As filed with the Securities and Exchange Commission on June 2, 1999
Registration No. 333-64887
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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Boston Scientific Corporation
BSC Capital Trust
BSC Capital Trust II
BSC Capital Trust III
(Exact name of Registrants as specified in their respective charters)
Delaware 04-2695240
Delaware Applied For
Delaware Applied For
Delaware Applied For
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Boston Scientific Place Paul W. Sandman, Esq.
Natick, Massachusetts 01760-1537 Senior Vice President
(508) 650-8000 Secretary and General Counsel
Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760-1537
(508) 650-8000
(Address, including zip code, and (Name, address, including zip code, and
telephone number, including area code, telephone number, including area code,
of each Registrant's principal of agent for service for each
executive offices) Registrant)
Copies of Correspondence to:
Richard B. Vilsoet, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022-6069
(212) 848-4000
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Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective as determined
by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please 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, please 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, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
(continued on next page)
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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. |_|
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The Registrants hereby amend this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrants 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 Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
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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 JUNE 2, 1999
PROSPECTUS
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BOSTON SCIENTIFIC CORPORATION
Senior Debt Securities, Subordinated Debt Securities,
Preferred Stock, Depositary Shares, Common Stock, Warrants,
Stock Purchase Contracts and Stock Purchase Units
BSC CAPITAL TRUST
BSC CAPITAL TRUST II
BSC CAPITAL TRUST III
Trust Preferred Securities
Guaranteed as set forth herein by
BOSTON SCIENTIFIC CORPORATION
Boston Scientific Corporation ("Boston Scientific" or the "Company")
may offer and sell from time to time, together or separately, the following
securities in one or more series: (i) its unsecured senior debt securities (the
"Senior Debt Securities") and its unsecured subordinated debt securities (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), consisting of debentures, notes or other evidences of
indebtedness; (ii) shares of its preferred stock, par value $0.01 per share (the
"Preferred Stock"); (iii) depositary shares representing entitlement to all
rights and preferences of a fraction of a share of Preferred Stock of a specific
series (the "Depositary Shares"); (iv) shares of its common stock, par value
$0.01 per share (the "Common Stock"); (v) warrants to purchase any of the
foregoing Debt Securities, Preferred Stock, Depositary Shares or Common Stock
(the "Warrants"); (vi) stock purchase contracts (the "Stock Purchase Contracts")
to purchase Common Stock or Preferred Stock; (vii) stock purchase units (the
"Stock Purchase Units"), each Stock Purchase Unit representing ownership of a
Stock Purchase Contract and Trust Preferred Securities (as defined below) or
other debt obligations of third parties, including U.S. government or government
agency securities securing the holder's obligation to purchase Common Stock or
Preferred Stock under the Stock Purchase Contracts. The Senior Debt Securities,
Subordinated Debt Securities, Preferred Stock, Depositary Shares, Warrants,
Common Stock, Stock Purchase Contracts, Stock Purchase Units and the Trust
Preferred Securities are collectively called the "Securities."
BSC Capital Trust, BSC Capital Trust II and BSC Capital Trust III (each
a "Trust"), each a statutory business trust formed under the laws of the State
of Delaware, may each offer and sell from time to time, preferred securities,
representing preferred undivided beneficial interests in the assets of their
respective Trust ("Trust Preferred Securities"). The Company will own all of the
undivided beneficial ownership interests represented by the common securities of
each Trust ("Trust Common Securities" and, together with the Trust Preferred
Securities, the "Trust Securities"). To the extent described herein, the Company
will guarantee (each, a "Trust Guarantee") the payment of periodic cash
distributions ("Distributions") with respect to Trust Preferred Securities out
of monies held by the Trusts and payments on liquidation, redemption or
otherwise with respect to the Trust Preferred Securities. See "Description of
Trust Preferred Securities" and "Description of Trust Guarantee." Each Trust
Guarantee (i) will rank junior and subordinate in right of payment to all other
liabilities of the Company, except indebtedness of the Company that by its terms
is subordinate or pari passu to such Trust Guarantee, and (ii) will rank pari
passu with most senior preferred or preference stock of the Company. See
"Description of Trust Guarantee--Status of Trust Guarantee."
This prospectus may not be used to consummate sales of securities
unless accompanied by a prospectus supplement.
(Continued on next page)
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Securities may be offered and sold to or through underwriters,
dealers or agents as designated from time to time, or directly to one or more
other purchasers or through a combination of such methods. See "Plan of
Distribution." If any underwriters, dealers or agents are involved in the sale
of any of the Securities, their names, and any applicable purchase price, fee,
commission or discount arrangements between or among them, will be set forth, or
will be calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution" for indemnification arrangements for
agents, dealers and underwriters.
The date of this Prospectus is , 1999.
<PAGE>
(Continued from front page)
The Company may issue and sell Subordinated Debt Securities from time
to time in one or more series to a Trust or a trustee of a Trust in connection
with the investment of proceeds from an offering of Trust Securities.
Subordinated Debt Securities purchased by a Trust may be subsequently
distributed pro rata to holders of Trust Securities of such Trust in connection
with the dissolution of such Trust upon the occurrence of certain events as may
be described in one or more supplements to this Prospectus (each, a "Prospectus
Supplement"). See "Description of Trust Preferred Securities" and "Description
of Trust Guarantee--Status of the Trust Guarantee."
One or more related Prospectus Supplements will set forth the form in
which the Securities are to be issued and certain specific terms of the
particular Securities described in this Prospectus, including, where applicable,
the following: (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, ranking as Senior Debt Securities or Subordinated
Debt Securities, maturity, premium, if any, interest rate, time and method of
calculating interest, if any, date on which interest, if any, shall be payable,
place where principal of, premium, if any, and interest, if any, on such Debt
Securities will be payable, the currencies or currency units in which principal
of, premium, if any, and interest, if any, on such Debt Securities will be
payable, any terms of redemption or conversion, any sinking fund provisions, the
purchase price, any right of the Company to defer payment of interest on the
Debt Securities and the maximum length of such deferral period and other special
terms; (ii) in the case of Preferred Stock or Depositary Shares, the specific
designation, stated value and liquidation preference per share and number of
shares offered, the purchase price, dividend rate (which may be fixed or
variable), method of calculating payment of dividends, place where dividends on
such Preferred Stock will be payable, any terms of redemption or conversion,
dates on which dividends shall be payable and dates from which dividends shall
accrue, voting and other rights, including whether interests in the Preferred
Stock will be represented by Depositary Shares and, if so, the fraction of a
share of Preferred Stock represented by each Depositary Share; (iii) in the case
of Common Stock, the number of shares offered, the initial offering price,
market price and dividend information; (iv) in the case of Warrants, the
specific designation, the number, purchase price, exercise price and other terms
thereof, as well as the terms on which, and the securities for which, the
Warrants may be exercised; (v) in the case of Stock Purchase Contracts, the
number of shares of Common Stock issuable thereunder, the purchase price of the
Common Stock, the date on which the Common Stock is required to be purchased by
the holders of the Stock Purchase Contracts, any periodic payments required to
be made by the Company to the holders of the Stock Purchase Contracts or vice
versa, and the terms of the offering and sale thereof; (vi) in the case of Stock
Purchase Units, the specific terms of the Stock Purchase Contracts and any Trust
Preferred Securities or debt obligations of third parties securing the holder's
obligation to purchase the Common Stock under the Stock Purchase Contracts, and
the terms of the offering and sale thereof; and (vii) in the case of Trust
Preferred Securities, the specific designation, number of securities,
liquidation amount per security, purchase price, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, any voting rights, terms for any
conversion or exchange into other securities, any redemption, exchange or
sinking fund provisions, any other rights, preferences, privileges, limitations
or restrictions relating to the Trust Preferred Securities, specific terms and
provisions of the Trust Guarantee and the terms upon which the proceeds of the
sale of the Trust Preferred Securities shall be used to purchase a specific
series of Subordinated Debt Securities.
The Company, by filing the Registration Statement of which this
Prospectus is a part, is seeking flexibility with respect to the offering of the
Securities to the public. While it is likely that the offering price to the
public of the Securities will be less, in no event will the offering price to
the public of the Securities exceed U.S. $1.2 billion in the aggregate (or its
equivalent (based on the applicable exchange rate of the time of issue), if the
Securities are offered for consideration denominated in one or more foreign
currencies or currency units as shall be designated by the Company). The
Securities may be offered, separately or together, in separate series, in
amounts at prices and on terms to be determined at the time of sale and set
forth in an accompanying Prospectus Supplement. The applicable Prospectus
Supplement will also contain information, where applicable, about certain U.S.
federal income tax considerations.
The Common Stock is listed on the New York Stock Exchange under the
trading symbol "BSX." The Prospectus Supplement will state whether any
Securities offered thereby will be listed on any national securities exchange.
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CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICES OF THE
SECURITIES OFFERED HEREBY, INCLUDING STABILIZING TRANSACTIONS, THE PURCHASE OF
SECURITIES TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF PENALTY
BIDS. THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR
MAINTAIN THE MARKET PRICES OF THE SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION."
No dealer, salesperson or other individual has been authorized to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus or any accompanying Prospectus Supplement and, if
given or made, such information or representation must not be relied upon as
having been authorized by the Company, any of the Trusts or any underwriter,
dealer or agent. Neither this Prospectus nor any accompanying Prospectus
Supplement constitutes an offer to sell or a solicitation of any offer to buy
any of the securities hereby or thereby offered in any jurisdiction where, or to
any person to whom, it is unlawful to make such offer or solicitation. Neither
the delivery of this Prospectus or any accompanying Prospectus Supplement, nor
any sale made hereunder or thereunder shall create any implication that the
information herein or therein is correct as of any time subsequent to the date
hereof or thereof or that there has been no change in the affairs of the Company
or any of the Trusts since such date or, in the case of information incorporated
herein or therein by reference, the date of filing such information with the
Commission.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the 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: in Chicago, at Citicorp Center, 500 W. Madison, Suite 1400, Chicago,
Illinois 60661 and in New York, at Seven World Trade Center, 13th Floor, New
York, New York 10048. 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. The Commission also maintains a site on the world
wide web at http://www.sec.gov that contains reports, proxy and information
statements and other information filed electronically by the Company. In
addition, reports, proxy statements and other information concerning the Company
may be inspected at the offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
This Prospectus constitutes part of a combined Registration Statement
on Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") filed by the Company and each of the Trusts with the
Commission under the Securities Act of 1933, as amended (the "Securities Act").
As permitted by the rules and regulations of the Commission, this Prospectus and
any accompanying Prospectus Supplement omits certain of the information
contained in the Registration Statement. For further information with respect to
the Company, each of the Trusts and the Securities offered hereby, reference is
hereby made to the Registration Statement and to the exhibits and the financial
statements, notes and schedules filed as a part thereof or incorporated by
reference therein, copies of which may be obtained as provided in the preceding
paragraph. Statements contained herein and any accompanying Prospectus
Supplement concerning the provisions of any documents are necessarily summaries
of such documents and are not necessarily complete, and each statement is
qualified in its entirety by reference to the copy of the applicable document
filed with the Commission, which may be obtained as described above.
No separate financial statements of any of the Trusts have been
included or incorporated by reference herein. The Company and the Trusts do not
consider that such financial statements would be material to holders of Trust
Preferred Securities because (i) all of the voting securities of each Trust are
owned, directly or indirectly, by the Company, a reporting company under the
Exchange Act, (ii) each of the Trusts has and will have no independent
operations, but exists for the sole purpose of issuing securities representing
undivided beneficial interests in its assets and investing the proceeds thereof
in Subordinated Debt Securities issued by the Company, and (iii) the Company's
obligations, which are described herein and in any accompanying Prospectus
Supplement, pursuant to each Declaration (as defined herein) (including the
obligation to pay the expenses of each Trust), the Indenture and any
supplemental indentures thereto, the Subordinated Debt Securities issued to any
of the Trusts and the Trust Guarantees, taken together, constitute a full and
unconditional guarantee, on a subordinated basis, by the Company of payments due
on the Trust Preferred Securities. See "The Trusts," "Description of Trust
Preferred Securities" and "Description of Trust Guarantee."
None of the Trusts are currently subject to the information reporting
requirements of the Exchange Act. Upon the effectiveness of the Registration
Statement, each Trust will become subject to such requirements; however, each of
the Trusts intends to seek and expects to receive exemption therefrom. Each of
the Trusts is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than its holding as trust assets the Subordinated Debt
Securities and the issuance of the Trust Securities.
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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, 1998, as amended by a Form 10-K/A dated April
28, 1999 and a Form 10-K/A2 dated June 2, 1999 (collectively, the "1998
Form 10-K").
2. The Company's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1999 (the "March 1999 Form 10-Q").
3. 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.
