As filed with the Securities and Exchange Commission on September 30, 1998.
File No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------------
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 telephone number of registrant's principal executive offices)
--------------------------------
PAUL W. SANDMAN
Senior Vice President, Secretary and General Counsel
BOSTON SCIENTIFIC CORPORATION
One Boston Scientific Place
Natick, Massachusetts 01760-1537
508-650-8000
(Name, address and telephone number of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share* Offering Price* Registration Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
Par Value $.01 per share 324,230 $53.25 $17,265,247.50 $5,094
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</TABLE>
* Estimated solely for the purpose of determining the registration fee.
Calculated in accordance with Rule 457(c), based on the offering of up to
324,230 shares at a purchase price of $53.25 per share, which is the
average of the high and low prices reported on the New York Stock Exchange
on September 28, 1998. It is not known how many shares will be purchased
under this Registration Statement or at what price such shares will be
purchased.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion, dated September 30, 1998
P R O S P E C T U S
BOSTON SCIENTIFIC CORPORATION
324,230 Shares of
Common Stock, $.01 Par Value
being offered for sale by Selling Stockholders
This Prospectus ("Prospectus") of Boston Scientific Corporation, a
Delaware corporation (the "Company" or "Boston Scientific"), relates to 324,230
shares (the "Shares") of the Company's common stock, par value $.01 per share
(the "Common Stock"), being offered for resale from time to time by certain
stockholders of the Company (the "Selling Stockholders"), for their respective
accounts, and any additional shares of Common Stock issued to the Selling
Stockholders with respect to such shares in connection with any stock split or
stock dividend (collectively, the "Shares"). See "Selling Stockholders." On
August 27, 1998, the Company's Board of Directors declared a stock dividend of
one additional share of Common Stock for each share of Common Stock outstanding
on a specific record date, expected to be November 13, 1998, subject to the
approval by the stockholders of the Company of an amendment to the Company's
Second Restated Certificate of Incorporation providing for an increase in the
authorized capital of the Company. The Company will not receive any proceeds
from the sale of Shares by the Selling Stockholders. The Common Stock is traded
on the New York Stock Exchange under the symbol BSX. It is expected that the
Shares will be sold at the public market price of the Common Stock on the date
of sale. On September 28, 1998, the last reported sale price of the Common
Stock on the New York Stock Exchange was $53.00 per share. The Company's
principal executive offices are located at One Boston Scientific Place, Natick,
Massachusetts 01760, and its telephone number at that location is (508)
650-8000.
Pursuant to a Registration Rights Agreement between the Company and the
Selling Stockholders, the Company has agreed to pay all of the expenses,
estimated to be $20,000, incident to the registration of the Shares to the
public hereunder (other than filing fees required to be paid to the National
Association of Securities Dealers, Inc., commissions, fees and discounts of
underwriters, brokers, dealers, agents and the Selling Stockholders' attorney's
fees). The Company has agreed to indemnify the Selling Stockholders against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). The Selling Stockholders in return, have agreed
to indemnify the Company against certain liabilities, including liabilities
under the Securities Act.
All or a portion of the Shares may be disposed of by the Selling
Stockholders hereunder from time to time in one or a combination of the
following transactions: (a) transactions (which may involve crosses or block
transactions) on the New York Stock Exchange, or otherwise (including the
writing of options and settlement of short sales), at market prices prevailing
at the time of sale or at prices related to such prevailing market prices; or
(b) privately negotiated transactions at negotiated prices, including
underwritten offerings. The Selling Stockholders may effect such transactions
by selling the Shares directly to purchasers or by selling the shares to or
through underwriters, brokers or dealers, and such underwriters, brokers or
dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Stockholders or the purchasers of the Shares for
<PAGE>
whom such underwriters, brokers or dealers may act as agent, or to whom they
sell as principal, or both (which compensation to a particular underwriter,
broker or dealer might be in excess of customary commissions or be changed from
time to time). The Selling Stockholders and the underwriters, brokers, dealers
or agents who participate in a sale of the Shares may be deemed "underwriters"
within the meaning of Section 2(11) of the Securities Act. The commissions paid
or discounts allowed to any of the underwriters, brokers, dealers or agents in
addition to any profits received on resale of the Shares, if any of the
underwriters, brokers, dealers or agents should purchase any Shares as a
principal, may be deemed to be underwriting discounts or commissions under the
Securities Act. See "Plan of Distribution."
