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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended March 31, 2024
OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File No. 1-11083
BOSTON SCIENTIFIC CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware |
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04-2695240 |
(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
300 Boston Scientific Way, Marlborough, Massachusetts 01752-1234
(Address of Principal Executive Offices) (Zip Code)
508 683-4000
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock, par value $0.01 per share |
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BSX |
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New York Stock Exchange |
0.625% Senior Notes due 2027 |
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BSX27 |
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New York Stock Exchange |
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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☑ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☑ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☑
The number of shares outstanding of Common Stock, $0.01 par value per share, as of April 29, 2024 was 1,470,179,843.
TABLE OF CONTENTS
PART I
FINANCIAL INFORMATION
ITEM 1. CONSOLIDATED FINANCIAL STATEMENTS
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
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Three Months Ended March 31, |
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(in millions, except per share data) |
2024 |
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2023 |
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Net sales |
$ |
3,856 |
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$ |
3,389 |
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Cost of products sold |
1,209 |
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1,040 |
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Gross profit |
2,648 |
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2,349 |
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Operating expenses: |
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Selling, general and administrative expenses |
1,364 |
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1,215 |
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Research and development expenses |
366 |
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337 |
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Royalty expense |
10 |
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11 |
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Amortization expense |
214 |
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203 |
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Contingent consideration net expense (benefit) |
17 |
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12 |
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Restructuring net charges (credits) |
3 |
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20 |
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1,973 |
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1,797 |
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Operating income (loss) |
675 |
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552 |
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Other income (expense): |
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Interest expense |
(69) |
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(65) |
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Other, net |
2 |
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(43) |
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Income (loss) before income taxes |
608 |
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444 |
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Income tax expense (benefit) |
115 |
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131 |
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Net income (loss) |
493 |
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314 |
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Preferred stock dividends |
— |
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(14) |
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Net income (loss) attributable to noncontrolling interests |
(1) |
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— |
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Net income (loss) attributable to Boston Scientific common stockholders |
$ |
495 |
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$ |
300 |
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Net income (loss) per common share — basic |
$ |
0.34 |
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$ |
0.21 |
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Net income (loss) per common share — diluted |
$ |
0.33 |
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$ |
0.21 |
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Weighted-average shares outstanding |
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Basic |
1,468.4 |
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1,435.8 |
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|
|
|
|
Diluted |
1,481.7 |
|
|
1,446.0 |
|
|
|
|
|
Refer to notes to the unaudited consolidated financial statements. Amounts may not foot due to rounding.
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS) (UNAUDITED)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
(in millions) |
2024 |
|
2023 |
|
|
|
|
Net income (loss) |
$ |
493 |
|
|
$ |
314 |
|
|
|
|
|
Other comprehensive income (loss), net of tax: |
|
|
|
|
|
|
|
Foreign currency translation adjustment |
57 |
|
|
(42) |
|
|
|
|
|
Net change in derivative financial instruments |
22 |
|
|
(43) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in defined benefit pensions and other items |
(0) |
|
|
(5) |
|
|
|
|
|
Other comprehensive income (loss) |
78 |
|
|
(91) |
|
|
|
|
|
Comprehensive income (loss) |
$ |
572 |
|
|
$ |
223 |
|
|
|
|
|
Comprehensive income (loss) attributable to noncontrolling interests |
(6) |
|
|
— |
|
|
|
|
|
Comprehensive income attributable to Boston Scientific common stockholders |
$ |
578 |
|
|
$ |
223 |
|
|
|
|
|
Refer to notes to the unaudited consolidated financial statements. Amounts may not foot due to rounding.
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions, except share and per share data) |
March 31, 2024 |
|
December 31, 2023 |
ASSETS |
|
|
|
Current assets: |
|
|
|
Cash and cash equivalents |
$ |
2,329 |
|
|
$ |
865 |
|
Trade accounts receivable, net |
2,304 |
|
|
2,228 |
|
Inventories |
2,561 |
|
|
2,484 |
|
Prepaid income taxes |
319 |
|
|
315 |
|
|
|
|
|
Other current assets |
671 |
|
|
621 |
|
Total current assets |
8,185 |
|
|
6,514 |
|
Property, plant and equipment, net |
2,897 |
|
|
2,859 |
|
Goodwill |
14,361 |
|
|
14,387 |
|
Other intangible assets, net |
5,839 |
|
|
6,003 |
|
Deferred tax assets |
3,792 |
|
|
3,841 |
|
Other long-term assets |
1,596 |
|
|
1,531 |
|
TOTAL ASSETS |
$ |
36,669 |
|
|
$ |
35,136 |
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS’ EQUITY |
|
|
|
Current liabilities: |
|
|
|
Current debt obligations |
$ |
1,085 |
|
|
$ |
531 |
|
Accounts payable |
921 |
|
|
942 |
|
Accrued expenses |
2,083 |
|
|
2,646 |
|
Other current liabilities |
827 |
|
|
814 |
|
Total current liabilities |
4,916 |
|
|
4,933 |
|
Long-term debt |
9,534 |
|
|
8,571 |
|
Deferred income taxes |
132 |
|
|
134 |
|
Other long-term liabilities |
1,919 |
|
|
1,967 |
|
|
|
|
|
Commitments and contingencies |
|
|
|
|
|
|
|
Stockholders’ equity |
|
|
|
Preferred stock, $0.01 par value - authorized 50,000,000 shares - 0 shares issued as of March 31, 2024 and December 31, 2023 |
— |
|
|
— |
|
Common stock, $0.01 par value - authorized 2,000,000,000 shares - issued 1,733,293,885 shares as of March 31, 2024 and 1,729,000,224 shares as of December 31, 2023 |
17 |
|
|
17 |
|
Treasury stock, at cost - 263,289,848 shares as of March 31, 2024 and December 31, 2023 |
(2,251) |
|
|
(2,251) |
|
Additional paid-in capital |
20,713 |
|
|
20,647 |
|
Retained earnings |
1,314 |
|
|
819 |
|
Accumulated other comprehensive income (loss), net of tax |
132 |
|
|
49 |
|
Total stockholders’ equity |
19,926 |
|
|
19,282 |
|
Noncontrolling interests |
242 |
|
|
248 |
|
Total equity |
20,168 |
|
|
19,530 |
|
TOTAL LIABILITIES AND EQUITY |
$ |
36,669 |
|
|
$ |
35,136 |
|
Refer to notes to the unaudited consolidated financial statements. Amounts may not foot due to rounding.
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (UNAUDITED)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
(in millions, except share data) |
2024 |
|
2023 |
|
|
|
|
Preferred stock shares issued |
|
|
|
|
|
|
|
Beginning |
— |
|
|
10,062,500 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock issuance |
— |
|
|
— |
|
|
|
|
|
Ending |
— |
|
|
10,062,500 |
|
|
|
|
|
Common stock shares issued |
|
|
|
|
|
|
|
Beginning |
1,729,000,224 |
|
|
1,696,633,993 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Impact of stock-based compensation plans |
4,293,661 |
|
|
4,194,880 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Ending |
1,733,293,885 |
|
|
1,700,828,873 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock |
|
|
|
|
|
|
|
Beginning |
$ |
— |
|
|
$ |
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock issuance |
— |
|
|
— |
|
|
|
|
|
Ending |
$ |
— |
|
|
$ |
0 |
|
|
|
|
|
Common stock |
|
|
|
|
|
|
|
Beginning |
$ |
17 |
|
|
$ |
17 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Impact of stock-based compensation plans |
0 |
|
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Ending |
$ |
17 |
|
|
$ |
17 |
|
|
|
|
|
Treasury stock |
|
|
|
|
|
|
|
Beginning |
$ |
(2,251) |
|
|
$ |
(2,251) |
|
|
|
|
|
Repurchase of common stock |
— |
|
|
— |
|
|
|
|
|
Ending |
$ |
(2,251) |
|
|
$ |
(2,251) |
|
|
|
|
|
Additional paid-in capital |
|
|
|
|
|
|
|
Beginning |
$ |
20,647 |
|
|
$ |
20,289 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impact of stock-based compensation plans |
66 |
|
|
68 |
|
|
|
|
|
Ending |
$ |
20,713 |
|
|
$ |
20,356 |
|
|
|
|
|
Retained earnings/(Accumulated deficit) |
|
|
|
|
|
|
|
Beginning |
$ |
819 |
|
|
$ |
(750) |
|
|
|
|
|
Net income (loss) |
493 |
|
|
314 |
|
|
|
|
|
Net (income) loss attributable to noncontrolling interests |
1 |
|
|
— |
|
|
|
|
|
Preferred stock dividends |
— |
|
|
(14) |
|
|
|
|
|
Ending |
$ |
1,314 |
|
|
$ |
(450) |
|
|
|
|
|
Accumulated other comprehensive income (loss), net of tax |
|
|
|
|
|
|
|
Beginning |
$ |
49 |
|
|
$ |
269 |
|
|
|
|
|
Changes in other comprehensive income (loss) |
83 |
|
|
(91) |
|
|
|
|
|
Ending |
$ |
132 |
|
|
$ |
178 |
|
|
|
|
|
Total stockholders' equity |
$ |
19,926 |
|
|
$ |
17,850 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Noncontrolling interests |
|
|
|
|
|
|
|
Beginning |
$ |
248 |
|
|
$ |
— |
|
|
|
|
|
Net income (loss) attributable to noncontrolling interests |
(1) |
|
|
— |
|
|
|
|
|
Changes in other comprehensive income (loss) |
(5) |
|
|
— |
|
|
|
|
|
Changes to noncontrolling ownership interest |
— |
|
|
259 |
|
|
|
|
|
Ending |
$ |
242 |
|
|
$ |
259 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total equity |
$ |
20,168 |
|
|
$ |
18,109 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Refer to notes to the unaudited consolidated financial statements. Amounts may not foot due to rounding.
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
(in millions) |
2024 |
|
2023 |
Net income (loss) |
$ |
493 |
|
|
$ |
314 |
|
Adjustments to reconcile net income (loss) to cash provided by (used for) operating activities |
|
|
|
|
|
|
|
Depreciation and amortization |
304 |
|
|
285 |
|
Deferred and prepaid income taxes |
31 |
|
|
19 |
|
Stock-based compensation expense |
63 |
|
|
55 |
|
|
|
|
|
Net loss (gain) on investments and notes receivable |
2 |
|
|
31 |
|
Contingent consideration net expense (benefit) |
17 |
|
|
12 |
|
|
|
|
|
|
|
|
|
Other, net |
(4) |
|
|
(2) |
|
Increase (decrease) in operating assets and liabilities, excluding purchase accounting: |
|
|
|
Trade accounts receivable |
(114) |
|
|
(86) |
|
Inventories |
(124) |
|
|
(185) |
|
Other assets |
(55) |
|
|
(41) |
|
Accounts payable, accrued expenses and other liabilities |
(450) |
|
|
(211) |
|
Cash provided by (used for) operating activities |
164 |
|
|
190 |
|
|
|
|
|
Investing activities: |
|
|
|
Purchases of property, plant and equipment and internal use software |
(179) |
|
|
(111) |
|
Proceeds from sale of property, plant and equipment |
1 |
|
|
3 |
|
Payments for acquisitions of businesses, net of cash acquired |
(47) |
|
|
(375) |
|
Payments for investments and acquisitions of certain technologies, net of investment proceeds |
(66) |
|
|
(10) |
|
|
|
|
|
Proceeds from royalty rights |
7 |
|
|
9 |
|
|
|
|
|
Cash provided by (used for) investing activities |
(285) |
|
|
(484) |
|
|
|
|
|
Financing activities: |
|
|
|
Payment of contingent consideration previously established in purchase accounting |
(34) |
|
|
(34) |
|
Payments for royalty rights |
(15) |
|
|
(34) |
|
Payments for finance leases |
(25) |
|
|
— |
|
Payments on short-term borrowings |
(504) |
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from long-term borrowings, net of debt issuance costs |
2,145 |
|
|
— |
|
Cash dividends paid on preferred stock |
— |
|
|
(14) |
|
|
|
|
|
|
|
|
|
Cash used to net share settle employee equity awards |
(78) |
|
|
(50) |
|
Proceeds from issuances of common stock pursuant to employee stock compensation and purchase plans |
80 |
|
|
63 |
|
Cash provided by (used for) financing activities |
1,569 |
|
|
(69) |
|
|
|
|
|
Effect of foreign exchange rates on cash |
(7) |
|
|
— |
|
|
|
|
|
Net increase (decrease) in cash, cash equivalents, restricted cash and restricted cash equivalents |
1,441 |
|
|
(363) |
|
Cash, cash equivalents, restricted cash and restricted cash equivalents at beginning of period |
1,055 |
|
|
1,126 |
|
Cash, cash equivalents, restricted cash and restricted cash equivalents at end of period |
$ |
2,496 |
|
|
$ |
763 |
|
|
|
|
|
Refer to notes to the unaudited consolidated financial statements. Amounts may not foot due to rounding.
BOSTON SCIENTIFIC CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(SUPPLEMENTAL INFORMATION)
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
(in millions) |
2024 |
|
2023 |
Supplemental Information |
|
|
|
Stock-based compensation expense |
$ |
63 |
|
|
$ |
55 |
|
|
|
|
|
Non-cash impact of transferred royalty rights |
(7) |
|
|
(9) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, |
Reconciliation to amounts within the unaudited consolidated balance sheets: |
2024 |
|
2023 |
Cash and cash equivalents |
$ |
2,329 |
|
|
$ |
570 |
|
Restricted cash and restricted cash equivalents included in Other current assets |
93 |
|
|
135 |
|
Restricted cash equivalents included in Other long-term assets |
74 |
|
|
57 |
|
Cash, cash equivalents, restricted cash and restricted cash equivalents at end of period |
$ |
2,496 |
|
|
$ |
763 |
|
Refer to notes to the unaudited consolidated financial statements. Amounts may not foot due to rounding.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE A – BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements of Boston Scientific Corporation have been prepared in accordance with accounting principles generally accepted in the United States (GAAP) and with the instructions to Form 10-Q and Article 10 of Regulation S-X, and they do not include all of the information and footnotes required by GAAP for complete financial statements. When used in this report, the terms, "we," "us," "our," and "the Company" mean Boston Scientific Corporation and its divisions and subsidiaries. In the opinion of management, all adjustments (consisting only of normal recurring adjustments) considered necessary for fair presentation have been included. Operating results for the three months ended March 31, 2024 are not necessarily indicative of the results that may be expected for the year ending December 31, 2024. Accordingly, our unaudited consolidated financial statements and footnotes thereto should be read in conjunction with our audited consolidated financial statements and footnotes thereto included in Item 8 of our most recent Annual Report on Form 10-K.
The accompanying unaudited consolidated financial statements include the accounts of the Company's wholly owned- subsidiaries and entities for which the Company has a controlling financial interest. All intercompany balances and transactions have been eliminated in consolidation.
Amounts reported in millions within this Quarterly Report on Form 10-Q are computed based on the amounts in thousands. As a result, the sum of the components may not equal the total amount reported in millions due to rounding. Certain columns and rows within tables may not add due to the use of rounded numbers. Percentages presented are calculated from the underlying unrounded amounts.
Subsequent Events
We evaluate events occurring after the date of our accompanying unaudited consolidated balance sheet for potential recognition or disclosure within our financial statements. Those items requiring recognition in the financial statements have been recorded and disclosed accordingly.
Those items requiring disclosure (non-recognized subsequent events) in the financial statements have been disclosed accordingly. Refer to Note H – Commitments and Contingencies for further details.
NOTE B – ACQUISITIONS AND STRATEGIC INVESTMENTS
Our accompanying unaudited consolidated financial statements include the operating results for acquired entities from the respective dates of acquisition. We have not presented supplemental pro forma financial information for completed acquisitions or divestitures given their results are not material to our accompanying unaudited consolidated financial statements. Further, transaction costs were immaterial to our accompanying unaudited consolidated financial statements and were expensed as incurred.
On January 8, 2024, we announced our entry into a definitive agreement to acquire 100 percent of Axonics, Inc. (Axonics), a publicly traded medical technology company primarily focused on the development and commercialization of devices to treat urinary and bowel dysfunction. The purchase price is $71.00 in cash per share, or approximately $3.670 billion for 100% of the fully diluted equity. On April 3, 2024, we and Axonics each received a request for additional information (Second Request) from the United States Federal Trade Commission (FTC) in connection with the FTC's review of the transaction. The issuance of the Second Request extends the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act), until 30 days after both we and Axonics have substantially complied with the Second Request, unless the waiting period is extended voluntarily by the parties or terminated earlier by the FTC. We and Axonics expect to promptly respond to the Second Request and to continue to work cooperatively with the FTC in its review. The transaction is expected to be completed in the second half of 2024, subject to the expiration or termination of the waiting period under the HSR Act and the satisfaction (or waiver) of other customary closing conditions. The Axonics business will be integrated into our Urology division.
2023 Acquisition
On February 20, 2023, we completed the acquisition of a majority stake investment in Acotec Scientific Holdings Limited (Acotec), a publicly traded Chinese manufacturer of drug-coated balloons and other products used in the treatment of vascular and other diseases. We consolidated this majority stake investment in Acotec based on the conclusion we control the entity, and recorded a noncontrolling interest for the portion we do not own.
We acquired approximately 65 percent of the outstanding shares of Acotec, for an upfront cash payment of HK$20.00 per share, or $519 million at foreign currency exchange rates at closing. The Acotec portfolio complements our existing Peripheral Interventions portfolio.
Purchase Price Allocation
We accounted for our majority stake investment in Acotec as a business combination in accordance with Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) Topic 805, Business Combinations (FASB ASC Topic 805). The final purchase price was comprised of the amount presented below:
|
|
|
|
|
|
|
|
|
(in millions) |
Acotec(1) |
|
|
|
Payment for majority stake investment |
$ |
381 |
|
|
|
|
|
|
|
|
|
|
$ |
381 |
|
|
|
|
(1) Excludes approximately $140 million of cash on hand at the closing of the transaction
We recorded the assets acquired, liabilities assumed and the noncontrolling interest at their respective fair values as of the closing date of the transaction. The final purchase price allocation was comprised of the components presented below, with the excess of the purchase price over the fair value of net assets acquired recorded to goodwill:
|
|
|
|
|
|
|
|
(in millions) |
Acotec |
|
|
Goodwill |
$ |
337 |
|
|
|
Amortizable intangible assets |
334 |
|
|
|
|
|
|
|
Other assets acquired |
93 |
|
|
|
Liabilities assumed |
(48) |
|
|
|
Net deferred tax liabilities |
(76) |
|
|
|
Fair value of noncontrolling interest |
(259) |
|
|
|
|
$ |
381 |
|
|
|
The fair value of Acotec's noncontrolling interest was based on the publicly traded market value of the remaining 35 percent of the outstanding shares we did not acquire as of the transaction date and is presented in Stockholders' equity within our accompanying unaudited consolidated balance sheets. Goodwill was primarily established for Acotec due to opportunities for collaboration in research and development, manufacturing and commercial strategies and was not deductible for tax purposes.
We allocated a portion of the purchase price to the specific intangible asset categories as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount Assigned
(in millions)
|
|
Weighted Average Amortization Period
(in years)
|
|
Risk-Adjusted Discount Rates used in Purchase Price Allocation |
|
|
|
|
|
|
|
|
|
|
|
|
Amortizable intangible assets: |
|
|
|
|
|
Technology-related |
$ |
308 |
|
|
11 |
|
14% |
Customer relationships |
15 |
|
|
11 |
|
14% |
Other intangible assets |
11 |
|
|
13 |
|
14% |
|
$ |
334 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contingent Consideration
Changes in the fair value of our contingent consideration liability during the first quarter of 2024 associated with prior period acquisitions were as follows:
|
|
|
|
|
|
(in millions) |
|
Balance as of December 31, 2023 |
$ |
404 |
|
|
|
Contingent consideration net expense (benefit) |
17 |
|
Contingent consideration payments and other adjustments |
(148) |
|
Balance as of March 31, 2024 |
$ |
273 |
|
The payments made during the first quarter of 2024 primarily related to our acquisition of Farapulse, Inc (Farapulse) following the achievement of revenue-based earnouts as a result of over-performance. The maximum amount we could be required to pay for certain contingent consideration is not determinable as it is uncapped and based on a percent of certain sales. As of March 31, 2024, the fair value of such uncapped contingent consideration is estimated at $164 million. As of March 31, 2024, the maximum amount that we could be required to pay under our other contingent consideration arrangements (undiscounted) is approximately $275 million. Refer to Note B – Acquisitions and Strategic Investments to our audited financial statements contained in Item 8. Financial Statements and Supplementary Data of our most recent Annual Report on Form 10-K for additional information.
The recurring Level 3 fair value measurements of our contingent consideration liability that we expect to be required to settle include the following significant unobservable inputs:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contingent Consideration Liability |
Fair Value as of March 31, 2024 |
Valuation Technique |
Unobservable Input |
Range |
Weighted Average(1) |
|
|
Revenue-based Payments and Milestones |
$273 million |
Discounted Cash Flow |
Discount Rate |
6% |
- |
11% |
6% |
|
|
Probability of Payment |
100% |
100% |
|
|
Projected Year of Payment |
2024 |
- |
2027 |
2025 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) Unobservable inputs were weighted by the relative fair value of the contingent consideration liability. For projected year of payment, the amount represents the median of the inputs and is not a weighted average.
Projected contingent payment amounts related to our revenue-based payments and milestones are discounted back to the current period, primarily using a discounted cash flow model. Significant increases or decreases in projected revenues, probabilities of payment, discount rates or the time until payment is made would have resulted in a significantly lower or higher fair value measurement as of March 31, 2024.
Strategic Investments
The aggregate carrying amount of our strategic investments was comprised of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Equity method investments |
$ |
211 |
|
|
$ |
219 |
|
Measurement alternative investments(1, 2) |
218 |
|
|
194 |
|
|
$ |
429 |
|
|
$ |
413 |
|
(1) Measurement alternative investments are privately-held equity securities without readily determinable fair values that are measured at cost less impairment, if any, adjusted to fair value for any observable price changes in orderly transactions for the identical or a similar investment of the same issuer, recognized in Other, net within our accompanying unaudited consolidated statements of operations.
(2) Includes publicly-held securities and convertible notes measured at fair value with changes in fair value recognized in Other, net within our accompanying unaudited consolidated statements of operations.
These investments are classified as Other long-term assets within our accompanying unaudited consolidated balance sheets, in accordance with GAAP and our accounting policies.
As of March 31, 2024, the cost of our aggregated equity method investments exceeded our share of the underlying equity in net assets by $237 million, which represents amortizable intangible assets, in-process research and development (IPR&D), goodwill and deferred tax liabilities.