4. The Company's Current Report filed on Form 8-K dated
September 25, 1998, as amended by a Form 8-K/A dated November 24, 1998
and a Form 8-K/A2 dated March 31, 1999.
All documents and reports filed with the Commission by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of this Prospectus and prior to the termination of the offering of the
Securities offered hereby shall be deemed to be incorporated by reference in
this Prospectus and to be a part of this Prospectus from the dates of filing of
such documents or reports. Any statement contained herein or in a document
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, in any other subsequently filed document which also
is or is deemed to be incorporated by reference herein or in the accompanying
Prospectus Supplement modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified and
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
Prospectus is delivered, upon written or oral request of such person, a copy of
any of the documents incorporated herein by reference (other than exhibits to
such documents that are not specifically incorporated by reference therein).
Written requests should be directed to Investor Relations, Boston Scientific
Corporation, One Boston Scientific Place, Natick, Massachusetts 01760-1537.
Telephone requests may be directed to (508) 650-8000.
CERTAIN FORWARD-LOOKING STATEMENTS
This Prospectus, the accompanying Prospectus Supplement 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. Forward-looking statements
contained in this Prospectus, the accompanying Prospectus Supplement and the
documents incorporated herein by reference include, but are not limited to,
statements with respect to, and the Company's performance may be affected by:
(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"), including purchased research and development and
physician and hospital relationships; (b) the process, outlays and plan for the
integration of businesses acquired by the Company, and the successful and timely
implementation of the related plans of rationalization; (c) the impact and
timing of the Company's supply chain initiatives; (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
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technologies that provide simpler, less traumatic, less costly and more
efficient diagnosis and treatment; (g) the Company's ability to launch products
on a timely basis, including products resulting from purchased research and
development; (h) risks associated with international operations; (i) 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; (j) the Company's belief that its effective tax rate for
1999 will only increase slightly from 1998; (k) the ability of the Company to
manage accounts receivable, manufacturing costs and inventory levels and mix and
to react effectively to the changing managed care environment and worldwide
economic conditions;(l) the ability of the Company to meet its projected cash
needs through the end of 1999; (m) the ability of the global information systems
to improve supply chain management; (n) the effect of litigation and compliance
activities on the Company's legal provision; (o) costs and risks associated with
implementing Year 2000 compliance and business process reengineering; (p) timely
and uninterrupted supply of the NIR(R) coronary stent and the Company's cost to
purchase the NIR(R) stent; (q) the ability to realize improved long-term returns
on the Company's investments with a direct selling presence in emerging markets;
(r) the ability of the Company to obtain more permanent financing to re-finance
a portion of its commercial paper and amounts borrowed under the Company's
revolving credit facilities, to comply with its debt ratio through an equity
issuance and to place its commercial paper at reasonable rates; (s) the
Company's expectation that a minimum of $700 million of short-term debt
supported by the Company's revolving credit facilities will remain outstanding
through the next twelve months; (t) the Company's ability to fund development of
purchased technology and to realize value assigned to in-process research and
development and other intangible assets; (u) the impact of stockholder class
action, patent, product liability and other litigation, the outcome of the U.S.
Department of Justice investigation, and the adequacy of the Company's product
liability insurance; (v) the potential impact resulting from the euro
conversion, including adaptation of information technology systems, competitive
implications related to pricing and foreign currency considerations; and (w) the
timing, size and nature of strategic initiatives available to the Company.
Several important factors, in addition to the specific factors discussed in
connection with each of the forward-looking statements contained herein, in the
accompanying Prospectus Supplement 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, in the accompanying Prospectus Supplement and in
the documents incorporated herein by reference. Such additional factors include,
among other things, future economic, competitive and regulatory conditions,
demographic trends, third-party intellectual property, 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, the accompanying
Prospectus Supplement 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.
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THE COMPANY
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-endovasular 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. In recent years, the Company has bolstered its
growth through several strategic acquisitions and alliances. Most recently, on
September 10, 1998, the Company acquired Schneider Worldwide, formerly a member
of the Medical Technology Group of Pfizer Inc. ("Pfizer"), for approximately
$2.1 billion in cash. The purchase price was funded by the issuance of
commercial paper.
The principal executive offices of the Company are located at One
Boston Scientific Place, Natick, Massachusetts 01760-1537. Its telephone number
is (508) 650-8000.
TRUSTS
Each Trust is a statutory business trust formed under Delaware law
pursuant to (i) a separate declaration of trust (each, as amended and restated,
a "Declaration") executed by the Company as sponsor for such trust (the
"Sponsor"), the Regular Trustees (as defied herein) and the Delaware Trustee (as
defined herein) of such trust and (ii) the filing of a certificate of trust with
the Secretary of State of the State of Delaware on September 25, 1998, with
respect to BSC Capital Trust, and on September 29, 1998, with respect to the
other Trusts. The Company and each Institutional Trustee (as defined herein)
will qualify the applicable Declaration as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Each Trust exists
for the exclusive purposes of (i) issuing and selling Trust Securities, (ii)
investing the gross proceeds from the sale of such Trust Securities in
Subordinated Debt Securities and (iii) engaging in only those other activities
necessary or incidental thereto.
The Company will own directly or indirectly all of the Trust Common
Securities of each Trust. The Trust Common Securities of each Trust will rank
pari passu, and the applicable Trust will make payments thereon pro rata, with
the Trust Preferred Securities of such Trust except that, if any event of
default has occurred and is continuing under its Declaration, the rights of
holders of the Trust Common Securities to payment in respect of distributions
and payments upon liquidation, redemption or otherwise will be subordinated to
the rights of holders of the Trust Preferred Securities of such Trust. The
Company will acquire Trust Common Securities of each of the Trusts in an
aggregate liquidation amount equal to at least 3% of the total capital of each
such Trust.
The term of each Trust is approximately 45 years, but each Trust may be
dissolved earlier as provided in its Declaration. The business and affairs of
each of the Trusts will be conducted by the trustees (the "Capital Trustees")
appointed by the Company as the direct or indirect holder of all of the Trust
Common Securities of each such Trust. As holder of the Trust Common Securities,
the Company will be entitled to appoint, remove or replace any of, or increase
or reduce the number of Capital Trustees of each of the Trusts. The applicable
Declaration governs the duties and obligations of the Capital Trustees. A
majority of the Capital Trustees (the "Regular Trustees") of each of the Trusts
will be persons who are employees or officers of, or who are affiliated with,
the Company. One Capital Trustee of each Trust will be a financial institution
that is unaffiliated with the Company and has minimum capital and surplus of not
less than $50.0 million. That institution acts as property trustee and as
indenture trustee (the "Institutional Trustee") for the purpose of compliance
with the provisions of the Trust Indenture Act pursuant to terms set forth in
the applicable Prospectus Supplement. In addition, unless the Institutional
Trustee for a Trust maintains a principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law, one Capital
Trustee of such Trust will be an entity having a principal place of business in,
or a natural person resident of, the State of Delaware (the "Delaware Trustee").
The Company will pay all fees and expenses related to the Trusts and any
offering of Trust Securities.
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The rights of the holders of the Trust Preferred Securities, including
economic rights, rights to information and voting rights, are set forth in
Declaration, the Delaware Business Trust Act, as amended (the "Trust Act"), and
the Trust Indenture Act. See "Description of Trust Preferred Securities."
Unless otherwise specified in the applicable Prospectus Supplement, the
Institutional Trustee for each of the Trusts is The Chase Manhattan Bank;
Attention: Corporate Trust Administration. Unless otherwise specified in the
applicable Prospectus Supplement, The Chase Manhattan Bank Delaware will serve
as the Delaware Trustee for each of the Trusts, and its address in the State of
Delaware is 1201 North Market Street, Wilmington, New Castle County, Delaware
19801, Attention: Corporate Trust Administration. The principal place of
business of each of the Trusts is c/o Boston Scientific Corporation, One Boston
Scientific Place, Natick, Massachusetts 01760-1537, telephone number (508)
650-8000.
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USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the
Securities (including Subordinated Debt Securities issued to any of the Trusts
in connection with the investment by any such Trust of all of the proceeds from
the sale of Trust Preferred Securities) for general corporate purposes,
including, without limitation, repurchases or redemptions of the Company's
outstanding debt securities or other reductions of the Company's outstanding
borrowings, working capital, business acquisitions, investments in or loans to
subsidiaries, capital expenditures or for such other purposes as may be
specified in the applicable Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of the Company on a
consolidated basis for the periods indicated were as follows (unaudited):
<TABLE>
<CAPTION>
Three Months
Ended March 31 Year Ended December 31,
----------------------------- -----------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges........................ 4.99 8.44 7.24 15.76 5.07 16.98
Coverage deficiency (in
thousands)..................... $(279,774)
</TABLE>
For purposes of calculating the ratio of earnings to fixed charges,
"earnings" consist of income (loss) before income taxes and the cumulative
effect of a change in accounting plus net distributed equity in earnings of
equity investees and fixed charges less capitalized interest. "Fixed charges"
consist of interest expense, capitalized interest, amortization of debt issuance
expenses and discount and an appropriate portion of rental expense that
represents a reasonable approximation of the interest factor. "Coverage
deficiency" consist of earnings, as defined above, less fixed charges.
The ratios of earnings to fixed charges for all periods presented are
not necessarily indicative of the results that may be expected for any future
periods, and reflect merger-related and special charges recorded in conjunction
with the Company's acquisitions and strategic alliances consummated through
March 31, 1999. The Company had a coverage deficiency in 1998 as a result of
noncash special charges of $646 million recorded in connection with the
acquisition of Schneider Worldwide and other merger-related initiatives. These
ratios should be read in conjunction with the Company's consolidated financial
statements (including notes thereto) included in the 1998 Form 10-K and the
Company's condensed consolidated financial statements (including notes thereto)
included in the March 1999 Form 10-Q.
9
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. Particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to any series of Debt Securities will be described
in the Prospectus Supplement relating to such Debt Securities. This description
does not purport to be complete and is subject to, and qualified in its entirety
by reference to, all of the provisions of the Indenture (as defined herein),
including the definitions therein of certain terms and those terms made part of
such Indenture by reference to the Trust Indenture Act, as in effect on the date
of such Indenture, and to such Debt Securities. Unless otherwise indicated,
certain capitalized terms used below and not defined have the respective
meanings assigned to them in the Indenture.
The Company may issue Debt Securities from time to time in one or more
series. Senior Debt Securities and/or Subordinated Debt Securities may be issued
under an indenture, as amended or supplemented from time to time (as so
supplemented or amended, the "Indenture") between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"), and in the form that has been filed
as an exhibit to the Registration Statement of which this Prospectus is a part.
The Indenture will be subject to and governed by the Trust Indenture Act.
General
The Debt Securities will be unsecured obligations of the Company. The
Indebtedness represented by (i) Senior Debt Securities will rank on a parity
with all other unsecured and unsubordinated Indebtedness of the Company and (ii)
Subordinated Debt Securities will be unsecured and subordinated in right of
payment to the prior payment in full of all Senior Indebtedness (as defined
below) of the Company. See "--Subordination."
The Indenture will provide for the issuance by the Company from time to
time of Debt Securities in one or more series. The aggregate principal amount of
Debt Securities which may be issued under the Indenture will be unlimited and
the Indenture will set forth the specific terms of any series of Debt Securities
or provide that such terms shall be set forth in, or determined pursuant to, an
authorizing resolution and/or a supplemental indenture, if any, relating to such
series.