Certain of the underwriters, brokers, dealers or agents may have other
business relationships with the Company and/or its affiliates in the ordinary
course.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained in this Prospectus or
any Prospectus Supplement, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. Neither this Prospectus nor any Prospectus Supplement constitutes an
offer to sell or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it is unlawful to make
such an offer or solicitation in such jurisdiction. Neither the delivery of
this Prospectus or any Prospectus Supplement nor any sale made thereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or thereof.
- -------------------------------------------------------------------------------
Underwriting Discounts Proceeds to Selling
Price to Public and Commissions Stockholder (3)
- -------------------------------------------------------------------------------
Per Share (l) (1)(2) (1)(2)
- -------------------------------------------------------------------------------
Total (1) (1)(2) (1)(2)
- -------------------------------------------------------------------------------
(1) The Selling Stockholders may from time to time effect the sale of the
Shares at prices and at terms then prevailing or at prices related to the
then-current market price, or in negotiated transactions. Under the
securities laws of certain states, the Shares may be sold in such states
only through registered or licensed brokers or dealers. See "Plan of
Distribution" and "Selling Stockholders."
(2) The Company has agreed to prepare and file this Prospectus and the related
Registration Statement and supplements and amendments thereto required by
the Securities Act with the Securities and Exchange Commission, and to
deliver copies of the Prospectus to the Selling Stockholders. The expenses
so incurred, estimated at $20,000, will be borne by the Company. The
Selling Stockholders and any broker-dealers, agents or underwriters who
participate in a sale of the Shares may be deemed "underwriters" within
the meaning of the Securities Act, and any commissions paid or discounts
allowed to, and any profits received on resale of the Shares by, any of
them may be deemed to be underwriting discounts or commissions under the
Securities Act. See "Plan of Distribution." The Company will not be
responsible for any discounts, concessions, commissions or other
compensation due to any broker or dealer in connection with the sale of
any of the shares offered hereby, which expenses will be borne by the
Selling Stockholders.
(3) The total estimated expenses in connection with the issuance and
distribution of the securities being registered, other than any possible
underwriting compensation, are $20,000. See "Other Expenses of Issuance
and Distribution."
The date of this Prospectus is ______________, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information concerning the Company may be inspected and copies may be
obtained (at prescribed rates) at public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the following regional offices: Citicorp, 500 W. Madison,
Suite 1400, Chicago, Illinois 60611 and Seven World Trade Center, 13th Floor,
New York, NY 10048. The public may obtain information on the operation of the
public reference facilities of the Commission by calling the Commission at
1-800-SEC-0330. In addition, electronically filed documents, including reports,
proxy and information statements and other information regarding the Company,
can be obtained from the Commission's site on the World Wide Web at
http://www.sec.gov. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. Reports and other information concerning the Company
also can be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act with the Commission with
respect to the Common Stock being offered pursuant to this Prospectus. As
permitted by the rules and regulations of the Commission, this Prospectus omits
certain of the information contained in the Registration Statement. For further
information with respect to the Company and the Common Stock being offered
pursuant to this Prospectus, reference is hereby made to such Registration
Statement, including the exhibits filed as part thereof. Statements contained
in this Prospectus concerning the provisions of certain documents filed with,
or incorporated by reference in, the Registration Statement are not necessarily
complete, each such statement being qualified in all respects by such
reference. Copies of all or any part of the Registration Statement, including
the documents incorporated by reference therein or exhibits thereto, may be
obtained upon payment of the prescribed rates at the offices of the Commission
set forth above.