NOTE C – GOODWILL AND OTHER INTANGIBLE ASSETS
The gross carrying amount of goodwill and other intangible assets and the related accumulated amortization for intangible assets subject to amortization and accumulated goodwill impairment charges are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of March 31, 2024 |
|
As of December 31, 2023 |
(in millions) |
Gross Carrying Amount |
|
Accumulated Amortization/ Write-offs |
|
Gross Carrying Amount |
|
Accumulated Amortization/ Write-offs |
Technology-related |
$ |
13,223 |
|
|
$ |
(8,287) |
|
|
$ |
13,207 |
|
|
$ |
(8,101) |
|
Patents |
480 |
|
|
(385) |
|
|
480 |
|
|
(387) |
|
Other intangible assets |
2,159 |
|
|
(1,527) |
|
|
2,130 |
|
|
(1,500) |
|
Amortizable intangible assets |
$ |
15,863 |
|
|
$ |
(10,198) |
|
|
$ |
15,817 |
|
|
$ |
(9,988) |
|
|
|
|
|
|
|
|
|
Goodwill |
$ |
24,261 |
|
|
$ |
(9,900) |
|
|
$ |
24,287 |
|
|
$ |
(9,900) |
|
|
|
|
|
|
|
|
|
IPR&D |
$ |
54 |
|
|
|
|
$ |
54 |
|
|
|
Technology-related |
120 |
|
|
|
|
120 |
|
|
|
Indefinite-lived intangible assets |
$ |
174 |
|
|
|
|
$ |
174 |
|
|
|
The following represents a roll-forward of our goodwill balance by reportable segment:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in millions) |
MedSurg |
|
Cardiovascular |
|
|
|
Total |
As of December 31, 2023 |
$ |
5,347 |
|
|
$ |
9,041 |
|
|
|
|
$ |
14,387 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goodwill acquired |
24 |
|
|
— |
|
|
|
|
24 |
|
Impact of foreign currency fluctuations and purchase price and other adjustments |
(29) |
|
|
(22) |
|
|
|
|
(51) |
|
As of March 31, 2024 |
$ |
5,342 |
|
|
$ |
9,019 |
|
|
|
|
$ |
14,361 |
|
Goodwill and Other Intangible Asset Impairments
We did not record any goodwill or intangible asset impairment charges in the first quarter of 2024 or 2023. Refer to Note A – Significant Accounting Policies to our audited financial statements contained in Item 8. Financial Statements and Supplementary Data of our most recent Annual Report on Form 10-K for further discussion of our annual goodwill and intangible asset impairment testing.
NOTE D – HEDGING ACTIVITIES AND FAIR VALUE MEASUREMENTS
Derivative Instruments and Hedging Activities
We address market risk from changes in foreign currency exchange rates and interest rates through risk management programs which include the use of derivative and nonderivative financial instruments. We manage concentration of counterparty credit risk by limiting acceptable counterparties to major financial institutions with investment grade credit ratings, limiting the amount of credit exposure to individual counterparties and by actively monitoring counterparty credit ratings and the amount of individual credit exposure. We also employ master netting arrangements that limit the risk of counterparty non-payment on a particular settlement date to the net gain that would have otherwise been received from the counterparty. Although not completely eliminated, we do not consider the risk of counterparty default to be significant as a result of these protections. Further, none of our derivative instruments are subject to collateral or other security arrangements, nor do they contain provisions that are dependent on our credit ratings from any credit rating agency.
Currency Hedging Instruments
Risk Management Strategy
Our risk from changes in currency exchange rates consists primarily of monetary assets and liabilities; forecasted intercompany and third-party transactions; and net investments in certain subsidiaries. We manage currency exchange rate risk at a consolidated level to reduce the cost of hedging by taking advantage of offsetting transactions. We employ derivative and nonderivative instruments, primarily forward currency contracts, to reduce the risk to our earnings and cash flows associated with changes in currency exchange rates.
The success of our currency risk management program depends, in part, on forecasted transactions denominated primarily in euro, Chinese renminbi, Japanese yen, British pound sterling, Australian dollar and Swiss franc. We may experience unanticipated currency exchange gains or losses to the extent the actual activity is different than forecasted. In addition, changes in currency exchange rates related to any unhedged transactions may impact our earnings and cash flows.
Hedge Designations and Relationships
Certain of our currency derivative instruments are designated as cash flow hedges under FASB ASC Topic 815, Derivatives and Hedging (FASB ASC Topic 815), and are intended to protect the U.S. dollar value of forecasted transactions. The gain or loss on a derivative instrument designated as a cash flow hedge is recorded in the Net change in derivative financial instruments component of Other comprehensive income (loss), net of tax (OCI) within our unaudited consolidated statements of comprehensive income (loss) until the underlying third-party transaction occurs. When the underlying third-party transaction occurs, we recognize the gain or loss in earnings within Cost of products sold within our unaudited consolidated statements of operations. In the event the hedging relationship is no longer effective, or if the occurrence of the hedged forecast transaction becomes no longer probable, we reclassify the gains or losses within Accumulated other comprehensive income (loss), net of tax (AOCI) to earnings at that time. The cash flows related to the derivative instruments designated as cash flow hedges are reported as operating activities within our unaudited consolidated statements of cash flows.
We also designate certain forward currency contracts as net investment hedges to hedge a portion of our net investments in certain of our entities with functional currencies denominated in the Chinese renminbi and Japanese yen. For these derivative instruments, we elected to use the spot method to assess hedge effectiveness. We also elected to exclude the spot-forward difference, referred to as the excluded component, from the assessment of hedge effectiveness and are amortizing this amount separately, as calculated at the date of designation, on a straight-line basis over the term of the currency forward contracts. As such, we defer recognition of foreign currency gains and losses within the Foreign currency translation adjustment (CTA) component of OCI, and we reclassify amortization of the excluded component from AOCI to current period earnings within Interest expense within our unaudited consolidated statements of operations.
We designate certain euro-denominated debt as net investment hedges to hedge a portion of our net investments in certain of our entities with functional currencies denominated in the euro. As of March 31, 2024 and December 31, 2023, we designated as a net investment hedge our €900 million in aggregate principal amount of 0.625% senior notes issued in November 2019 and due in 2027 (2027 Notes). For these nonderivative instruments, we defer recognition of the foreign currency remeasurement gains and losses within the CTA component of OCI. We reclassify these gains and losses to current period earnings within Other, net within our accompanying unaudited consolidated statements of operations only when the hedged item affects earnings, which would occur upon disposal or substantial liquidation of the underlying foreign subsidiary.
We also use forward currency contracts that are not part of designated hedging relationships as a part of our strategy to manage our exposure to currency exchange rate risk related to monetary assets and liabilities and related forecast transactions. These non-designated currency forward contracts have an original time to maturity consistent with the hedged currency transaction exposures, generally less than one year, and are marked-to-market with changes in fair value recorded to earnings within Other, net within our accompanying unaudited consolidated statements of operations.
Interest Rate Hedging Instruments
Risk Management Strategy
Our interest rate risk relates primarily to U.S. dollar and euro-denominated borrowings partially offset by U.S. dollar cash investments. We use interest rate derivative instruments to mitigate the risk to our earnings and cash flows associated with exposure to changes in interest rates. Under these agreements, we and the counterparty, at specified intervals, exchange the difference between fixed and floating interest amounts calculated by reference to an agreed-upon notional principal amount. We designate these derivative instruments either as fair value or cash flow hedges in accordance with FASB ASC Topic 815.
Hedge Designations and Relationships
We had no interest rate derivative instruments designated as cash flow hedges outstanding as of March 31, 2024 or December 31, 2023. In the event that we designate outstanding interest rate derivative instruments as cash flow hedges, we record the changes in the fair value of the derivatives within OCI until the underlying hedged transaction occurs.
We had no interest rate derivative instruments designated as fair value hedges outstanding as of March 31, 2024 or December 31, 2023. In the event that we designate outstanding interest rate derivative instruments as fair value hedges, we record the changes in the fair values of interest-rate derivatives designated as fair value hedges and of the underlying hedged debt instruments in Interest expense, which generally offset.
The following table presents the contractual amounts of our hedging instruments outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in millions) |
|
FASB ASC Topic 815 Designation |
|
As of |
|
March 31, 2024 |
|
December 31, 2023 |
Forward currency contracts |
|
Cash flow hedge |
|
$ |
2,242 |
|
|
$ |
2,284 |
|
Forward currency contracts |
|
Net investment hedge |
|
645 |
|
|
333 |
|
Foreign currency-denominated debt(1) |
|
Net investment hedge |
|
997 |
|
|
997 |
|
Forward currency contracts |
|
Non-designated |
|
3,070 |
|
|
3,282 |
|
|
|
|
|
|
|
|
Total Notional Outstanding |
|
|
|
$ |
6,954 |
|
|
$ |
6,896 |
|
(1) Foreign currency-denominated debt is the €900 million debt principal associated with our 2027 Notes designated as a net investment hedge.
The remaining time to maturity as of March 31, 2024 is within 36 months for all forward currency contracts designated as cash flow hedges and generally less than one year for all non-designated forward currency contracts. The forward currency contracts designated as net investment hedges generally mature between one and two years. The euro-denominated debt principal designated as a net investment hedge has a contractual maturity of December 1, 2027.
The following presents the effect of our derivative and nonderivative instruments designated as cash flow and net investment hedges under FASB ASC Topic 815 within our accompanying unaudited consolidated statements of operations. Refer to Note M – Changes in Other Comprehensive Income for the total amounts relating to derivative and nonderivative instruments presented within our accompanying unaudited consolidated statements of comprehensive income (loss).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of Hedging Relationships on Accumulated Other Comprehensive Income |
|
Amount Recognized in OCI on Hedges |
|
Unaudited Consolidated Statements of Operations(1) |
|
Amount Reclassified from AOCI into Earnings |
(in millions) |
Pre-Tax Gain (Loss) |
Tax Benefit (Expense) |
Gain (Loss) Net of Tax |
|
Location of Amount Reclassified and Total Amount of Line Item |
|
Pre-Tax (Gain) Loss |
Tax (Benefit) Expense |
(Gain) Loss Net of Tax |
Three Months Ended March 31, 2024 |
Forward currency contracts |
|
|
|
|
|
|
|
|
Cash flow hedges |
$ |
76 |
|
$ |
(17) |
|
$ |
59 |
|
|
Cost of products sold |
$ |
1,209 |
|
|
$ |
(49) |
|
$ |
11 |
|
$ |
(38) |
|
Net investment hedges(2) |
27 |
|
(6) |
|
21 |
|
|
Interest expense |
69 |
|
|
(4) |
|
1 |
|
(3) |
|
Foreign currency-denominated debt |
|
|
|
|
|
|
|
|
Net investment hedges(3) |
23 |
|
(5) |
|
18 |
|
|
Other, net |
(2) |
|
|
— |
|
— |
|
— |
|
Interest rate derivative contracts |
|
|
|
|
|
|
|
|
Cash flow hedges |
— |
|
— |
|
— |
|
|
Interest expense |
69 |
|
|
1 |
|
(0) |
|
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of Hedging Relationships on Accumulated Other Comprehensive Income |
|
Amount Recognized in OCI on Hedges |
|
Unaudited Consolidated Statements of Operations(1) |
|
Amount Reclassified from AOCI into Earnings |
(in millions) |
Pre-Tax Gain (Loss) |
Tax Benefit (Expense) |
Gain (Loss) Net of Tax |
|
Location of Amount Reclassified and Total Amount of Line Item |
|
Pre-Tax (Gain) Loss |
Tax (Benefit) Expense |
(Gain) Loss Net of Tax |
Three Months Ended March 31, 2023 |
Forward currency contracts |
|
|
|
|
|
|
|
|
Cash flow hedges |
$ |
13 |
|
$ |
(3) |
|
$ |
10 |
|
|
Cost of products sold |
$ |
1,040 |
|
|
$ |
(69) |
|
$ |
16 |
|
$ |
(54) |
|
Net investment hedges(2) |
6 |
|
(1) |
|
4 |
|
|
Interest expense |
65 |
|
|
(3) |
|
1 |
|
(2) |
|
Foreign currency-denominated debt |
|
|
|
|
|
|
|
Net investment hedges(3) |
(19) |
|
4 |
|
(14) |
|
|
Other, net |
43 |
|
|
— |
|
— |
|
— |
|
Interest rate derivative contracts |
|
|
|
|
|
|
|
|
Cash flow hedges |
— |
|
— |
|
— |
|
|
Interest Expense |
65 |
|
|
1 |
|
— |
|
1 |
|
(1) In all periods presented in the table above, the pre-tax (gain) loss amounts reclassified from AOCI to earnings represent the effect of the hedging relationships on earnings.
(2) For our outstanding forward currency contracts designated as net investment hedges, the net gain or loss reclassified from AOCI to earnings as a reduction of Interest expense represents the straight-line amortization of the excluded component as calculated at the date of designation. This initial value of the excluded component has been excluded from the assessment of effectiveness in accordance with FASB ASC Topic 815. In the current and prior periods, we did not recognize any gains or losses on the components included in the assessment of hedge effectiveness in earnings.
(3) For our outstanding euro-denominated debt principal designated as a net investment hedge, the change in fair value attributable to changes in the spot rate is recorded in the CTA component of OCI. No amounts were reclassified from AOCI to current period earnings.
As of March 31, 2024, pre-tax net gains or losses for our derivative instruments designated, or previously designated, as cash flow and net investment hedges under FASB ASC Topic 815 that may be reclassified from AOCI to earnings within the next twelve months are presented below (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FASB ASC Topic 815 Designation |
|
Location on Unaudited Consolidated Statements of Operations |
|
Amount of Pre-Tax Gain (Loss) that may be Reclassified to Earnings |
Designated Hedging Instrument |
|
|
|
Forward currency contracts |
|
Cash flow hedge |
|
Cost of products sold |
|
$ |
173 |
|
Forward currency contracts |
|
Net investment hedge |
|
Interest expense |
|
15 |
|
Interest rate derivative contracts |
|
Cash flow hedge |
|
Interest expense |
|
(1) |
|
Net gains and losses on currency hedge contracts not designated as hedging instruments offset by net gains and losses from currency transaction exposures are presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location on Unaudited Consolidated Statements of Operations |
|
Three Months Ended March 31, |
|
|
(in millions) |
|
|
2024 |
|
2023 |
|
|
|
|
Net gain (loss) on currency hedge contracts |
|
Other, net |
|
$ |
15 |
|
|
$ |
(8) |
|
|
|
|
|
Net gain (loss) on currency transaction exposures |
|
Other, net |
|
(20) |
|
|
(6) |
|
|
|
|
|
Net currency exchange gain (loss) |
|
|
|
$ |
(5) |
|
|
$ |
(14) |
|
|
|
|
|
Fair Value Measurements
FASB ASC Topic 815 requires all derivative and nonderivative instruments to be recognized at their fair values as either assets or liabilities on the balance sheet. We determine the fair value of our derivative and nonderivative instruments using the framework prescribed by FASB ASC Topic 820, Fair Value Measurements and Disclosures (FASB ASC Topic 820), and considering the estimated amount we would receive or pay to transfer these instruments at the reporting date with respect to current currency exchange rates, interest rates, the creditworthiness of the counterparty for unrealized gain positions and our own creditworthiness for unrealized loss positions. In certain instances, we may utilize financial models to measure fair value of our derivative and nonderivative instruments. In doing so, we use inputs that include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, other observable inputs for the asset or liability and inputs derived principally from, or corroborated by, observable market data by correlation or other means. The following are the balances of our derivative and nonderivative assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Location on Unaudited Consolidated Balance Sheets(1) |
|
As of |
(in millions) |
|
|
March 31, 2024 |
|
December 31, 2023 |
Derivative and Nonderivative Assets: |
|
|
|
|
|
|
Designated Hedging Instruments |
|
|
|
|
|
|
Forward currency contracts |
|
Other current assets |
|
$ |
160 |
|
|
$ |
140 |
|
Forward currency contracts |
|
Other long-term assets |
|
125 |
|
|
107 |
|
|
|
|
|
285 |
|
|
246 |
|
Non-Designated Hedging Instruments |
|
|
|
|
|
|
Forward currency contracts |
|
Other current assets |
|
17 |
|
|
20 |
|
|
|
|
|
|
|
|
Total Derivative and Nonderivative Assets |
|
|
|
$ |
302 |
|
|
$ |
266 |
|
|
|
|
|
|
|
|
Derivative and Nonderivative Liabilities: |
|
|
|
|
|
|
Designated Hedging Instruments |
|
|
|
|
|
|
Forward currency contracts |
|
Other current liabilities |
|
$ |
3 |
|
|
$ |
15 |
|
Forward currency contracts |
|
Other long-term liabilities |
|
1 |
|
|
9 |
|
Foreign currency-denominated debt(2) |
|
Long-term debt |
|
966 |
|
|
988 |
|
|
|
|
|
|
|
|
|
|
|
|
969 |
|
|
1,012 |
|
Non-Designated Hedging Instruments |
|
|
|
|
|
|
Forward currency contracts |
|
Other current liabilities |
|
17 |
|
|
38 |
|
Total Derivative and Nonderivative Liabilities |
|
|
|
$ |
986 |
|
|
$ |
1,050 |
|
(1) We classify derivative and nonderivative assets and liabilities as current when the settlement date of the contract is one year or less.
(2) Foreign currency-denominated debt is the €900 million debt principal associated with our 2027 Notes designated as a net investment hedge. A portion of this notional is subject to de-designation and re-designation based on changes in the underlying hedged item.
Recurring Fair Value Measurements
On a recurring basis, we measure certain financial assets and financial liabilities at fair value based upon quoted market prices. Where quoted market prices or other observable inputs are not available, we apply valuation techniques to estimate fair value. FASB ASC Topic 820 establishes a three-level valuation hierarchy for disclosure of fair value measurements. The category of a financial asset or a financial liability within the valuation hierarchy is based upon the lowest level of input that is significant to the measurement of fair value. The three levels of the hierarchy are defined as follows:
•Level 1 – Inputs to the valuation methodology are quoted market prices for identical assets or liabilities.
•Level 2 – Inputs to the valuation methodology are other observable inputs, including quoted market prices for similar assets or liabilities and market-corroborated inputs.
•Level 3 – Inputs to the valuation methodology are unobservable inputs based on management’s best estimate of inputs market participants would use in pricing the asset or liability at the measurement date, including assumptions about risk.
Assets and liabilities measured at fair value on a recurring basis consist of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
|
March 31, 2024 |
|
December 31, 2023 |
(in millions) |
Level 1 |
|
Level 2 |
|
Level 3 |
|
Total |
|
Level 1 |
|
Level 2 |
|
Level 3 |
|
Total |
Assets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Money market funds and time deposits |
$ |
1,979 |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
1,979 |
|
|
$ |
454 |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
454 |
|
Publicly-held equity securities |
20 |
|
|
— |
|
|
— |
|
|
20 |
|
|
18 |
|
|
— |
|
|
— |
|
|
18 |
|
Hedging instruments |
— |
|
|
302 |
|
|
— |
|
|
302 |
|
|
— |
|
|
266 |
|
|
— |
|
|
266 |
|
Licensing arrangements |
— |
|
|
— |
|
|
66 |
|
|
66 |
|
|
— |
|
|
— |
|
|
77 |
|
|
77 |
|
|
$ |
1,999 |
|
|
$ |
302 |
|
|
$ |
66 |
|
|
$ |
2,367 |
|
|
$ |
472 |
|
|
$ |
266 |
|
|
$ |
77 |
|
|
$ |
816 |
|
Liabilities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hedging instruments |
$ |
— |
|
|
$ |
986 |
|
|
$ |
— |
|
|
$ |
986 |
|
|
$ |
— |
|
|
$ |
1,050 |
|
|
$ |
— |
|
|
$ |
1,050 |
|
Contingent consideration liability |
— |
|
|
— |
|
|
273 |
|
|
273 |
|
|
— |
|
|
— |
|
|
404 |
|
|
404 |
|
Licensing arrangements |
— |
|
|
— |
|
|
71 |
|
|
71 |
|
|
— |
|
|
— |
|
|
90 |
|
|
90 |
|
|
$ |
— |
|
|
$ |
986 |
|
|
$ |
344 |
|
|
$ |
1,330 |
|
|
$ |
— |
|
|
$ |
1,050 |
|
|
$ |
494 |
|
|
$ |
1,545 |
|
Our investments in money market funds and time deposits are classified within Level 1 of the fair value hierarchy because they are valued using quoted market prices. These investments are classified as Cash and cash equivalents or Other current assets within our accompanying unaudited consolidated balance sheets, in accordance with GAAP and our accounting policies. In addition to $1.979 billion invested in money market funds and time deposits as of March 31, 2024 and $454 million as of December 31, 2023, we held $384 million in interest-bearing and non-interest-bearing bank accounts as of March 31, 2024 and $411 million as of December 31, 2023.
Our recurring fair value measurements using Level 3 inputs include those related to our contingent consideration liability. Refer to Note B – Acquisitions and Strategic Investments for a discussion of the changes in the fair value of our contingent consideration liability. In addition, our recurring fair value measurements using Level 3 inputs related to our licensing arrangements, including the contractual right to receive future royalty payments related to the Zytiga™ Drug. We maintain a financial asset and associated liability for our licensing arrangements measured at fair value within our unaudited consolidated balance sheets in accordance with FASB ASC Topic 825, Financial Instruments. We elected the fair value option to measure the financial asset and associated liability as it provides for consistency and comparability of these financial instruments with others. Refer to Note D – Hedging Activities and Fair Value Measurements to our audited financial statements contained in Item 8. Financial Statements and Supplementary Data of our most recent Annual Report on Form 10-K for additional information.
The recurring Level 3 fair value measurements of our licensing arrangements recognized within our accompanying unaudited consolidated balance sheets as of March 31, 2024 include the following significant unobservable inputs:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Licensing Arrangements |
Fair Value as of March 31, 2024 |
Valuation Technique |
Unobservable Input |
Range |
Weighted Average (1) |
Financial Asset |
$66 million |
Discounted Cash Flow |
Discount Rate |
15% |
15% |
|
|
|
|
|
Projected Year of Payment |
2024 |
- |
2025 |
2025 |
Financial Liability |
$71 million |
Discounted Cash Flow |
Discount Rate |
12 |
% |
- |
15% |
13% |
|
|
|
|
|
Projected Year of Payment |
2024 |
- |
2026 |
2025 |
(1) Unobservable inputs relate to a single financial asset and liability. As such, unobservable inputs were not weighted by the relative fair value of the instruments. For projected year of payment, the amount represents the median of the inputs and is not a weighted average.
Changes in the fair value of our licensing arrangements' financial asset were as follows:
|
|
|
|
|
|
(in millions) |
|
Balance as of December 31, 2023 |
$ |
77 |
|
Proceeds from royalty rights |
(14) |
|
Fair value adjustment (expense) benefit |
2 |
|
Balance as of March 31, 2024 |
$ |
66 |
|
Changes in the fair value of our licensing arrangements' financial liability were as follows:
|
|
|
|
|
|
(in millions) |
|
Balance as of December 31, 2023 |
$ |
90 |
|
Payments for royalty rights |
(22) |
|
Fair value adjustment expense (benefit) |
2 |
|
Balance as of March 31, 2024 |
$ |
71 |
|
Non-Recurring Fair Value Measurements
We hold certain assets and liabilities that are measured at fair value on a non-recurring basis in periods after initial recognition. The fair value of a measurement alternative investment is not estimated if there are no identified events or changes in circumstances that may have a significant adverse effect on the fair value of the investment. Refer to Note B – Acquisitions and Strategic Investments for a discussion of our strategic investments and Note C – Goodwill and Other Intangible Assets for a discussion of the fair values of our intangible assets including goodwill.