Reference is made to the Prospectus Supplement relating to the
particular series of Debt Securities offered thereby for a description of the
terms of such Debt Securities in respect of which this Prospectus is being
delivered, including the following, as applicable:
(i) the form and title of such Debt Securities and whether
such Debt Securities are Senior Debt Securities or Subordinated Debt
Securities;
(ii) any limit on the aggregate principal amount of such
series of Debt Securities;
(iii) the date or dates on which the principal of such Debt
Securities is payable, or the method by which such dates will be
determined or extended;
(iv) the rate or rates at which such Debt Securities shall
bear interest, if any, the date or dates from which such interest will
accrue, the Interest Payment Dates on which such interest will be
payable, the right, if any, of the Company to defer or extend an
Interest Payment Date and the Regular Record Date, if any, for interest
payable on any Registered Security on any Interest Payment Date, or the
method by which any of the foregoing shall be determined, and the basis
upon which interest will be calculated if other than on the basis of a
360-day year of twelve 30-day months;
(v) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal of,
and premium, if any, and interest, if any, on such Debt Securities will
be payable, where any Registered Securities of the series may be
surrendered for registration of transfer,
10
<PAGE>
where such Debt Securities may be surrendered for exchange, where such
Debt Securities that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable and, if
different than the location specified in the Indenture, the place or
places where notices or demands to or upon the Company in respect of
such Debt Securities and such Indenture may be served;
(vi) the period or periods within which, the price or prices
at which, the currency or currencies in which, and other terms and
conditions upon which such Debt Securities may be redeemed, in whole or
in part, at the option of the Company or a Holder, if the Company or a
Holder thereof is to have that option;
(vii) the obligation or the right, if any, of the Company to
redeem, repay or purchase such Debt Securities pursuant to any sinking
fund or analogous provision or at the option of a Holder thereof, and
the period or periods within which, the price or prices at which, the
currency or currencies in which, and other terms and conditions upon
which such Debt Securities will be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(viii) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of such series will be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of such series will be issuable;
(ix) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(x) if other than the principal amount thereof, the portion of
the principal amount of such Debt Securities that will be payable upon
declaration of acceleration of the Maturity thereof under the
Indenture, or the method by which such portion shall be determined;
(xi) if other than U.S. dollars, the currency or currencies
(including currency unit or units) in which payment of principal of, or
premium, if any, or interest, if any, on such Debt Securities will be
payable or in which such Debt Securities will be denominated, and the
particular provisions applicable thereto in accordance with, in
addition to or in lieu of any provisions of the Indenture;
(xii) whether the amount of payments of principal of, or
premium, if any, or interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more currencies, commodities, equity indices or other indices), and the
manner in which such amounts will be determined;
(xiii) whether the principal of, or premium, if any, or
interest, if any, on such Debt Securities are to be payable, at the
election of the Company or a Holder thereof, in a currency or
currencies other than that in which such Debt Securities are
denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which
such election may be made, and the time and manner of determining the
exchange rate between the currency in which such Debt Securities are
denominated or stated to be payable and the currency or currencies in
which such Debt Securities are to be so payable, in each case in
accordance with, in addition to or in lieu of any of the provisions of
the Indenture;
(xiv) the designation of the initial Exchange Rate Agent, if
any;
(xv) the applicability, if any, of the defeasance or covenant
defeasance provisions of the Indenture to such Debt Securities, and any
provisions in modification of, in addition to or in lieu of any of the
provisions of the Indenture;
(xvi) provisions, if any, granting special rights to Holders
of such Debt Securities upon the occurrence of such events as may be
specified;
11
<PAGE>
(xvii) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company specified in the
Indenture with respect to such Debt Securities, whether or not such
Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(xviii) whether such Debt Securities are to be issuable as
Registered Securities, Bearer Securities (with or without coupons), or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any such Debt Securities are to be issuable
initially in temporary global form and whether any such Debt Securities
are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Debt
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the Indenture, whether
Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations), and the circumstances under which and the place or places
where any such exchanges may be made and if Debt Securities of any
series are to be issuable in global form, the identity of any initial
depository therefor;
(xix) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series will be dated if other than the date of original issuance
of the first Debt Security of the series to be issued;
(xx) the Person to whom any interest in any Registered
Security of the series will be payable, if other than the Person in
whose name that Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if other than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in the
Indenture;
(xxi) if such Debt Securities are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions;
(xxii) if such Debt Securities are to be issued upon the
exercise of warrants, the time, manner and place for such Debt
Securities to be authenticated and delivered;
(xxiii) whether, under what circumstances and the currency or
currencies in which the Company will pay Additional Amounts as
contemplated by the Indenture on such Debt Securities to any Holder who
is not a United States person (including any modification to the
definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Debt Securities rather than pay such Additional
Amounts (and the terms of any such option);
(xxiv) if such Debt Securities are to be convertible into or
exchangeable for any securities of any Person (including the Company),
the terms and conditions upon which such Debt Securities will be so
convertible or exchangeable;
(xxv) whether the Debt Securities are subject to subordination
and the terms of such subordination; and
(xxvi) any other terms, conditions, rights and preferences
relating to such Debt Securities.
With respect to Debt Securities of any series denominated in U.S.
dollars, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), will be
issuable
12
<PAGE>
in denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), will be issuable in a denomination of
$5,000, unless otherwise provided in the applicable Prospectus Supplement. The
Prospectus Supplement relating to a series of Debt Securities denominated in any
currency other than U.S. dollars or a composite currency will specify the
denominations thereof.
One or more series of Debt Securities may be sold at a substantial
discount below their stated principal amount, bearing no interest or interest at
a rate which is below market rates at the time of issuance. One or more series
of Debt Securities may be floating rate debt securities which are exchangeable
for fixed rate debt securities. The Company will describe certain federal income
tax consequences and special considerations, if any, applicable to each series
of Debt Securities in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the applicable Prospectus Supplement,
interest, if any, on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date will be paid to the
Person in whose name such Security is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose as set forth in the Indenture; provided, however,
that the Company may, at its option, pay each installment of interest, if any,
on any Registered Security by (i) mailing a check for such interest installment,
payable to or upon the written order of the Person entitled thereto as set forth
in the Indenture, to the address of such Person as it appears on the Security
Register or (ii) transferring an amount equal to such interest installment to an
account located in the United States maintained by the payee.
Holders may present Debt Securities for exchange and may present
registered Debt Securities for transfer, in the manner, at the places and
subject to the restrictions set forth in the Indenture and the Debt Securities
and described in the applicable Prospectus Supplement. The Company will charge
no service fees for any transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more fully registered Global Securities that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the Prospectus Supplement relating to such series. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered form,
a Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee of
such successor.
The specific terms of the Depositary arrangement with respect to any
Debt Securities of a series will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will apply to all Depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depositary
("participants"). The accounts to be credited shall be designated by the
underwriters or agents with respect to such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of participant's
interests in a Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the Depositary
for such Global Security. Ownership of beneficial interests in a Global Security
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by participants or persons that hold through
participants. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
13
<PAGE>
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in a Global
Security will not be entitled to have Debt Securities of the series represented
by such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities of such series in
definitive form and will not be considered the owners or holders thereof under
the Indenture.
Principal, premium, if any, and any interest payments on Debt
Securities registered in the name of a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner of a
Global Security representing such Debt Securities. None of the Company, the
Trustee, any Paying Agent or the Security Registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the Global
Security or Securities for such Debt Securities or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt
Securities, upon receipt of any payment of principal, premium or interest, will
credit immediately participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of the Global
Security or Securities for such Debt Securities as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Security or Securities held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name," and will be the responsibility of such
participants.
Further, if the Company so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a Global Security
representing Debt Securities of such series may, on terms acceptable to the
Company, receive Debt Securities of such series in definitive form. In any such
instance, an owner of a beneficial interest in a Global Security will be
entitled to have Debt Securities of the series represented by such Global
Security equal in principal amount to such beneficial interest registered in its
name and will be entitled to physical delivery of such Debt Securities in
definitive form.
Events of Default
The Indenture provides that the following shall constitute Events of
Default with respect to any series of Debt Securities thereunder:
(i) default in the payment of any interest on any Debt
Security of such series, when it becomes due and payable, and
continuance of such default for a period of 30 days;
(ii) default in the payment of the principal of or premium, if
any, on any Debt Security of such series when due either at its
Maturity, upon acceleration, redemption or otherwise;
(iii) default in the deposit of any sinking fund payment, when
and as due by the terms of the Debt Securities of such series and the
Indenture;
(iv) default in the performance, or breach, of any covenant or
agreement of the Company in the Indenture which affects or is
applicable to Debt Securities of such series (other than a default in
the performance, or breach of a covenant or agreement which is
specifically dealt with elsewhere in the Indenture), and continuance of
such default or breach for a period of 60 days after there has been
given to the Company by the Trustee, or to the Company and the Trustee
by Holders of at least 25% in aggregate principal amount of all
outstanding Securities of such series, a written notice thereof;
(v) certain events in bankruptcy, insolvency or reorganization
of the Company; and
(vi) any other Event of Default provided with respect to Debt
Securities of such series.
14
<PAGE>
No Event of Default with respect to a particular series of Debt
Securities issued under the Indenture necessarily constitutes an Event of
Default with respect to any other series of Debt Securities issued thereunder.
The Indenture provides that if an Event of Default specified in clause
(i), (ii), (iii), (iv) or (vi) above occurs and is continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of such series may declare the principal of all such
Debt Securities (or, in the case of Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount thereof as may be
specified in the terms thereof) to be due and payable immediately. If an Event
of Default specified in clause (v) above occurs and is continuing, then the
principal of all such Debt Securities (or, in the case of Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
thereof as may be specified in the terms thereof) will be due and payable
immediately, without any declaration or other act on the part of the Trustee or
any Holder. In certain cases, Holders of a majority in principal amount of the
outstanding Debt Securities of any series may, on behalf of Holders of all such
Debt Securities, rescind and annul a declaration of acceleration.
The Indenture provides that the Trustee will not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by the
Indenture. The Indenture provides that no Holder of Debt Securities of any
series may institute any proceedings, judicial or otherwise, to enforce the
Indenture except in the case of failure of the Trustee thereunder to act for 60
days after it has received a request to enforce the Indenture by Holders of at
least 25% in aggregate principal amount of the then Outstanding Debt Securities
of such series (in the case of an Event of Default specified in clause (i),
(ii), (iii), (iv) or (vi) above) or a request to enforce the Indenture by
Holders of at least 25% in aggregate principal amount of all of the Debt
Securities then Outstanding (in the case of an Event of Default specified in
clause (v) above), and an offer of reasonable indemnity. This provision will not
prevent any Holder of Debt Securities from enforcing payment of principal
thereof, and premium, if any, and interest, if any, thereon at the respective
due dates thereof. Holders of a majority in aggregate principal amount of the
Debt Securities of any series then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it with respect to Debt Securities of
such series. The Trustee may, however, refuse to follow any direction that it
determines may not lawfully be taken or would be illegal or in conflict with
such Indenture or involve it in personal liability or which would be unjustly
prejudicial to Holders not joining therein.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to any series of Debt Securities
thereunder, give to Holders of Debt Securities of such series notice of such
default if such default has not been cured or waived. Except in the case of a
default in the payment of principal of, or premium, if any, or interest on, or
in the payment of any sinking fund installment in respect of, any Debt
Securities of such series, the Trustee will be protected in withholding such
notice if it determines in good faith that the withholding of such notice is in
the interest of Holders of the Debt Securities of such series.
The Company will be required to file annually with the Trustee an
Officers' Certificate as to compliance with all conditions and covenants under
the terms of the Indenture.
Modification and Waiver
Modifications of and amendments to the Indenture may be made by the
Company and the Trustee thereunder with the consent of Holders of a majority in
principal amount of the outstanding Debt Securities of each series issued under
the Indenture that is affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby: (i) change the Stated
Maturity of the principal of, or premium, if any, or any installment of interest
on any Debt Security of such series, or reduce the principal amount thereof, or
premium, if any, or the rate of interest, if any, thereon, or change any
obligation of the Company to pay Additional Amounts (except as contemplated or
permitted by the Indenture), or reduce the amount of principal of an Original
Issue Discount Security of such series that would be due and payable upon a
declaration of acceleration of the Maturity thereof or the amount thereof
provable in bankruptcy, or adversely affect any right of repayment at the option
of any Holder of any Debt Security of such series, or change any Place of
Payment where, or the currency in which, any Debt Security of such series or
premium, if any, or interest thereon
15
<PAGE>
is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the Redemption
Date or Repayment Date, as the case may be), or adversely affect any right to
convert or exchange any Debt Security; (ii) reduce the percentage in principal
amount of the Outstanding Debt Securities of any series, the consent of whose
Holders is required for any supplemental indenture, for any waiver of compliance
with certain provisions of the Indenture or certain defaults applicable to such
series thereunder and their consequences provided for in the Indenture, or
reduce the quorum or voting with respect to Debt Securities of such series; or
(iii) modify any of the provisions relating to supplemental indentures requiring
the consent of Holders or relating to the waiver of past defaults or relating to
the waiver of certain covenants, except to increase any such percentage or to
provide that certain other provisions of the Indenture which affect such series
cannot be modified or waived without the consent of the Holder of each
Outstanding Debt Security affected thereby.
The Company may, with respect to any series of Debt Securities, omit in
any particular instance to comply with certain restrictive provisions of the
Indenture if Holders of at least a majority in principal amount of all
Outstanding Debt Securities affected by such term, provision or condition, by
Act of such Holders, waive such compliance in such instance with such term,
provision or condition, but no such waiver will extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver will become effective, the obligations of the Company and the duties of
the Trustee to Holders of Debt Securities of such series in respect of any such
term, provision or condition will remain in full force and effect. Holders of a
majority in principal amount of the outstanding Debt Securities of each series
(in the case of an Event of Default specified in clause (i), (ii), (iii), (iv)
or (vi) in "Events of Default," above) or the Holders of a majority in principal
amount of all of the Debt Securities then Outstanding (in the case of an Event
of Default specified in clause (v) in "Events of Default," above) may, on behalf
of all such Holders, waive any past default under the Indenture with respect to
Debt Securities of that series except a default in the payment of the principal
of, or premium, if any, or interest, if any, on any such Debt Security and
except a default in respect of a covenant or provision the modification or
amendment of which would require the consent of the Holder of each outstanding
Debt Security affected thereby.