Upon oral or written request, the Company will provide without charge to
each person to whom a copy of this Prospectus has been delivered a copy of any
information that was incorporated by reference in the Prospectus (other than
exhibits to documents, unless such exhibits are specifically incorporated by
reference into the Prospectus). The Company will also provide upon specific
request, without charge to each person to whom a copy of this Prospectus has
been delivered, a copy of all documents filed from time to time by the Company
with the Commission pursuant to the Exchange Act. Requests for such copies
should be directed to Boston Scientific Corporation, One Boston Scientific
Place, Natick, Massachusetts 01760-1537 Attention: Investor Relations.
Telephone requests may be directed to (508) 650-8000. In addition, the
Company's 1997 Annual Report may be viewed on-line at the Company's site on the
worldwide web at www.bsci.com.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-11083) are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1998 and June 30, 1998.
3. The Company's Current Reports on Form 8-K filed with the Commission on
March 31, 1998, June 18, 1998, September 10, 1998 and September 25, 1998.
4. The description of the Common Stock set forth in the Company's
Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange
Act on April 3, 1992, and any amendment or report filed for the purpose of
updating such description.
<PAGE>
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Common Stock shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from
the date of filing such documents. Any statement contained herein or in a
document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document or portion thereof 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,
except as so modified or superseded, to constitute a part of this Prospectus.
CAUTIONARY STATEMENT
This Prospectus and the documents incorporated herein by reference contain
forward-looking statements. The Company desires to take advantage of the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995 and
is including this statement for the express purpose of availing itself of the
protections of the safe harbor with respect to all forward-looking statements.
A reader of this Prospectus and the documents incorporated herein by reference
should consider: (a) the Company's ability to obtain benefits from the
acquisition of Schneider Worldwide, formerly a member of the Medical
Technologies Group of Pfizer, Inc. (the "Schneider Acquisition"); (b) the
process, outlays and plan for the integration of businesses acquired by the
Company, and the successful and timely implementation of the plan; (c) the
impact of successful implementation of the Company's supply chain initiatives
on timely reduction in inventory levels; (d) the potential impacts of continued
consolidation among healthcare providers, trends towards managed care and
economically motivated buyers, healthcare cost containment, more stringent
regulatory requirements and more vigorous enforcement activities; (e) the
Company's belief that it is well positioned to take advantage of opportunities
for growth that exist in the markets it serves; (f) the Company's continued
commitment to refine existing products and procedures and to develop new
technologies that provide simpler, less traumatic, less costly and more
efficient diagnosis and treatment; (g) risks associated with international
operations; (h) the potential effect of foreign currency fluctuations on
revenues, expenses and resulting margins and the trend toward increasing sales
and expenses denominated in foreign currencies; (i) increases in the Company's
effective tax rate in the second half of 1998 and thereafter; (j) the ability
of the Company to manage accounts receivable and inventory levels and mix and
to react effectively to the changing managed care environment; (k) the ability
of the Company to meet its projected cash needs; (l) the ability of the global
information systems to improve supply chain management; (m) costs and risks
associated with implementing Year 2000 compliance and business process
reengineering; (n) the Company's expectation that the launch of a coronary
stent in the U.S. and Japanese markets and the additional investments in
infrastructure will enhance its future competitive position; (o) the ability of
additional investments in technological alliances to enhance the Company's
competitive position in the future; (p) the ability to realize improved
long-term returns on the Company's investments with a direct selling presence
in emerging markets; (q) the short-term borrowings incurred to finance the
Schneider Acquisition and the ability of the Company to obtain more permanent
financing to refinance the Schneider Acquisition; and (r) the impact of patent,
product liability and other litigation, and the adequacy of the Company's
product liability insurance. Several important factors, in addition to the
specific factors discussed in connection with each forward-looking statement
contained herein and in the documents incorporated herein by reference, could
affect the future results of the Company and could cause those results to
differ materially from those expressed in the forward-looking statements
contained herein and in the documents incorporated herein by reference. Such
additional factors include, among other things, future economic, competitive
and regulatory conditions, demographic trends, financial market conditions and
future business decisions of Boston Scientific and its competitors, all of
which are difficult or impossible to predict accurately and many of which are
beyond the control of Boston Scientific. Therefore, the Company wishes to
caution each reader of this Prospectus and the documents incorporated herein by
reference to consider carefully these factors as well as the specific factors
discussed with each forward-looking statement and as disclosed in the Company's
filings with the Securities and Exchange Commission as such factors, in some
cases, have affected, and in the future (together with other factors) could
affect, the ability of the Company to implement its business strategy and may
cause actual results to differ materially from those contemplated by the
statements expressed herein and in the documents incorporated herein by
reference.