The fair value of our outstanding debt obligations, excluding finance leases, was $10.224 billion as of March 31, 2024 and $8.735 billion as of December 31, 2023. We determined fair value by using quoted market prices for our publicly registered senior notes, classified as Level 1 within the fair value hierarchy, and face value for commercial paper, term loans and credit facility borrowings outstanding. Refer to Note E – Contractual Obligations and Commitments for a discussion of our debt obligations.
NOTE E – CONTRACTUAL OBLIGATIONS AND COMMITMENTS
Borrowings and Credit Arrangements
We had total debt outstanding of $10.619 billion as of March 31, 2024 and $9.102 billion as of December 31, 2023, with current obligations of $1.085 billion as of March 31, 2024 and $531 million as of December 31, 2023. The debt maturity schedule for our long-term debt obligations is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in millions, except interest rates) |
|
Issuance Date |
|
Maturity Date |
|
As of |
|
Coupon Rate(1) |
|
March 31, 2024 |
|
December 31, 2023 |
|
March 2025 Senior Notes(3) |
|
March 2022 |
|
March 2025 |
|
— |
|
|
1,105 |
|
|
0.750% |
June 2025 Senior Notes |
|
May 2020 |
|
June 2025 |
|
500 |
|
|
500 |
|
|
1.900% |
March 2026 Senior Notes |
|
February 2019 |
|
March 2026 |
|
255 |
|
|
255 |
|
|
3.750% |
December 2027 Senior Notes(3) |
|
November 2019 |
|
December 2027 |
|
972 |
|
|
995 |
|
|
0.625% |
March 2028 Senior Notes(3) |
|
March 2022 |
|
March 2028 |
|
810 |
|
|
829 |
|
|
1.375% |
March 2028 Senior Notes |
|
February 2018 |
|
March 2028 |
|
344 |
|
|
344 |
|
|
4.000% |
March 2029 Senior Notes |
|
February 2019 |
|
March 2029 |
|
272 |
|
|
272 |
|
|
4.000% |
March 2029 Senior Notes(3) |
|
February 2024 |
|
March 2029 |
|
810 |
|
|
— |
|
|
3.375% |
June 2030 Senior Notes |
|
May 2020 |
|
June 2030 |
|
1,200 |
|
|
1,200 |
|
|
2.650% |
March 2031 Senior Notes(3) |
|
March 2022 |
|
March 2031 |
|
810 |
|
|
829 |
|
|
1.625% |
March 2032 Senior Notes(3) |
|
February 2024 |
|
March 2032 |
|
1,349 |
|
|
— |
|
|
3.500% |
March 2034 Senior Notes(3) |
|
March 2022 |
|
March 2034 |
|
540 |
|
|
553 |
|
|
1.875% |
November 2035 Senior Notes(2) |
|
November 2005 |
|
November 2035 |
|
350 |
|
|
350 |
|
|
6.500% |
March 2039 Senior Notes |
|
February 2019 |
|
March 2039 |
|
450 |
|
|
450 |
|
|
4.550% |
January 2040 Senior Notes |
|
December 2009 |
|
January 2040 |
|
300 |
|
|
300 |
|
|
7.375% |
March 2049 Senior Notes |
|
February 2019 |
|
March 2049 |
|
650 |
|
|
650 |
|
|
4.700% |
Unamortized Debt Issuance Discount and Deferred Financing Costs |
|
|
|
2024 - 2049 |
|
(81) |
|
|
(65) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Finance Lease Obligation |
|
|
|
Various |
|
4 |
|
|
5 |
|
|
|
Long-term debt |
|
|
|
|
|
$ |
9,534 |
|
|
$ |
8,571 |
|
|
|
(1) Coupon rates are semi-annual, except for the euro-denominated notes, which bear an annual coupon.
(2) Corporate credit rating improvements may result in a decrease in the adjusted interest rate on our November 2035 Notes to the extent that our lowest credit rating is above BBB- or Baa3. The interest rates on our November 2035 Notes will be permanently reinstated to the issuance rate of 6.25% if the lowest credit ratings assigned to these senior notes is either A- or A3 or higher.
(3) These notes are euro-denominated and presented in U.S. dollars based on the exchange rate in effect as of March 31, 2024 and December 31, 2023, respectively.
Revolving Credit Facility
On May 10, 2021, we entered into a $2.750 billion revolving credit facility (2021 Revolving Credit Facility) with a global syndicate of commercial banks, initially scheduled to mature on May 10, 2026, with one-year extension options, subject to certain conditions. On March 1, 2023, we entered into an amendment of the 2021 Revolving Credit Facility credit agreement, which provided for an extension of the scheduled maturity date to May 10, 2027 and replaced the London Interbank Offered Rate (LIBOR) with the Secured Overnight Financing Rate (SOFR) as the Eurocurrency Rate for Dollars, including applicable credit spread adjustments and relevant SOFR benchmark provisions, among other things described under Financial Covenant below. This facility provides backing for our commercial paper program, and outstanding commercial paper directly reduces borrowing capacity under the 2021 Revolving Credit Facility. We had no amounts outstanding under the 2021 Revolving Credit Facility as of March 31, 2024 or December 31, 2023.
Financial Covenant
As of March 31, 2024, we were in compliance with the financial covenant required by the 2021 Revolving Credit Facility.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Covenant Requirement |
|
Actual |
|
|
as of March 31, 2024 |
|
as of March 31, 2024 |
Maximum permitted leverage ratio(1) |
|
3.75 times |
|
2.08 times |
|
|
|
|
|
(1) Ratio of total debt to deemed consolidated Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA), as defined by the 2021 Revolving Credit Facility credit agreement, as amended.
The 2021 Revolving Credit Facility includes the financial covenant requirement for all of our credit arrangements that we maintain the maximum permitted leverage ratio of 3.75 times for the remaining term. The credit agreement provides for higher leverage ratios, at our election, for the period following a Qualified Acquisition, as defined by the agreement, for which consideration exceeds $1.000 billion. In the event of such an acquisition, for the four succeeding quarters immediately following, including the quarter in which the acquisition occurs, the maximum permitted leverage ratio is 4.75 times. It steps down for the fifth, sixth and seventh succeeding quarters to 4.50 times, 4.25 times and 4.00 times, respectively. Thereafter, a maximum leverage ratio of 3.75 times is required through the remaining term of the 2021 Revolving Credit Facility. We have elected to designate the Axonics acquisition as a Qualified Acquisition under the credit agreement, and upon closing, will increase the maximum permitted leverage ratio at that time. The agreement also provides for an exclusion of any debt incurred to fund a Qualified Acquisition, until the earlier of the acquisition close date or date of abandonment, termination or expiration of the acquisition agreement. As of March 31, 2024, we excluded $2.138 billion of debt incurred from our leverage ratio calculation in connection with the Axonics acquisition.
The financial covenant requirement, as amended on March 1, 2023, provides for an exclusion from the calculation of consolidated EBITDA, as defined by the credit agreement, through maturity, of certain charges and expenses. The credit agreement amendment reset the starting date for purposes of calculating such permitted exclusions in each case from March 31, 2021 to December 31, 2022. Permitted exclusions include any non-cash charges and up to $500 million in restructuring charges and restructuring-related expenses related to our current or future restructuring plans. As of March 31, 2024, we had $273 million of the restructuring charge exclusion remaining. In addition, any cash litigation payments (net of any cash litigation receipts), as defined by the agreement, are excluded from the calculation of consolidated EBITDA, as defined by the agreement, provided that the sum of any excluded net cash litigation payments do not exceed $1.000 billion plus all accrued legal liabilities as of December 31, 2022. As of March 31, 2024, we had $1.457 billion of the litigation exclusion remaining.
Any inability to maintain compliance with this covenant could require us to seek to renegotiate the terms of our credit arrangements or seek waivers from compliance with this covenant, both of which could result in additional borrowing costs. Further, there can be no assurance that our lenders would agree to such new terms or grant such waivers on terms acceptable to us. In this case, all 2021 Revolving Credit Facility commitments would terminate, and any amounts borrowed under the facility would become immediately due and payable. Furthermore, any termination of our 2021 Revolving Credit Facility may negatively impact the credit ratings assigned to our commercial paper program, which may impact our ability to refinance any then outstanding commercial paper as it becomes due and payable.
Commercial Paper
Our commercial paper program is backed by the 2021 Revolving Credit Facility. We did not have any commercial paper outstanding as of March 31, 2024 and December 31, 2023.
Senior Notes
We had senior notes outstanding of $10.690 billion as of March 31, 2024 and $9.136 billion as of December 31, 2023. Our senior notes were issued in public offerings, are redeemable prior to maturity and are not subject to sinking fund requirements. Our senior notes are unsecured, unsubordinated obligations and rank on parity with each other. These notes are effectively junior to liabilities of our subsidiaries (refer to Other Arrangements below).
In February 2024, American Medical Systems Europe B.V. (AMS Europe), an indirect, wholly owned subsidiary of Boston Scientific, completed a registered public offering (the Offering) of €2.000 billion in aggregate principal amount of euro-denominated senior notes comprised of €750 million of 3.375% Senior Notes due 2029 and €1.250 billion of 3.500% Senior Notes due 2032 (collectively, the 2024 Eurobonds). Boston Scientific has fully and unconditionally guaranteed all of AMS Europe's obligations under the 2024 Eurobonds, and no other subsidiary of Boston Scientific will guarantee these obligations.
AMS Europe is a “finance subsidiary” as defined in Rule 13-01(a)(4)(vi) of Regulation S-X. The financial condition, results of operations and cash flows of AMS Europe are consolidated in the financial statements of Boston Scientific. The Offering resulted in cash proceeds of $2.145 billion, net of investor discounts and issuance costs.
We used the net proceeds from the Offering of the 2024 Eurobonds to fund the repayment at maturity of our 3.450% Senior Notes due March 2024 and to pay accrued and unpaid interest with respect to such notes. Additionally, we plan to use the remaining net proceeds from the Offering to fund a portion of the purchase price of the Axonics acquisition and to pay related fees and expenses, and for general corporate purposes. The transaction is expected to be completed in the second half of 2024, subject to the expiration or termination of the waiting period under the HSR Act and the satisfaction (or waiver) of other customary closing conditions. If (i) the Axonics acquisition is not consummated on or before the later of (x) January 8, 2025 (as such date may be extended in accordance with the merger agreement to no later than January 8, 2026) and (y) the date that is five business days after any later date to which we and Axonics may agree to extend the "Outside Date" in the merger agreement or (ii) AMS Europe notifies the trustee that we will not pursue consummation of the Axonics Acquisition, AMS Europe will be required to redeem each series of the notes at a special mandatory redemption price equal to 101% of the aggregate principal amount of such series of notes, plus accrued and unpaid interest, if any, to, but excluding, the date on which the notes will be redeemed. Refer to Note B – Acquisitions and Strategic Investments for more information on the Axonics acquisition.
Other Arrangements
We have accounts receivable factoring programs in certain European countries and with commercial banks in China and Japan which include promissory notes discounting programs. We account for our factoring programs as sales under FASB ASC Topic 860. We have no retained interest in the transferred receivables, other than collection and administration, and once sold, the accounts receivable are no longer available to satisfy creditors in the event of bankruptcy. Amounts de-recognized for accounts and notes receivable, which are excluded from Trade accounts receivable, net within our accompanying unaudited consolidated balance sheets, are aggregated by contract denominated currency below (in millions):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Factoring Arrangements |
As of March 31, 2024 |
|
As of December 31, 2023 |
Amount De-recognized |
|
Weighted Average Interest Rate |
|
Amount De-recognized |
|
Weighted Average Interest Rate |
Euro denominated |
$ |
175 |
|
|
5.5 |
% |
|
$ |
206 |
|
|
5.1 |
% |
Yen denominated |
191 |
|
|
0.6 |
% |
|
214 |
|
|
0.6 |
% |
Renminbi denominated |
21 |
|
|
1.8 |
% |
|
14 |
|
|
2.9 |
% |
Other Contractual Obligations and Commitments
We had outstanding letters of credit of $174 million as of March 31, 2024 and December 31, 2023, which consisted primarily of bank guarantees and collateral for workers' compensation insurance arrangements. As of March 31, 2024 and December 31, 2023 we had not recognized a related liability for our outstanding letters of credit within our accompanying unaudited consolidated balance sheets.
We have a supplier financing program offered primarily in the U.S. that enables our suppliers to opt to receive early payment at a nominal discount, while allowing us to lengthen our payment terms and optimize working capital. Our standard payment term in the U.S. is 90 days. All outstanding payables related to the supplier finance program are classified within Accounts Payable within our unaudited consolidated balance sheets and were $140 million as of March 31, 2024 and $152 million as of December 31, 2023.
Refer to Note E – Contractual Obligations and Commitments to our audited financial statements contained in Item 8. Financial Statements and Supplementary Data of our most recent Annual Report on Form 10-K for additional information on our borrowings and credit agreements.
NOTE F – SUPPLEMENTAL BALANCE SHEET INFORMATION
Components of selected captions within our accompanying unaudited consolidated balance sheets are as follows:
Trade accounts receivable, net
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Trade accounts receivable |
$ |
2,413 |
|
|
$ |
2,338 |
|
Allowance for credit losses |
(109) |
|
|
(110) |
|
|
$ |
2,304 |
|
|
$ |
2,228 |
|
The following is a roll forward of our Allowance for credit losses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
(in millions) |
2024 |
|
2023 |
|
|
|
|
Beginning balance |
$ |
110 |
|
|
$ |
109 |
|
|
|
|
|
Credit loss expense |
9 |
|
|
16 |
|
|
|
|
|
Write-offs |
(10) |
|
|
(6) |
|
|
|
|
|
Ending balance |
$ |
109 |
|
|
$ |
118 |
|
|
|
|
|
Inventories
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Finished goods |
$ |
1,555 |
|
|
$ |
1,537 |
|
Work-in-process |
188 |
|
|
174 |
|
Raw materials |
818 |
|
|
773 |
|
|
$ |
2,561 |
|
|
$ |
2,484 |
|
Other current assets
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Restricted cash and restricted cash equivalents |
$ |
93 |
|
|
$ |
130 |
|
Derivative assets |
177 |
|
|
159 |
|
Licensing arrangements |
44 |
|
|
47 |
|
Other |
357 |
|
|
285 |
|
|
$ |
671 |
|
|
$ |
621 |
|
Property, plant and equipment, net
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Land |
$ |
141 |
|
|
$ |
140 |
|
Buildings and improvements |
1,856 |
|
|
1,843 |
|
Equipment, furniture and fixtures |
3,550 |
|
|
3,503 |
|
Capital in progress |
880 |
|
|
857 |
|
|
6,427 |
|
|
6,343 |
|
Less: accumulated depreciation |
3,530 |
|
|
3,484 |
|
|
$ |
2,897 |
|
|
$ |
2,859 |
|
Depreciation expense was $90 million for the first quarter of 2024 and $82 million for the first quarter of 2023.
Other long-term assets
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Restricted cash equivalents |
$ |
74 |
|
|
$ |
60 |
|
Operating lease right-of-use assets |
430 |
|
|
439 |
|
Derivative assets |
125 |
|
|
107 |
|
Investments |
429 |
|
|
413 |
|
Licensing arrangements |
22 |
|
|
30 |
|
Indemnification asset |
175 |
|
|
176 |
|
Other |
341 |
|
|
306 |
|
|
$ |
1,596 |
|
|
$ |
1,531 |
|
Accrued expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Legal reserves |
$ |
129 |
|
|
$ |
206 |
|
Payroll and related liabilities |
749 |
|
|
1,051 |
|
Rebates |
384 |
|
|
389 |
|
Contingent consideration |
182 |
|
|
304 |
|
Other |
639 |
|
|
696 |
|
|
$ |
2,083 |
|
|
$ |
2,646 |
|
Other current liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Deferred revenue |
$ |
280 |
|
|
$ |
266 |
|
Licensing arrangements |
45 |
|
|
49 |
|
Taxes payable |
257 |
|
|
220 |
|
|
|
|
|
Other |
246 |
|
|
278 |
|
|
$ |
827 |
|
|
$ |
814 |
|
Other long-term liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
As of |
(in millions) |
March 31, 2024 |
|
December 31, 2023 |
Accrued income taxes |
$ |
466 |
|
|
$ |
470 |
|
Legal reserves |
154 |
|
|
172 |
|
Contingent consideration |
90 |
|
|
100 |
|
Licensing arrangements |
26 |
|
|
41 |
|
Operating lease liabilities |
382 |
|
|
390 |
|
Deferred revenue |
314 |
|
|
311 |
|
Other |
486 |
|
|
484 |
|
|
$ |
1,919 |
|
|
$ |
1,967 |
|
NOTE G – INCOME TAXES
Our effective tax rate from continuing operations is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
2024 |
|
2023 |
|
|
|
|
Effective tax rate from continuing operations |
18.9 |
% |
|
29.4 |
% |
|
|
|
|
Our reported tax rate is affected by recurring items such as the amount of our earnings subject to differing tax rates in foreign jurisdictions and the impact of certain receipts and charges that are taxed at rates that differ from our effective tax rate.
The principal reason for the difference between the statutory rate and our reported tax rate in the first quarter of 2024 primarily relates to certain charges for acquisition expenses as well as certain discrete benefits related to unrecognized tax benefits and stock-based compensation. In the first quarter of 2023, the primary difference between the statutory tax rate and our reported tax rate relates to certain discrete charges related to provision-to-return adjustments.
As of March 31, 2024, we had $465 million of gross unrecognized tax benefits, of which a net $393 million, if recognized, would affect our effective tax rate. As of December 31, 2023, we had $467 million of gross unrecognized tax benefits, of which a net $395 million, if recognized, would affect our effective tax rate. The change in our gross unrecognized tax benefit is primarily related to current year activity and audit activities.
It is reasonably possible that within the next 12 months, we will resolve multiple issues with foreign, federal and state taxing authorities, resulting in a reduction in our balance of unrecognized tax benefits of up to $11 million.
NOTE H – COMMITMENTS AND CONTINGENCIES
The medical device market in which we participate is largely technology driven. As a result, intellectual property rights, particularly patents and trade secrets, play a significant role in product development and differentiation. Over the years, there has been litigation initiated against us by others, including our competitors, claiming that our current or former product offerings infringe patents owned or licensed by them. Intellectual property litigation is inherently complex and unpredictable. In addition, competing parties frequently file multiple suits to leverage patent portfolios across product lines, technologies and geographies and to balance risk and exposure between the parties. In some cases, several competitors are parties in the same proceeding, or in a series of related proceedings, or litigate multiple features of a single class of devices. These dynamics frequently drive settlement not only for individual cases, but also for a series of pending and potentially related and unrelated cases. Although monetary and injunctive relief is typically sought, remedies and restitution are generally not determined until the conclusion of the trial court proceedings and can be modified on appeal. Accordingly, the outcomes of individual cases are difficult to time, predict or quantify and are often dependent upon the outcomes of other cases in other geographies.
During recent years, we successfully negotiated closure of several long-standing legal matters and have received favorable rulings in several other matters; however, there continues to be outstanding litigation. Adverse outcomes in one or more of these matters could have a material adverse effect on our ability to sell certain products and on our operating margins, financial position, results of operations and/or liquidity.
In addition, product liability, securities and commercial claims have been asserted against us and similar claims may be asserted against us in the future related to events not known to management at the present time. We maintain an insurance policy providing limited coverage against securities claims and we are substantially self-insured with respect to product liability claims and fully self-insured with respect to intellectual property infringement claims. The absence of significant third-party insurance coverage increases our potential exposure to unanticipated claims or adverse decisions. Product liability claims, securities and commercial litigation and other legal proceedings in the future, regardless of their outcome, could have a material adverse effect on our ability to sell certain products and on our operating margins, financial position, results of operations and/or liquidity.
In addition, like other companies in the medical device industry, we are subject to extensive regulation by national, state and local government agencies in the U.S. and other countries in which we operate. From time to time we are the subject of qui tam actions and governmental investigations often involving regulatory, marketing and other business practices. These qui tam actions and governmental investigations could result in the commencement of civil and criminal proceedings, substantial fines, penalties and administrative remedies and have a material adverse effect on our financial position, results of operations and/or liquidity. For additional information, refer to Note I – Commitments and Contingencies to our audited financial statements contained in Item 8 of our most recent Annual Report on Form 10-K.
In accordance with FASB ASC Topic 450, Contingencies, we accrue anticipated costs of settlement, damages, losses for product liability claims and, under certain conditions, costs of defense, based on historical experience or to the extent specific losses are probable and estimable. Otherwise, we expense these costs as incurred. If the estimate of a probable loss is a range and no amount within the range is more likely, we accrue the minimum amount of the range. We record certain legal and product liability charges, credits and costs of defense, which we consider to be unusual or infrequent and significant as Litigation-related net charges (credits) within our accompanying unaudited consolidated financial statements. All other legal and product liability charges, credits and costs are recorded within Selling, general and administrative expenses within our accompanying unaudited consolidated statements of operations.
Our accrual for legal matters that are probable and estimable was $283 million as of March 31, 2024 and $377 million as of December 31, 2023 and includes certain estimated costs of settlement, damages and defense primarily related to product liability cases or claims related to our transvaginal surgical mesh products. A portion of this accrual is already funded through our qualified settlement fund, which is included in restricted cash and restricted cash equivalents in Other current assets of $93 million as of March 31, 2024 and $130 million as of December 31, 2023. Refer to Note F – Supplemental Balance Sheet Information for additional information. We did not record any litigation-related net charges during the first quarter of 2024 or 2023.
We continue to assess certain litigation and claims to determine the amounts, if any, that management believes will be paid as a result of such claims and litigation and, therefore, additional losses may be accrued and paid in the future, which could materially adversely impact our operating results, cash flows and/or our ability to comply with our financial covenant.
In management's opinion, we are not currently involved in any legal proceedings other than those disclosed in our most recent Annual Report on Form 10-K and those specifically identified below, which, individually or in the aggregate, could have a material adverse effect on our financial condition, operations and/or cash flows. Unless included in our legal accrual or otherwise indicated below, a range of loss associated with any individual material legal proceeding cannot be reasonably estimated.
Patent Litigation
On November 20, 2017, The Board of Regents, University of Texas System and TissueGen. Inc. (collectively, UT), served a lawsuit against us in the Western District of Texas. The complaint against the Company alleges patent infringement of two U.S. patents owned by UT, relating to “Drug Releasing Biodegradable Fiber Implant” and “Drug Releasing Biodegradable Fiber for Delivery of Therapeutics,” and affects the manufacture, use and sale of our Synergy™ Stent System. UT primarily seeks a reasonable royalty. On March 12, 2018, the District Court for the Western District of Texas dismissed the action and transferred it to the United States District Court for the District of Delaware. On September 5, 2019, the Court of Appeals for the Federal Circuit affirmed the dismissal of the District Court for the Western District of Texas. In April 2020, the United States Supreme Court denied the UT’s Petition for Certiorari. UT proceeded with its case against the Company in Delaware. In January 2023, a jury trial was held on the issue of whether the one UT patent still asserted in the case was valid and whether it was infringed by the Company. On January 31, 2023, a jury concluded that UT’s patent was valid and willfully infringed by the Company, and awarded UT $42 million in damages. Following the trial, UT has filed a motion seeking prejudgment interest and enhanced damages. The Company has filed a motion seeking judgment as a matter of law in its favor or alternatively a new trial.
