Registration No. 333-131608
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO FORM S-4 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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Boston Scientific Corporation
(Exact name of Registrant as specified in its charter)
Delaware 04-2695240
(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
(Address and phone number of principal executive offices, including zip code)
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The Guidant Employee Savings and Stock Ownership Plan
Guidant Corporation 1998 Stock Plan
Guidant Corporation 1996 Nonemployee Director Stock Plan
Guidant Corporation 1994 Stock Plan
(Full title of the plans)
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Paul W. Sandman, Esq.
Executive Vice President, Secretary and General Counsel
Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760-1537
(Name, address and telephone number of agent for service)
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This Post-Effective Amendment No. 1 on Form S-8 to Form S-4 Registration
Statement relates to 38,781,212 shares of common stock, par value $0.01 per
share (the "Common Stock"), of Boston Scientific Corporation (the "Registrant").
Such shares are issuable (i) to holders of options to purchase shares of common
stock, par value $0.01 per share, of Guidant Corporation ("Guidant"), that were
assumed by the Registrant pursuant to the Agreement and Plan of Merger, dated as
of January 25, 2006, and (ii) pursuant to the Guidant Employee Savings and Stock
Ownership Plan, which were assumed by the Registrant pursuant to the Agreement
and Plan of Merger, dated January 25, 2006. These shares of Common Stock
originally were registered on the Registrant's Registration Statement on Form
S-4 (Registration No. 333-131608), to which this is an amendment; accordingly,
the registration fee in respect of such shares of Registrant's Common Stock was
paid at the time of the original filing of the Registration Statement relating
to such Common Stock. Pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this Post-Effective Amendment also covers an indeterminate amount of
interests to be offered or sold pursuant to the Guidant Employee Savings and
Stock Ownership Plan.
Explanatory Note
Pursuant to an Agreement and Plan of Merger, dated as of January 25,
2006 (the "Merger Agreement"), among the Registrant, Guidant Corporation
("Guidant") and Galaxy Merger Sub, Inc., a wholly owned subsidiary of the
Registrant ("Merger Sub"), among other things, (i) Merger Sub merged with and
into Guidant, with Guidant becoming a wholly owned subsidiary of the Registrant,
(ii) each share of Guidant common stock, without par value, issued and
outstanding immediately prior to the effective time of the Merger, which
occurred on April 21, 2006 (the "Effective Time") other than shares of Guidant
common stock directly owned by the Registrant, Merger Sub or Guidant, was
converted into the right to receive (x) 1.6799 validly issued, fully paid and
nonassessable shares of Boston Scientific common stock ("Registrant Common
Stock"), (y) $42.00 in cash, without interest and (z) an additional amount in
cash equal to $0.28 and (iii) at the Effective Time, shares of Registrant Common
Stock, rather than shares of Guidant common stock, became issuable pursuant to
the following plans (the "Plans"):
o The Guidant Employee Savings and Stock Ownership Plan
o Guidant Corporation 1998 Stock Plan
o Guidant Corporation 1996 Nonemployee Director Stock Plan; and
o Guidant Corporation 1994 Stock Plan
The Registrant hereby amends its Registration Statement on Form S-4
(No. 333-131608), filed with the Securities and Exchange Commission, by filing
this Post-Effective Amendment No. 1 on Form S-8 relating to 38,781,212 shares of
Registrant Common Stock issuable (i) upon the exercise of options under the
Guidant Corporation 1998 Stock Plan, Guidant Corporation 1996 Nonemployee
Director Stock Plan and Guidant Corporation 1994 Stock Plan and (ii) pursuant to
the Guidant Employee Savings and Stock Ownership Plan.
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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by the Registrant are incorporated herein
by reference into this Registration Statement:
(a) The Registrant's annual report on Form 10-K filed for the period
ended December 31, 2005 (filed March 1, 2006).
(b) The Registrant's Form S-4, first filed on February 6, 2006, as
subsequently amended on March 2, 2006.
(c) The Registrant's Current Reports on Form 8-K filed March 3, 2006,
March 8, 2006, March 17, 2006, March 20, 2006, March 31, 2006, April 7,
2006, April 12, 2006, April 18, 2006, April 20, 2006 and April 26, 2006.
(d) The description of the Registrant's Common Shares under the
heading "Description of Boston Scientific Capital Stock" contained in the
Registration Statement on Form S-4 (Registration No. 333-131608) as
originally filed by the Registrant with the Commission under the Securities
Act on February 6, 2006 and amended on March 2, 2006.
In addition, all documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
effective date of this Registration Statement, but 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.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under the Registrant's Second Restated Certificate of Incorporation,
as amended, and Restated By-laws (and in accordance with Section 145 of the
Delaware General Corporation Law), the Registrant will indemnify to the fullest
extent permitted by the Delaware General Corporation Law any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding. These include civil, criminal,
administrative, investigative or other proceedings by reason of the fact that
the person is or was a director, officer or employee of the Registrant, or is or
was serving in that capacity or as an agent at the request of the Registrant for
another entity.