<PAGE>
THE COMPANY AND THE MERGER
Boston Scientific Corporation. Boston Scientific Corporation (the
"Company") is a worldwide developer, manufacturer and marketer of minimally
invasive medical devices. Medical professionals use the Company's products in a
broad range of interventional medical specialties, including cardiology,
gastroenterology, neuro-endovascular therapy, pulmonary medicine, radiology,
urology and vascular surgery. The Company's products are generally inserted
into the human body through natural openings or small incisions in the skin and
can be guided to most areas of the anatomy to diagnose and treat a wide range
of medical problems. These products provide effective alternatives to
traditional surgery by reducing procedural trauma, complexity, risk to the
patient, cost and recovery time. The executive office and mailing address of
Boston Scientific Corporation is located at One Boston Scientific Place,
Natick, Massachusetts 01760-1537. Telephone inquiries may be directed to (508)
650-8000.
The Merger. The Company's growth has been bolstered over the past years by
several strategic acquisitions and allegiances. On June 30, 1998, the Company
completed its acquisition of all of the outstanding capital stock of CardioGene
Therapeutics, Inc., a development stage company focused on the application of
gene therapy for treatment of cardiovascular diseases. Pursuant to the
Agreement and Plan of Merger dated as of June 30, 1998 (the "Agreement and Plan
of Merger"), CardioGene was merged with and into the CG Acquisition Co., a
wholly owned subsidiary of the Company (the "Merger"). The Merger became
effective as of June 30, 1998 upon the filing of a Certificate of Merger with
the Office of the Secretary of State of the State of Delaware. The directors of
CG Acquisition Co. immediately prior to the effective time of the merger became
the initial directors of the surviving corporation, which is continued to be
named CardioGene Therapeutics, Inc. All of the outstanding shares of capital
stock and options to purchase shares of capital stock of the CardioGene were
converted into the right to receive 324,230 shares of the Company's Common
Stock which were issued by the Company on June 30, 1998. In connection with the
Merger, the Company entered into a Registration Rights Agreement, dated as of
June 30, 1998 (the "Registration Rights Agreement"), pursuant to which the
Company agreed to register those shares of the Company's Common Stock issued to
the Selling Stockholders as consideration in the Merger. The Shares to be sold
by the Selling Stockholders hereunder were initially issued as consideration in
the Merger.
SELLING STOCKHOLDERS
The term "Selling Stockholders" includes the holders listed below and the
beneficial owners of the Shares and their transferees, pledgees, donees and
other successors in interest (other than purchasers of the Shares pursuant to
this Prospectus).
On August 27, 1998, the Company announced that its Board of Directors
approved a two-for-one stock split (the "Stock Split"), to be effected in the
form of a stock dividend. The Stock Split is contingent on stockholder approval
of an amendment to the Company's Second Restated Certificate of Incorporation
that would increase the Company's total number of authorized shares to
650,000,000. The Company will seek approval of the proposed charter amendment
at a Special Meeting of Stockholders to be held on November 4, 1998. Subject to
stockholder approval of the charter amendment, the Company expects the record
date of the Stock Split to be on or about November 13, 1998 with a payment date
in late November 1998. The information provided in the following table does
not reflect additional shares issuable to effect the proposed Stock Split.