Product Liability Litigation
Multiple product liability cases or claims related to transvaginal surgical mesh products designed to treat stress urinary incontinence and pelvic organ prolapse have been asserted against us, predominantly in the United States, Canada, the United Kingdom, Scotland, Ireland, and Australia. Plaintiffs generally seek monetary damages based on allegations of personal injury associated with the use of our transvaginal surgical mesh products, including design and manufacturing claims, failure to warn, breach of warranty, fraud, violations of state consumer protection laws and loss of consortium claims. We have entered into individual and master settlement agreements or are in the final stages of entering agreements with certain plaintiffs' counsel, to resolve the majority of these cases and claims. All settlement agreements were entered into solely by way of compromise and without any admission or concession by us of any liability or wrongdoing. In addition, in April 2021 the Company's Board of Directors received a shareholder demand under section 220 of the Delaware General Corporation Law, for inspection of books and records related to mesh settlements. The Company has notified our insurer and retained counsel to respond to the demand.
We have established a product liability accrual for remaining claims asserted against us associated with our transvaginal surgical mesh products and the costs of defense thereof. We continue to engage in discussions with plaintiffs’ counsel regarding potential resolution of pending cases and claims, which we continue to vigorously contest. The final resolution of the cases and claims is uncertain and could have a material impact on our results of operations, financial condition and/or liquidity. Trials involving our transvaginal surgical mesh products have resulted in both favorable and unfavorable judgments for us. We do not believe that the judgment in any one trial is representative of potential outcomes of all cases or claims related to our transvaginal surgical mesh products.
Governmental Investigations and Qui Tam Matters
On December 1, 2015, the Brazilian governmental entity known as CADE (the Administrative Council of Economic Defense), served a search warrant on the offices of our Brazilian subsidiary, as well as on the Brazilian offices of several other major medical device makers who do business in Brazil, in furtherance of an investigation into alleged anti-competitive activity with respect to certain tender offers for government contracts. On June 20, 2017, CADE, through the publication of a “technical note,” announced that it was launching a formal administrative proceeding against Boston Scientific’s Brazilian subsidiary, Boston Scientific do Brasil Ltda. (BSB), as well as against the Brazilian operations of Medtronic, Biotronik and St. Jude Medical, two Brazilian associations, ABIMED and AMBIMO and 29 individuals for alleged anti-competitive behavior. Under applicable guidance, BSB could be fined a percentage of BSB’s 2016 gross revenues. In August 2021, the investigating commissioner issued a preliminary recommendation of liability against all of the involved companies, and also recommended that CADE impose fines and penalties. However, on October 25, 2021, the CADE Attorney General's office recommended dismissal of the charges and allegations against BSB and the individual BSB employees who were still individual defendants. Subsequently, on March 30, 2022, the Federal Prosecutor’s office issued a non-binding recommendation that is contrary to the Attorney General’s recommendation. The full Commission is considering both of these recommendations but has not yet issued its decision. We continue to deny the allegations, intend to defend ourselves vigorously and will appeal any decision of liability by the full Commission to the Brazilian courts. During such an appeal, the decision would have no force and effect, and the Court would consider the case without being bound by CADE’s decision.
In March 2022, the Company received a whistleblower letter alleging Foreign Corrupt Practices Act violations in Vietnam. The Company has received related subpoenas for documents from the Office of the U.S. Attorney for the District of Massachusetts and the Securities and Exchange Commission. The Company is cooperating with government agencies while investigating these allegations.
On April 5, 2023, the Company received a subpoena from the U.S. Department of Justice (DOJ) that seeks documents and information relating to its ambulatory electrocardiography monitoring (AECG) business. The Company is cooperating with the DOJ in responding to this subpoena.
On December 18, 2023, the Company received a Civil Investigative Demand from the DOJ that relates to the provision of peripheral intervention services through office-based labs. The Company is cooperating with the DOJ in responding to the subpoena.
Other Proceedings
On December 4, 2020, Enrique Jevons, individually and on behalf of all others similarly situated, filed a class action complaint against the Company, Michael F. Mahoney and Daniel J. Brennan, stemming from the recall and retirement of the LOTUS Edge™ Aortic Valve System (LOTUS System) in United States District Court for the Eastern District of New York. On December 14, 2020, the parties agreed to transfer the case to the United States District Court for the District of Massachusetts. On December 16, 2020, Mariano Errichiello, individually and on behalf of all others similarly situated, filed a second, materially similar class action complaint against the Company, Michael F. Mahoney, Joseph M. Fitzgerald, and Daniel J. Brennan in the United States District Court for the District of Massachusetts. Subsequently, on March 30, 2021, the Court consolidated the two actions, and appointed Union Asset Management Holding AG as the lead plaintiff. The plaintiffs filed an Amended Complaint in June 2021 that seeks unspecified compensatory damages in favor of the alleged class as well as unspecified equitable relief. The Company filed a Motion to Dismiss in July 2021, which, in December 2022, the Court granted in part and denied in part. On October 23, 2023, the Company reached an agreement in principle with the lead plaintiff to settle the case. The Court granted the motion for preliminary approval of the proposed settlement on December 27, 2023, and approved the settlement at a hearing on April 23, 2024.
On December 15, 2020, the Securities and Exchange Commission’s Boston Regional Office (Boston SEC) notified the Company that it was conducting an investigation related to the Company’s decision to retire the LOTUS System and issued a voluntary request for documents and information related to that decision. On February 10, 2021, the Boston SEC issued a second voluntary request for additional documents and information. The Company cooperated fully with the requests, and on January 3, 2022, the SEC informed us that it was concluding its investigation and that it did not intend to recommend an enforcement action.
On February 8, 2021, the Company received a letter from The Vladimir Gusinsky Revocable Trust, a shareholder, demanding that the Company’s Board of Directors conduct an investigation into actions by the Company’s directors and executive officers regarding statements made about the effectiveness and commercial viability of the LOTUS System. The Trust subsequently agreed to stay its demand, pending the outcome of any dispositive motion against the Amended Complaint in the class action complaint described above. The Company received letters on behalf of the Union Excavators Local 731 Pension Fund, Diane Nachbaur, and Frank Tripson, three stockholders of the Company, on July 26, 2021, July 29, 2021, and February 13, 2023, respectively, each demanding access to certain books and records of the Company, pursuant to Section 220 of the Delaware General Corporation Law, regarding the business, operations, effectiveness and commercial viability of the LOTUS system, and related items. On April 7, 2023, Diane Nachbaur filed a shareholder derivative complaint in the United States District Court for the District of Massachusetts against the Company, Michael F. Mahoney, Nelda J. Connors, Charles J. Dockendorff, Yoshiaki Fujimori, Donna A. James, Edward J. Ludwig, David Roux, John E. Sununu, Ellen M. Zane, Joseph M. Fitzgerald, Daniel J. Brennan, Shawn McCarthy, Ian Meredith, Kevin Ballinger, and Susan Vissers Lisa. On May 8, 2023, the Court stayed the case until the conclusion of the consolidated class action case. On October 18, 2023, Frank Tripson filed a shareholder derivative complaint in the Court of Chancery of the State of Delaware against the Company, Michael F. Mahoney, Daniel J. Brennan, Joseph M. Fitzgerald, Shawn McCarthy, Kevin Ballinger, Ian Meredith, Susan Vissers Lisa, Nelda J. Connors, Charles J. Dockendorff, Yoshiaki Fujimori, Donna A. James, Edward J. Ludwig, Stephen P. MacMillan, David Roux, John E. Sununu, and Ellen M. Zane. On December 15, 2023, the Court stayed that case until March 31, 2024. On March 26, 2024, the Company reached an agreement in principle with all of the plaintiffs to resolve the matters.
NOTE I – STOCKHOLDERS' EQUITY
Preferred Stock
We are authorized to issue 50 million shares of preferred stock in one or more series and to fix the powers, designations, preferences and relative participating, option or other rights thereof, including dividend rights, conversion rights, voting rights, redemption terms, liquidation preferences and the number of shares constituting any series, without any further vote or action by our stockholders.
On May 27, 2020, we completed an offering of 10,062,500 shares of 5.50% Mandatory Convertible Preferred Stock, Series A (MCPS) at a price to the public and liquidation preference of $100 per share. The net proceeds from the MCPS offering were approximately $975 million after deducting underwriting discounts and commissions and offering expenses.
On June 1, 2023, (the Mandatory Conversion Date), all outstanding shares of MCPS automatically converted into shares of common stock. The conversion rate for each share of MCPS was 2.3834 shares of common stock. No action by the holders of the MCPS was required in connection with the mandatory conversion. Cash was paid in lieu of fractional shares in accordance with the terms of the MCPS. An aggregate of approximately 24 million shares of common stock, including shares of common stock issued to holders of MCPS that elected to convert prior to the Mandatory Conversion Date, were issued upon conversion of the MCPS. Following the mandatory conversion of the MCPS, there were no outstanding shares of MCPS.
Refer to Note J – Stockholders' Equity to our audited financial statements contained in Item 8. Financial Statements and Supplementary Data of our most recent Annual Report on Form 10-K for information on the pertinent rights and privileges of our outstanding common stock.
NOTE J – WEIGHTED AVERAGE SHARES OUTSTANDING
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
(in millions) |
2024 |
|
2023 |
|
|
|
|
Weighted average shares outstanding — basic |
1,468.4 |
|
|
1,435.8 |
|
|
|
|
|
Net effect of common stock equivalents |
13.4 |
|
|
10.2 |
|
|
|
|
|
Weighted average shares outstanding - diluted |
1,481.7 |
|
|
1,446.0 |
|
|
|
|
|
The following securities were excluded from the calculation of weighted average shares outstanding - diluted because their effect in the periods presented below would have been antidilutive:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
(in millions) |
2024 |
|
2023 |
|
|
|
|
Stock options outstanding(1) |
2 |
|
3 |
|
|
|
|
MCPS(2) |
— |
|
24 |
|
|
|
|
(1) Represents stock options outstanding pursuant to our employee stock-based compensation plans with exercise prices that were greater than the average fair market value of our common stock for the related periods.
(2) Represents common stock issuable upon the conversion of MCPS. Refer to Note I – Stockholders' Equity for additional information.
We base Net income (loss) per common share - diluted upon the weighted-average number of common shares and common stock equivalents outstanding during each year. Potential common stock equivalents are determined using the treasury stock method. We exclude stock options, stock awards and, prior to the Mandatory Conversion Date, our MCPS, from the calculation if the effect would be anti-dilutive. The dilutive effect of MCPS is calculated using the if-converted method. The if-converted method assumes that these securities were converted to shares of common stock at the beginning of the reporting period to the extent that the effect is dilutive.
For the first quarter of 2023, the effect of assuming the conversion of MCPS into shares of common stock was anti-dilutive, and therefore excluded from the calculation of earnings per share (EPS). Accordingly, Net income (loss) was reduced by cumulative Preferred stock dividends, as presented within our accompanying unaudited consolidated statements of operations, for purposes of calculating Net income attributable to Boston Scientific common stockholders. On June 1, 2023, all outstanding shares of MCPS automatically converted into shares of common stock.
We issued approximately four million shares of our common stock in the first quarter of 2024 and 2023 following the exercise of stock options, vesting of restricted stock units or purchases under our employee stock purchase plan. We did not repurchase any shares of our common stock in the first quarter of 2024 or 2023. On December 14, 2020, our Board of Directors approved a stock repurchase program authorizing the repurchase of up to $1.000 billion of our common stock. As of March 31, 2024, we had the full amount remaining available under the authorization.
NOTE K – SEGMENT REPORTING
We aggregate our core businesses into two reportable segments: MedSurg and Cardiovascular, each of which generates revenues from the sale of medical devices. In accordance with FASB ASC Topic 280, Segment Reporting, we identified our reportable segments based on the nature of our products, production processes, type of customer, selling and distribution methods and regulatory environment, as well as the economic characteristics of each of our operating segments.
We measure and evaluate our reportable segments based on their respective net sales, operating income, excluding intersegment profits, and operating income as a percentage of net sales, all based on internally-derived standard currency exchange rates to exclude the impact of foreign currency, which may be updated from year to year. We exclude from operating income of reportable segments certain corporate-related expenses and certain transactions or adjustments that our chief operating decision maker (CODM) considers to be non-operational, such as amounts related to amortization expense, goodwill and other intangible asset impairment charges, acquisition/divestiture-related net charges (credits), restructuring and restructuring-related net charges (credits), and certain litigation-related net charges (credits) and European Union (EU) Medical Device Regulation (MDR) implementation costs. Although we exclude these amounts from operating income of reportable segments, they are included in reported Income (loss) before income taxes within our accompanying unaudited consolidated statements of operations and are included in the reconciliation below. Refer to Note L – Revenue for net sales by reportable segment presented in accordance with GAAP.
A reconciliation of the totals reported for the reportable segments to the applicable line items within our accompanying unaudited consolidated statements of operations is as follows (in millions, except percentages). Prior period amounts have been restated at constant currency to conform to current year presentation.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
Net Sales |
2024 |
|
2023 |
|
|
|
|
MedSurg |
$ |
1,402 |
|
|
$ |
1,266 |
|
|
|
|
Cardiovascular |
2,426 |
|
|
2,072 |
|
|
|
|
Total net sales of reportable segments |
3,827 |
|
|
3,337 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impact of foreign currency fluctuations |
29 |
|
|
52 |
|
|
|
|
|
$ |
3,856 |
|
|
$ |
3,389 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes |
|
|
|
|
|
|
|
MedSurg |
$ |
474 |
|
|
$ |
409 |
|
|
|
|
Cardiovascular |
653 |
|
|
553 |
|
|
|
|
Total operating income of reportable segments |
1,128 |
|
|
963 |
|
|
|
|
Unallocated amounts: |
|
|
|
|
|
|
|
Corporate expenses, including hedging activities and impact of foreign currency fluctuations on operating income of reportable segments |
(115) |
|
|
(98) |
|
|
|
|
Goodwill and other intangible asset impairment charges, acquisition/divestiture-related net charges (credits), restructuring and restructuring-related net charges (credits), certain litigation-related net charges (credits) and EU MDR implementation costs |
(124) |
|
|
(110) |
|
|
|
|
Amortization expense |
(214) |
|
|
(203) |
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss) |
675 |
|
|
552 |
|
|
|
|
Other income (expense), net |
(67) |
|
|
(108) |
|
|
|
|
Income (loss) before income taxes |
$ |
608 |
|
|
$ |
444 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
Operating income margin of reportable segments |
2024 |
|
2023 |
|
|
|
|
MedSurg |
33.8 |
% |
|
32.3 |
% |
|
|
|
|
Cardiovascular |
26.9 |
% |
|
26.7 |
% |
|
|
|
|
NOTE L – REVENUE
We generate revenue primarily from the sale of single-use medical devices and present revenue net of sales taxes within our accompanying unaudited consolidated statements of operations. Our business structure is organized into five operating segments. The following tables disaggregate our revenue from contracts with customers by business unit and geographic region (in millions). Generally, we allocate revenue from contracts with customers to geographic regions based on the location where the sale originated.
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
|
2024 |
|
2023 |
|
|
|
|
Businesses |
U.S. |
|
Int'l |
|
Total |
|
U.S. |
|
Int'l |
|
Total |
|
|
|
|
|
|
|
|
Endoscopy |
$ |
395 |
|
|
$ |
247 |
|
|
$ |
642 |
|
|
$ |
351 |
|
|
$ |
226 |
|
|
$ |
577 |
|
|
|
|
|
|
|
|
|
Urology |
356 |
|
|
157 |
|
|
513 |
|
|
326 |
|
|
143 |
|
|
469 |
|
|
|
|
|
|
|
|
|
Neuromodulation |
190 |
|
|
66 |
|
|
256 |
|
|
172 |
|
|
62 |
|
|
234 |
|
|
|
|
|
|
|
|
|
MedSurg |
941 |
|
|
470 |
|
|
1,412 |
|
|
850 |
|
|
430 |
|
|
1,280 |
|
|
|
|
|
|
|
|
|
Interventional Cardiology Therapies |
195 |
|
|
457 |
|
|
652 |
|
|
183 |
|
|
408 |
|
|
591 |
|
|
|
|
|
|
|
|
|
Watchman |
311 |
|
|
33 |
|
|
344 |
|
|
265 |
|
|
25 |
|
|
291 |
|
|
|
|
|
|
|
|
|
Cardiac Rhythm Management |
354 |
|
|
221 |
|
|
575 |
|
|
345 |
|
|
203 |
|
|
548 |
|
|
|
|
|
|
|
|
|
Electrophysiology |
158 |
|
|
143 |
|
|
300 |
|
|
85 |
|
|
91 |
|
|
177 |
|
|
|
|
|
|
|
|
|
Cardiology |
1,017 |
|
|
854 |
|
|
1,872 |
|
|
879 |
|
|
727 |
|
|
1,606 |
|
|
|
|
|
|
|
|
|
Peripheral Interventions |
299 |
|
|
274 |
|
|
573 |
|
|
275 |
|
|
229 |
|
|
503 |
|
|
|
|
|
|
|
|
|
Cardiovascular |
1,316 |
|
|
1,129 |
|
|
2,445 |
|
|
1,154 |
|
|
956 |
|
|
2,110 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Net Sales |
$ |
2,258 |
|
|
$ |
1,599 |
|
|
$ |
3,856 |
|
|
$ |
2,003 |
|
|
$ |
1,386 |
|
|
$ |
3,389 |
|
|
|
|
|
|
|
|
|
Refer to Note K - Segment Reporting for information on our reportable segments.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, |
|
|
Geographic Regions |
2024 |
|
2023 |
|
|
|
|
U.S. |
$ |
2,258 |
|
|
$ |
2,003 |
|
|
|
|
|
Europe, Middle East and Africa |
803 |
|
|
712 |
|
|
|
|
|
Asia-Pacific |
647 |
|
|
548 |
|
|
|
|
|
Latin America and Canada |
149 |
|
|
126 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Net Sales |
$ |
3,856 |
|
|
$ |
3,389 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Emerging Markets(1) |
$ |
648 |
|
|
$ |
529 |
|
|
|
|
|
(1) Periodically, we assess our list of Emerging Markets countries, and effective January 1, 2023, modified our list to include all countries except the United States, Western and Central Europe, Japan, Australia, New Zealand and Canada.
Deferred Revenue
Contract liabilities are classified within Other current liabilities and Other long-term liabilities within our accompanying unaudited consolidated balance sheets. Our deferred revenue balance was $593 million as of March 31, 2024 and $577 million as of December 31, 2023. Our contract liabilities are primarily composed of deferred revenue related to the LATITUDE™ Patient Management System within our Cardiology business, for which revenue is recognized over the average service period based on device and patient longevity. Our contract liabilities also include deferred revenue related to the LUX-Dx™ Insertable Cardiac Monitor system, also within our Cardiology business, for which revenue is recognized over the average service period based on device longevity and usage. We recognized revenue of $62 million in the first quarter that was included in the above contract liability balance as of December 31, 2023. We have elected not to disclose the transaction price allocated to unsatisfied performance obligations when the original expected contract duration is one year or less. In addition, we have not identified material unfulfilled performance obligations for which revenue is not currently deferred.
Variable Consideration
For additional information on variable consideration, refer to Note A – Significant Accounting Policies to our audited financial statements contained in Item 8. Financial Statements and Supplementary Data of our most recent Annual Report on Form 10-K.
NOTE M – CHANGES IN OTHER COMPREHENSIVE INCOME
The following tables provide the reclassifications out of Other comprehensive income (loss), net of tax attributable to Boston Scientific common stockholders:
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in millions) |
Foreign Currency Translation Adjustments |
|
Net Change in Derivative Financial Instruments |
|
|
|
Net Change in Defined Benefit Pensions and Other Items |
|
|
|
Total |
Balance as of December 31, 2023 |
$ |
(96) |
|
|
$ |
154 |
|
|
|
|
$ |
(8) |
|
|
|
|
$ |
49 |
|
Other comprehensive income (loss) before reclassifications |
65 |
|
|
59 |
|
|
|
|
— |
|
|
|
|
124 |
|
(Income) loss amounts reclassified from accumulated other comprehensive income |
(3) |
|
|
(38) |
|
|
|
|
(0) |
|
|
|
|
(41) |
|
Total other comprehensive income (loss) |
62 |
|
|
22 |
|
|
|
|
(0) |
|
|
|
|
83 |
|
Balance as of March 31, 2024 |
$ |
(34) |
|
|
$ |
175 |
|
|
|
|
$ |
(8) |
|
|
|
|
$ |
132 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in millions) |
Foreign Currency Translation Adjustments |
|
Net Change in Derivative Financial Instruments |
|
|
|
Net Change in Defined Benefit Pensions and Other Items |
|
Total |
Balance as of December 31, 2022 |
$ |
(1) |
|
|
$ |
269 |
|
|
|
|
$ |
1 |
|
|
$ |
269 |
|
Other comprehensive income (loss) before reclassifications |
(40) |
|
|
10 |
|
|
|
|
(5) |
|
|
(35) |
|
(Income) loss amounts reclassified from accumulated other comprehensive income |
(2) |
|
|
(53) |
|
|
|
|
(0) |
|
|
(56) |
|
Total other comprehensive income (loss) |
(42) |
|
|
(43) |
|
|
|
|
(5) |
|
|
(91) |
|
Balance as of March 31, 2023 |
$ |
(43) |
|
|
$ |
225 |
|
|
|
|
$ |
(4) |
|
|
$ |
178 |
|
Refer to Note D – Hedging Activities and Fair Value Measurements for further detail on our net investment hedges recorded in Foreign currency translation adjustment and our cash flow hedges recorded in Net change in derivative financial instruments.
NOTE N – NEW ACCOUNTING PRONOUNCEMENTS
Periodically, new accounting pronouncements are issued by the FASB or other standard setting bodies. Recently issued standards typically do not require adoption until a future effective date. Prior to their effective date, we evaluate the pronouncements to determine the potential effects of adoption on our accompanying unaudited consolidated financial statements. During the first quarter of 2024, we implemented the following standard on a prospective basis, which did not have a material impact on our unaudited consolidated financial statements:
ASC Update No. 2022-03
ASC Update No. 2022-03, Fair Value Measurement (Topic 820): Fair Value Measurement of Equity Securities Subject to Contractual Sale Restrictions clarifies the guidance in Topic 820 related to measuring the fair value of an equity security subject to contractual restrictions that prohibit the sale of an equity security, as well as introduces new disclosure requirements for these types of equity securities.
Standards to be Implemented
In November 2023, the FASB issued ASC Update No. 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures. Update No. 2023-07 requires disclosure, on an annual and interim basis, of significant segment expenses that are regularly provided to the CODM and included within each reported measure of segment profit or loss in addition to disclosure of amounts for other segment items and a description of its composition. Update No. 2023-07 is effective for fiscal years beginning after December 15, 2023, and interim periods within fiscal years beginning after December 15, 2024. As this accounting standard update only impacts disclosures, we do not expect the adoption to have a material impact on our unaudited consolidated financial statements.
