AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 7, 2002
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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BOSTON SCIENTIFIC CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 04-2695240
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE BOSTON SCIENTIFIC PLACE
NATICK, MASSACHUSETTS 01760-1537
(508) 650-8000
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(Address and phone number of principal executive offices, including zip code)
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RadioTherapeutics Corporation 1994 Stock Incentive Plan
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(Full titles of the plans)
LAWRENCE J. KNOPF
VICE PRESIDENT, ASSISTANT SECRETARY AND ASSISTANT GENERAL COUNSEL
BOSTON SCIENTIFIC CORPORATION
ONE BOSTON SCIENTIFIC PLACE
NATICK, MASSACHUSETTS 01760-1537
(508) 650-8000
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(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price Aggregate Amount of
to be registered registered (1) per share (2) offering price registration fee
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Common Stock, par
value $.01 per share 77,746 $4.38 $340,527 $81.39
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(1) Represents an aggregate of 77,746 shares of Common Stock, par value $.01
per share (the "COMMON STOCK") of Boston Scientific Corporation (the
"REGISTRANT") available for issuance under the RadioTherapeutics Corporation
1994 Stock Incentive Plan. In addition, this Registration Statement shall also
cover any additional shares of Common Stock which become issuable under the
plans being registered pursuant to this Registration Statement by reason of any
stock dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration which results in an increase in
the number of the Registrant's outstanding shares of Common Stock.
(2) Pursuant to Rules 457(c) and 457(h) of the Securities Act, the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Aggregate Offering
Price for a total of 77,746 shares of Common Stock subject to currently
outstanding options are based on the per share weighted average exercise price
of the stock options.
PAGE 1 OF 10
EXHIBIT INDEX APPEARS ON PAGE 10
This Registration Statement registers shares of Common Stock available for
issuance to holders of options under the RadioTherapeutics Corporation 1994
Stock Incentive Plan which were assumed by the Registrant upon the effective
time of a merger of a wholly owned subsidiary of the Registrant with and into
RadioTherapeutics Corporation which took place on December 11, 2001.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act and the "Note" to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with or furnished to the
Securities and Exchange Commission (the "COMMISSION") by the Registrant are
incorporated herein by reference and made part of this Registration Statement:
o our Annual Report on Form 10-K for the fiscal year ended December
31, 2000 filed on April 2, 2001;
o our definitive Proxy Statement filed on April 6, 2001;
o our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2001, June 30, 2001 and September 30, 2001;
o our Current Report on Form 8-K filed on February 22, 2001;
o our Current Report on Form 8-K filed on May 1, 2001; and
o our Registration Statements pursuant to Section 12 of the Exchange
Act, and any amendment or report filed for the purposes of updating
any such description.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934 (the
"EXCHANGE ACT") subsequent to the effective date of this Registration Statement,
prior to the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered hereby have been sold or deregistering
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this Registration Statement, except as so
modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the issuance of Common Stock offered
hereby have been passed upon for the Registrant by Lawrence J. Knopf, Vice
President, Assistant Secretary and Assistant General Counsel of the Registrant.
Mr. Knopf holds shares and options to purchase shares of the Registrant's Common
Stock and is compensated by the Registrant as an officer of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a Delaware corporation to indemnify any person for claims
arising against the person for serving as a present or former director, officer,
employee, or agent of the corporation. Indemnity is available only if the person
acted in good faith and in a manner reasonably believed to be in, or not opposed
to, the best interests of the corporation. If the claim is a criminal action,
indemnification may be available only if the person had no reasonable cause to
believe his or her conduct was unlawful. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with the claim.
A Delaware corporation may also indemnify persons against expenses
(including attorneys' fees) incurred for actions brought by or on behalf of the
corporation subject to the conditions discussed above, except that no
indemnification is permitted in respect of any claim as to which the person
shall have been found to be liable to the corporation unless a court determines
that, in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity. To the extent the person is successful in
defending the claim, the corporation may indemnify the person against expenses
(including attorneys' fees) actually and reasonably incurred. The
indemnification and advancement of expenses provided for in Section 145 is not
exclusive of any other rights to which the person may be entitled under any
By-law, agreement, vote of stockholders or disinterested directors, or
otherwise.
Section 145 of the DGCL also provides that a corporation may maintain
insurance against liabilities for which indemnification is not expressly
provided by the statute. The Registrant maintains reasonable levels of insurance
against liabilities for indemnification which it may incur under its Certificate
of Incorporation, By-laws and indemnification agreements.
Article Tenth of the Registrant's Certificate of Incorporation provides
that the Registrant will indemnify, defend and hold harmless directors,
officers, employees and agents of the Registrant to the fullest extent currently
permitted under the DGCL.