Merger, Consolidation, or Sale of Assets
The Company shall not consolidate with or merge with or into any other
corporation or transfer all or substantially all of its property and assets as
an entirety to any Person, unless (i) either the Company shall be the continuing
Person, or the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or to which all or substantially all of the
properties and assets of the Company as an entirety are transferred is a
corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia which expressly assumes all of the
obligations of the Company under each series of Debt Securities and the
Indenture with respect to each such series and (ii) immediately before and
immediately after giving effect to such transaction, no Event of Default and no
event which, after notice or passage of time or both, would become an Event of
Default shall have occurred and be continuing. Notwithstanding the foregoing,
any Subsidiary may consolidate with, merge with or into or transfer all or part
of its properties and assets to the Company or any other Subsidiary or
Subsidiaries.
Limitation on Liens
The Indenture will provide that with respect to each series of Senior
Debt Securities, unless otherwise set forth in the related Prospectus
Supplement, the Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, except for: (i) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP; (ii) carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business that are not overdue for a period of
more than 60 days or which are being contested in good faith by appropriate
proceedings; (iii) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-
16
<PAGE>
insurance arrangements; (iv) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business; (v) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and which do not
in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company or
such Subsidiary; (vi) Liens in existence on the date of the first issuance by
the Company of Senior Debt Securities issued pursuant to the Indenture; provided
that no such Lien is spread to cover any additional property after such date and
that the amount of Debt secured thereby is not increased; (vii) Liens securing
Debt of the Company and its Subsidiaries incurred to finance the acquisition of
fixed or capital assets; provided that (A) such Liens will be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (B) such Liens do not at any time encumber any property other than the
property financed by such Debt and (C) the amount of Debt secured thereby is not
increased; (viii) Liens on the property or assets of a corporation that becomes
a Subsidiary after the date hereof; provided that (A) such Liens existed at the
time such corporation became a Subsidiary and were not created in anticipation
thereof, (B) any such Lien is not spread to cover any property or assets or such
corporation after the time such corporation becomes a Subsidiary, and (C) the
amount of Debt secured thereby is not increased; and (ix) Liens (not otherwise
permitted hereunder) (A) which secure obligations not exceeding the greater of
$100.0 million or 15% of Consolidated Net Worth of the Company, in each case in
aggregate amount at any time outstanding, or (B) with respect to which the
Company effectively provides that the Senior Debt Securities outstanding
hereunder are secured equally and ratably with (or, at the option of the
Company, prior to) the Debt secured by such Lien.
Defeasance
If so specified in the Prospectus Supplement with respect to Debt
Securities of any series, the Company at its option, (i) will be discharged from
any and all obligations in respect of the Debt Securities of such series (except
for certain obligations to register the transfer or exchange of Debt Securities
of such series, replace stolen, lost or mutilated Debt Securities of such
series, maintain Paying Agencies, and hold money for payment in trust) or (ii)
will not be subject to certain specified covenants with respect to the Debt
Securities of such series as set forth in the related Prospectus Supplement, in
each case if the Company deposits with the Trustee, in trust, money or
Government Obligations which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money in an amount
sufficient to pay all the principal (including any mandatory sinking fund
payments) of, and interest on, the Outstanding Debt Securities of such series on
the dates such payments are due in accordance with the terms of such Debt
Securities. To exercise any such option, the Company is required to deliver to
the Trustee an Opinion of Counsel to the effect that the deposit and related
defeasance would not cause the Holders of the Debt Securities of such series to
recognize income, gain or loss for federal income tax purposes and, in the case
of a discharge pursuant to clause (i), either a ruling to such effect received
from or published by the U.S. Internal Revenue Service or an opinion that there
has been a change in applicable federal income tax law to such effect. The
Company is required to deliver to the Trustee an Officer's Certificate stating
that no Event of Default with respect to the Debt Securities of such series has
occurred and is continuing.
Conversion Rights and Exchange Rights
The terms and conditions, if any, upon which any of the Debt Securities
are convertible into or exchangeable for Common Stock or other securities or
property of the Company will be set forth in the related Prospectus Supplement.
Such terms shall include the conversion or exchange price (or manner of
calculation thereof), the exchange or conversion period, provisions as to
whether conversion or exchange is mandatory at the option of the Holder or at
the option of the Company, and may include provisions pursuant to which the
number of shares, other securities or property of the Company to be received by
the Holders of Debt Securities would be calculated. The conversion or exchange
price of any Debt Securities of any series that is convertible into Common
Stock, Preferred Stock or Depositary Shares of the Company may be adjusted for
any stock dividends, stock splits, reclassification, combinations or similar
transactions, as set forth in the applicable Prospectus Supplement.
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Subordination
Certain provisions of the Indenture relating to the subordination of
the Subordinated Debt Securities are summarized below. The extent to which a
particular series of Subordinated Debt Securities is subordinated to other
indebtedness of the Company will be set forth in the Prospectus Supplement for
that series and the Indenture may be modified by a supplemental indenture to
reflect such subordination provisions. The particular terms of subordination of
an issue of Subordinated Debt Securities may supersede the general provisions of
the Indenture summarized below.
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, payment of the principal of, premium, if any, and
interest, if any, on the Subordinated Debt Securities will be subordinated to
the extent provided in the Indenture in right of payment to the prior payment in
full of all Senior Indebtedness, but the obligation of the Company to make
payment of the principal of and premium, if any, and interest, if any, on the
Subordinated Debt Securities will not otherwise be affected. Except as provided
in a Prospectus Supplement and the related supplemental indenture, if any, no
payment of principal or interest may be made on the Subordinated Debt Securities
at any time if a default on Senior Indebtedness exists that permits the holders
of such Senior Indebtedness to accelerate its maturity and the default is the
subject of judicial proceedings or the Company has received notice of such
default. Such supplemental indenture may also provide that Subordinated Debt
Securities issued thereunder are subordinated and junior in right of payment to
the prior payment in full of future senior subordinated debt securities, if any.
After all Senior Indebtedness is paid in full and until the Subordinated Debt
Securities are paid in full, Holders of the Subordinated Debt Securities will be
subrogated to the rights of holders of Senior Indebtedness to the extent that
distributions otherwise payable to such Holders have been applied to the payment
of Senior Indebtedness. By reason of such subordination, in the event of any
distribution of assets upon insolvency, certain general creditors of the Company
may recover more, ratably, than holders of Subordinated Debt Securities.
The Trustee
The Indenture provides that, except during the continuance of an Event
of Default, the Trustee will perform only such duties as are specifically set
forth in the Indenture. During the existence of an Event of Default, the Trustee
will exercise such rights and powers vested in it under the Indenture and use
the same degree of care and skill in its exercise as a prudent person would
exercise under the circumstances in the conduct of such person's own affairs.
The Indenture and the provisions of the Trust Indenture Act
incorporated by reference therein contain limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment of claims
in certain cases or to realize on certain property received by it in respect of
any such claim as security or otherwise. The Trustee is permitted to engage in
other transactions with the Company or any Affiliate; provided, however, that if
such Trustee acquires any conflicting interest (as defined in the Indenture or
in the Trust Indenture Act), it must eliminate such conflict or resign.
No Personal Liability of Officers, Directors, Employees or Stockholders
No director, officer, employee or stockholder, as such, of the Company
or any of its affiliates will have any personal liability in respect of the
obligations of the Company under the Indenture or the Debt Securities by reason
of his, her or its status as such.
Applicable Law
The Indenture is, and the Debt Securities offered hereby will be,
governed by and construed in accordance with the laws of the State of New York.
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DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets
forth certain general terms and provisions of any series of Preferred Stock to
which any Prospectus Supplement may relate. Particular terms of the Preferred
Stock offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to any series of Preferred Stock so offered will be
described in the Prospectus Supplement relating to such Preferred Stock. This
description does not purport to be complete and is subject to and qualified in
its entirety by reference to the provisions of the Second Restated Certificate
of Incorporation of the Company as amended (the "Charter"), and the Certificate
of Designation (the "Certificate of Designation") relating to a particular
series of Preferred Stock which will be in the form filed or incorporated by
reference in the Registration Statement of which this Prospectus is a part at or
prior to the time of the issuance of such series of Preferred Stock.
General
Under the Charter and the Restated By-laws of the Company (the
"By-laws"), which are filed as exhibits to the Registration Statement of which
this Prospectus is a part, the board of directors of the Company (the "Board of
Directors") is authorized without further shareholder action to adopt
resolutions providing for the issuance of up to 50,000,000 shares of Preferred
Stock, in one or more series, and to fix by resolution any of the powers,
designations, preferences and relative dividend participation, option or other
rights thereof, including dividend rights, conversion rights, voting rights,
redemption terms and liquidation preferences, and the number of shares
constituting each such series. Preferred Stock, upon issuance against full
payment of the purchase price therefor, will be fully paid and nonassessable. As
of the date of this Prospectus, the Company had no shares of Preferred Stock
outstanding.
The Prospectus Supplement relating to a particular series of Preferred
Stock offered will describe the specific terms, including, where applicable: (i)
the title, designation, number of shares and stated value of such Preferred
Stock; (ii) the price at which such Preferred Stock will be issued; (iii) the
dividend rates, if any (or method of calculation), whether such rate is fixed or
variable or both, and the dates on which dividends will be payable, whether such
dividends will be cumulative or noncumulative and, if cumulative, the dates from
which dividends shall commence to cumulate; (iv) the dates on which the
Preferred Stock will be subject to redemption and the applicable redemption
prices; (v) any redemption or sinking fund provisions; (vi) the convertibility
or exchangeability of such Preferred Stock; (vii) if other than United States
dollars, the currency or currencies (including composite currencies) in which
such Preferred Stock is denominated and/or in which payments will or may be
payable; (viii) the method by which amounts in respect of such Preferred Stock
may be calculated and any commodities, currencies or indices, or the value, rate
or price relevant to such calculation; (ix) the place where dividends and other
payments on the Preferred Stock are payable and the identity of the transfer
agent, registrar and dividend disbursement agent for the Preferred Stock; (x)
any listing of such Preferred Stock on any securities exchange; and (xi) any
additional dividend, liquidation, redemption, sinking fund, voting and other
rights, preferences, privileges, limitations and restrictions.
The federal income tax consequences and special considerations
applicable to any such series of Preferred Stock will be generally described in
the Prospectus Supplement related thereto.
Rank
Unless otherwise specified in the Prospectus Supplement relating to a
particular series of Preferred Stock, each series of Preferred Stock will rank
pari passu as to dividends and liquidation rights in all respects with each
other series of Preferred Stock.
Dividends
Holders of Preferred Stock of each series will be entitled to receive
cash dividends, when and as declared by the Board of Directors out of assets of
the Company legally available for payment, at such rates and on such dates as
will be set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Each dividend will be payable to holders of record as they
appear on the stock books of the Company on the record dates fixed by the Board
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of Directors or a duly authorized committee thereof. Different series of the
Preferred Stock may be entitled to dividends at different rates or based upon
different methods of determination. Such rates may be fixed or variable or both.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative as provided in the Prospectus Supplement relating thereto. Except
as provided in the related Prospectus Supplement, no series of Preferred Stock
will be entitled to participate in the Company's earnings or assets.
Liquidation Rights
Unless otherwise stated in the related Prospectus Supplement, in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company, holders of each series of Preferred Stock will be entitled to
receive out of assets of the Company available for distribution to shareholders,
before any distribution of assets is made to holders of the Common Stock or any
other class of stock ranking junior to such series of Preferred Stock upon
liquidation, liquidating distributions in an amount set forth in the Prospectus
Supplement related to such series of Preferred Stock, plus an amount equal to
all accrued and unpaid dividends up to the date fixed for distribution for the
current dividend period and, if such series of the Preferred Stock is
cumulative, for all dividend periods prior thereto, all as set forth in the
Prospectus Supplement with respect to such series of Preferred Stock. If, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, amounts payable with respect to a series of Preferred Stock and any
other shares of capital stock of the Company ranking pari passu as to any
distribution with such series of Preferred Stock are not paid in full, holders
of such series of Preferred Stock and of such other shares will share ratably in
any such distribution of assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After payment in
full of the liquidating distribution to which they are entitled, holders of
Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company.
Neither the sale, conveyance, exchange or transfer of all or
substantially all of the property and assets of the Company, the consolidation
or merger of the Company with or into any other corporation, nor the merger or
consolidation of any other corporation into or with the Company, will be deemed
to be a liquidation, dissolution or winding up of the Company.
Redemption and Sinking Fund
The terms, if any, on which shares of a series of Preferred Stock may
be subject to optional or mandatory redemption, in whole or in part, or may have
the benefit of a sinking fund, will be set forth in the Prospectus Supplement
relating to such series.