In December 2023, the FASB issued ASC Update No. 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures. Update No. 2023-09 aims to enhance the transparency and decision usefulness of income tax disclosures. Update No. 2023-09 modifies the rules on income tax disclosures to require entities to disclose (1) specific categories in the rate reconciliation, (2) the income or loss from continuing operations before income tax expense or benefit (separated between domestic and foreign) and (3) income tax expense or benefit from continuing operations (separated by federal, state, and foreign). ASU 2023-09 also requires entities to disclose their income tax payments to international, federal, state and local jurisdictions, among other changes. Update No. 2023-09 is effective for fiscal years beginning after December 15, 2024. We expect to adopt Update No. 2023-09 prospectively. As this accounting standard update only impacts disclosures, we do not expect the adoption to have a material impact on our unaudited consolidated financial statements.
No other new accounting pronouncements issued or effective in the period had or are expected to have a material impact on our accompanying unaudited consolidated financial statements.
ITEM 2.MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Introduction
Boston Scientific Corporation is a global developer, manufacturer and marketer of medical devices that are used in a broad range of interventional medical specialties. Our mission is to transform lives through innovative medical solutions that improve the health of patients around the world. As a medical technology leader for more than 40 years, we have advanced the practice of less-invasive medicine by helping physicians and other medical professionals diagnose and treat a wide range of diseases and medical conditions and improve patients’ quality of life by providing alternatives to surgery and other medical procedures that are typically traumatic to the body. We advance science for life by providing a broad range of high performance solutions to address unmet patient needs and reduce the cost of health care. When used in this report, the terms "we," "us," "our" and "the Company" mean Boston Scientific Corporation and its divisions and subsidiaries.
Financial Summary
Three Months Ended March 31, 2024
Our net sales for the first quarter of 2024 were $3.856 billion, compared to $3.389 billion for the first quarter of 2023. This increase of $467 million, or 13.8 percent, included operational1 net sales growth of 15.0 percent and the negative impact of 120 basis points from foreign currency fluctuations. Operational net sales growth included organic2 net sales growth of 13.1 percent and the positive impact of 190 basis points from our majority stake investment in Acotec Scientific Holdings Limited (Acotec) and the acquisitions of Apollo Endosurgery, Inc. (Apollo) and Relievant Medsystems, Inc. (Relievant) during the first, second and fourth quarters of 2023, respectively, for which there is less than a full period of comparable net sales. The increase in our net sales was primarily driven by the diversity of our product portfolio and strong execution, coupled with growth in the underlying markets in which we compete. Refer to Quarterly Results and Business Overview for a discussion of our net sales by business.
Our reported net income attributable to Boston Scientific common stockholders for the first quarter of 2024 was $495 million, or $0.33 per diluted share. Our reported results for the first quarter of 2024 included certain charges and/or credits totaling $337 million (after-tax), or $0.23 per diluted share. Excluding these items, adjusted net income attributable to Boston Scientific common stockholders3 was $832 million, or $0.56 per diluted share.
Our reported net income attributable to common stockholders for the first quarter of 2023 was $300 million, or $0.21 per diluted share. Our reported results for the first quarter of 2023 included certain charges and/or credits totaling $373 million (after-tax), or $0.26 per diluted share. Excluding these items, adjusted net income attributable to Boston Scientific common stockholders3 was $673 million, or $0.47 per diluted share.
1Operational net sales growth excludes the impact of foreign currency fluctuations.
2Organic net sales growth excludes the impact of foreign currency fluctuations and net sales attributable to acquisitions and divestitures for which there are less than a full period of comparable net sales.
3Adjusted measures, including operational and organic net sales growth and adjusted net income attributable to Boston Scientific common stockholders, exclude certain items required by generally accepted accounting principles in the United States (GAAP), are not prepared in accordance with GAAP and should not be considered in isolation from, or as a replacement for, the most directly comparable GAAP measure. Refer to Additional Information for a discussion of management’s use of these non-GAAP financial measures.
The following is a reconciliation of our results of operations prepared in accordance with GAAP to those adjusted results considered by management. Refer to Quarterly Results and Business Overview and Additional Information for a discussion of these reconciling items:
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, 2024 |
|
|
(in millions, except per share data) |
Income (Loss) Before Income Taxes |
Income Tax Expense (Benefit) |
Net Income (Loss) |
Preferred Stock Dividends |
Net Income (Loss) Attributable to Noncontrolling Interests |
Net Income (Loss) Attributable to Boston Scientific Common Stockholders |
Impact per Share |
|
|
|
|
Reported |
$ |
608 |
|
$ |
115 |
|
$ |
493 |
|
$ |
— |
|
$ |
(1) |
|
$ |
495 |
|
$ |
0.33 |
|
|
|
|
|
Non-GAAP adjustments: |
|
|
|
|
|
|
|
|
|
|
|
Amortization expense |
214 |
|
29 |
|
184 |
|
— |
|
2 |
|
182 |
|
0.12 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition/divestiture-related net charges (credits) |
64 |
|
(13) |
77 |
— |
— |
77 |
0.05 |
|
|
|
|
|
Restructuring and restructuring-related net charges (credits) |
46 |
|
6 |
40 |
— |
— |
40 |
0.03 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investment portfolio net losses (gains) and impairments |
(14) |
|
(3) |
(11) |
— |
— |
(11) |
(0.01) |
|
|
|
|
|
European Union (EU) Medical device regulation (MDR) implementation costs |
14 |
|
2 |
12 |
— |
— |
12 |
0.01 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred tax expenses (benefits) |
— |
|
(37) |
37 |
— |
— |
37 |
0.02 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted |
$ |
932 |
|
$ |
99 |
|
$ |
833 |
|
$ |
— |
|
$ |
1 |
|
$ |
832 |
|
$ |
0.56 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31, 2023 |
(in millions, except per share data) |
Income (Loss) Before Income Taxes |
Income Tax Expense (Benefit) |
Net Income (Loss) |
Preferred Stock Dividends |
Net Income (Loss) Attributable to Noncontrolling Interests |
Net Income (Loss) Attributable to Boston Scientific Common Stockholders |
Impact per Share(4) |
Reported |
$ |
444 |
|
$ |
131 |
|
$ |
314 |
|
$ |
(14) |
|
$ |
— |
|
$ |
300 |
|
$ |
0.21 |
|
Non-GAAP adjustments: |
|
|
|
|
|
|
|
Amortization expense |
203 |
|
28 |
|
175 |
|
— |
|
— |
|
175 |
|
0.12 |
|
|
|
|
|
|
|
|
|
Acquisition/divestiture-related net charges (credits) |
59 |
|
(7) |
|
66 |
|
— |
|
— |
|
66 |
|
0.05 |
|
Restructuring and restructuring-related net charges (credits) |
44 |
|
8 |
|
37 |
|
— |
|
— |
|
37 |
|
0.03 |
|
|
|
|
|
|
|
|
|
Investment portfolio net losses (gains) and impairments |
21 |
|
5 |
|
16 |
|
— |
|
— |
|
16 |
|
0.01 |
|
European Union (EU) Medical device regulation (MDR) implementation costs |
16 |
|
2 |
|
14 |
|
— |
|
— |
|
14 |
|
0.01 |
|
|
|
|
|
|
|
|
|
Deferred tax expenses (benefits) |
— |
|
(41) |
|
41 |
|
— |
|
— |
|
41 |
|
0.03 |
|
Discrete tax items |
— |
|
(25) |
|
25 |
|
— |
|
— |
|
25 |
|
0.02 |
|
Adjusted |
$ |
787 |
|
$ |
100 |
|
$ |
687 |
|
$ |
(14) |
|
$ |
— |
|
$ |
673 |
|
$ |
0.47 |
|
4 For the three months ended March 31, 2023, the effect of assuming the conversion of our 5.50% Mandatory Convertible Preferred Stock, Series A (MCPS) into shares of common stock was anti-dilutive, and therefore excluded from the calculation of Net income (loss) per common share - diluted earnings per share (EPS). Accordingly, GAAP Net income (loss) and Adjusted net income were reduced by cumulative Preferred stock dividends, as presented within our unaudited consolidated statements of operations, for purposes of calculating GAAP Net income attributable to Boston Scientific common stockholders. On June 1, 2023, all outstanding shares of MCPS automatically converted into shares of common stock.
Quarterly Results and Business Overview
The following section describes our net sales and results of operations by reportable segment and business. For additional information on our businesses and product offerings, refer to Item 1. Business of our most recent Annual Report on Form 10-K.
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|
|
|
|
Three Months Ended March 31, |
|
|
|
|
|
|
|
|
|
|
(in millions) |
2024 |
|
2023 |
|
Increase/(Decrease) |
|
|
|
|
|
Endoscopy |
$ |
642 |
|
|
$ |
577 |
|
|
11.4% |
|
|
|
|
|
|
|
|
Urology |
513 |
|
|
469 |
|
|
9.3% |
|
|
|
|
|
|
|
|
Neuromodulation |
256 |
|
|
234 |
|
|
9.5% |
|
|
|
|
|
|
|
|
MedSurg |
1,412 |
|
|
1,280 |
|
|
10.3% |
|
|
|
|
|
|
|
|
Cardiology |
1,872 |
|
|
1,606 |
|
|
16.5% |
|
|
|
|
|
|
|
|
Peripheral Interventions |
573 |
|
|
503 |
|
|
13.9% |
|
|
|
|
|
|
|
|
Cardiovascular |
2,445 |
|
|
2,110 |
|
|
15.9% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Sales |
$ |
3,856 |
|
|
$ |
3,389 |
|
|
13.8% |
|
|
|
|
|
|
|
|
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|
MedSurg
Endoscopy
Our Endoscopy business develops and manufactures devices to diagnose and treat a broad range of gastrointestinal (GI) and pulmonary conditions with innovative, less-invasive technologies. Net sales of Endoscopy products of $642 million during the first quarter of 2024 represented 17 percent of our consolidated net sales. Endoscopy net sales increased $66 million, or 11.4 percent, during the first quarter of 2024, compared to the prior year period. During the first quarter of 2024, this increase included operational net sales growth of 12.1 percent and a negative impact of 70 basis points from foreign currency fluctuations, compared to the prior year period. Operational net sales growth included organic net sales growth of 9.8 percent during the first quarter of 2024 and the positive impact of 230 basis points from our acquisition of Apollo and divestiture of our pathology business in the second quarter of 2023.
Organic net sales growth was primarily driven by our biliary franchise led by our AXIOS™ Stent and Delivery System, and our hemostasis and single use imaging franchises.
Urology
Our Urology business develops and manufactures devices to treat various urological conditions for both male and female anatomies, including kidney stones, benign prostatic hyperplasia (BPH), prostate cancer, erectile dysfunction and incontinence. Net sales of Urology products of $513 million during the first quarter of 2024 represented 13 percent of our consolidated net sales. Urology net sales increased $44 million, or 9.3 percent, during the first quarter of 2024, compared to the prior year period. During the first quarter of 2024, this increase included operational net sales growth of 9.8 percent and a negative impact of 50 basis points from foreign currency fluctuations, compared to the prior year period.
Operational net sales growth during the first quarter of 2024 was primarily driven by our stone management franchise, led by our Lumenis Pulse™ Holmium Laser Systems with MOSES™ Technology, as well as our prosthetic urology franchise.
Neuromodulation
Our Neuromodulation business develops and manufactures devices to treat various neurological movement disorders and manage chronic pain. Net sales of Neuromodulation products of $256 million during the first quarter of 2024 represented 7 percent of our consolidated net sales. Neuromodulation net sales increased $22 million, or 9.5 percent during the first quarter of 2024, compared to the prior year period. During the first quarter of 2024, this increase included operational net sales growth of 9.8 percent and a negative impact of 30 basis points from foreign currency fluctuations, compared to the prior year period. Operational net sales growth included the positive impact of 1,120 basis points from our acquisition of Relievant in the fourth quarter of 2023 and a decline in organic net sales of 1.3 percent during the first quarter of 2024.
The decline in organic net sales was primarily driven by continued pressures on our U.S. spinal cord stimulation (SCS) business. This decline was partially offset by growth within our deep brain stimulation (DBS) franchise led by our Vercise Genus™ DBS System.
Cardiovascular
Cardiology
Our Cardiology business develops and manufactures devices and medical technologies for diagnosing and treating a variety of diseases and abnormalities of the heart. Net sales of Cardiology products of $1.872 billion during the first quarter of 2024 represented 49 percent of our consolidated net sales. Cardiology net sales increased $265 million, or 16.5 percent, during the first quarter of 2024, compared to the prior year period. During the first quarter of 2024, this increase included operational net sales growth of 17.9 percent and a negative impact of 140 basis points from foreign currency fluctuations, compared to the prior year period.
Operational net sales growth during the first quarter of 2024 was primarily driven by our continued market expansion of Left Atrial Appendage Closure (LAAC) procedures with our WATCHMAN FLX™ LAAC Device, as well as growth of our electrophysiology business, led by our Farapulse™ Pulsed Field Ablation System, our POLARx™ technologies and our access solutions portfolio, and our percutaneous coronary intervention guidance franchises.
Peripheral Interventions
Our Peripheral Interventions business develops and manufactures products to diagnose and treat peripheral arterial and venous diseases, as well as products to diagnose, treat and ease various forms of cancer. Net sales of Peripheral Interventions products of $573 million during the first quarter of 2024 represented 15 percent of our consolidated net sales. Peripheral Interventions net sales increased $70 million, or 13.9 percent, during the first quarter of 2024, compared to the prior year period. During the first quarter of 2024, this increase included operational net sales growth of 16.0 percent and a negative impact of 210 basis points from foreign currency fluctuations, compared to the prior year period. Operational net sales growth during the first quarter of 2024 included organic net sales growth of 11.3 percent and the positive impact of 460 basis points from our majority stake investment in Acotec which we acquired in the first quarter of 2023.
Organic net sales growth during the first quarter of 2024 was primarily driven by our interventional oncology franchise led by our Therasphere™ Y-90 Radioactive Glass Microspheres and EMBOLD™ Fibered Coil, as well as our drug-eluting portfolio within our vascular franchise led by our Ranger™ Drug Coated Balloon.
Emerging Markets
As part of our strategic imperative to drive global expansion, we are seeking to grow net sales and market share by expanding our global presence, including in Emerging Markets. Periodically, we assess our list of Emerging Markets countries, and effective January 1, 2023, modified our list to include all countries except the United States, Western and Central Europe, Japan, Australia, New Zealand and Canada.
Our Emerging Markets' net sales represented 17 percent of our consolidated net sales during the first quarter of 2024 and 16 percent during the first quarter of 2023, respectively. During the first quarter of 2024, our Emerging Markets net sales grew 22.6 percent on a reported basis, which included operational net sales growth of 28.2 percent and a negative impact of 550 basis points from foreign currency fluctuations, compared to the prior year period. Operational growth was driven primarily by growth in China, fueled by the breadth of our portfolio and focus on innovation and strong commercial execution.
Economic Environment
Our business has been impacted by global supply chain disruptions, which have improved in recent quarters, however challenges still exist. In particular, we have experienced, and may continue to experience, increases in cost and limited availability of certain raw materials, components, and other inputs necessary to manufacture and distribute our products due to constraints and inflation within the global supply chain, as well as increases in wage costs and the cost and time to distribute our products. Uncertainty around inflationary pressures, interest rates, monetary policy and changes in tax laws could potentially cause new, or exacerbate existing, economic challenges that we may face, including the impact of foreign currency fluctuations on our results of operations, or result in an economic downtown or recession, which could negatively impact our business operations and results. Existing and future potential geopolitical dynamics, including matters related to the Russia/Ukraine war, Israel/Hamas war, as well as tension in the Taiwan strait, may create economic, supply chain, energy, and other challenges, including disruptions to business operations, which impact, and may in the future negatively impact our business. In particular, international conflicts could create instability, have and may further result in sanctions, tariffs, and other measures that restrict international trade and may negatively affect our business operations and results.
Gross Profit
Our Gross profit was $2.648 billion for the first quarter of 2024 and $2.349 billion for the first quarter of 2023. As a percentage of net sales, our Gross profit decreased to 68.7 percent during the first quarter of 2024, compared to 69.3 percent in the first quarter of 2023. The following is a reconciliation of our gross profit margin and a description of the drivers of the changes from period to period:
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Percentage of Net Sales |
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Three Months |
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Gross profit margin - period ended March 31, 2023 |
69.3% |
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Sales pricing, volume and mix |
0.5 |
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Net impact of foreign currency fluctuations |
(0.3) |
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All other, including inventory charges and other period expenses |
(0.9) |
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Gross profit margin - period ended March 31, 2024 |
68.7% |
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The primary factors contributing to the decrease in our gross profit margin in the first quarter of 2024, as compared to the same period in the prior year, were inventory charges, period expenses and the unfavorable impact of foreign currency. These impacts were partially offset by increased sales of higher margin products.
Operating Expenses
The following table provides a summary of our key operating expenses:
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Three Months Ended March 31, |
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2024 |
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2023 |
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(in millions) |
$ |
% of Net Sales |
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$ |
% of Net Sales |
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Selling, general and administrative expenses |
$ |
1,364 |
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35.4 |
% |
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$ |
1,215 |
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35.9 |
% |
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Research and development expenses |
366 |
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9.5 |
% |
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337 |
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9.9 |
% |
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Selling, General and Administrative expenses (SG&A Expenses)
During the first quarter of 2024, SG&A expenses increased $149 million, or 12 percent, compared to the prior year period and were 50 basis points lower as a percentage of net sales. The increase in SG&A expenses was primarily due to higher selling costs driven by higher global net sales and costs to support recent and upcoming product launches, including the Farapulse™ Pulsed Field Ablation System.
Research and Development expenses (R&D Expenses)
We remain committed to advancing medical technologies and investing in meaningful R&D projects across our businesses. During the first quarter of 2024, R&D expenses increased $29 million, or 9 percent, compared to the prior year period and were 40 basis points lower as a percentage of net sales. R&D expenses increased as a result of investments across our businesses in order to maintain a pipeline of new products that we believe will contribute to profitable sales growth.
Other Operating Expenses
The following provides a summary of certain of our other operating expenses, which are excluded by management for purposes of evaluating operating performance; refer to Additional Information for a further description.
Amortization Expense
During the first quarter of 2024, Amortization expense increased $11 million, or 5 percent, compared to the prior year period. The increase in Amortization expense was driven by the addition of amortizable intangible assets associated with our recent acquisitions.
Contingent Consideration Net Expense (Benefit)
To recognize changes in the fair value of our contingent consideration liability, we recorded net charges of $17 million in the first quarter of 2024 and $12 million in the first quarter of 2023. The net charges recorded in the first quarter of 2024 related to an increase in expected payments for achievement of revenue-based earn outs as a result of over-performance. In addition, we made payments of $123 million and $68 million associated with prior acquisitions during the first quarter of 2024 and 2023, respectively, following the achievement of revenue-based earnouts. Refer to Note B – Acquisitions and Strategic Investments to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q for additional details related to our contingent consideration arrangements.
Restructuring and Restructuring-related Net Charges (Credits)
On February 22, 2023, our Board of Directors approved, and we committed to, a new global restructuring program (the 2023 Restructuring Plan). The 2023 Restructuring Plan will advance our Global Supply Chain Optimization strategy, which is intended to simplify our manufacturing and distribution network by transferring certain production lines among facilities and drive operational efficiencies and resiliency. Key activities under the 2023 Restructuring Plan will also include optimizing certain functional capabilities to achieve cost synergies and better support business growth. For more information, refer to 2023 Restructuring Plan contained in Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations of our most recent Annual Report on Form 10-K.
Pursuant to the 2023 Restructuring Plan, we recorded restructuring charges in accordance with FASB ASC Topic 420, Exit or Disposal Cost Obligations of $3 million in the first quarter of 2024. The restructuring reserve balance was $35 million as of March 31, 2024. In addition, we recorded restructuring-related charges of $43 million in the first quarter of 2024 primarily within Cost of products sold and SG&A Expenses. During the first quarter of 2023, we recorded restructuring charges of $20 million and restructuring-related charges of $24 million, and the restructuring reserve balance as of December 31, 2023 was $41 million.
Litigation-related Net Charges (Credits)
We did not record any litigation-related net charges (credits) during the first quarter of 2024 or 2023. We record certain legal and product liability charges, credits and costs of defense, which we consider to be unusual or infrequent and significant as Litigation-related net charges (credits) within our accompanying unaudited consolidated financial statements. All other legal and product liability charges, credits and costs are recorded within SG&A expenses.
We continue to assess certain litigation and claims to determine the amounts, if any, that management believes will be paid as a result of such claims and litigation, and therefore, additional losses may be accrued and paid in the future, which could materially adversely impact our operating results, cash flows and/or our ability to comply with the financial covenant required by our credit arrangements. Refer to Note H – Commitments and Contingencies to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q for discussion of our material legal proceedings.
Interest Expense
The following table provides a summary of our Interest expense and average borrowing rate:
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Three Months Ended March 31, |
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2024 |
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2023 |
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Interest expense (in millions) |
$ |
(69) |
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$ |
(65) |
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Average borrowing rate |
2.7 |
% |
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2.8 |
% |
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Interest expense increased during the first quarter of 2024 compared to the prior year period primarily due to increased debt from the registered public offering of €2.000 billion in aggregate principal amount of euro-denominated senior notes during the quarter. Our average borrowing rate remained flat during the first quarter of 2024 compared to the prior year period. Refer to Liquidity and Capital Resources and Note E – Contractual Obligations and Commitments to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q for more information regarding our debt obligations.
Tax Rate
Our effective tax rate from continuing operations is presented below:
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Three Months Ended March 31, |
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2024 |
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2023 |
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Effective tax rate from continuing operations |
18.9 |
% |
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29.4 |
% |
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Our reported tax rate is affected by recurring items such as the amount of our earnings subject to differing tax rates in foreign jurisdictions and the impact of certain receipts and charges that are taxed at rates that differ from our effective tax rate.
The principal reason for the difference between the statutory rate and our reported tax rate in the first quarter of 2024 primarily relates to certain charges for acquisition expenses as well as certain discrete benefits related to unrecognized tax benefits and stock-based compensation. In the first quarter of 2023, the primary difference between the statutory tax rate and our reported tax rate relates to certain discrete charges related to provision-to-return adjustments.
Effective January 1, 2024, many countries where we do business, including the United Kingdom, Japan, South Korea, and many EU member states, adopted a global minimum effective tax rate of 15% based on the Pillar Two framework issued by the Organization for Economic Cooperation and Development (OECD). Other countries where we do business are also actively considering adopting the framework or are in various stages of enacting the framework into their country’s laws. While the Company continues to monitor legislative adoption of the Pillar Two rules by country, as well as for additional guidance from the OECD, there is significant uncertainty that exists regarding the interpretation of the detailed Pillar Two rules, whether such rules will be implemented consistently across taxing jurisdictions, how such rules interact with existing national tax laws and whether such rules are consistent with existing tax treaty obligations. Although the current impact of the adoption of a global minimum effective tax on our financial statements is not material, it is possible that the final adoption, implementation, and interpretation of Pillar Two across all jurisdictions where we do business could have a material adverse impact on our financial position, results of operations, and cash flows.
Our operations presently benefit from various tax provisions of the Tax Cuts and Jobs act which are set to expire in 2025. If future legislation is unable to extend or modify these provisions, this could have a material adverse impact on our overall effective tax rate, financial condition, results of operations, and cash flows.
Critical Accounting Policies and Estimates
Our financial results are affected by the selection and application of accounting policies and methods. During the first quarter of 2024, there were no material changes to the application of critical accounting policies previously disclosed in our most recent Annual Report on Form 10-K.