The information provided in the table below with respect to each Selling
Stockholder has been obtained from such Selling Stockholder. Except as
otherwise disclosed below, none of the Selling Stockholders has, or within the
past three years has had, any position, office or other material relationship
with the Company or any of its predecessors or affiliates. Because the Selling
Stockholders may sell all or a portion of the shares of Common Stock
beneficially owned by them, no estimate can be given as to the number of shares
of Common Stock that will be beneficially owned by the Selling Stockholders
after this Registration Statement is declared effective. In addition, the
Selling Stockholders may have sold, transferred or otherwise disposed of, or
may sell, transfer or otherwise dispose of, at any time or from time to time
since the date on which they provided to the Company the information regarding
the shares of Common Stock beneficially owned by them, all or a portion of the
shares of Common Stock beneficially owned by them in transactions exempt from
the registration requirements of the Securities Act.
The following table sets forth certain information regarding the
beneficial ownership of the Shares by the Selling Stockholders as of September
15, 1998 and as adjusted to reflect the sale of all of the Common Stock offered
<PAGE>
hereby by the Selling Stockholders. Each of the Selling Stockholders listed
below received their shares in the Merger pursuant to the Agreement and Plan of
Merger. After the sale or other disposition of all of the shares of Common
Stock listed below, none of the Selling Stockholders will hold any shares of
Common Stock. None of the Selling Stockholders owns 1% or more of the
outstanding Common Stock. As of September 15, 1998, there were approximately
196.4 million shares of the Common Stock issued and outstanding.
Shares Beneficially
Name of Selling Owned Prior to Shares
Stockholders Offering (1) Offered
Elizabeth Nabel, M.D. & 141,435 141,435
Gary Nabel, M.D., Ph.D.
385 Meadow Creek Drive
Ann Arbor, MI 48105
Jeffrey M. Leiden, M.D. 94,290 94,290
51 Crescent Drive
Glenco, IL 60022
Martin D. Cleary 35,847 35,847
26 West Shore Drive
Pennington, NJ 08534
University of Michigan, a constitutional 32,437 32,437
corporation of the State of Michigan
The University of Michigan
Technology Management Office
Wolverine Tower, Room 2071
3003 South State Street
Ann Arbor, MI 48109-1330
Attn: Micheal A. Kope
Michael S. Parmacek, M.D. 8,907 8,907
228 Broughton Lane
Villanova, PA 19085
Arch Development Corporation, an Illinois 6,789 6,789
not-for-profit corporation
The University of Chicago
1101 East 58th Street
Chicago, IL 60637
Attn: Andrew Scott
WS Investments 1997B, a general 4,073 4,073
partnership(2)
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Attn: Mario M. Rosati, Esq.
Mario M. Rosati, Esq. 452 452
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
===============================================================================
Total: 324, 230 324,230
<PAGE>
(1) Beneficial ownership is determined in accordance with Rule 13d-3(d)
promulgated by the Commission under the Securities and Exchange Act of
1934, as amended. Unless otherwise noted, each person or group identified
possesses sole voting and investment power with respect to shares, subject
to community property laws where applicable.
(2) WS Investments 1997B has indicated its intent to make a distribution of
some or all of the shares of Common Stock received by it in the Merger to
its partners. No partner would receive more than 500 shares of Common
Stock in any such distribution.