In addition, Article Ninth of the Registrant's Certificate of
Incorporation, as permitted by Section 102(b) of the DGCL, provides that neither
the Registrant nor its stockholders may recover damages from the Registrant's
directors for a breach of their fiduciary duty in the performance of their
duties as directors of the Registrant, unless the breach relates to (i) the
director's duty of loyalty, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the DGCL or (iv) any transactions for which the director
derived an improper benefit. The Registrant's By-laws provide for
indemnification of the Registrant's directors, officers, employees and agents on
the terms permitted under Section 145 of the DGCL summarized above.
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The Registrant has entered into indemnification agreements with its
directors and executive officers. These agreements provide rights of
indemnification that are substantially similar to those provided by the
Registrant's Certificate of Incorporation and By-laws. Additionally, the
agreements provide that (i) within thirty days of a written demand for
indemnification, and within five business days of a request for an advance of
expenses, the Registrant shall either make payment or determine that the
relevant standards for indemnification have not been met; (ii) in any action
brought by an indemnitee to enforce the right to indemnification or advances,
the burden of proving that any indemnification or advance is not appropriate
shall be on the Registrant; (iii) neither the timing of the Registrant's
decision whether to indemnify nor any determination by the Registrant shall
create any presumption that the indemnitee has not met the applicable standards;
and (iv) the indemnitee's expenses incurred in bringing an action to recover
expenses under any directors' and officers' liability insurance policies
maintained by the Registrant shall also be indemnified by the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial BONA FIDE offering
thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
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indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Natick, The Commonwealth of Massachusetts, on this
7th day of January, 2002.
BOSTON SCIENTIFIC CORPORATION
By: /s/ Lawrence C. Best
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Lawrence C. Best
Senior Vice President -
Finance and Administration
and Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and Directors of Boston Scientific
Corporation, hereby severally constitute and appoint Lawrence C. Best, Paul W.
Sandman and Lawrence J. Knopf, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below the Registration Statement on
Form S-8 filed herewith and any and all pre-effective and post-effective
amendments to said Registration Statement, and generally to do all such things
in our names and on our behalf in our capacities as officers and Directors to
enable Boston Scientific Corporation to comply with the provisions of the
Securities Act, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures, as they may be signed by our
said attorneys or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities indicated on the 7th day of January, 2002.
SIGNATURE TITLE
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/s/ John E. Abele
- ------------------------ Director, Founder
John E. Abele
/s/ Lawrence C. Best Senior Vice President - Finance and
- ------------------------ Administration and Chief Financial Officer
Lawrence C. Best (Principal Financial and Accounting Officer)
/s/ Joseph A. Ciffolillo
- ------------------------ Director
Joseph A. Ciffolillo
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/s/ Joel L. Fleishman
- ------------------------ Director
Joel L. Fleishman
/s/ Marye Anne Fox
- ------------------------ Director
Marye Anne Fox, Ph.D.
/s/ Ray J. Groves
- ------------------------ Director
Ray J. Groves
/s/ Lawrence L. Horsch
- ------------------------ Director
Lawrence L. Horsch
/s/ Ernest Mario, Ph.D.
- ------------------------ Director
Ernest Mario, Ph.D.
/s/ N.J. Nicholas, Jr.
- ------------------------ Director
N. J. Nicholas, Jr.
/s/ Peter M. Nicholas
- ------------------------ Director, Founder and Chairman of the Board
Peter M. Nicholas
/s/ Warren B. Rudman
- ------------------------ Director
Warren B. Rudman
/s/ James R. Tobin
- ------------------------ Director, President and Chief Executive
James R. Tobin Officer (Principal Executive Officer)
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF DOCUMENT
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3.1 Second Restated Certificate of Incorporation of the Registrant, as
amended (Exhibit 3.1, Annual Report on Form 10-K for the year ended
December 31, 1993, Exhibit 3.2, Annual Report on Form 10-K for the
year ended December 31, 1994, and Exhibit 3.3, Annual Report on Form
10-K for the year ended December 31, 1998, File No. 1-11083).
3.2 Restated By-laws of the Registrant, incorporated by reference to
Exhibit 3.2 to the Registration Statement on Form S-1 of the
Registrant (Reg. No. 33-46980).
4.1 Specimen certificate representing Boston Scientific Common Stock,
incorporated by reference to Exhibit 4.1 to the Registration Statement
on Form S-1 of the Registrant (Reg. No. 33-46980).
*4.2 RadioTherapeutics Corporation 1994 Stock Incentive Plan.
*5.1 Opinion and Consent of Assistant General Counsel as to the legality of
the securities being registered.
*23.1 Consent of Ernst & Young LLP.
23.2 Consent of Assistant General Counsel (included in Exhibit 5.1).
24 Powers of Attorney (contained in the signature page of Registration
Statement).
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* Filed herewith.
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