Liquidity and Capital Resources
Based on our current business plan, we believe our existing balance of Cash and cash equivalents, future cash generated from operations, access to capital markets and existing credit facilities will be sufficient to fund our operations, invest in our infrastructure, pay our legal-related liabilities, pay taxes due, service and repay our existing debt and fund possible acquisitions for the next 12 months and for the foreseeable future.
As of March 31, 2024, we had $2.329 billion of unrestricted Cash and cash equivalents on hand, including approximately $89 million held by Acotec, a less than wholly owned entity of which we acquired a majority stake investment during the first quarter of 2023. The balance is comprised of $1.946 billion invested in money market funds and time deposits and $384 million in interest bearing and non-interest-bearing bank accounts. We invest excess cash on hand in short-term financial instruments that earn at market interest rates while mitigating principal risk through instrument and counterparty diversification, as well as what we believe to be prudent instrument selection. We limit our direct exposure to securities in any one industry or issuer.
In 2021, we entered into our $2.750 billion revolving credit facility (2021 Revolving Credit Facility) with a global syndicate of commercial banks initially scheduled to mature on May 10, 2026, with one-year extension options, subject to certain conditions. On March 1, 2023, we entered into an amendment of the 2021 Revolving Credit Facility, which provided for an extension of the scheduled maturity date to May 10, 2027 and replaced the London Interbank Offered Rate (LIBOR) with the Secured Overnight Financing Rate (SOFR) as the Eurocurrency Rate for Dollars, including applicable credit spread adjustments and relevant SOFR benchmark provisions, as well as modification to the calculation of consolidated Earnings Before Interest, Taxes, Depreciation and Amortization (EBITDA), described under Financial Covenant below. This facility provides backing for our commercial paper program, and outstanding commercial paper directly reduces borrowing capacity under the 2021 Revolving Credit Facility. There were no amounts outstanding under the 2021 Revolving Credit Facility or our commercial paper program as of March 31, 2024, resulting in an additional $2.750 billion of available liquidity.
For additional details related to our debt obligations, including our financial covenant requirement, refer to Note E – Contractual Obligations and Commitments to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q.
The following provides a summary and description of our net cash inflows (outflows):
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Three Months Ended March 31, |
(in millions) |
2024 |
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2023 |
Cash provided by (used for) operating activities |
$ |
164 |
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$ |
190 |
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Cash provided by (used for) investing activities |
(285) |
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(484) |
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Cash provided by (used for) financing activities |
1,569 |
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(69) |
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Operating Activities
During the first quarter of 2024, cash provided by (used for) operating activities decreased $27 million as compared to the prior year period primarily due to comparatively higher employee related payments and contingent consideration based payments, offset by higher sales and operating income.
Investing Activities
During the first quarter of 2024, cash provided by (used for) investing activities included net cash payments of $47 million for acquired businesses as well as purchases of property, plant and equipment and internal use software of $179 million. During the first quarter of 2023, cash used for investing activities included cash payments of $375 million, net of cash acquired, for the acquisition of a majority stake investment in Acotec, as well as purchases of property, plant and equipment and internal use software of $111 million. For more information on our acquisitions, refer to Note B – Acquisitions and Strategic Investments to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q.
Financing Activities
During the first quarter of 2024, cash provided by (used for) financing activities included a registered public offering (the Offering) of €2.000 billion in aggregate principal amount of euro-denominated senior notes (the 2024 Eurobonds). The Offering resulted in cash proceeds of $2.145 billion, net of investor discounts and issuance costs. We used the net proceeds from the Offering of the 2024 Eurobonds to fund the repayment at maturity of our 3.450% Senior Notes due March 2024 and to pay accrued and unpaid interest with respect to such notes. Additionally, we plan to use the remaining net proceeds from the Offering to fund a portion of the purchase price of our announced agreement to acquire Axonics Inc. (Axonics) and to pay related fees and expenses, and for general corporate purposes. If the Axonics acquisition is not consummated by the applicable outside date pursuant to the merger agreement or we choose to not pursue consummation of the acquisition, we will be required to redeem each series of the notes at a special mandatory redemption price equal to 101% of the aggregate principal amount of such series of notes, plus accrued and unpaid interest, if any, to, but excluding, the date on which the notes will be redeemed. For more information, refer to Note E – Contractual Obligations and Commitments to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q. Cash provided by (used for) financing activities in the first quarter of 2023 included cash used to net share settle employee equity awards of $50 million and proceeds from issuances of common stock pursuant to employee stock compensation and purchase plans of $63 million.
Financial Covenant
As of March 31, 2024, we were in compliance with the financial covenant required by the 2021 Revolving Credit Facility.
The 2021 Revolving Credit Facility includes the financial covenant requirement for all of our credit arrangements that we maintain the maximum permitted leverage ratio of 3.75 times for the remaining term. The credit agreement provides for higher leverage ratios, at our election, for the period following a Qualified Acquisition, as defined by the agreement, for which consideration exceeds $1.000 billion. In the event of such an acquisition, for the four succeeding quarters immediately following, including the quarter in which the acquisition occurs, the maximum permitted leverage ratio is 4.75 times. It steps down for the fifth, sixth and seventh succeeding quarters to 4.50 times, 4.25 times and 4.00 times, respectively. Thereafter, a maximum leverage ratio of 3.75 times is required through the remaining term of the 2021 Revolving Credit Facility. We have elected to designate the Axonics acquisition as a Qualified Acquisition under the credit agreement, and upon closing, will increase the maximum permitted leverage ratio at that time. The agreement also provides for an exclusion of any debt incurred to fund a Qualified Acquisition, until the earlier of the acquisition close date or date of abandonment, termination or expiration of the acquisition agreement. As of March 31, 2024, we excluded $2.138 billion of debt incurred from our leverage ratio calculation in connection with the Axonics acquisition. We believe that we have the ability to comply with the financial covenant for the next 12 months.
The financial covenant requirement, as amended on March 1, 2023, provides for an exclusion from the calculation of consolidated EBITDA, as defined by the credit agreement, through maturity, of certain charges and expenses. The credit agreement amendment reset the starting date for purposes of calculating such permitted exclusions in each case from March 31, 2021 to December 31, 2022. Permitted exclusions include any non-cash charges and up to $500 million in restructuring charges and restructuring-related expenses related to our current or future restructuring plans. As of March 31, 2024, we had $273 million of the restructuring charge exclusion remaining. In addition, any cash litigation payments (net of any cash litigation receipts), as defined by the agreement, are excluded from the calculation of consolidated EBITDA, as defined by the agreement, provided that the sum of any excluded net cash litigation payments do not exceed $1.000 billion plus all accrued legal liabilities as of December 31, 2022. As of March 31, 2024, we had $1.457 billion of the litigation exclusion remaining.
Contractual Obligations and Commitments
On January 8, 2024, we announced our entry into a definitive agreement to acquire 100 percent of Axonics, a publicly traded medical technology company primarily focused on the development and commercialization of devices to treat urinary and bowel dysfunction. The purchase price is $71.00 in cash per share, or approximately $3.670 billion. On April 3, 2024, we and Axonics each received a request for additional information (Second Request) from the United States Federal Trade Commission (FTC) in connection with the FTC's review of the transaction. The issuance of the Second Request extends the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act), until 30 days after both we and Axonics have substantially complied with the Second Request, unless the waiting period is extended voluntarily by the parties or terminated earlier by the FTC. We and Axonics expect to promptly respond to the Second Request and to continue to work cooperatively with the FTC in its review. The transaction is expected to be completed in the second half of 2024, subject to the expiration or termination of the waiting period under the HSR Act and the satisfaction (or waiver) of other customary closing conditions. The Axonics business will be integrated into our Urology division.
Certain of our acquisitions involve the payment of contingent consideration. Refer to Note B – Acquisitions and Strategic Investments to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q for further details regarding the estimated potential amount of future contingent consideration we could be required to pay associated with our acquisitions. There have been no other material changes to our contractual obligations and commitments as of March 31, 2024.
Equity
On June 1, 2023, in accordance with the terms of our MCPS, all outstanding shares of MCPS automatically converted into shares of common stock. No action by the holders of the MCPS was required in connection with the mandatory conversion. The conversion rate for each share of MCPS was 2.3834 shares of common stock. Cash was paid in lieu of fractional shares in accordance with the terms of the MCPS. An aggregate of approximately 24 million shares of common stock, including shares of common stock issued to holders of MCPS that elected to convert prior to the Mandatory Conversion Date, were issued upon conversion of the MCPS. Following the mandatory conversion of the MCPS, there were no outstanding shares of MCPS, resulting in the retirement of the annualized approximately $55 million cash dividend payment on the MCPS.
We received $80 million during the first quarter of 2024 and $63 million during the first quarter of 2023 in proceeds from stock issuances related to our stock option and employee stock purchase plans. Proceeds from the exercise of employee stock options and employee stock purchases vary from period to period based upon, among other factors, fluctuations in the trading price of our common stock and in the exercise and stock purchase patterns of our employees.
We did not repurchase any shares of our common stock during the first quarter of 2024 or 2023. On December 14, 2020, our Board of Directors approved a new stock repurchase program authorizing the repurchase of up to $1.000 billion of our common stock. As of March 31, 2024, we had the full amount remaining available under the authorization.
Legal Matters
For a discussion of our material legal proceedings refer to Note H – Commitments and Contingencies to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q and Note I – Commitments and Contingencies to our audited financial statements contained in Item 8 of our most recent Annual Report on Form 10-K.
Recent Accounting Pronouncements
Information regarding new accounting pronouncements implemented since December 31, 2023, and relevant accounting pronouncements to be implemented in the future are included in Note N – New Accounting Pronouncements to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q.
Additional Information
Corporate Responsibility
Our sustainable environmental, social and governance (ESG) practices underpin all aspects of our global business. Our approach is aligned with the United Nations Sustainable Development Goals and our material topics and practices are informed by a broad range of internal and external stakeholders – locally, nationally and globally. Our employees around the world work with suppliers and other organizations that share our commitment to these practices that help address issues related to health inequity, economic disparity, climate change and environmental protection. Our global ESG vision and strategy is led by our ESG Executive Steering Committee and our vice president of ESG, who provides regular updates to our Board of Directors. Our ESG team works closely with subject matter experts and key advisors from across the business to implement our ESG practices and determine how we measure and share progress. These efforts are supported by our cross-functional teams, our Environmental Health and Safety teams and policies, our Global Council for Inclusion, as well as our local, regional and national employee and community engagement programs. Since 2021, our annual bonus plan has included performance measures for certain ESG goals. For additional information on our sustainability efforts, as well as our Diversity, Equity and Inclusion initiatives, refer to our most recent Annual Report on Form 10-K. For additional information on our annual bonus plan, refer to our Proxy Statement for the 2024 Annual Meeting of Shareholders.
Cybersecurity
We have established controls and procedures to escalate enterprise level issues, including cybersecurity matters, to the appropriate management levels within our organization and our Board of Directors, or members or committees thereof, as appropriate. Under our framework, cybersecurity issues, including those involving vulnerabilities introduced by our use of third-party software, are analyzed by subject matter experts, including a crisis committee as needed in accordance with our incident response plans, for potential financial, operational, and reputational risks, based on, among other factors, the nature of the matter and breadth of impact. Matters determined to present potential material impacts to our financial results, operations, and/or reputation are immediately reported by management to the Board of Directors, or individual members or committees thereof, as appropriate, in accordance with our established escalation framework. In addition, we have established procedures to help ensure that members of management responsible for overseeing the effectiveness of disclosure controls are informed in a timely manner of known cybersecurity risks and incidents that may materially impact our operations and that timely public disclosure is made, as appropriate. For additional information on our risk management, strategy and governance around cybersecurity, refer to Part I, Item 1C. Cybersecurity in our most recent Annual Report on Form 10-K.
Stock Trading Policy
Our directors and executive officers are subject to our Stock Trading Policy, which is designed to facilitate compliance with insider trading laws and governs transactions in our common stock and related derivative securities. Our policy designates certain regular periods, dictated by release of financial results, in which trading is restricted for individuals in information-sensitive positions, including directors and executive officers. In addition, additional periods of trading restriction may be imposed as determined by the President and Chief Executive Officer, General Counsel, or Chief Financial Officer in light of material pending developments. Further, during permitted windows, certain individuals in information-sensitive positions are required to seek pre-clearance for trades from the General Counsel, who assesses whether there are any important pending developments which need to be made public before the individual may participate in the market.
Periodically, certain of our executive officers adopt written stock trading plans in accordance with Rule 10b5-1 under the Exchange Act and our own Stock Trading Policy. A Rule 10b5-1 trading plan is a written document that pre-establishes the amount, prices and dates (or formulas for determining the amounts, prices and dates) of future purchases or sales of our stock, including shares issued upon exercise of stock options or vesting of restricted stock units. These plans are entered into at a time when the person is not in possession of material non-public information about the Company. In addition to any plans described in Part II, Item 5 of this Quarterly Report on Form 10-Q, we disclose details regarding individual Rule 10b5-1 trading plans on the Investor Relations section of our website.
Use of Non-GAAP Financial Measures
To supplement our unaudited consolidated financial statements presented on a GAAP basis, we disclose certain non-GAAP financial measures, including adjusted net income (loss), adjusted net income (loss) attributable to Boston Scientific common stockholders and adjusted net income (loss) per share (EPS) that exclude certain charges (credits); operational net sales, which exclude the impact of foreign currency fluctuations; and organic net sales, which exclude the impact of foreign currency fluctuations as well as the impact of acquisitions and divestitures with less than a full period of comparable net sales. These non-GAAP financial measures are not in accordance with GAAP and should not be considered in isolation from or as a replacement for the most directly comparable GAAP financial measures. Further, other companies may calculate these non-GAAP financial measures differently than we do, which may limit the usefulness of those measures for comparative purposes.
To calculate adjusted net income (loss), adjusted net income (loss) attributable to Boston Scientific common stockholders and adjusted net income (loss) per share, we exclude certain charges (credits) from GAAP net income and GAAP net income attributable to Boston Scientific common stockholders, which include amortization expense, goodwill and other intangible asset impairment charges, acquisition/divestiture-related net charges (credits), investment portfolio net losses (gains) and impairments, restructuring and restructuring-related net charges (credits), certain litigation-related net charges (credits), EU MDR implementation costs, debt extinguishment net charges, deferred tax expenses (benefits) and certain discrete tax items. Amounts are presented after-tax using our effective tax rate, unless the amount is a significant unusual or infrequently occurring item in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 740-270-30, “General Methodology and Use of Estimated Annual Effective Tax Rate.” Please refer to Part II, Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations in our most recent Annual Report filed on Form 10-K filed with the Securities and Exchange Commission for an explanation of each of these adjustments and the reasons for excluding each item.
The GAAP financial measures most directly comparable to adjusted net income (loss), adjusted net income (loss) attributable to Boston Scientific common stockholders and adjusted net income (loss) per share are GAAP net income (loss), GAAP net income (loss) attributable to Boston Scientific common stockholders and GAAP net income (loss) per common share – diluted, respectively.
To calculate operational net sales growth rates, which exclude the impact of foreign currency fluctuations, we convert actual net sales from local currency to U.S. dollars using constant foreign currency exchange rates in the current and prior periods. To calculate organic net sales growth rates, we also remove the impact of acquisitions and divestitures with less than a full period of comparable net sales. The GAAP financial measure most directly comparable to operational net sales and organic net sales is net sales reported on a GAAP basis.
Reconciliations of each of these non-GAAP financial measures to the corresponding GAAP financial measure are included in the relevant sections of this Quarterly Report on Form 10-Q.
Management uses these supplemental non-GAAP financial measures to evaluate performance period over period, to analyze the underlying trends in our business, to assess our performance relative to our competitors and to establish operational goals and forecasts that are used in allocating resources. In addition, management uses these non-GAAP financial measures to further its understanding of the performance of our operating segments. The adjustments excluded from our non-GAAP financial measures are consistent with those excluded from our operating segments’ measures of net sales and profit or loss. These adjustments are excluded from the segment measures reported to our chief operating decision maker that are used to make operating decisions and assess performance.
We believe that presenting adjusted net income (loss), adjusted net income (loss) attributable to Boston Scientific common stockholders, adjusted net income (loss) per share, operational net sales and organic net sales growth rates, in addition to the corresponding GAAP financial measures, provides investors greater transparency to the information used by management for its operational decision-making and allows investors to see our results “through the eyes” of management. We further believe that providing this information assists our investors in understanding our operating performance and the methodology used by management to evaluate and measure such performance.
Safe Harbor for Forward-Looking Statements
Certain statements that we may make from time to time, including statements contained in this Quarterly Report on Form 10-Q and information incorporated by reference herein, constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements may be identified by words like “anticipate,” “expect,” “project,” “believe,” “plan,” “estimate,” “intend,” “aim,” "goal," "target," "continue," "hope," "may" and similar words. These forward-looking statements are based on our beliefs, assumptions and estimates using information available to us at the time and are not intended to be guarantees of future events or performance. If our underlying assumptions turn out to be incorrect, or if certain risks or uncertainties materialize, actual results could vary materially from the expectations and projections expressed or implied by our forward-looking statements.
The forward-looking statements in this Quarterly Report on Form 10-Q are based on certain risks and uncertainties, including the risk factors described in Part I, Item 1A. Risk Factors in our most recent Annual Report on Form 10-K and the specific risk factors discussed herein and in connection with forward-looking statements throughout this Quarterly Report on Form 10-Q, which could cause actual results to vary materially from the expectations and projections expressed or implied by our forward-looking statements. These risks and uncertainties, in some cases, have affected and in the future could affect our ability to implement our business strategy and may cause actual results to differ materially from those contemplated by the statements expressed in this Quarterly Report on Form 10-Q. As a result, readers are cautioned not to place undue reliance on any of our forward-looking statements. Risks and uncertainties that may cause such differences include, among other things: economic conditions, including the impact of foreign currency fluctuations, future U.S. and global political, competitive, reimbursement and regulatory conditions; geopolitical events; manufacturing, distribution and supply chain disruptions and cost increases; disruptions caused by cybersecurity events; disruptions caused by public health emergencies or extreme weather or other climate change-related events; labor shortages and increases in labor costs; variations in outcomes of ongoing and future clinical trials and market studies; new product introductions and the market acceptance of those products; market competition for our products; expected pricing environment; expected procedural volumes; the closing and integration of acquisitions; demographic trends; intellectual property rights; litigation; financial market conditions; the execution and effect of our restructuring program; the execution and effect of our business strategy, including our cost-savings and growth initiatives; our ability to achieve environmental, social and governance goals and commitments; and future business decisions made by us and our competitors. New risks and uncertainties may arise from time to time and are difficult to predict. All of these factors are difficult or impossible to predict accurately and many of them are beyond our control. For a further list and description of these and other important risks and uncertainties that may affect our future operations, refer to Part I, Item 1A. Risk Factors in our most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission, which we may update in Part II, Item 1A. Risk Factors in subsequent Quarterly Reports on Form 10-Q that we will file hereafter. We disclaim any intention or obligation to publicly update or revise any forward-looking statement to reflect any change in our expectations or in events, conditions, or circumstances on which those expectations may be based, or that may affect the likelihood that actual results will differ from those contained in the forward-looking statements, except as required by law. This cautionary statement is applicable to all forward-looking statements contained in this Quarterly Report.
The following are some of the important risk factors that could cause our actual results to differ materially from our expectations in any forward-looking statements. For further discussion of these and other risk factors, refer to Part I, Item 1A. Risk Factors in our most recent Annual Report on Form 10-K.
Our Business
•Risks associated with challenging or uncertain domestic and international economic conditions, including those related to interest rates, inflation, supply chain disruptions and constraints, adverse developments and volatility in the banking industry, currency devaluations or economies entering into periods of recession,
•The impact of disruptions in the supply of the materials and components used in manufacturing our products or the sterilization of our products,
•Labor shortages and the impact of inflation on the cost of raw materials and direct labor,
•The impact of any future pandemics or other public health crises on worldwide economies, financial markets, manufacturing and distribution systems, including disruption in the manufacture or supply of certain components, materials or products, and business operations,
•The impact of natural disasters, climate change or other catastrophic events on our ability to manufacture, distribute and sell our products,
•The impact of competitive offerings, value-based procurement practices, government-imposed payback provisions and changes in reimbursement practices and policies on average selling prices for our products,
•The ongoing impact on our business of physician alignment to hospitals, governmental investigations and audits of hospitals and other market and economic conditions on the overall number of procedures performed,
•The performance of, and physician and patient confidence in, our products and technologies or those of our competitors,
•The impact and outcome of ongoing and future clinical trials and market studies undertaken by us, our competitors or other third parties or perceived product performance of our or our competitors' products,
•Variations in clinical results, reliability or product performance of our and our competitors' products,
•Our ability to acquire or develop, launch and supply new or next-generation products and technologies worldwide and in line with our commercialization strategies in a timely and successful manner and with respect to our recent acquisitions,
•The effect of consolidation and competition in the markets in which we do business or plan to do business,
•Our ability to achieve our projected level or mix of product sales, as some of our products are more profitable than others,
•Our ability to attract and retain talent, including key personnel associated with acquisitions, and to maintain our corporate culture in a hybrid work environment,
•The impact of enhanced requirements to obtain and maintain regulatory approval in the U.S. and around the world, including EU MDR and the associated timing and cost of product approval,
•The impact of increased pressure on the availability and rate of third-party reimbursement for our products and procedures in the U.S. and around the world, including with respect to the timing and costs of creating and expanding markets for new products and technologies,
•The issuance of new or revised accounting standards by the Financial Accounting Standards Board or the Securities and Exchange Commission, and
•The impact of potential goodwill and intangible asset impairment charges on our results of operations.
Regulatory Compliance, Litigation and Data Protection
•The impact of health care policy changes and legislative or regulatory efforts in the U.S., the EU and around the world to modify product approval or reimbursement processes, including a trend toward demonstrating clinical outcomes, comparative effectiveness and cost efficiency, as well as the impact of other health care reform legislation,
•Risks associated with our regulatory compliance and quality systems and activities in the U.S., the EU and around the world, including meeting regulatory standards applicable to manufacturing and quality processes,
•The effect of global legal, regulatory or market responses to climate change and sustainability matters, including increased compliance burdens and costs to meet regulatory obligations,
•Our ability to minimize or avoid future field actions or FDA warning letters relating to our products and processes and the ongoing inherent risk of potential physician advisories related to our or our competitors' products,
•The impact of increased scrutiny of and heightened global regulatory enforcement facing the medical device industry arising from political and regulatory changes, economic pressures or otherwise, including under U.S. Anti-Kickback Statute, U.S. False Claims Act and similar laws in other jurisdictions, U.S. Foreign Corrupt Practices Act (FCPA) and similar laws in other jurisdictions, and U.S. and foreign export control, trade embargo and customs laws,
•Costs and risks associated with current and future asserted litigation,
•The effect of our litigation and risk management practices, including self-insurance and compliance activities on our loss contingencies, legal provisions and cash flows,
•The impact of, diversion of management attention as a result of, and costs to cooperate with, litigate and/or resolve governmental investigations and our class action, product liability, contract and other legal proceedings,
•The possibility of failure to protect our intellectual property rights and the outcome of patent litigation,
•Our ability to secure our information technology and operational technology systems that support our business operations and protect our data integrity and products from a cyber-attack or other breach that may have a material adverse effect on our business, reputation or results of operations including increased risks as an indirect result of the ongoing Russia/Ukraine war and Israel/Hamas war, and
•The potential impact to internal control over financial reporting relating to potential restrictions to access to consigned inventory at customer locations for our inventory count procedures.