PLAN OF DISTRIBUTION
The Shares offered hereby by the Selling Stockholders may be sold from
time to time by the Selling Stockholders, or by pledgees, donees, transferees
or other successors in interest (other than purchasers of the Shares pursuant
to this Prospectus), as a principal or through one or more underwriters,
brokers, dealers or agents from time to time in one or more transactions on the
New York Stock Exchange (which may involve crosses or block transactions), in
special offerings, in negotiated transactions, or otherwise. Any of such
transactions may be effected at market prices prevailing at the time of sale,
at prices related to such prevailing market prices, at varying prices
determined at the time of sale or at negotiated or fixed prices, in each case
as determined by the Selling Stockholders or by agreement between the Selling
Stockholders and underwriters, brokers, dealers or agents, or purchasers. The
Selling Stockholders may effect such transactions by selling the Shares
directly to purchasers or by selling shares to or through underwriters, brokers
or dealers and such underwriters, brokers or dealers may receive compensation
in the form of discounts, concessions or commissions from the Selling
Stockholders or the purchasers of the Shares for whom such underwriters,
brokers or dealers may act as agent, or to whom they sell as principal, or both
(which compensation to a particular underwriter, broker or dealer might be in
excess of customary commissions or be changed from time to time). The Selling
Stockholders and any underwriters, brokers, dealers or agents who participate
in a sale of the Shares may be deemed "underwriters" within the meaning of
Section 2(11) of the Securities Act and the commissions paid or discounts
allowed to any of such underwriters, brokers, dealers or agents in addition to
any profits received on resale of the Shares if any of such underwriters,
brokers, dealers or agents should purchase any Shares as a principal may be
deemed to be underwriting discounts or commissions under the Securities Act.
In addition, any Shares covered by this Prospectus which qualify for sale
pursuant to Rule 144 of the Securities Act may be sold under Rule 144 rather
than pursuant to the Prospectus. A Selling Stockholder also may pledge the
Shares as collateral for margin accounts and the Shares may be resold pursuant
to the terms of such accounts.
The Company will pay all of the expenses incident to the registration of
the Shares to the public hereunder other than commissions, fees and discounts
of underwriters, brokers, dealers, agents and the Selling Stockholders'
attorney's fees. The Company has agreed to indemnify the Selling Stockholders
and controlling persons of the Selling Stockholders (within the meaning of the
Securities Act) against certain liabilities, including liabilities under the
Securities Act. Those Selling Stockholders, in return, have agreed to indemnify
the Company against certain liabilities, including liabilities under the
Securities Act. The registration of these shares is being made in accordance
with the Agreement and Plan of Merger and the Registration Rights Agreement.
Each of the Selling Stockholders (or a predecessor in interest) is a party to
the Registration Rights Agreement.
If all or a portion of the Shares are to be offered through an
underwritten offering, the terms of such underwritten offering, including the
public offering price, the names of the underwriters and the compensation, if
any, of such underwriters, will be set forth in an accompanying Prospectus
Supplement.
Until the distribution of the Shares is completed, rules of the Commission
may limit the ability of any underwriters and any other person participating in
the distribution of the Shares to bid for and purchase the Common Stock. As an
exception to these rules, underwriters are permitted to engage in certain
transactions that stabilize the price of the Common Stock. Such transactions
consist of bids or purchases for the purpose of pegging, fixing or maintaining
<PAGE>
the price of the Common Stock. If any underwriters create a short position in
the Shares in connection with the offering, selling more Shares than are set
forth on the cover page of this Prospectus, the underwriters may reduce that
short position by purchasing shares of Common Stock in the open market.
Purchases of the Common Stock for the purpose of stabilization or to reduce a
short position could cause the price of the Common Stock to be higher than it
might be in the absence of such purchases. In addition, rules of the Commission
may limit the timing of purchases and sales of shares of Common Stock by the
Selling Stockholders and any other such person. All of the foregoing may limit
the marketability of the Shares and the ability of any underwriter, broker,
dealer or agent to engage in market making activities.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of any of
the Shares by the Selling Stockholders.
LEGAL MATTERS
The validity of the Common Stock being offered hereby has been passed upon
for the Company by Lawrence J. Knopf, Esq., the Vice President, Assistant
Secretary and Assistant General Counsel of the Company.
EXPERTS
The consolidated financial statements and financial statement schedule of
the Company incorporated by reference and included, respectively, in the
Company's Annual Report (Form 10-K) for the year ended December 31, 1997, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon, incorporated by reference and included therein and
incorporated herein by reference. Such consolidated financial statements and
financial statement schedule have been incorporated herein by reference in
reliance upon such reports, given upon the authority of such firm as experts in
accounting and auditing.