Voting Rights
Except as indicated below or in the applicable Prospectus Supplement,
or except as expressly required by applicable law, holders of Preferred Stock
issued pursuant to this Prospectus and any related Prospectus Supplement will
not be entitled to vote.
Conversion and Exchange Rights
The terms, if any, on which shares of any series of Preferred Stock are
convertible or exchangeable will be set forth in the Prospectus Supplement
relating thereto. The Prospectus Supplement will describe the securities or
rights into which such shares of Preferred Stock are convertible or exchangeable
(which may include other Preferred Stock, Debt Securities, Depositary Shares,
Common Stock or other securities or rights of the Company (including rights to
receive payment in cash or securities based on the value, rate or price of one
or more specified commodities, currencies or indices) or securities of other
issuers or a combination of the foregoing), and the terms and conditions upon
which such conversions or exchanges will be effected including the initial
conversion or exchange prices or rules, the conversion or exchange period and
any other related provisions. Such terms may include provisions for conversion
or exchange, either mandatory, at the option of the holder, or at the option of
the Company, in which case the
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consideration to be received by holders of such series of Preferred Stock would
be calculated as of a time and in the manner stated in such Prospectus
Supplement.
Transfer Agent and Registrar
The transfer agent, registrar and dividend disbursement agent for each
series of Preferred Stock will be designated in the related Prospectus
Supplement.
DESCRIPTION OF DEPOSITARY SHARES
The following description of the terms of the Depository Shares sets
forth certain general terms and provisions of Depositary Shares to which any
Prospectus Supplement may relate. Particular terms of the Depositary Shares
offered by any Prospectus Supplement, and the related Deposit Agreement and
Depositary Receipt, and the extent, if any, to which such general provisions may
apply to such Deposit Agreement, Depositary Shares and Depositary Receipt, will
be described in the Prospectus Supplement relating to such Depositary Shares.
This description does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the provisions of the applicable
Deposit Agreement, which will be in the form filed or incorporated by reference
in the Registration Statement of which this Prospectus is a part at or prior to
the time of the issuance of such Depositary Shares, as well as the Charter or
any Certificate of Designation describing the applicable series of Preferred
Stock.
General
The Company may, at its option, elect to offer fractional interests in
shares of a series of Preferred Stock as Depositary Shares, rather than full
shares of Preferred Stock. In such event, receipts ("Depositary Receipts") for
such Depositary Shares will be issued by the Company, each of which will
represent a fraction of a share of a particular class or series of Preferred
Stock, as described in the related Prospectus Supplement.
Shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a separate deposit agreement (a "Deposit
Agreement"), between the Company and a bank or trust company selected by the
Company having its principal office in the United States and having a combined
capital and surplus of at least $50 million (a "Preferred Stock Depositary").
The Prospectus Supplement relating to a series of Depositary Shares will set
forth the name and address of the Depositary with respect to such Depositary
Shares. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of a
share of Preferred Stock represented by such Depositary Share, to all of the
rights, preferences and privileges of the Preferred Stock represented thereby
(including dividend, voting, conversion, exchange, redemption, and liquidation
rights, if any).
Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Depositary Receipts will be
distributed to those persons purchasing the fractional interests in shares of
Preferred Stock as described in the applicable Prospectus Supplement.
Dividends and Other Distributions
The Preferred Stock Depositary will distribute all cash dividends or
other cash distributions received in respect of a series of Preferred Stock to
the record holders of Depositary Receipts relating to such Preferred Stock in
proportion, insofar as possible, to the number of such Depositary Receipts owned
by such holders on the relevant record date (subject to certain obligations of
holders to file proofs, certificates and other information and to pay certain
charges and expenses to such Preferred Stock Depositary). The Preferred Stock
Depositary will distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and the balance not so distributed will be held by the Preferred Stock
Depositary and added to and treated as part of the next sum received by such
Preferred Stock Depositary for distribution to record holders of Depositary
Shares then outstanding.
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In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto, in proportion to the number of such
Depositary Shares owned by such holders, unless the Preferred Stock Depositary
determines that it is not feasible to make such distribution, in which case the
Preferred Stock Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable to effect such distribution,
including the public or private sale of such property and distribution of the
net proceeds from such sale to such holders.
The amount so distributed to record holders of Depositary Receipts in
any of the foregoing cases will be reduced by any amount required to be withheld
by the Company or the Preferred Stock Depositary on account of taxes.
The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company to
holders of the Preferred Stock will be made available to holders of Depositary
Shares.
Redemption of Depositary Shares
If a series of Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Preferred Stock Depositary resulting from redemption, in whole
or in part, of such class or series of Preferred Stock held by the Preferred
Stock Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price and other amounts per share, if any,
payable in respect of such class or series of Preferred Stock. Whenever the
Company redeems Preferred Stock held by the Preferred Stock Depositary, the
Preferred Stock Depositary will redeem as of the same redemption date the number
of Depositary Shares representing shares of Preferred Stock so redeemed. If
fewer than all of the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may be determined
to be equitable by the Preferred Stock Depositary.
After the date fixed for redemption, the Depositary Shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
redemption price upon such redemption. Any funds deposited by the Company with
the Preferred Stock Depositary for any Depositary Shares which the holders
thereof fail to redeem shall be returned to the Company after a period of two
years from the date such funds are so deposited.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of a class
or series of Preferred Stock are entitled to vote, the Preferred Stock
Depositary will mail the information contained in such notice of meeting to
record holders of the Depositary Receipts evidencing the Depositary Shares of
such class or series of Preferred Stock. Each record holder of such Depositary
Receipts on the record date (which will be the same date as the record date for
the related class or series of Preferred Stock) will be entitled to instruct the
Preferred Stock Depositary as to the exercise of the voting rights pertaining to
the amount of Preferred Stock represented by such holder's Depositary Shares.
The Preferred Stock Depositary will endeavor, insofar as practicable, to vote
the number of shares of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable action which may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will abstain from voting the Preferred Stock to the
extent it does not receive specific instructions from the holder of Depositary
Shares representing such shares of Preferred Stock. The Preferred Stock
Depositary will not be responsible for any failure to carry out any instruction
to vote, or for the manner or effect of any such vote made, as long as any such
action or non-action is taken in good faith and does not result from the
negligence or willful misconduct of the Preferred Stock Depositary.
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Liquidation Preference
In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, holders of each Depositary Receipt
will be entitled to the fraction of the liquidation preference accorded each
share of related Preferred Stock as set forth in the related Prospectus
Supplement.
Conversion and Exchange of Preferred Stock
If any series of Preferred Stock underlying the Depositary Shares is
subject to provisions relating to its conversion or exchange, as set forth in
the applicable Prospectus Supplement relating thereto, each record holder of
Depositary Receipts will have the right or obligation to convert or exchange the
Depositary Shares represented by such Depositary Receipts pursuant to the terms
thereof.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended at any time by agreement
between the Company and the Preferred Stock Depositary. However, amendments, if
any, which materially and adversely alter the rights of holders of Depositary
Receipts or that would be materially and adversely inconsistent with the rights
of holders of the underlying Preferred Stock, will be ineffective unless such
amendment has been approved by holders of at least a majority of the Depositary
Shares then outstanding under such Deposit Agreement. Every holder of
outstanding Depositary Receipts at the time such amendment, if any, becomes
effective will be deemed, by continuing to hold such Depositary Receipt, to
consent to such amendment and to be bound by the applicable Deposit Agreement as
amended thereby.
A Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the Preferred Stock Depositary if a majority of
each class or series of Preferred Stock subject to such Deposit Agreement
consents to such termination, whereupon the Preferred Stock Depositary will
deliver or make available to each holder of Depositary Receipts, upon surrender
of the Depositary Receipts held by such holder, such number of whole or
fractional shares of Preferred Stock as are represented by the Depositary Shares
evidenced by such Depositary Receipts, together with any other property held by
the Preferred Stock Depositary with respect to such Depositary Receipts.
Additionally, a Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares related thereto have been redeemed, (ii) there has
been a final distribution in respect of the Preferred Stock underlying such
Depositary Shares in connection with any liquidation, dissolution or winding up
of the Company and such distribution has been distributed to the holders of the
related Depositary Receipts or (iii) each share of related Preferred Stock has
been converted into capital stock of the Company not so represented by
Depositary Shares.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company will pay the Preferred Stock Depositary's fees and charges in connection
with the initial deposit of the Preferred Stock and initial issuance of
Depositary Receipts and any redemption or conversion of the Preferred Stock.
Holders of Depositary Receipts will pay all other transfer and other taxes,
governmental charges and fees and charges of the Preferred Stock Depositary that
are not expressly provided for in the Deposit Agreement.
Resignation and Removal of Depositary
A Preferred Stock Depositary may resign at any time by delivering to
the Company notice of its election to do so, and the Company may at any time
remove any Preferred Stock Depositary. Any such resignation or removal will take
effect upon the appointment of a successor Depositary and such successor
Depositary's acceptance of the appointment. Such successor Depositary must be
appointed within 60 days after delivery of the notice of resignation or removal
and must be a bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least $50.0 million.
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Miscellaneous
The Preferred Stock Depositary will forward all reports and
communications from the Company which are delivered to the Preferred Stock
Depositary and which the Company is required or otherwise determines to furnish
to holders of the Preferred Stock.
Neither any Preferred Stock Depositary nor the Company will be liable
if it is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under a Deposit Agreement. The obligations of the
Company and any Preferred Stock Depositary under a Deposit Agreement will be
limited to performing in good faith their duties thereunder (in the case of any
action or inaction in the voting of a class or series of Preferred Stock
represented by the Depositary Shares), gross negligence or willful misconduct
excepted. The Company and any Preferred Stock Depositary will not be obligated
under the Deposit Agreement to prosecute or defend any legal proceeding in
respect of any Depositary Shares, Depositary Receipts or shares of any Preferred
Stock represented thereby unless satisfactory indemnity is furnished. The
Company and the Preferred Stock Depositary may rely upon written advice of
counsel or accountants, or information provided by persons presenting shares of
Preferred Stock for deposit, holders of Depositary Receipts or other persons
believed to be competent to give such information and on documents believed to
be genuine and to have been signed and presented by the proper party or parties.
DESCRIPTION OF COMMON STOCK
The following description of the terms of the Common Stock sets forth
certain general provisions of the Common Stock as contained in the Charter and
By-laws and is qualified in its entirety by reference to the Charter and
By-laws.
General
The Company is currently authorized to issue up to of 600,000,000
shares of Common Stock. As of March 31, 1999, there were approximately 395.7
million shares of Common Stock outstanding. All outstanding shares of Common
Stock are fully paid and nonassessable. The Common Stock is listed on the NYSE
under the symbol "BSX."
Holders of Common Stock have no preemptive, subscription, redemption or
conversion rights and the Common Stock is not subject to redemption. The rights,
preferences and privileges of holders of Common Stock are subject to, and may be
adversely affected by, the rights of holders of any series of Preferred Stock,
whether currently outstanding or designated and issued in the future. See
"Description of Preferred Stock."
Dividends
Subject to the preferences of holders of Preferred Stock, holders of
Common Stock are entitled to dividends and other distributions when, as and if
declared by the Board of Directors out of funds legally available therefor and
shall share equally on a per share basis in all such dividends and other
distributions.
Voting Rights
Except as otherwise provided by law or by the designation of the
preferences, limitations and relative rights of any series of Preferred Stock,
the voting power of the Company is held by holders of the Common Stock. Each
holder of Common Stock is entitled to one vote for each share held. Holders of
Common Stock are not entitled to cumulative voting rights and, therefore,
holders of a plurality of shares voting in the election of directors may elect
the entire class of the Board of Directors standing for election at a
shareholders' meeting at which a quorum is present. In that event, holders of
the remaining shares of Common Stock would not be able to elect any director to
the Board of Directors. The Company's Charter requires that the Board of
Directors be staggered, consisting of three classes of directors which are as
nearly equal in number as possible.
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Liquidation and Dissolution
Except as otherwise provided by the designation of the preferences,
limitations and relative rights of any series of Preferred Stock, in the event
of any liquidation, dissolution, or winding up of the Company, whether voluntary
or involuntary, after payment has been made to holders of each series of
Preferred Stock of the full amount to which they are entitled, holders of shares
of Common Stock will be entitled to share, ratably according to the number of
shares of Common Stock held by them, in all remaining assets available for
distribution to holders of the Common Stock.
Certain Provisions of Delaware Law, the Charter and the By-laws
The Company is subject to the provisions of the General Corporate Law
of Delaware. Section 203 of the General Corporate Law of Delaware prohibits a
publicly-held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless the
business combinations is approved in a prescribed manner. A "business
combination" includes mergers, assets sales, and other transactions resulting in
a financial benefit to the interested stockholder. Subject to certain
exceptions, an "interested stockholder" is a person who, together with
affiliates owns, or within three years did own, 15% or more of the corporation's
voting stock.