The Registrant's indemnity covers expenses, judgments, fines and
amounts paid or to be paid in settlement actually and reasonably incurred in
connection with the defense or settlement of an action, suit or proceeding if
the person acted in good faith and in a manner reasonably believed to be in or
not opposed to the Registrant's best interest and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her conduct
was unlawful. The Registrant will indemnify a person in a derivative action
under the same conditions, except that no indemnification is permitted without
judicial approval if the person is adjudged to be liable to the Registrant in
performance of his or her duty. Derivative actions are actions by the Registrant
or in the Registrant's right to procure a judgment in the Registrant's favor.
The Registrant's agents may be similarly indemnified at the discretion of the
Registrant's board of directors.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons that
control the Registrant pursuant to the foregoing provisions, the Registrant has
been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act of 1933 and is therefore
unenforceable.
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:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
this Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(1)(i) and (1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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, Commonwealth of Massachusetts, on this 26 day
of April, 2006.
BOSTON SCIENTIFIC CORPORATION
By: /s/ James R. Tobin
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Name: James R. Tobin
Title: President and Chief Executive Officer
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 26 day of April, 2006.
Signature Title
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*
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Name: Peter M. Nicholas Chairman of the Board of Directors
/s/ James R. Tobin President and Chief Executive Officer, Director
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Name: James R. Tobin
* Director
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Name: John E. Abele
Director
*
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Name: Ursula M. Burns
*
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Name: Marye Anne Fox Director
*
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Name: Joel L. Fleishman Director
*
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Name: Ray J. Groves Director
*
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Name: Ernest Mario Director
*
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Name: N.J. Nicholas, Jr., Director
*
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Name: John E. Pepper Director
*
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Name: Uwe E. Reinhardt Director
*
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Name: Warren B. Rudman Director
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Name: Kristina M. Johnson Director
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Name: Nancy-Ann DeParle Director
*
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Name: Lawrence C. Best Executive Vice President, Chief Financial Officer
*
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Name: Paul A. LaViolette Chief Operating Officer
*By: /s/ James R. Tobin April 26, 2006
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Attorney-in-Fact
Exhibit Index
Exhibit No. Description of Document
4.1 Second Restated Certificate of Incorporation of Boston
Scientific Corporation (Exhibit 3.1, Annual Report on Form 10-K
for the year ended December 31, 1993, File No. 1-11083);
Certificate of Amendment of Second Restated Certificate of
Incorporation of the Registrant (Exhibit 3.2, Annual Report on
Form 10-K for the year ended December 31, 1994, File No.
1-11083); Certificate of Second Amendment of Second Restated
Certificate of Incorporation of the Registrant (Exhibit 3.3,
Annual Report on Form 10-K for the year ended December 31, 1998,
File No. 1-11083); and Certificate of Third Amendment of Second
Restated Certificate of Incorporation of the Registrant (Exhibit
3.4, Annual Report on Form 10-K for the year ended December 31,
2003).
4.2 Form of Certificate of Amendment of the Second Restated
Certificate of Incorporation of Boston Scientific Corporation
(incorporated by reference to the Registration Statement on Form
S-4 (Registration No. 333-131608)) filed by the Registrant on
February 6, 2006, as amended by Amendment No. 1 to Form S-4
filed by the Registrant on March 2, 2006).
4.3 Restated By-Laws of Boston Scientific Corporation (Exhibit 3.2,
Registration No. 33-46980).
4.4 Agreement and Plan of Merger, dated as of January 25, 2006,
among Boston Scientific Corporation, Galaxy Merger Sub, Inc. and
Guidant Corporation (incorporated by reference to Annex A to the
proxy statement/prospectus included in the Registration
Statement on Form S-4 (Registration No. 333-131608) filed by the
Registrant on February 6, 2006, as amended by Amendment No. 1 to
Form S-4 filed by the Registrant on March 2, 2006).
4.5* The Guidant Employee Savings and Stock Ownership Plan.
4.6 Guidant Corporation 1998 Stock Plan, as amended (incorporated by
reference to Exhibit 10.20 to Form 10-K filed by Guidant for the
year ended December 31, 2002 (File No, 1-13388)).
4.7 Guidant Corporation 1996 Nonemployee Director Stock Plan, as
amended (incorporated by reference to Exhibit 10.19 to Form 10-K
filed by Guidant for the year ended December 31, 2002 (File No,
1-13388)).
4.8 Guidant Corporation 1994 Stock Plan, as amended (incorporated by
reference to Exhibit 10.32 to Form 10-K filed by Guidant for the
year ended December 31, 1996 (File No, 1-13388)).
4.9 Form of Guidant Option Grant (incorporated by reference to
Exhibit 10.12 to Form 10-K filed by Guidant for the fiscal year
ended December 31, 2004 (File No, 1-13388)).
4.10 Form of Guidant Option Grant (incorporated by reference to
Exhibit 10.13 to Form 10-K filed by Guidant for the fiscal year
ended December 31, 2004 (File No, 1-13388)).
5.1* Opinion of Shearman & Sterling LLP regarding the legality of the
securities being registered.
23.1* Consent of Ernst & Young LLP.
23.2* Consent of Ernst &Young LLP.
23.3 Consent of Shearman & Sterling LLP (included in Exhibit 5.1).
24 Powers of Attorney (Exhibit 24.1, Registration Statement on Form
S-4 (Registration No. 333-131608) filed by the Registrant on
February 6, 2006, as amended by Amendment No. 1 to Form S-4
filed by the Registrant on March 2, 2006).
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* Filed herewith.