Innovation and Certain Growth Initiatives
•The timing, size and nature of our strategic growth initiatives and market opportunities, including with respect to our internal research and development platforms and externally available research and development platforms and technologies and the ultimate cost and success of those initiatives and opportunities,
•Our ability to complete planned clinical trials successfully, obtain regulatory approvals and launch new and next generation products in a timely manner consistent with cost estimates, including the successful completion of projects from in-process research and development,
•Our ability to identify and prioritize our internal research and development project portfolio and our external investment portfolio on profitable net sales growth opportunities as well as to maintain the estimated timing and costs of such projects and expected revenue levels for the resulting products and technologies,
•Our ability to develop, manufacture and market new products and technologies successfully and in a timely manner and the ability of our competitors and other third parties to develop products or technologies that render our products or technologies noncompetitive or obsolete,
•Our ability to execute appropriate decisions to discontinue, write-down or reduce the funding of any of our research and development projects, including projects from in-process research and development from our acquisitions, in our growth adjacencies or otherwise,
•Our dependence on acquisitions, alliances or investments to introduce new products or technologies and to enter new or adjacent growth markets and our ability to fund them or to fund contingent payments with respect to those acquisitions, alliances and investments, and
•The potential failure to successfully integrate, collaborate or realize the expected benefits, including cost synergies, from strategic acquisitions, alliances and investments we have consummated or may consummate in the future.
International Markets
•Our dependency on international net sales to achieve growth, and our ability to maintain or expand our worldwide market positions in the various markets in which we compete or seek to compete, including through investments in China and other Emerging Markets countries,
•The timing and collectability of customer payments, as well as our ability to continue factoring customer receivables where we have factoring arrangements, or to enter new factoring arrangements with favorable terms,
•The impact on pricing due to national and regional tenders, including value-based procurement practices and government-imposed payback provisions,
•Geopolitical and economic conditions, including civil unrest, terrorist activity, governmental changes, restrictions on the ability to transfer capital across borders, tariffs and other protectionist measures,
•The impact of the Russia/Ukraine war, Israel/Hamas war and tension in the Taiwan strait, and related, downstream effects thereof, including disruptions to operations or the impact of sanctions on U.S. manufacturers doing business in these regions,
•Protection of our intellectual property,
•Our ability to comply with established and developing U.S. and foreign legal and regulatory requirements, including FCPA, EU MDR and similar laws in other jurisdictions,
•Our ability to comply with U.S. and foreign export control, trade embargo and customs laws,
•The impact of significant developments or uncertainties stemming from changes in the U.S. government following the 2024 presidential and congressional elections, including changes in U.S. trade policies, tariffs and the reaction of other countries thereto, particularly China, and
•The potential effect of foreign currency fluctuations and interest rate fluctuations on our net sales, operating expenses and resulting profit margins.
Liquidity
•Our ability to generate sufficient cash flow to fund operations, capital expenditures, global expansion initiatives, any litigation settlements and judgments, share repurchases and strategic investments and acquisitions as well as maintaining our investment grade ratings and managing our debt levels and financial covenant compliance,
•Our ability to access the public and private capital markets when desired and to issue debt or equity securities on terms reasonably acceptable to us,
•The unfavorable resolution of open tax matters, exposure to additional tax liabilities and the impact of changes in U.S. and international tax laws,
•The unfavorable resolution of open litigation matters, exposure to additional loss contingencies and legal provisions,
•The impact of examinations and assessments by domestic and international taxing authorities on our tax provisions, financial condition or results of operations,
•The possibility of counterparty default on our derivative financial instruments, and
•Our ability to collect outstanding and future receivables and/or sell receivables under our factoring programs.
Cost Reduction and Optimization Initiatives
•Risks associated with changes made or expected to be made to our organizational and operational structure, pursuant to our restructuring plans as well as any further restructuring or optimization plans we may undertake in the future and our ability to recognize benefits and cost reductions from such programs, and
•Business disruption and employee distraction as we execute our global compliance program, restructuring and optimization plans and any divestitures of assets or businesses and implement our other strategic and cost reduction initiatives.
ITEM 3.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We develop, manufacture and sell medical devices globally and our earnings and cash flows are exposed to market risk from changes in currency exchange rates and interest rates. We address these risks through a risk management program that includes the use of derivative financial instruments. We operate the program pursuant to documented corporate risk management policies. We do not enter derivative transactions for speculative purposes. Gains and losses on derivative financial instruments substantially offset losses and gains on underlying hedged exposures. Furthermore, we manage our exposure to counterparty risk on derivative instruments by entering into contracts with a diversified group of major financial institutions and by actively monitoring outstanding positions.
Our currency risk consists primarily of foreign currency denominated firm commitments, forecasted foreign currency denominated intercompany and third-party transactions and net investments in certain subsidiaries. We use both nonderivative (primarily European manufacturing operations) and derivative instruments to manage our earnings and cash flow exposure to changes in currency exchange rates. We had currency derivative instruments outstanding in the contract amount of $5.957 billion as of March 31, 2024 and $5.899 billion as of December 31, 2023. A ten percent appreciation in the U.S. dollar’s value relative to the hedged currencies would increase the derivative instruments’ fair value by $271 million as of March 31, 2024 compared to $236 million as of December 31, 2023. A ten percent depreciation in the U.S. dollar’s value relative to the hedged currencies would decrease the derivative instruments’ fair value by $331 million as of March 31, 2024 compared to $288 million as of December 31, 2023. Any increase or decrease in the fair value of our currency exchange rate sensitive derivative instruments would be substantially offset by a corresponding decrease or increase in the fair value of the hedged underlying asset, liability or forecasted transaction, resulting in minimal impacts on our unaudited consolidated statements of operations.
Our interest rate risk relates primarily to U.S. dollar and euro-denominated borrowings partially offset by U.S. dollar cash investments. We have historically used interest rate derivative instruments to manage our earnings and cash flow exposure to changes in interest rates. We had no interest rate derivative instruments outstanding as of March 31, 2024 or December 31, 2023. As of March 31, 2024, $10.690 billion in aggregate principal amount of our outstanding debt obligations was at fixed interest rates, representing approximately 100 percent of our total debt, on an amortized cost basis. As of March 31, 2024, our outstanding debt obligations at fixed interest rates were comprised of senior notes.
Refer to Note D – Hedging Activities and Fair Value Measurements to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q for further information regarding our derivative financial instruments.
ITEM 4.CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
Our management, with the participation of our Chief Executive Officer (CEO) and Executive Vice President and our Chief Financial Officer (CFO), evaluated the effectiveness of our disclosure controls and procedures as of March 31, 2024 pursuant to Rule 13a-15(b) of the Securities Exchange Act of 1934, as amended. Disclosure controls and procedures are designed to ensure that material information required to be disclosed by us in the reports that we file or submit under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms and ensure that such material information is accumulated and communicated to our management, including our CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure. Based on their evaluation, our CEO and CFO concluded that, as of March 31, 2024, our disclosure controls and procedures were effective.
Changes in Internal Control over Financial Reporting
During 2022, we began a multi-year implementation of a new global enterprise resource planning (ERP) system, which will replace our existing system. The implementation is expected to occur in phases over the next several years. The portion of the transition to the new ERP system which we have completed to date resulted in changes in our internal control over financial reporting in 2023. No changes occurred during the first quarter of 2024. As future phases are implemented, we expect the changes to have a material impact on our internal controls over financial reporting and we will evaluate whether these process changes necessitate further changes in the design of and testing for effectiveness of internal controls over financial reporting.
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Refer to Note H – Commitments and Contingencies to our unaudited consolidated financial statements contained in Item 1 of Part I of this Quarterly Report on Form 10-Q, which is incorporated herein by reference.
ITEM 1A. RISK FACTORS
In addition to other information contained elsewhere in this report, you should carefully consider the factors discussed in Part I, Item 1A. Risk Factors in our most recent Annual Report on Form 10-K, which could materially affect our business, financial condition or future results.
ITEM 5. OTHER INFORMATION
(c)
On February 20, 2024, Vance R. Brown, our Senior Vice President, General Counsel and Corporate Secretary entered into a trading plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c). Mr. Brown’s plan covers the sale of 33,043 shares to be acquired upon exercise of stock options. Transactions under Mr. Brown’s plan are based upon pre-established dates and stock price thresholds and will only occur upon the expiration of the applicable mandatory cooling-off period. Mr. Brown’s plan will terminate on the earlier of December 31, 2024, or the date all shares subject to the plan have been sold.
On February 21, 2024, Daniel Brennan, our Executive Vice President and Chief Financial Officer, entered into a trading plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c). Mr. Brennan’s plan covers the sale of 112,075 shares of our common stock, including 64,454 shares to be acquired upon exercise of stock options. Transactions under Mr. Brennan’s plan are based upon pre-established dates and stock price thresholds and will only occur upon the expiration of the applicable mandatory cooling-off period. Mr. Brennan’s plan will terminate on the earlier of December 31, 2024, or the date all shares subject to the plan have been sold.
On February 26, 2024, Jonathan Monson, our prior Senior Vice President, Global Controller and Chief Accounting Officer until March 1, 2024, entered into a trading plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c). Mr. Monson’s plan covers the sale of 16,082 shares of our common stock, including 10,000 shares to be acquired upon exercise of stock options. Transactions under Mr. Monson’s plan are based upon pre-established dates and stock price thresholds and will only occur upon the expiration of the applicable mandatory cooling-off period. Mr. Monson’s plan will terminate on the earlier of February 1, 2025, or the date all shares subject to the plan have been sold.
On February 28, 2024, Jeffrey B. Mirviss, our Senior Vice President and President, Peripheral Interventions, entered into a trading plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c). Mr. Mirviss’ plan covers the sale of up to 88,888 shares of our common stock, including up to 25,086 shares to be acquired upon determination and/or vesting of performance share units and restricted share units and 33,726 shares to be acquired upon exercise of stock options. Transactions under Mr. Mirviss’ plan are based upon pre-established dates and stock price thresholds and will only occur upon the expiration of the applicable mandatory cooling-off period. Mr. Mirviss’ plan will terminate on the earlier of February 21, 2025, or the date all shares subject to the plan have been sold.
On February 28, 2024, Michael F. Mahoney, our Chairman and Chief Executive Officer, entered into a trading plan intended to satisfy the affirmative defense conditions of Rule 10b5-1(c). Mr. Mahoney’s plan covers the sale of 488,332 shares of our common stock, including 335,659 shares to be acquired upon exercise of stock options. Transactions under Mr. Mahoney’s plan are based upon pre-established dates and stock price thresholds and will only occur upon the expiration of the applicable mandatory cooling-off period. Mr. Mahoney’s plan will terminate on the earlier of November 8, 2024, or the date all shares subject to the plan have been sold.
ITEM 6. EXHIBITS (* documents filed or furnished with this report; # compensatory plans or arrangements)
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4.1 |
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4.2 |
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10.1* |
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10.2* |
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10.3* |
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10.4* |
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22* |
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31.1* |
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31.2* |
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32.1* |
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32.2* |
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101.SCH* |
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Inline XBRL Taxonomy Extension Schema Document. |
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101.CAL* |
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Inline XBRL Taxonomy Extension Calculation Linkbase Document. |
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101.DEF* |
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Inline XBRL Taxonomy Extension Definition Linkbase Document. |
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101.LAB* |
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Inline XBRL Taxonomy Extension Label Linkbase Document. |
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101.PRE* |
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Inline XBRL Taxonomy Extension Presentation Linkbase Document. |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document and contained in Exhibit 101). |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized on May 1, 2024.
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BOSTON SCIENTIFIC CORPORATION
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By: |
/s/ Daniel J. Brennan |
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Name: |
Daniel J. Brennan |
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Title: |
Executive Vice President and Chief Financial Officer |
EX-10.1
2
exhibit101-bscx2024grantxn.htm
EX-10.1
Document
Exhibit 10.1
Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan
Global Non-Qualified Stock Option Agreement
This Global Non-Qualified Stock Option Agreement (the “Agreement”), is between you and Boston Scientific Corporation, a Delaware corporation, (the “Company”) in connection with the Non-Qualified Stock Option Award granted to you by the Committee under the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Plan”). This Agreement sets forth the terms and conditions relating to your Stock Option pursuant to the Plan. Capitalized terms used but not defined in this Agreement shall have the same meaning as assigned to them in the Plan. The applicable terms and conditions of the Plan are incorporated into and made a part of this Agreement.
1. Grant of Stock Option. The Committee hereby grants you a Stock Option to purchase that number of shares of Stock set forth in your Equity Award and Acceptance Summary (the “Option Shares”) at the price set forth herein (the “Grant Price”). The Grant Price is equal to the Fair Market Value of the Company’s Stock on the Grant Date.
2. Term and Vesting of Stock Option. Except as otherwise provided in Section 4 below, your Stock Option shall have a term of ten (10) years from date of grant until the “Expiration Date” and shall vest in accordance with the vesting schedule. If the Expiration Date falls on a date on which the New York Stock Exchange is closed for trading, the Expiration Date shall be the trading day immediately prior to the Expiration Date.
3. Exercise of Stock Option.
(a) While this Stock Option remains exercisable, you may exercise any vested portion of the Option Shares by delivering to the Company or its designee, in the form and at the location specified by the Company, notice stating your intent to exercise a specified number of Option Shares and payment of the full Grant Price for the specified number of Option Shares. Payment in full for the Option Shares being exercised may be paid in such manner as the Committee may specify from time to time, in its sole discretion, including, but not limited to the following: (i) in cash, (ii) by certified check or bank draft payable in U.S. dollars (US$) to the order of the Company, (iii) in whole or in part in shares of Stock owned by you, valued at Fair Market Value, or (iv) if available to you, via cashless exercise, by which you deliver to your securities broker instructions to sell a sufficient number of shares of Stock to cover the Grant Price for the Option Shares, any applicable tax obligations and the brokerage fees and expenses associated therewith. Notwithstanding the foregoing, if you reside in a country where the local laws and/or regulations preclude the remittance of currency out of the country for purposes of paying the Grant Price for the Option Shares being exercised, require the Company, its Affiliates and/or you to secure any legal or regulatory approvals or complete any legal or regulatory filings, or undertake any additional steps for remitting currency out of the country, the Company may restrict the method of exercise to a form of cashless exercise (either a cashless “sell all” exercise and/or a cashless “sell to cover” exercise) as it shall determine in its sole discretion.
The exercise date applicable to your exercise of the specified number of Option Shares pursuant to this Section 3 will be deemed to be the date on which the Company receives your irrevocable commitment to exercise the Option Shares in writing, subject to your payment in full of the Option Shares to be exercised within 10 (ten) days of the notice of exercise of the Option Shares to be exercised. The notice and payment in full of the Option Shares being exercised, must be received by the Company or its designee on or prior to the last day of the Stock Option term, as set forth in Section 2 above, except as provided in Section 4 below.
Upon the Company’s determination that there has been a valid exercise of the Option Shares, the Company shall issue certificates in accordance with the terms of this Agreement or cause the Company’s transfer agent to make the necessary book entries for the shares of Stock subject to the exercised Option Shares. However, the Company shall not be liable to you, your personal representative or your successor(s)-in-interest for damages relating to any delays in issuing the certificates or in making book entries, any loss of the certificates, or any mistakes or errors in the issuance of the certificates or in making book entries, or in the certificates themselves.
(b) Notwithstanding Section 3(a), you acknowledge that, except as otherwise determined by the Committee, any portion of the Option that has vested and is after vested, exercisable and outstanding on the Expiration Date (or, if earlier, the last trading day of the term of the Stock Option in the event that your employment terminates due to Retirement and not for other reasons) (the “Automatic Exercise Date”) shall be deemed to have been exercised automatically by you at such time without any further action by you, provided (i) you have accepted the Option and this Agreement under the procedures specified by the Administrator from time to time, (ii) the Fair Market Value of one share of Stock exceeds the Grant Price per share of Stock by at least one dollar (or such other minimum value as the Administrator may determine from time to time upon notice to you in advance of the Automatic Exercise Date), and (iii) the Option remains outstanding on the last day of its full term. An exercise pursuant to this Section 3(b) shall be made through a “net exercise” procedure pursuant to which the Company shall deliver to you the number of shares of Stock for which the Option was deemed exercised, less the number of Shares sufficient to pay the total Grant Price and, unless otherwise determined by the Company, any withholding for Tax-Related Items (as defined in Section 10 of this Agreement).
4. Termination of Employment.
(a) In the event that your employment terminates due to death or Disability (as such term is defined in the Plan or determined under local law, as applicable), all remaining unexercised portion(s) of your Stock Option shall immediately vest and become exercisable by you or your appointed representative, as the case may be, until the expiration of the term of the Stock Option or such other term as the Committee may determine at or after grant, provided that such exercise period does not extend beyond the original term of the Stock Option.
(b) Provided that you have remained in continuous service with the Company or an Affiliate through the first anniversary of the Grant Date, in the event your employment terminates due to Retirement, all remaining unexercised portion(s) of your Stock Option shall immediately vest and become exercisable by you until the Expiration Date or such other term as the Committee may determine at or after grant, provided that such exercise period does not extend beyond the original Expiration Date of the Stock Option. For purpose of this Section 4, a “Retirement” shall not include (i) a termination of your employment for Cause (as defined in Section 5 of this Agreement), as determined in the sole discretion of the Company or (ii) a resignation by you after being notified that the entity that employs you has elected to terminate your employment for Cause.
(c) In the event that your employment terminates due to Retirement prior to the first anniversary of the Grant Date, the Option Shares shall immediately be forfeited in their entirety.
(d) Upon termination of your employment for reasons other than for Cause (as defined in Section 5 of this Agreement), death, Disability or Retirement, you shall have the shorter of (i) one (1) year from the date of termination and (ii) the remaining term of the Stock Option to exercise all vested Option Shares. Immediately upon termination of your employment for reasons other than for Cause, death, Disability or Retirement, all unvested Option Shares shall be forfeited; provided, however, that the Committee, in its sole discretion, may extend the exercise period and/or accelerate vesting of any unvested Option Shares (provided that such exercise period does not extend beyond the original term of the Stock Option). Your termination date shall be the last day of your active service with the Company or an Affiliate (if applicable).
(e) Any unexercised Option Shares (whether vested or unvested) shall be cancelled and forfeited immediately upon notice to you of your termination for Cause (as defined in Section 5 of this Agreement).
(f) The Option Shares, to the extent unexercised on the date following the end of any period described above or the term of the Stock Option set forth above in Section 2, shall thereupon be forfeited.
(g) Notwithstanding anything to the contrary in the Plan or the Agreement, and for purposes of clarity, any termination of employment shall be effective as of the date your active employment ceases and shall not be extended by any statutory or common law notice of termination period.
(h) Any one of your permitted transferee(s) (pursuant to Section 9 below) shall receive the rights herein granted subject to the terms and conditions of this Agreement and any applicable Addendum. No transfer of this Stock Option shall be approved and effected by the Administrator unless (i) the Administrator shall have been timely furnished with written notice of such transfer and any copies of such notice as the Committee may deem, in its sole discretion, necessary to establish the validity of the transfer; (ii) the transferee or transferees shall have agreed in writing to be bound by the terms and conditions of this Agreement and any applicable Addendum; and (iii) such transfer complies with applicable laws and regulations.
(i) If you are a resident or employed in a country that is a member of the European Union, the grant of the Stock Option and this Agreement are intended to comply with the age discrimination provisions of the EU Equal Treatment Framework Directive, as implemented into local law (the “Age Discrimination Rules”). To the extent that a court or tribunal of competent jurisdiction determines that any provision of the Stock Option is invalid or unenforceable, in whole or in part, under the Age Discrimination Rules, the Company, in its sole discretion, shall have the power and authority to revise or strike such provision to the minimum extent necessary to make it valid and enforceable to the full extent permitted under local law.
(j) If you reside or work in a country where the local foreign exchange rules and regulations require the repatriation of sale proceeds, the Company may require you to sell any Option Shares you acquire under the Plan immediately or within a specified period following your termination of employment (in which case, this Agreement shall give the Company the authority to issue sales instructions on your behalf).
5. Definition of “Cause”.
(a) For purposes of this Agreement, “Cause” shall mean termination of your employment by the entity that employs you as a result of the occurrence of any of the following, as determined by the Company in its sole discretion:
(i)your violation of the Company’s Code of Conduct or your violation of any written policy of the Company;
(ii)your breach of your Agreement Concerning Employment, if any, or any other written agreement between you and the Company or the entity that employs you (if different);
(iii)your commission of an act of fraud, embezzlement, dishonesty or theft in connection with your duties or in the course of your employment;
(iv)your engaging in any gross or willful misconduct that causes harm, or is likely to cause harm, to the Company’s business or its reputation;
(v)your being charged with, convicted of, or pleading guilty or no contest to, any felony or any other crime involving dishonesty or moral turpitude; or
(vi)your failure to substantially perform the essential duties of your employment (other than such failure resulting from your Retirement, Death or Disability as set forth in Section 4 of this Agreement).
6. Change in Control. To the extent that you have not entered into a Change in Control Agreement with the Company and except as the Administrator (as defined in the Plan) may otherwise determine, immediately prior to a Change in Control (as defined in the Plan), any unvested portion of the Stock Option shall vest and become exercisable. In addition, the Stock Option shall terminate immediately prior to the Change in Control unless the Stock Option is exercised coincident therewith or assumed in accordance with the immediately following sentence. If there is a surviving or acquiring entity, the Administrator may provide for a substitution or assumption of the Stock Option by the acquiring or surviving entity or an affiliate thereof, on such terms as the Administrator determines. If there is no surviving or acquiring entity, or if the Administrator does not provide for a substitution or assumption of the Stock Option, any unvested portion of the Stock Option shall vest and become exercisable on a basis that gives you a reasonable opportunity to participate as a stockholder in the Change in Control. If you have entered into a Change in Control agreement with the Company, the Stock Option will vest according to the provisions of the Change in Control agreement.
7. Recoupment Policies.
(a) Executive Committee Recoupment Policy. Pursuant to the Company’s recoupment policy and to the extent permitted by governing law, the Board, in its discretion, may seek Recovery of the Award granted to you if you are a Current Executive Committee Member or Former Executive Committee Member and, in the judgment of the Board, you, while serving in such capacity as a Current Executive Committee Member, commit misconduct or a gross dereliction of duty that results in a material violation of Company policy and causes significant harm to the Company.
(i) Definitions. The following terms, when used in this Section 7, shall have the meaning set forth below:
(1) “Current Executive Committee Member” means any individual currently designated as a corporate officer of the Company who is in an organizational job level of E-4 or E-5 (or any equivalent level under any future organizational framework).
(2) “Former Executive Committee Member” means any individual previously (but not currently) designated as a corporate officer of the Company who was in an organizational job level of E-4 or E-5 (or any equivalent level under any future organizational framework).
(3) “Recovery” means the forfeiture or cancellation of unexercised Stock Options, whether vested or unvested.