As permitted by the General Corporation Law of Delaware, the Company's
Charter provides that Directors of the Company will not be personally liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a Director, except in certain circumstances involving wrongful acts,
such as the breach of a directors duty of loyalty or acts or omissions which
involve intentional misconduct or a knowing violation of law. The Company's
Charter and By-laws also contain provisions requiring the Company to indemnify
the Company Directors and officers to the fullest extent permitted by the
General Corporate Law of Delaware. In addition, the Company has entered into
indemnification agreements with each of its Directors and executive officers.
These agreements provide rights of indemnification substantially similar to and
in certain respects broader than those provided by the Charter and By-laws.
The Certificate and the By-laws provide that the Board of Directors be
divided into three classes of Directors as nearly equal in size as possible,
with staggered three year terms. The Charter provides that vacancies on the
Board may only be filled by a majority of the Board then in office and further
provides that Directors may only be removed by the affirmative vote of holders
of at least 80% of the voting power of all the then outstanding shares of stock
entitled to vote generally in the election of Directors.
The Charter provides that stockholder action can only be taken at an
annual or special meeting of stockholders and that the business permitted to be
conducted at any meeting of stockholders is limited to the business brought
before the meeting by the Chairman of the Board or the President of the Company
or at the request of a majority of the members of the Board. The Charter and
By-laws provide that special meetings of stockholders can be called only by the
Chairman of the Board of the Company or pursuant to a resolution approved by a
majority of the total number of Directors which the Company would have if there
were no vacancies on the Board. Stockholders are not permitted to call a special
meeting or to require that the Board call a special meeting of stockholders.
The Charter prohibits the Company, with certain exceptions, from
purchasing any shares of the Company's stock from any person, entity or group
that beneficially owns 5% or more of the Company's voting stock at an
above-market price, unless a majority of the Company's disinterested
stockholders approve the transaction. In addition, the Charter empowers the
Board, when considering a tender offer or merger or acquisition proposal, to
take into account factors in addition to potential economic benefits to
stockholders and to consider constituencies other than stockholders.
The General Corporation Law of Delaware provides generally that the
vote of a majority of shares entitled to vote is required to act on most matters
and to amend a corporation's certificate of incorporation. The Certificate and
the By-laws contain provisions requiring the affirmative vote of the holders of
at least 80% of the voting stock,
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voting together as a single class, to amend certain provisions of the Charter
and the By-laws, including certain of the foregoing provisions. Such a
supermajority vote would be in addition to any separate class vote that might in
the future be required with respect to shares of Preferred Stock then
outstanding.
The foregoing and other provisions of Delaware law and the Company's
Charter and By-laws could make more difficult the acquisition of the Company by
means of a tender offer, a proxy contest or otherwise. These provisions may have
the effect of delaying, deferring or preventing a change in control of the
Company, may discourage bids for the Common Stock at a premium over the market
price of the Common Stock and may adversely affect the market price of the
Common Stock.
Transfer Agent
The transfer agent and registrar for the Common Stock is Boston
Equiserve.
DESCRIPTION OF WARRANTS
The following description of the terms of the Warrants sets forth
certain general terms and provisions of the Warrants to which any Prospectus
Supplement may relate. Particular terms of the Warrants offered by any
Prospectus Supplement and the extent, if any, to which such general provisions
may apply to the Warrants so offered will be described in the Prospectus
Supplement relating to such Warrants. This description does not purport to be
complete and is subject to, and qualified in its entirety by reference to, the
provisions of the Warrant Agreement relating to each series of Warrants, which
will be in the form filed or incorporated by reference in the Registration
Statement at or prior to the time of the issuance of such series of Warrants.
General
The Company may issue Warrants to purchase Debt Securities, Preferred
Stock, Depositary Shares, Common Stock or any combination thereof (collectively,
the "Underlying Warrant Securities"). Such Warrants may be issued independently
or together with any such series of Underlying Warrant Securities and may be
attached or separate from such Underlying Warrant Securities. Each series of
Warrants will be issued under a separate warrant agreement (each, a "Warrant
Agreement") to be entered into between the Company and a warrant agent ("Warrant
Agent"). The Warrant Agent will act solely as an agent of the Company in
connection with the Warrants of such series and will not assume any obligation
or relationship of agency for or with holders or beneficial owners of Warrants.
An applicable Prospectus Supplement will describe the terms of any
series of Warrants in respect of which this Prospectus is being delivered,
including the following: (i) the title of such Warrants; (ii) the aggregate
number of such Warrants; (iii) the price or prices at which such Warrants will
be issued; (iv) the currency or currencies, including composite currencies, in
which the price of such Warrants may be payable; (v) the designation and terms
of the Underlying Warrant Securities purchasable upon exercise of such Warrants
and the number of such Underlying Warrant Securities issuable upon exercise of
such Warrants; (vi) the price at which and the currency or currencies, including
composite currencies, in which the Underlying Warrant Securities purchasable
upon exercise of such Warrants may be purchased; (vii) the date on which the
right to exercise such Warrants shall commence and the date on which such right
will expire; (viii) whether such Warrants will be issued in registered form or
bearer form; (ix) if applicable, the minimum or maximum amount of such Warrants
which may be exercised at any one time; (x) if applicable, the designation and
terms of the Underlying Warrant Securities with which such Warrants are issued
and the number of such Warrants issued with each such Underlying Warrant
Security; (xi) if applicable, the date on and after which such Warrants and the
related Underlying Warrant Securities will be separately transferable; (xii)
information with respect to book-entry procedures, if any; (xiii) if applicable,
a discussion of certain U.S. federal income tax considerations; and (xiv) any
other terms of such Warrants, including terms, procedures and limitations
relating to the exchange and exercise of such Warrants.
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Amendments and Supplements to Warrant Agreement
The Warrant Agreement for a series of Warrants may be amended or
supplemented without the consent of the holders of the Warrants issued
thereunder to effect changes that are not inconsistent with the provisions of
the Warrants and that do not adversely affect the interests of the holders of
the Warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
The following description of the terms of the Stock Purchase Contracts
and Stock Purchase Units sets forth certain general terms and provisions of the
Stock Purchase Contracts and/or Stock Purchase Units to which any Prospectus
Supplement may relate. Particular terms of the Stock Purchase Contracts and/or
Stock Purchase Units offered by any Prospectus Supplement and the extent, if
any, to which such general provisions may apply to the Stock Purchase Contracts
and/or Stock Purchase Units so offered will be described in the Prospectus
Supplement relating to such Stock Purchase Contracts and/or Stock Purchase
Units.
The Company may issue Stock Purchase Contracts, including contracts
obligating holders to purchase from the Company, and the Company to sell to
holders, a specified number of shares of Common Stock, Preferred Stock or
Depositary Shares at a future date. The consideration per share of Common Stock,
Preferred Stock or Depositary Shares may be fixed at the time that the Stock
Purchase Contracts are issued or may be determined by reference to a specific
formula set forth in the Stock Purchase Contracts. Any such formula may include
anti-dilution provisions to adjust the number of shares issuable pursuant to
such Stock Purchase Contract upon the occurrence of certain events. The Stock
Purchase Contracts may be issued separately or as a part of units ("Stock
Purchase Units"), consisting of a Stock Purchase Contract and Debt Securities,
Trust Preferred Securities or debt obligations of third parties, including U.S.
Treasury securities, in each case securing holders' obligations to purchase
Common Stock, Preferred Stock or Depositary Shares under the Stock Purchase
Contracts. The Stock Purchase Contracts may require the Company to make periodic
payments to holders of the Stock Purchase Units, or vice versa, and such
payments may be unsecured or prefunded. The Stock Purchase Contracts may require
holders to secure their obligations thereunder in a specified manner.
Each applicable Prospectus Supplement will describe the terms of any
Stock Purchase Contracts or Stock Purchase Units. The description in the
Prospectus Supplement will not purport to be complete and will be qualified in
its entirety by reference to the Stock Purchase Contracts, and, if applicable,
collateral arrangements and depositary arrangements, relating to such Stock
Purchase Contracts or Stock Purchase Units.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The following description of the terms of the Trust Preferred
Securities sets forth certain general terms and provisions of the Trust
Preferred Securities to which any Prospectus Supplement may relate. Particular
terms of the Trust Preferred Securities offered by any Prospectus Supplement and
the extent, if any, to which such general terms and provisions may apply to the
Trust Preferred Securities so offered will be described in the Prospectus
Supplement relating to such Trust Preferred Securities.
Each Trust may issue, from time to time, one or more series of Trust
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration authorizes the Regular Trustees of each Trust
to issue one or more series of Trust Preferred Securities on behalf of the
respective Trust. Each Declaration will be qualified as an indenture under the
Trust Indenture Act. The Institutional Trustee for each Trust, an independent
trustee, will act as indenture trustee for the Trust Preferred Securities to be
issued by such Trust for purposes of compliance with the Trust Indenture Act.
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The Trust Preferred Securities will have such terms, including with
respect to distributions, redemption, voting, liquidation rights and such other
preferred, deferred or other special rights or such restrictions as shall
established by the Regular Trustees of the applicable Trust in accordance with
the Declaration of such Trust or as shall be set forth in such Declaration or
made part of such Declaration by the Trust Indenture Act.
Reference is made to the Prospectus Supplement relating to the Trust
Preferred Securities of the applicable Trust for specific terms of such Trust
Preferred Securities, including (i) the distinctive designation of such Trust
Preferred Securities; (ii) the aggregate number of Trust Preferred Securities to
be issued by such Trust; (iii) the annual distribution rate (or method of
determining such rate) for such Trust Preferred Securities and the date or dates
upon which such distributions will be payable; provided, however, that
distributions on the Trust Preferred Securities shall, subject to any deferral
provisions, and any provisions for payment of defaulted distributions, be
payable on a periodic basis to holders of Trust Preferred Securities as of a
record date in each period during which Trust Preferred Securities are
outstanding; (iv) any right of such Trust to defer periodic distributions on
such Trust Preferred Securities as a result of any interest deferral right
exercised by the Company on the Subordinated Debt Securities held by such Trust;
(v) whether distributions on such Trust Preferred Securities will be cumulative,
and, in the case of Trust Preferred Securities having such cumulative
distribution rights, the date or dates or the method of determining the date or
dates from which distributions on such Trust Preferred Securities will be
cumulative; (vi) the amount or amounts which will be paid out of the assets of
such Trust to holders of Trust Preferred Securities upon voluntary or
involuntary dissolution, winding-up or termination of such Trust; (vii) the
obligation or option, if any, of such Trust to purchase or redeem Trust
Preferred Securities and the price or prices at which, the period or periods
within which, and the terms and conditions upon which, such Trust Preferred
Securities will be purchased or redeemed, in whole or in part, pursuant to such
obligation or option; (viii) the voting rights, if any, of such Trust Preferred
Securities in addition to those required by law, including the number of votes
per Trust Preferred Security and any requirement for the approval by holders of
such Trust Preferred Securities as a condition to specified action or amendments
to the applicable Declaration; (ix) the terms and conditions, if any, upon which
the Subordinated Debt Securities may be distributed to holders of Trust
Preferred Securities; (x) if applicable, any securities exchange upon which such
Trust Preferred Securities shall be listed; (xi) whether such Trust Preferred
Securities are convertible or exchangeable, and if so, the securities or rights
into which such Trust Preferred Securities are convertible or exchangeable, and
the terms and conditions upon which such conversions or exchanges will be
effected; (xii) the method by which amounts payable in respect of such Trust
Preferred Securities may be calculated and any commodities, currencies, currency
units or composite currencies, or indices, or value, rate or price, relevant to
such calculation; and (xiii) any other relevant rights, preferences, privileges,
limitations or restrictions of such Trust Preferred Securities not inconsistent
with the applicable Declaration or with applicable law.
All Trust Preferred Securities offered will be guaranteed by the
Company to the extent set forth below under "Description of Trust Guarantee."
The Trust Guarantees of the Company, when taken together with the Company's
obligations under the Subordinated Debt Securities and the relevant supplemental
indenture, and its obligations under each Declaration, including the Company's
obligations to pay costs, expenses, debts and liabilities of each Trust (other
than with respect to the Trust Securities), will provide a full and
unconditional guarantee, on a subordinated basis, of amounts due on the Trust
Preferred Securities. The payment terms of the Trust Preferred Securities issued
by a Trust will be the same as the Subordinated Debt Securities issued to such
Trust by the Company. The Prospectus Supplement relating to any offering of
Trust Preferred Securities will describe certain U.S. federal income tax
considerations applicable thereto.
