power or value
of all classes of stock of the Company or of any Related Corporation. For
purposes of this paragraph (b), the rules of Section 424(d) of the Code
shall apply in determining the stock ownership of the employee, and stock
which the employee may purchase under outstanding options shall be treated
as stock owned by the employee.
(c) Upon grant of the Option, the employee's rights to purchase stock
under all employee stock purchase plans (as defined in Section 423(b) of
the Code) of the Company and its Related Corporations will not accrue at a
rate which exceeds $25,000 of fair market value of the stock (determined as
of
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the grant date) for each calendar year in which such option is outstanding
at any time. The accrual of rights to purchase stock shall be determined in
accordance with Section 423(b)(8) of the Code.
8. Offering Commencement Dates. Options shall be granted on the first
business day of any calendar month which is designated by the Committee as the
beginning of an Offering Period.
9. Terms and Conditions of Options.
9.1. General. All Options granted on a particular Offering Commencement
Date shall comply with the terms and conditions set forth in Sections 9.2
through 9.10. Subject to Sections 7(c) and 9.8, each Option granted on a
particular Offering Commencement Date shall entitle the Optionee to purchase
that number of shares equal to the lesser of (a) the result of five percent of
the Optionee's Compensation divided by 85 percent of the Market Value of one
share of Stock on the Offering Commencement Date and then rounded down, if
necessary, to the nearest whole number and (b) any number of shares established
by the Committee as an additional limitation on the maximum number of Option
Shares available under every Option granted on that Offering Commencement Date.
9.2. Purchase Price. The purchase price of Option Shares shall be 85% of
the lesser of (a) the Market Value of the shares as of the Offering Commencement
Date or (b) the Market Value of the shares as of the Offering Termination Date.
9.3. Restrictions on Transfer. Options may not be assigned, transferred,
pledged or otherwise disposed of. An Option may not be exercised by anyone other
than the Optionee during the lifetime of the Optionee. Option Shares may not be
assigned, transferred, pledged or other disposed of, except by will or under the
laws of descent and distribution, until after the first anniversary of the
Offering Termination Date on which acquired (or the death of the Optionee, if
earlier), but thereafter may be sold or otherwise transferred without
restriction. The Optionee shall agree in the Membership Agreement to notify the
Company of any transfer of the Shares within two years of the Offering
Commencement Date of those Shares. The Company shall have the right to place a
legend on all stock certificates instructing the transfer agent to notify the
Company of any transfer of the shares. The Company shall also have the right to
place a legend on certificates setting forth the restriction on transferability
of such shares.
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9.4. Expiration. Each Option shall expire at the close of business on the
Offering Termination Date or on such earlier date as may result from the
operation of Section 9.5.
9.5. Termination of Employment of Optionee. If an Optionee ceases for any
reason to be continuously employed by a Participating Employer, whether due to
death, retirement, voluntary severance, involuntary severance, transfer, or
disaffiliation of a Related Corporation with the Company, his or her Option
shall immediately expire, and the Optionee's accumulated payroll deductions
shall be returned to the Optionee or his or her Beneficiary, as the case may be,
by the Company. For purposes of this Section 9.5, an Optionee shall be deemed to
be employed throughout any leave of absence for military service, illness or
other bona fide purpose which does not exceed the longer of ninety days or the
period during which the Optionee's reemployment rights are guaranteed by statute
or by contract. If the Optionee does not return to active employment prior to
the termination of such period, his or her employment shall be deemed to have
ended on the ninety-first day of such leave of absence.
9.6. Capital Changes Affecting the Stock. In the event that, between the
Offering Commencement Date and the Offering Termination Date of an Option, a
stock dividend is paid or becomes payable in respect of the Stock or there
occurs a split-up or contraction in the number of shares of Stock, the number of
shares for which the Option may thereafter be exercised and the price to be paid
for each such share shall be proportionately adjusted. In the event that, after
the Offering Commencement Date, there occurs a reclassification or change of
outstanding shares of Stock or a consolidation or merger of the Company with or
into another corporation or a sale of conveyance, substantially as a whole, of
the property of the Company, the Optionee shall be entitled on the Offering
Termination Date to receive shares of stock or other securities equivalent in
kind and value to the shares of stock he or she would have held if he or she had
exercised the Option in full immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance and had continued to hold such shares
(together with all other shares and securities thereafter issued in respect
thereof) until the Offering Termination Date. In the event that there is to
occur a recapitalization involving an increase in the par value of the Stock
which would result in a par value exceeding the exercise price under an
outstanding Option, the Company shall notify the Optionee of such proposed
recapitalization immediately upon its being recommended by the Board to the
Company's shareholders, after which the Optionee shall have the right to
exercise his or her Option prior to such recapitalization; if the Optionee fails
to exercise the Option prior to recapitalization, the exercise price under the
Option shall be appropriately adjusted. In the event that, after the Offering
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Commencement Date, there occurs a dissolution or liquidation of the Company,
except pursuant to a transaction to which Section 424(a) of the Code applies,
each Option shall terminate, but the Optionee shall have the right to exercise
his or her Option prior to such dissolution or liquidation.
9.7. Payroll Deductions. An Optionee may purchase shares under his or her
Option during any particular Offering Period by completing and returning to the
personnel department of the Company at least ten business days prior to the
beginning of such Offering Period a Membership Agreement indicating a percentage
(which shall be a full integer between one and ten) of his or her Compensation
which is to be withheld each pay period. The Optionee shall not be permitted to
change the percentage of Compensation withheld during an Offering Period.