<PAGE>
- --------------------------------------- -----------------------------------
No dealer, sales person, or any other
person has been authorized to give
any information or to make any
representation not contained or
incorporated by reference in
this Prospectus in connection with
the offering made hereby, and,
if given or made, such information or 324,230 SHARES
representation must not be relied
upon as having been authorized by the
Company, the Selling Shareholders
or any broker, dealer, agent or
Underwriter. This Prospectus does
not constitute an offer to sell or a
solicitation of an offer to buy any
securities other than the shares of
Common Stock to which it relates or an
offer to sell, or a solicitation of BOSTON SCIENTIFIC
an offer to buy any of the securities
offered hereby in any jurisdiction CORPORATION
where, or to any person to whom,
such an offer or solicitation COMMON STOCK
would be unlawful. Neither the
delivery of this Prospectus nor any
sale made hereunder shall, under any
circumstances, create an implication
that there has been no change in the
affairs of the Company since, or that
information contained herein is correct
as of any time subsequent to, the date
hereof or the date as of which information
is set forth herein.
-----------------------------------
PROSPECTUS
_________ , 1998
-----------------------------------
TABLE OF CONTENTS
Page
Available Information...... 4
Incorporation of Certain
Documents by Reference..... 4
Cautionary Statement....... 5
The Company and the Merger. 6
Selling Stockholders....... 6
Plan of Distribution....... 8
Use of Proceeds............ 9
Legal Matters.............. 9
Experts.................... 9
- --------------------------------------- -----------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation, are:
SEC Registration Fee....................... $5,094
Legal Fees and Expenses.................... $5,000
Accounting Fees and Expenses............... $5,000
Printing Fees and Expenses................. $2,500
Miscellaneous.............................. $2,406
Total...................................... $20,000
All of the costs identified above will be paid by the Company. Except for
the SEC registration fee, all amounts are estimates.
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware contains, in Section
145, provisions relating to the indemnification of officers and directors.
Article VI of the bylaws of the Company contains provisions requiring
indemnification by the Company of its directors and officers to the full extent
permitted by law. These provisions extend to expenses reasonably incurred by
the director or officer in defense or settlement of any such action or
proceeding.
The board of directors of the Company has general authority to indemnify
any officer or director against losses arising out of his or her service as
such, unless prohibited by law. The Company carries insurance to cover
potential costs of the foregoing indemnification of the Company's officers and
directors.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
Item 16. EXHIBITS.
Exhibit Description
4.1 Second Restated Certificate of Incorporation of the
Company, incorporated by reference to Exhibit
3.1 to the Annual Report on Form 10-K of the Registrant
for the year ended December 31, 1993 (File No. 1-11083)
4.2 Certificate of Amendment of the Second Restated Certificate
of Incorporation of the Registrant, incorporated by
reference to Exhibit 3.2 to the Annual Report on Form 10-K
of the Registrant for the year ended December 31, 1994
(File No. 1-11083).
4.3 Restated Bylaws of the Company, incorporated by
reference to Exhibit 3.2 to the Registration Statement on
Form S-1 of the Registrant (Reg. No. 33-46980).
4.4 Specimen certificate representing Boston Scientific
Common Stock, incorporated by reference to Exhibit 4.1 to
the Registration Statement on Form S-1 of the Company
(Reg. No. 33-46980).
5 Legal Opinion of Lawrence J. Knopf, Esq., Vice President,
Assistant Secretary and Assistant General Counsel of the
Company.
23.1 Consent of Lawrence J. Knopf, Esq. (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP, independent auditors.
<PAGE>
24 Power of Attorney (included in Signature Page).
Item 17. UNDERTAKINGS.
(A) The undersigned registrant hereby undertakes that, for purposes of
determining any 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the 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.
(B) 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 Securities and Exchange
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.
(C) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a posteffective 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 posteffective 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 posteffective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(D) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report, to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Boston
Scientific Corporation certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Natick, Commonwealth of
Massachusetts, on the 30th day of September, 1998.