Trust Common Securities
In connection with the issuance of Trust Preferred Securities, a Trust
will issue Trust Common Securities. Each Declaration authorizes the Regular
Trustees to issue on behalf of a Trust one or more series of Trust Common
Securities having such terms, including with respect to distributions,
redemption, voting, liquidation rights or other restrictions as shall be
established by such Regular Trustees in accordance with such Declaration or as
shall otherwise be set forth therein. The terms of Trust Common Securities of a
Trust will be substantially identical to the terms of the related Trust
Preferred Securities of such Trust, and such Trust Common Securities will rank
pari passu, and payments will be made thereon pro rata, with such Trust
Preferred Securities except that, upon an event of default
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under its Declaration, the rights of holders of such Trust Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of holders of such Trust
Preferred Securities. Except in certain limited circumstances, Trust Common
Securities will also carry the right to vote to appoint, remove or replace any
of the Capital Trustees of the applicable Trust. The Company will own directly
or indirectly all of the Trust Common Securities of each of the Trusts.
DESCRIPTION OF TRUST GUARANTEE
The following description of the terms of the Trust Guarantees which
will be executed and delivered by the Company for the benefit of holders from
time to time of Trust Preferred Securities sets forth certain general terms and
provisions of the Trust Guarantees to which any Prospectus Supplement may
relate. This description does not purport to be complete and is subject to, and
qualified in its entirety by reference to all of the provisions in each Trust
Guarantee, which will be in the form filed with or incorporated by reference in
the Registration Statement of which this Prospectus is a part at or prior to the
time of issuance of Trust Preferred Securities, and those made part of the Trust
Guarantee by the Trust Indenture Act, as in effect on the date of such Trust
Guarantee, and to such Trust Preferred Securities.
General
Each Trust Guarantee will be qualified as an indenture under the Trust
Indenture Act. Chase Manhattan Bank, an independent trustee, will act as
indenture trustee under each Trust Guarantee (the "Guarantee Trustee") for the
purposes of compliance with the provisions of the Trust Indenture Act. Pursuant
to each Trust Guarantee, unless otherwise specified in the applicable Prospectus
Supplement, the Company will agree, to the extent set forth therein, to pay in
full, on a subordinated basis, to holders of Trust Preferred Securities, the
Trust Guarantee Payments (as defined herein) (except to the extent paid by the
applicable Trust), as and when due, regardless of any defense, right of set-off
or counterclaim which such Trust may have or assert. The following payments or
distributions with respect to Trust Preferred Securities, to the extent not paid
by or on behalf of the applicable Trust (the "Guarantee Payments"), will be
subject to a Trust Guarantee (without duplication): (i) any accrued and unpaid
distributions which are required to be paid on Trust Preferred Securities, to
the extent the applicable Trust has funds available therefor; (ii) with respect
to any Trust Preferred Securities called for redemption by a Trust, the
redemption price (the "Redemption Price") and all accrued and unpaid
distributions to the date of redemption, to the extent such Trust has funds
available therefor and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of a Trust (other than in connection with the
distribution of Subordinated Debt Securities to holders of Trust Preferred
Securities or the redemption of all of the Trust Preferred Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the Trust Preferred Securities to the date of payment, to the
extent such Trust has funds available therefor, and (b) the amount of assets of
such Trust remaining available for distribution to holders of Trust Preferred
Securities in liquidation of such Trust. The Company's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Company to holders of Trust Preferred Securities or by causing the
applicable Trust to pay such amounts to such holders.
The Trust Guarantees will not apply to any payment of distributions
except to the extent a Trust has funds available therefor. If the Company does
not make interest or principal payments on the Subordinated Debt Securities
purchased by a Trust, such Trust will not have funds available for, and will not
pay, distributions on Trust Preferred Securities.
The Company has also agreed separately to guarantee the obligations of
each Trust with respect to Trust Common Securities (the "Common Securities
Guarantee") to the same extent as a Trust Guarantee, except that upon an Event
of Default under a Declaration, holders of Trust Preferred Securities shall have
priority over holders of Trust Common Securities with respect to distributions
and payments on liquidation, redemption or otherwise.
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Certain Covenants of the Company
Unless otherwise specified in the applicable Prospectus Supplement, in
the applicable Trust Guarantee, the Company will covenant that, so long as any
applicable Trust Preferred Securities remain outstanding, if there shall have
occurred any event that would constitute an event of default under such Trust
Guarantee or Declaration, then (a) the Company will not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (i) purchases or acquisitions of capital stock of the Company in
satisfaction of the Company's obligations under any employee benefit plans,
systematic stock repurchase program, or in satisfaction of its obligations
pursuant to any contract or security outstanding on the date of such event
requiring the Company to purchase its capital stock, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, (iii) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being so converted or
exchanged, (iv) dividends or distributions in capital stock of the Company (or
rights to acquire capital stock) or repurchases or redemptions of capital stock
solely from the issuance or exchange of capital stock, and (v) redemptions or
repurchases of any rights outstanding under a shareholder rights plan), (b) the
Company will not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any of its debt securities which rank junior to
the Subordinated Debt Securities and (c) the Company will not make any guarantee
payments with respect to the foregoing (other than payments pursuant to a Trust
Guarantee or a Common Securities Guarantee).
Modification of the Trust Guarantee; Assignment
Except with respect to any changes that do not adversely affect the
rights of holders of Trust Preferred Securities (in which case no consent will
be required), a Trust Guarantee may be amended only with the prior approval of
holders of not less than a majority in liquidation amount of the outstanding
Trust Preferred Securities issued by the applicable Trust. The manner of
obtaining any such approval of holders of the Trust Preferred Securities will be
set forth in the accompanying Prospectus Supplement. All guarantees and
agreements contained in the Trust Guarantee will bind the successors, assigns,
receivers, trustees and representatives of the Company and will inure to the
benefit of holders of the applicable Trust Preferred Securities then
outstanding.
Termination
A Trust Guarantee will terminate (a) upon full payment of the
Redemption Price of all applicable Trust Preferred Securities then outstanding,
(b) upon distribution of the Subordinated Debt Securities held by such Trust to
the applicable holders of Trust Preferred Securities or (c) upon full payment of
the amounts payable in accordance with the Declaration upon liquidation of a
Trust. A Trust Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of Trust Preferred Securities must
restore payment of any sums paid to it under Trust Preferred Securities or a
Trust Guarantee.
Events of Default
An event of default under a Trust Guarantee will occur upon the failure
of the Company to perform any of its payment or other obligations thereunder.
Holders of a majority in liquidation amount of the Trust Preferred
Securities issued by a Trust will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the applicable
Guarantee Trustee or to direct the exercise of any trust or power conferred upon
such Guarantee Trustee. If a Guarantee Trustee fails to enforce a Trust
Guarantee, any record holder of Trust Preferred Securities may institute a legal
proceeding directly against the Company to enforce such holder's rights under
such Trust Guarantee without first instituting a legal proceeding against the
applicable Trust, such Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Company has failed to make a payment
required under a Trust Guarantee, a record holder of Trust Preferred Securities
may directly institute a proceeding against the Company for enforcement
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of such Trust Guarantee for such payment to the record holder of Trust Preferred
Securities of the principal of or interest on the applicable Debt Securities on
or after the respective due dates specified in the Debt Securities, and the
amount of the payment will be based on the holder's pro rata share of the amount
due and owing on all Trust Preferred Securities issued by the applicable Trust.
The Company waives any right or remedy to require that any action be brought
first against each Trust or any other person or entity before proceeding
directly against the Company.
Status of the Trust Guarantees
Each of the Trust Guarantees will constitute an unsecured obligation of
the Company and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Company, except those liabilities of the Company made
pari passu or subordinate by their terms; (ii) pari passu with most senior
preferred or preference stock now or hereafter issued by the Company and with
any guarantee now or hereafter entered by the Company in respect of any
preferred or preference stock of any affiliate of the Company; and (iii) senior
to the Common Stock of the Company. The terms of the Trust Preferred Securities
provide that each holder of Trust Preferred Securities, by acceptance thereof,
agrees to the subordination provisions and other terms of the Trust Guarantee
relating thereto.
Each Trust Guarantee will constitute a guarantee of payment and not of
collection (that is, the guaranteed party may institute a legal proceeding
directly against the Company to enforce its rights under the guarantee without
instituting a legal proceeding against any other person or entity).
Information Concerning the Guarantee Trustee
The Guarantee Trustee, prior to the occurrence of a default with
respect to a Trust Guarantee, undertakes to perform only such duties as are
specifically set forth in the applicable Trust Guarantee and, after default,
will exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to such provisions, the Guarantee
Trustee is under no obligation to exercise any of the powers vested in it by a
Trust Guarantee at the request of any holder of Trust Preferred Securities,
unless offered reasonable indemnity against the costs, expenses and liabilities
which might be incurred thereby. The foregoing will not relieve the Guarantee
Trustee, upon the occurrence of an event of default under a Trust Guarantee,
from exercising the rights and powers vested in it by such Trust Guarantee.
Applicable Law
The Trust Guarantees will be governed by and construed in accordance
with the laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may sell the Securities and the Trusts may sell the Trust
Preferred Securities being offered hereby may be sold in any one or more of the
following ways from time to time: (i) through agents; (ii) to or through
underwriters; (iii) through dealers; and/or (iv) directly by the Company or, in
the case of Trust Preferred Securities, by the Trusts, to purchasers.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Securities may be solicited directly by the Company
or the Trusts or by agents designated by the Company or the Trusts from time to
time. Any such agent involved in the offer or sale of the Securities in respect
of which this Prospectus is delivered will be named, and any commissions payable
by the Company or by any Trust to such agent will be set forth, in the
applicable Prospectus Supplement. Unless otherwise indicated in such Prospectus
Supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its
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appointment (ordinarily five business days or less). Any such agent may be
deemed to be an underwriter, as that term is defined in the Securities Act, of
the Securities so offered and sold.
If Securities are sold by means of an underwritten offering, the
Company and, in the case of an offering of Trust Preferred Securities, the
applicable Trust, will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for such sale is reached, and the names of
the specific managing underwriter or underwriters, as well as any other
underwriters, the respective amounts underwritten and the terms of the
transaction, including commissions, discounts and any other compensation of the
underwriters and dealers, if any, will be set forth in the applicable Prospectus
Supplement which will be used by the underwriters to make resales of the
Securities in respect of which this Prospectus is being delivered to the public.
If underwriters are utilized in the sale of any Securities in respect of which
this Prospectus is being delivered, such Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at fixed public offering
prices or at varying prices determined by the underwriters at the time of sale.
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or directly by one or more underwriters. If
any underwriter or underwriters are utilized in the sale of Securities, unless
otherwise indicated in the applicable Prospectus Supplement, the underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters with respect to a sale of
such Securities will be obligated to purchase all such Securities if any are
purchased.
The Company or any of the Trusts, as applicable, may grant to the
underwriters options to purchase additional Securities, to cover
over-allotments, if any, at the initial public offering price (with additional
underwriting commissions or discounts), as may be set forth in the Prospectus
Supplement relating thereto. If the Company or any such Trust, as applicable,
grants any over-allotment option, the terms of such over-allotment option will
be set forth in the Prospectus Supplement for such Securities.
If a dealer is utilized in the sale of the Securities in respect of
which this Prospectus is delivered, the Company or any of the Trusts, as
applicable, will sell such Securities to the dealer, as principal. The dealer
may then resell such Securities to the public at varying prices to be determined
by such dealer at the time of resale. Any such dealer may be deemed to be an
underwriter, as such term is defined in the Securities Act, of the Securities so
offered and sold. The name of the dealer and the terms of the transaction will
be set forth in the Prospectus Supplement relating thereto.
Offers to purchase Securities may be solicited directly by the Company
or any of the Trusts, as applicable, and the sale thereof may be made by the
Company or any of the Trusts directly to institutional investors or others, who
may be deemed to be underwriters within the meaning of the Securities Act with
respect to any resale thereof. The terms of any such sales will be described in
the Prospectus Supplement relating thereto.
Securities may also be offered and sold, if so indicated in the
applicable Prospectus Supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company or any of the Trusts, as
applicable. Any remarketing firm will be identified and the terms of its
agreement, if any, with the Company or any such Trust and its compensation will
be described in the applicable Prospectus Supplement. Remarketing firms may be
deemed to be underwriters, as that term is defined in the Securities Act, in
connection with the Securities remarketed thereby.
If so indicated in the applicable Prospectus Supplement, the Company or
any of the Trusts, as applicable, may authorize agents and underwriters to
solicit offers by certain institutions to purchase Securities from the Company
or any such Trust at the public offering price set forth in the applicable
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on the date or dates stated in the applicable Prospectus
Supplement. Such delayed delivery contracts will be subject only to those
conditions set forth in the applicable Prospectus Supplement. A commission
indicated in the applicable Prospectus Supplement will be paid to underwriters
and agents soliciting purchases of Securities pursuant to delayed delivery
contracts accepted by the Company or any of the Trusts, as applicable.