However, the Optionee may withdraw all, but not less than all, of his or her
accumulated payroll deductions by submitting a written request therefor to the
personnel department of the Company no later than two weeks prior to the
Offering Termination Date whereupon his or her payroll deduction for the
remainder of the Offering Period shall cease. Any Membership Agreement in effect
for an Offering Period shall remain in effect as to any subsequent Offering
Period unless revoked by a withdrawal of the Optionee's accumulated payroll
deduction amounts or modified by submission of a new Membership Agreement, or
until the Optionee's termination of employment for any reason.
9.8. Exercise of Options. On the Offering Termination Date the Optionee may
purchase the number of shares purchasable by his or her accumulated payroll
deductions, or, if less, the maximum number of shares subject to the Option as
provided in Section 9.1, provided that:
(a) If the total number of shares which all Optionees elect to
purchase, together with any shares already purchased under the Plan,
exceeds the total number of shares which may be purchased under the Plan
pursuant to Section 6, the number of shares which each Optionee is
permitted to purchase shall be decreased pro rata based on the Optionee's
accumulated payroll deductions in relation to all accumulated payroll
deductions currently being withheld under the Plan.
(b) If the number of shares purchasable includes a fraction, such
number shall be adjusted to the next smaller whole number and the purchase
price shall be adjusted accordingly.
Accumulated payroll deductions not withdrawn prior to the Offering Termination
Date shall be automatically applied by the Company toward the purchase of Option
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Shares. Accumulated payroll deductions, to the extent in excess of the aggregate
purchase price of the shares purchased by the Optionee on an Offering
Termination Date, shall be refunded to the Optionee; provided, however, that
where such excess is less than the purchase price for a single share of Stock on
such Date, such excess shall not be refunded but instead shall be carried over
and applied to the purchase of shares in the first following Offering Period
(subject to the possibility of withdrawal by the Optionee in such Period in
accordance with the terms of the Plan).
9.9. Delivery of Stock. Except as provided below, within a reasonable time
after the Offering Termination Date, the Company shall deliver or cause to be
delivered to the Optionee a certificate or certificates for the number of shares
purchased by the Optionee. A stock certificate representing the number of shares
purchased will be issued in the participant's name only, or if the Participant
so requests in writing, not later than the Offering Termination Date, in the
name of the employee and another person of legal age as joint tenants with
rights of survivorship. If any law or applicable regulation of the Securities
and Exchange Commission or other body having jurisdiction in the premises shall
require that the Company or the Optionee take any action in connection with the
shares being purchased under the Option, delivery of the certificate or
certificates for such shares shall be postponed until the necessary action shall
have been completed, which action shall be taken by the Company at its own
expense, without unreasonable delay. The Optionee shall have no rights as a
shareholder in respect of shares for which he or she has not received a
certificate.
Notwithstanding the foregoing, the Company may elect to hold for the
benefit of the Optionee any shares otherwise to be delivered to the Optionee
pursuant to this Section 9.9, or to deliver the same to such agent or agents of
the Company for the benefit of the Optionee as the Company may select, for the
period transfer of such shares is limited by this Plan (and thereafter, until
the Optionee requests delivery of such stock in writing). In that event, the
Optionee shall have all of the rights of a shareholder in the shares so held by
the Company or its agent, except as limited by the restriction on
transferability, from and after the issuance of the same and the Company or its
agent shall adopt reasonable procedures to enable the Optionee to exercise such
rights. In the event of the Optionee's death while any shares are so held, such
shares shall be delivered to the Optionee's Beneficiary promptly following the
Committee's receipt of evidence satisfactory to the Committee of the Optionee's
death.
9.10. Return of Accumulated Payroll Deductions. In the event that the
Optionee or his or her Beneficiary is entitled to the return of accumulated
payroll
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deductions, whether by reason of voluntary withdrawal, termination of
employment, retirement, death, or in the event that accumulated payroll
deductions exceed the price of shares purchased, such amount shall be returned
by the Company to the Optionee or the Beneficiary, as the case may be, as soon
as practicable following the Offering Termination Date of the Offering Period in
which the same were deducted. Accumulated payroll deductions held by the Company
shall not bear interest nor shall the Company be obligated to segregate the same
from any of its other assets.
10. No Enlargement of Employment Rights. Neither the establishment or
continuation of the Plan, nor the grant of any Option hereunder, shall be deemed
to give any employee the right to be retained in the employ of the Company or a
Related Corporation, or any successor to either, or to interfere with the right
of the Company or such Corporation or successor to discharge the employee at any
time.
11. Tax Withholding. If, at any time, the Company or any Related
Corporation is required, under applicable laws and regulations, to withhold, or
to make any deduction of, any taxes or take any other action in connection any
exercise of an Option or transfer of shares of Common Stock, the Company or such
Related Corporation shall have the right to deduct from all amounts paid in cash
any taxes required by law to be withheld therefrom, and in the case of shares of
Common Stock, the Optionee or his or her estate or Beneficiary shall be required
to pay the Company or such Related Corporation the amount of taxes required to
be withheld, or, in lieu thereof, the Company or such Related Corporation shall
have the right to retain, or sell without notice, a sufficient number of shares
of Common Stock to cover the amount required to be withheld, or to make other
arrangements with respect to withholding as it shall deem appropriate.
12. Governing Law. The Plan and all Options and actions taken thereunder
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without regard to the conflict of laws principles
thereof.
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BOSTON SCIENTIFIC CORPORATION
1992 EMPLOYEE STOCK PURCHASE PLAN
Second Amendment
Pursuant to the provisions of Section 5 of Boston Scientific Corporation's
1992 Employee Stock Purchase Plan (the "Plan"), the Board of Directors of Boston
Scientific Corporation hereby (i) amends Section 2(s) of the Plan to remove the
expression "Class B non-voting", and (ii) amend Section 6 of the Plan to remove
the expression "500,000" and replace it with the expression "1,500,000."
All other terms and provisions of the Plan, and any options made
thereunder, remain in full force and effect.