BOSTON SCIENTIFIC CORPORATION
By /s/ Lawrence C. Best
------------------------
Lawrence C. Best
Senior Vice President-Finance and Administration and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Paul W. Sandman and Lawrence J. Knopf, and each
of them, his true and lawful attorney-in-fact and agent, severally, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, thereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and the power of attorney set forth above have been
signed below by the following persons in the capacities indicated on the 30th
day of September, 1998.
Signature Title
/s/ John E. Abele Director, Founder Chairman
- -------------------------------
John E. Abele
/s/ Charles J. Aschauer, Jr. Director
- -------------------------------
Charles J. Aschauer, Jr.
/s/ Randall F. Bellows Director
- -------------------------------
Randall F. Bellows
/s/ Lawrence C. Best Senior Vice President - Finance
- ------------------------------- and Administration and Chief
Lawrence C. Best Financial Officer (Principal
Financial and Accounting
Officer)
/s/ Joseph A. Ciffolillo Director
- -------------------------------
Joseph A. Ciffolillo
<PAGE>
/s/ Joel L.Fleishman Director
- -------------------------------
Joel L. Fleishman
/s/ Lawrence L. Horsch Director
- -------------------------------
Lawrence L. Horsch
/s/ N.J. Nicholas, Jr. Director
- -------------------------------
N.J. Nicholas, Jr.
/s/ Pete M. Nicholas Director, Founder, Chief
- ------------------------------- Executive Officer and Chairman
Pete M. Nicholas of the Board
(Principal Executive Officer)
/s/ Dale A. Spencer Director
- -------------------------------
Dale A. Spencer
EXHIBIT 5
[BOSTON SCIENTIFIC LETTERHEAD]
September 30, 1998
Boston Scientific Corporation
One Boston Scientific Place
Natick, MA 01760-1537
Re: CardioGene Therapeutics, Inc. ("CardioGene")
Gentlemen:
This opinion is rendered to you in connection with the filing by Boston
Scientific Corporation, a Delaware corporation (the "Corporation"), of its
Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission, relating to the registration under the
Securities Act of 1933 of 324,230 shares of the Corporation's Common Stock, par
value $0.01 per share (the "Common Stock"), filed with the Securities and
Exchange Commission on September 30, 1998, all of which Shares were issued, as
unregistered shares, on June 30, 1998 pursuant to the terms of an Agreement and
Plan of Merger, dated as of June 30, 1998 (the "Agreement"), among the
Corporation, CG Acquisition Co., a Delaware Corporation, CardioGene
Therapeutics, Inc., a Delaware corporation ("CardioGene"), and each of the
stockholders of CardioGene.
In rendering this opinion as Assistant General Counsel of the Corporation,
I or attorneys in my office have participated with the Corporation and its
officers in the preparation, review and filing of the Registration Statement
and the related prospectus (the "Prospectus"), have examined other corporate
documents and records, have made such examination of law, and have discussed
with the officers and directors of the Corporation and its subsidiaries such
questions of fact as we have deemed necessary or appropriate. We have also
relied upon certificates and statements of such officers and directors as to
factual matters and have assumed the genuineness of all signatures not known to
us as well as the authenticity of all documents submitted to us as copies.
Subject to the foregoing, it is my opinion that the Common Stock has been duly
authorized and that the shares of Common Stock are validly issued, fully paid
and non-assessable.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of my name in the Registration Statement
and the related Prospectus.
Very truly yours,
/s/ Lawrence J. Knopf
-------------------------------
Lawrence J. Knopf
Vice President, Assistant Secretary and
Assistant General Counsel
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Boston Scientific
Corporation for the registration of 324,230 shares of its common stock and to
the incorporation by reference therein of our reports dated February 20, 1998,
with respect to the consolidated financial statements of Boston Scientific
Corporation incorporated by reference in its Annual Report (Form 10-K) for the
year ended December 31, 1997 and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Boston, Massachusetts
September 25, 1998