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Agents, underwriters, dealers and remarketing firms may be entitled
under relevant agreements with the Company or any of the Trusts, as applicable,
to indemnification by the Company or any such Trust against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such agents, underwriters, dealers and remarketing firms may
be required to make in respect thereof.
Each series of Securities will be a new issue and, other than the
Common Stock, which is listed on the New York Stock Exchange, will have no
established trading market. The Company may elect to list any series of
Securities on an exchange, and in the case of the Common Stock, on any
additional exchange, but, unless otherwise specified in the applicable
Prospectus Supplement, the Company shall not be obligated to do so. No assurance
can be given as to the liquidity of the trading market for any of the
Securities.
Agents, underwriters, dealers and remarketing firms may, engage in
transactions with, or perform services for, the Company and its subsidiaries in
the ordinary course of business.
The place and time of delivery for Securities will be set forth in the
accompanying Prospectus Supplement for such Securities.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Company, BSC
Capital Trust, BSC Capital Trust II and BSC Capital Trust III, as the case may
be, by Shearman & Sterling, New York, New York. Certain matters of Delaware Law
relating to the validity of the Trust Preferred Securities will be passed upon
for the Company and the Trusts by Prickett, Jones, Elliott & Kristol, special
counsel to the Company, BSC Capital Trust, BSC Capital Trust II and BSC Capital
Trust III. If the Securities are being distributed in an underwritten offering,
the validity of the Securities will be passed upon for the underwriters by
counsel identified in the related Prospectus Supplement.
EXPERTS
The consolidated financial statements and financial statement schedule
of the Company incorporated by reference and included, respectively, in the
Company's 1998 Form 10-K, 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.
The combined balance sheets of Schneider Worldwide, formerly a business
of Pfizer Inc., as of December 31, 1997 and 1996, and the related combined
statements of income and cash flows for each of the years in the three-year
period ended December 31, 1997, are incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
33
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The aggregate estimated expenses, other than underwriting discounts and
commissions, in connection with the offering pursuant to this Registration
Statement are currently anticipated to be as follows (all amounts except for the
Securities and Exchange Commission filing fee are estimated). All expenses of
the offering will be paid by Boston Scientific Corporation.
Amount
------
Securities and Exchange
Commission registration fee..................... $354,000
Blue Sky fees and expenses......................... 20,000
Printing and engraving expenses.................... 100,000
Legal fees and expenses (other than
Blue Sky fees and expenses)..................... 175,000
Accounting fees and expenses....................... 100,000
Miscellaneous (including any applicable listing
fees, and Trustees', Rating Agency
and Transfer Agent's fees and expenses)......... 200,000
-------
Total........................................... $949,000
========
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 Restated By-laws 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 directors or officers 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 Securities Act of
1933 and is therefore unenforceable.
Item 16. Exhibits.
***1.1 Form of Debt Securities Underwriting Agreement.
***1.2 Form of Equity Securities Underwriting Agreement.
***1.3 Form of Depositary Shares Underwriting Agreement.
***1.4 Form of BSC Capital Trust Preferred Securities Underwriting
Agreement.
+ 4.1 Specimen Certificate for shares of the Company's Common Stock
(Exhibit 4.1, Registration No. 33-46980).
+ 4.2 Second Restated Certificate of Incorporation of the Company
(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
II-1
<PAGE>
Company (Exhibit 3.2, Annual Report on Form 10-K for the year
ended December 31, 1995, File No. 1-11083); Certificate of
Second Amendment of Second Restated Certificate of
Incorporation of the Company (Exhibit 3.3, Annual Report on
Form 10-K for the year ended December 31, 1998, File No.
1-11083); and Restated By-laws of the Company (Exhibit 3.2,
Registration No. 33-46980).
***4.3 Form of Certificate of Designations of Preferred Stock.
*4.4 Form of Debt Securities Indenture.
***4.5 Form of Deposit Agreement with respect to the Depositary
Shares (including the terms of Depositary Receipts to be
issuable thereunder).
***4.6 Form of Stock Purchase Contract.
*4.7 Certificate of Trust of BSC Capital Trust.
*4.8 Declaration of Trust of BSC Capital Trust.
*4.9 Certificate of Trust of BSC Capital Trust II.
*4.10 Declaration of Trust of BSC Capital Trust II.
*4.11 Certificate of Trust of BSC Capital Trust III.
*4.12 Declaration of Trust of BSC Capital Trust III.
*4.13 Form of Trust Preferred Guarantee Agreement to be issued by
the Company (Agreement for BSC Capital Trust, BSC Capital
Trust II and BSC Capital Trust III are substantially identical
except for names and dates).
*4.14 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust.
*4.15 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust II.
*4.16 Form of Amended and Restated Declaration of Trust (including
form of Trust Preferred Securities) of BSC Capital Trust III.
***4.17 Form of Debt Securities
*5.1 Opinion of Shearman & Sterling as to legality of the
Securities.
*5.2 Opinion of Delaware counsel as to the legality of the Trust
Preferred Securities.
**12.1 Statement of computation of ratios of earnings to fixed
charges of the Company.
**23.1 Consent of Ernst & Young LLP, independent auditors.
*23.2 Consent of Shearman & Sterling (included in Exhibit 5.1).
*23.3 Consent of Delaware counsel (included in Exhibit 5.2).
**23.4 Consent of KPMG LLP, independent certified public accountants.
*24.1 Powers of Attorney.
*25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Debt Securities.
*25.2 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust.
*25.3 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust.
*25.4 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust II.
*25.5 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust II.
*25.6 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Preferred Securities of BSC Capital Trust III.
*25.7 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Chase Manhattan Bank, as Trustee for the
Trust Guarantees of Boston Scientific Corporation for the
benefit of the holders of Trust Preferred Securities of BSC
Capital Trust III.
-----------------------
* Previously filed
** Filed herewith.
*** To be filed as an exhibit to a Current Report on Form 8-K to be filed
by the Company in connection with a specific offering pursuant to Item
601.
+ Incorporated by reference.
II-2
<PAGE>
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities
Act of 1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) 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;
provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the registrants
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 registrants hereby undertake that, for
purposes of determining any liability under the Securities Act, each
filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 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.
(c) If the securities to be registered are to be offered at
competitive bidding, the undersigned registrants hereby undertake: (1)
to use their best efforts to distribute prior to the opening of bids,
to prospective bidders, underwriters and dealers, a reasonable number
of copies of a prospectus which at that time meets the requirements of
Section 10(a) of the Securities Act of 1933, and relating to the
securities offered at competitive bidding, as contained in the
registration Statement, together with any supplements thereto, and (2)
to file an amendment to the registration Statement reflecting the
results of bidding, the terms of the reoffering and related matters to
the extent required by the applicable form, not later than the first
use, authorized by the issuer after the opening of bids, of a
prospectus relating to the securities offered at competitive bidding,
unless no further public offering of such securities by the issuer and
no reoffering of such securities by the purchasers is proposed to be
made.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrants of
expenses incurred or paid by a director, officer or controlling person
of the registrants 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 registrants
will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
(e) The undersigned registrants hereby undertake that (1) for
purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be
part of this Registration Statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under
the Securities Act of 1993, each post-effective amendment that contains
a form of prospectus 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.
(f) The undersigned registrants hereby undertake to file, if
necessary, an application for the purpose of determining the
eligibility of the Trustee to act under subsection (a) of Section 310
of the Trust Indenture Act of 1939, as amended, in accordance with the
rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of the Securities Act of 1933.
(g) The undersigned registrants hereby undertake 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 information.
II-4
<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
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Natick, Commonwealth of
Massachusetts, on the 2nd day of June, 1999.
BOSTON SCIENTIFIC CORPORATION
By /s/ Lawrence C. Best
______________________________________
Lawrence C. Best
Senior Vice President--Finance and
Administration and Chief Financial
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed below by the following
persons in the capacities indicated on the 2nd day of June, 1999.
<TABLE>
<CAPTION>
Name and Signature Title
<S> <C>
* Director, Founder Chairman
________________________________________
John E. Abele
* Senior Vice President--Finance and
________________________________________ Administration and Chief Financial Officer
Lawrence C. Best (Principal Financial and Accounting Officer)
* Director
________________________________________
Joseph A. Ciffolillo
* Director
________________________________________
Joel L. Fleishman
Director
________________________________________
Ray J. Groves
* Director
________________________________________
Lawrence L. Horsch
* Director
________________________________________
N. J. Nicholas, Jr.
* Director, Founder and Chairman
________________________________________ of the Board
Peter M. Nicholas (Principal Executive Officer)
* Director
________________________________________
Dale A. Spencer
Director, President and Chief
________________________________________ Executive Officer
James R. Tobin
* Power of Attorney by:
/s/ Lawrence J. Knopf
________________________________________
Lawrence J. Knopf
</TABLE>
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, BSC Capital
Trust II 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 Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Natick, Commonwealth of Massachusetts,
on the 2nd day of June, 1999.
BSC CAPITAL TRUST II
By: BOSTON SCIENTIFIC CORPORATION,
as Managing Member
By /s/ Lawrence C. Best
______________________________________
Lawrence C. Best
Senior Vice President--Finance and
Administration and Chief Financial
Officer
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, BSC Capital
Trust III 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 Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Natick, Commonwealth of Massachusetts,
on the 2nd day of June, 1999.
BSC CAPITAL TRUST III
By: BOSTON SCIENTIFIC CORPORATION,
as Managing Member
By /s/ Lawrence C. Best
______________________________________
Lawrence C. Best
Senior Vice President--Finance and
Administration and Chief Financial
Officer
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, BSC Capital
Trust 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 Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Natick, Commonwealth of Massachusetts,
on the 2nd day of June, 1999.
BSC CAPITAL TRUST
By: BOSTON SCIENTIFIC CORPORATION,
as Managing Member
By /s/ Lawrence C. Best
______________________________________
Lawrence C. Best
Senior Vice President--Finance and
Administration and Chief Financial
Officer
II-8
EXHIBIT 12.1
BOSTON SCIENTIFIC CORPORATION
STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES (Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
----------------- ----------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
----------------- ----------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges:
Interest expense $35,455 $6,054 $67,573 $14,285 $11,518 $9,591 $8,378
Capitalized interest 350 1,560 4,460 4,976
Debt issuance costs 1,051 134 1,675 65 501
Interest portion of rental expense 4,056 3,827 16,361 14,354 8,534 5,802 5,370
------------------ ----------------------------------------------------
Total fixed charges $40,912 $11,575 $90,069 $33,680 $20,553 $15,393 $13,748
================== ====================================================
Earnings:
Income (loss) before income taxes
and cumulative effect of change
in accounting $151,032 $87,708 $(275,314) $215,131 $303,330 $62,678 $219,703
Fixed charges per above 40,912 11,575 90,069 33,680 20,553 15,393 13,748
Net distributed equity in earnings
of equity investees 12,664
Less: capitalized interest 350 1,560 4,460 4,976
================== ====================================================
Total earnings, as adjusted $204,258 $97,723 $(189,705) $243,835 $323,883 $78,071 $233,451
================== ====================================================
Ratio of earnings to fixed charges 4.99 8.44 7.24 15.76 5.07 16.98
================== ====================================================
Coverage deficiency (1) $(279,774)
===========
Supplemental pro forma coverage deficiency (2) $(345,507)
==========
</TABLE>
(1) Includes noncash special charges of $646 million recorded in connection
with the acquisition of Schneider Worldwide and other merger-related
initiatives.
(2) Reflects the coverage deficiency as if the acquisition of Schneider
Worldwide occurred at the beginning of 1998, with pro forma adjustments to
give effect to amortization of intangibles, an increase in interest expense
on acquisition financing and certain other adjustments.
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 2 to the Registration Statement (Form S-3 No. 333-64887) and related
Prospectus of Boston Scientific Corporation, BSC Capital Trust, BSC Capital
Trust II and BSC Capital Trust III and to the incorporation by reference therein
of our reports dated February 16, 1999, with respect to the consolidated
financial statements of Boston Scientific Corporation incorporated by reference
in its Annual Report (Form 10-K, as amended by Form 10-K/A and Form 10-K/A2) for
the year ended December 31, 1998 and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Boston, Massachusetts
June 1, 1999
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Boston Scientific Corporation:
We consent to the incorporation by reference in amendment No. 2 to the
registration statement (No. 333-64887) on Form S-3 of Boston Scientific
Corporation of our report dated May 22, 1998, with respect to the combined
balance sheets of Schneider Worldwide, formerly a business of Pfizer Inc., as of
December 31, 1997 and 1996, and the related combined statements of income and
cash flows for each of the years in the three-year period ended December 31,
1997, which report appears in the Form 8-K/A2 of Boston Scientific Corporation
dated March 30, 1999, and to the reference to our firm under the heading
"Experts."
/s/ KPMG LLP
---------------------
KPMG LLP
New York, New York
June 2, 1999