(b) Other Compensation Recoupment Authority. The Stock Option and any compensation associated therewith and any proceeds therefrom are subject to forfeiture, recovery by the Company or other action pursuant to any compensation recovery policy (i) in effect as of the Grant Date, as such policy may be amended from time to time, which includes but is not limited to the Company’s Dodd-Frank Clawback Policy and (ii) any other compensation recovery policy adopted after the Grant Date to facilitate compliance with applicable law, including in response to the requirements of Section 10D of the Exchange Act, the U.S. Securities and Exchange Commission’s final rules thereunder, and any applicable listing rules or other rules and regulations implementing the foregoing.
(c) Instructions to Brokerage Firm. For purposes of Sections 7(a) and 7(b) of this Agreement, you expressly and explicitly authorize the Company to issue instructions, on your behalf, to any brokerage firm and/or third party administrator engaged by the Company to hold any shares of Stock and other amounts acquired pursuant to the Stock Option to re-convey, transfer or otherwise return such shares of Stock and/or other amounts to the Company upon the Company’s enforcement of the Company’s recoupment policy, the Company’s Dodd-Frank Clawback Policy and any other compensation recovery policy adopted by the Board or the Committee.
(d) No Constructive Termination. No recovery of compensation as described in this Section 7 will be an event giving rise to your right to resign for “good reason” or “constructive termination” (or similar term) under any plan of, or agreement with, the Company and/or an Affiliate and you.
8. Restrictions on Shares; Legend on Certificate. Shares of Stock issued to you in certificate form or to your book entry account upon exercise of the Stock Option may be restricted from transfer or sale by the Company and evidenced by stop-transfer instructions upon your book entry account or restricted legend(s) affixed to certificates in the form as the Company or its counsel may require with respect to any applicable restrictions on sale or transfer.
9. Transferability. Except as required by law, you shall not sell, transfer, assign, pledge, gift, hypothecate or otherwise dispose of the Stock Option granted under this Agreement other than by will or the laws of descent and distribution or without payment of consideration to your Family Members or to trusts or other entities for the benefit of your Family Members. During your lifetime, the Stock Option is exercisable only by you, subject to Section 4 above.
10. Satisfaction of Tax Obligations. Regardless of any action the Company or the Affiliate that employs you (the “Employer”) (if applicable) takes with respect to any or all income tax (including U.S. federal, state and local taxes and/or non-U.S. taxes), social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you acknowledge and agree that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that the Company and/or the Employer (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Stock Option, including the grant of the Stock Option, the vesting of the Stock Option, the exercise of the Stock Option, the subsequent sale of any shares of Stock acquired upon exercise of the Stock Option and the receipt of any dividends, and (b) do not commit to structure the terms of the grant or any aspect of the Stock Option to reduce or eliminate your liability for Tax-Related Items.
Prior to the delivery of shares of Stock upon exercise of the Stock Option, if your country of residence (and/or the country of employment, if different) requires withholding of Tax-Related Items, the Company may withhold a sufficient whole number of shares of Stock otherwise issuable upon exercise of the Stock Option that has an aggregate Fair Market Value sufficient to pay the Tax-Related Items required to be withheld with respect to the shares of Stock, or to the extent it would not result in adverse accounting treatment, the Company may, in its sole discretion, withhold shares of Stock based on a rate of up to the maximum applicable withholding rate. If the obligation for Tax-Related Items is satisfied by withholding shares of Stock to be issued upon exercise of the Stock Option, for tax purposes, you are deemed to have been issued the full number of shares of Stock subject to the Stock Option, notwithstanding that a number of shares of Stock are withheld solely for the purpose of paying the Tax-Related Items. You will have no further rights with respect to any shares of Stock that are retained by the Company pursuant to this provision. By accepting the Stock Option, you expressly consent to the withholding of shares of Stock as provided for hereunder.
Alternatively, you hereby authorize the Company (on your behalf and at your direction pursuant to this authorization) to immediately sell a sufficient whole number of shares of Stock acquired upon exercise resulting in sale proceeds sufficient to pay the Tax-Related Items required to be withheld. You agree to sign any agreements, forms and/or consents that reasonably may be requested by the Company (or the Company’s designated brokerage firm) to effectuate the sale of the shares of Stock (including, without limitation, as to the transfer of the sale proceeds to the Company to satisfy the Tax-Related Items required to be withheld). Further, the Company or the Employer may, in its discretion, withhold any amount necessary to pay the Tax-Related Items from your salary or any other amounts payable to you, with no withholding of shares of Stock or sale of shares of Stock, or may require you to submit a cash payment equivalent to the Tax-Related Items required to be withheld with respect to the exercised Stock Option.
All other Tax-Related Items related to the Stock Option and any shares of Stock delivered in payment thereof are your sole responsibility. In no event, shall whole shares of Stock be withheld by or delivered to the Company in satisfaction of any Tax-Related Items in excess of the maximum statutory tax withholding required by law. You agree to indemnify the Company and its Affiliates against any and all liabilities, damages, costs and expenses that the Company and its Affiliates may hereafter incur, suffer or be required to pay with respect to the payment or withholding of any Tax-Related Items.
The Stock Option is intended to be exempt from the requirements of Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). The Plan and this Agreement shall be administered and interpreted in a manner consistent with this intent. If the Company determines that the Agreement is subject to Code Section 409A and that it has failed to comply with the requirements of that Section, the Company may, in its sole discretion, and without your consent, amend this Agreement to cause it to comply with Code Section 409A or be exempt from Code Section 409A.
11. Repatriation and Legal/Tax Compliance Requirements. If you are a resident or employed outside of the United States, you agree to repatriate all payments attributable to the shares of Stock and/or cash acquired under the Plan (including, but not limited to, dividends and any proceeds derived from the sale of the shares of Stock acquired pursuant to the Stock Option) in accordance with local foreign exchange rules and regulations in your country of residence (and country of employment, if different). In addition, you agree to take any and all actions, and consent to any and all actions taken by the Company and the Employer, as may be required to allow the Company and the Employer to comply with local laws, rules and regulations in your country of residence (and country of employment, if different). Finally, you agree to take any and all actions as may be required to comply with your personal legal and tax obligations under local laws, rules and regulations in your country of residence (and country of employment, if different).
12. Data Privacy. You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this Agreement and any other Stock Option grant materials by and among, as applicable, the Employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company and the Employer may hold certain personal information about you, including (but not limited to) your name, home address, email address and telephone number, date of birth, social insurance, passport or other identification number (e.g., resident registration number), salary, nationality, job title, any shares of Stock or directorships held in the Company, and details of all Stock Options awarded to you or any other entitlements to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor (“Data”) for the purpose of implementing, managing and administering the Plan.
You understand that Data may be transferred to any third parties assisting the Company with the implementation, administration and management of the Plan, including but not limited to Morgan Stanley Smith Barney LLC and its affiliates (“Morgan Stanley”) or any successor or any other third party that the Company or Morgan Stanley (or its successor) may engage to assist with the administration of the Plan from time to time. You understand the recipients of the Data may be located in your country, in the United States or elsewhere, and that the recipients’ country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative.
You authorize the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of Stock acquired upon exercise of the Stock Option. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consent herein, in any case without cost, by contacting in writing your local human resources representative. Further, you understand that you are providing the consent herein on a purely voluntary basis. If you do not consent, or if you later revoke your consent, your employment status or service with the Employer will not be adversely affected; the only consequence of refusing or withdrawing your consent is that the Company would not be able to grant you Stock Options or other equity awards or administer or maintain such awards. Therefore, you understand that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
13. Nature of Grant. By participating in the Plan, you acknowledge, understand and agree that:
(a)the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Administrator at any time, to the extent permitted by the Plan;
(b)the grant of the Stock Option is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants or benefits in lieu of Stock Options, even if Stock Options have been granted in the past;
(c)all decisions with respect to future grants of Stock Options, if any, will be at the sole discretion of the Administrator;
(d)the Stock Option grant and your participation in the Plan shall not create a right to employment or be interpreted as forming an employment or service contract with the Company, the Employer or Affiliate and shall not interfere with the ability of the Company, the Employer or any Affiliate, as applicable, to terminate your employment or service relationship (if any);
(e)you are voluntarily participating in the Plan;
(f)the Stock Option is not intended to replace any pension rights or compensation;
(g)the Stock Option, the shares of Stock subject to the Stock Option, and the income and value of same are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, holiday pay, pension or retirement or welfare benefits or similar payments;
(h)the future value of the shares of Stock subject to the Stock Option is unknown, indeterminable and cannot be predicted with certainty;
(i)no claim or entitlement to compensation or damages shall arise from (i) the forfeiture of the Stock Option resulting from the termination of your employment or other service relationship (for any reason and whether or not in breach of local labor laws and whether or not later found to be invalid) and/or (ii) the forfeiture or cancellation of the Stock Option and/or recoupment of any shares of Stock, cash, or other benefits acquired under the Plan resulting from the application of the Company’s recoupment policies contemplated under Section 7 of this Agreement;
(j)unless otherwise agreed with the Company in writing, the Stock Option, the shares of Stock subject to the Stock Option, and the income from and value of same are not granted as consideration for, or in connection with, any service you may provide as a director of an Affiliate;
(k)for purposes of the Stock Option, your employment or other service relationship will be considered terminated as of the date you are no longer actively providing services to the Company or one of its Affiliates (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any), and unless otherwise expressly provided in this Agreement or determined by the Company, the period (if any) during which you may exercise the Option will commence as of such date and will not be extended by any notice period mandated under employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any; the Administrator shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of the Stock Option grant (including whether you may still be considered to be providing services while on an approved leave of absence); and
(l)the following provisions apply only if you are providing services outside the United States: (A) the Stock Option, the shares of Stock subject to the Stock Option, and the income from and value of same are not part of normal or expected compensation or salary for any purpose; and (B) neither the Company, the Employer nor any Affiliate shall be liable for any foreign exchange rate fluctuation between your local currency and the U.S. dollar that may affect the value of the Stock Option or of any amount due to you pursuant to the exercise of the Stock Option or the subsequent sale of any shares of Stock acquired upon exercise.
14. Securities Laws. Upon the acquisition of any shares of Stock pursuant to the exercise of the Stock Option, you will make or enter into such written representations, warranties and agreements as the Company may reasonably request in order to comply with applicable securities laws or with the Plan.
15. Not a Public Offering. Neither the grant of the Stock Option under the Plan nor the issuance of the underlying shares of Stock upon exercise of the Stock Option is intended to be a public offering of securities in your country of residence (and country of employment, if different). The Company has not submitted any registration statement, prospectus or other filings to the local securities authorities unless otherwise required under local law.
16. No Advice Regarding Grant. No Employee of the Company is permitted to advise you regarding whether you should purchase shares of Stock under the Plan. Investment in shares of Stock involves a degree of risk. Before deciding to purchase shares of Stock pursuant to the Stock Option, you should carefully consider all risk factors relevant to the acquisition of shares of Stock under the Plan, and you should carefully review all of the materials related to the Stock Option and the Plan. You are hereby advised to consult with your own personal tax, legal and financial advisors before taking any action related to the Plan.
17. Insider Trading Restrictions/Market Abuse Laws. You acknowledge that, depending on your or your broker’s country of residence or where the shares of Stock are listed, you may be subject to insider trading restrictions and/or market abuse laws which may affect your ability to accept, acquire, sell or otherwise dispose of shares of Stock, rights to those shares of Stock (e.g., Stock Options) or rights linked to the value of shares of Stock (e.g., phantom awards, futures) during such times you are considered to have “inside information” regarding the Company, as defined in the laws or regulations in your country. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed insider information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Keep in mind that third parties include fellow employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. You acknowledge that it is your responsibility to comply with any restrictions and are advised to speak to a personal advisor on this matter.
18. Electronic Delivery of Documents. The Company may, in its sole discretion, deliver any documents related to the Stock Option and participation in the Plan, or future grants of Stock Options that may be granted under the Plan, by electronic means unless otherwise prohibited by local law. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party-designated by the Company.
19. Language. If you are resident outside of the United States, you hereby acknowledge and agree that it is your express intent that this Agreement and any applicable Addendum, the Plan and all other documents, notices and legal proceedings entered into, given or instituted pursuant to the Stock Option, be drawn up in English. You acknowledge that you are proficient in the English language and understand the terms of this Agreement or have had the ability to consult with an advisor who is sufficiently proficient in the English language. If you have received this Agreement and any applicable Addendum, the Plan or any other documents related to the Stock Option translated into a language other than English, and if the meaning of the translated version is different than the English version, the English version will control.
20. Addendum. Notwithstanding any provision of this Agreement to the contrary, the Stock Option shall be subject to any special terms and conditions for your country of residence (and country of employment, if different) as are forth in the applicable addendum to the Agreement (the “Addendum”). Further, if you transfer your residence and/or employment to another country reflected in the Addendum to this Agreement, the special terms and conditions for such country will apply to you to the extent the Company determines, in its sole discretion, that the application of such terms and conditions is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan (or the Company may establish alternative terms and conditions as may be necessary or advisable to accommodate your transfer). Any applicable Addendum shall constitute part of this Agreement.
21. Additional Requirements. The Administrator reserves the right to impose other requirements on the Stock Option, any shares of Stock acquired pursuant to the Stock Option and your participation in the Plan to the extent the Administrator determines, in its sole discretion, that such other requirements are necessary or advisable in order to comply with local laws or to facilitate the administration of the Plan. Such requirements may include (but are not limited to) requiring you to sign any agreements or undertakings that may be necessary to accomplish the foregoing.
22. Legal Notices. Any legal notice necessary under this Agreement shall be addressed to the Company in care of its Secretary at the principal executive office of the Company and to you at the address appearing in the personnel records of the Company for you or to either party at such other address as either party may designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
23. Choice of Law and Venue. The interpretation, performance and enforcement of this Agreement shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflicts of laws principles) and applicable federal laws. For purposes of litigating any dispute under the Agreement, including the Addendum, the parties hereby submit to and consent to the exclusive jurisdiction of The Commonwealth of Massachusetts and agree that such litigation shall be conducted only in the courts of Boston or the federal courts for the United States for the District of Massachusetts, and no other courts where the grant of the Stock Option is made and/or to be performed.
24. Award Subject to Plan; Conflicts. The Stock Option granted pursuant to this Agreement and any applicable Addendum is subject to the Plan. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. This Agreement contains terms and provisions established by the Committee specifically for the grant described herein. Unless the Committee has exercised its authority under the Plan to establish specific terms of an Award, the terms of the Plan shall govern. Subject to the limitations set forth in the Plan, the Committee retains the right to alter or modify the Stock Option granted under this Agreement as the Committee may determine are in the best interests of the Company. You hereby accept the Stock Option subject to all the terms and provisions of the Plan and this Agreement and agree that all decisions under, and interpretations of, the Plan and this Agreement by the Administrator, Committee or the Board shall be final, binding and conclusive upon you and your heirs and legal representatives.
25. Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement.
26. Severability. You agree that the provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable
27. Waiver. You understand that the waiver by the Company with respect to your compliance of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach of a provision of this Agreement.
28. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Company, by its duly authorized officer, and the Optionee have executed and delivered this Agreement effective as of the date and year first above written.
BOSTON SCIENTIFIC CORPORATION
Michael F. Mahoney
President and Chief Executive Officer
BOSTON SCIENTIFIC CORPORATION
ADDENDUM TO THE AWARD AGREEMENT
RELATING TO NON-QUALIFIED STOCK OPTIONS GRANTED
PURSUANT TO THE
AMENDED AND RESTATED 2011 LONG-TERM INCENTIVE PLAN
In addition to the terms of the Plan and the Agreement, the Stock Option is subject to the following additional terms and conditions. All defined terms contained in this Addendum shall have the same meaning as set forth in the Plan and the Agreement. Pursuant to Section 20 of the Agreement, if you transfer your residence and/or employment to another country reflected in an Addendum, the additional terms and conditions for such country (if any) will apply to you to the extent the Company determines, in its sole discretion, that the application of such terms and conditions is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan (or the Company may establish alternative terms and conditions as may be necessary or advisable to accommodate your transfer).
EUROPEAN UNION (“EU”) / EUROPEAN ECONOMIC AREA (“EEA”), UNITED KINGDOM AND SWITZERLAND
Personal Data. This provision replaces Section 12 of the Agreement:
Pursuant to applicable personal data protection laws, the Company and the Employer hereby notify you of the following in relation to your Personal Data (defined below) and the collection, processing and transfer in electronic or other form of such Personal Data in relation to the grant of the Stock Option and your participation in the Plan. The collection, processing and transfer of your Personal Data is necessary for the legitimate purpose of the Company and the Employer’s administration of the Plan and your participation in the Plan, and your denial and/or objection to the collection, processing and transfer of Personal Data may affect your participation in the Plan. As such, by accepting the Award, you acknowledge the collection, use, processing and transfer of Personal Data as described herein.
You understand that the Company and the Employer hold certain personally identifiable information about you, specifically, your name, home address and telephone number, date of birth, social security number or other employee identification number, salary, nationality, job title, any shares of Stock or directorships held in the Company, details of all Stock Options or
any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of managing and administering the Plan (“Personal Data”). The Personal Data may be provided by you to or collected, where lawful, from third parties. The Company or the Employer each act as controllers of the Personal Data and will process the Personal Data in this context for the exclusive legitimate purpose of implementing, administering and managing your participation in the Plan and meeting related legal obligations associated with these actions.
The processing will take place through electronic and non-electronic means according to logics and procedures correlated to the purposes for which the Personal Data was collected and with confidentiality and security provisions as set forth by applicable laws and regulations. Personal Data will be accessible within the Company’s organization only by those persons requiring access for purposes of the implementation, administration and operation of the Plan and other aspects of the employment relationship and for participation in the Plan.
The Company and the Employer will transfer Personal Data amongst themselves as necessary for the purpose of implementation, administration and management of your participation in the Plan, and the Company and the Employer may each further transfer Personal Data to third parties assisting the Company or the Employer in the implementation, administration and management of the Plan, including Morgan Stanley Smith Barney LLC and its affiliates or any successor or other third party that the Company, the Employer or Morgan Stanley Smith Barney LLC and its affiliates (or its successor) may engage to assist with the administration of the Plan from time to time. These recipients may be located in the EU/EEA, the United Kingdom, Switzerland or elsewhere throughout the world, such as the United States. By participating in the Plan, you understand that these recipients may receive, possess, use, retain and transfer the Personal Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Personal Data as may be required for the administration of the Plan and/or the subsequent holding of shares of Stock on your behalf to a broker or other third party with whom you may elect to deposit any shares of Stock acquired pursuant to the Plan. You further understand that you may request a list with the names and addresses of any potential recipients of your Personal Data by contacting your local Human Resources manager or the Company’s Human Resources Department. When transferring Personal Data to these potential recipients, the Company and the Employer provide appropriate safeguards in accordance with EU Standard Contractual Clauses or other legally binding and permissible arrangements. You may request a copy of such safeguards from your local human resources manager or the Company’s Human Resources Department.
To the extent provided by law, you may, at any time, have the right to request: access to Personal Data, rectification of Personal Data, erasure of Personal Data, restriction of processing of Personal Data, and portability of Personal Data. You may also have the right to object, on grounds related to a particular situation, to the processing of Personal Data, as well
as opt-out of the Plan herein, in any case without cost, by contacting in writing your Human Resources manager. Your provision of Personal Data is a contractual requirement. You understand, however, that the only consequence of refusing to provide Personal Data is that the Company may not be able to grant the Stock Option to you, or grant other equity awards or administer or maintain such equity awards. For more information on the consequences of your refusal to provide Personal Data, you understand that you may contact your local human resources manager or the Company’s Human Resources Department.
When the Company and the Employer no longer need to use Personal Data for the purposes above or do not need to retain it for compliance with any legal or regulatory purpose, each will take reasonable steps to remove Personal Data from their systems and/or records containing the Personal Data and/or take steps to properly anonymize it so that you can longer be identified from it.
ARGENTINA
Type of Offering. Neither the grant of the Stock Option, nor the issuance of shares of Stock subject to the grant, constitutes a public offering.
AUSTRALIA
Securities Notification. You understand that the grant of the Stock Option pursuant to the Plan in Australia is being made under Division 1A of Part 7.12 of the Corporations Act 2001 (Cth). Please note that if you offer shares of Stock acquired under the Plan for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. You should obtain legal advice on your disclosure obligations prior to making any such offer. Participation in the Plan is subject to the terms and conditions set forth in the Australian ESS Offer Document, (which is attached hereto as Annex I), the Plan and the Agreement.
Breach of Law. Notwithstanding anything to the contrary in the Agreement or the Plan, you will not be entitled to, and shall not claim any benefit (including without limitation a legal right) under the Plan if the provision of such benefit would give rise to a breach of Part 2D.2 of the Corporations Act 2001 (Cth), any other provision of that Act, or any other applicable statute, rule or regulation which limits or restricts the giving of such benefits.
AUSTRIA
No country-specific provisions.
BELGIUM
Acceptance of Stock Option. In order for the Stock Option to be subject to taxation at the time of grant, you must affirmatively accept the Stock Option in writing within 60 days after the offer date by signing below and returning this original executed Addendum to:
Boston Scientific
Green Square
Lambroekstraat 5D
1831 Diegem
Belgium
Attn.: Nathalie Derue
I hereby accept ________ (number) Option Shares underlying the Stock Option granted to me by the Company on the Grant Date.
The undersigned acknowledges that he/she has been encouraged to discuss this matter with a financial and/or tax advisor and that this decision is made in full knowledge.
Employee Signature: _______________________________
Employee Printed Name: _______________________________
Date of Acceptance: _______________________________
If you fail to affirmatively accept the Stock Option in writing within 60 days after the offer date, the Stock Option will not be subject to taxation at the time of grant but instead will be subject to taxation on the date you exercise the Stock Option (or such other treatment as may apply under Belgian tax law at the time of exercise).
Undertaking for Qualifying Option. If you are accepting the Stock Option in writing within 60 days after the offer date and wish to have the Stock Option subject to a lower valuation for Belgium tax purposes pursuant to the article 43, §6 of the Belgian law of 26 March 1999, you may agree and undertake to (a) not exercise the Stock Option before the end of the third calendar year following the calendar year in which the offer date falls, and (b) not transfer the Stock Option under any circumstances (except upon on rights your heir might have in the Stock Option upon your death). If you wish to make this undertaking, you must sign below and return this executed Addendum to the address listed above.
Employee Signature: _______________________________
Employee Printed Name: _______________________________
BRAZIL
Compliance with Law. By accepting the Stock Option, you acknowledge that you agree to comply with applicable Brazilian laws and to pay any and all applicable taxes associated with the Stock Option, the receipt of any dividends, and the sale of shares of Stock acquired under the Plan.
Labor Law Policy and Acknowledgement. This provision supplements Section 13 of the Agreement:
By accepting the Stock Option, you agree that (i) the benefits provided under the Agreement and the Plan are the result of commercial transactions unrelated to your employment; (ii) the Agreement and the Plan are not a part of the terms and conditions of your employment; and (iii) the income from the Stock Option, if any, is not part of your remuneration from employment.
CANADA
Use of Previously Owned Shares. Notwithstanding any provision in Section 3 of the Agreement or the Plan to the contrary, if you are resident in Canada, you may not use previously-owned shares of Stock to pay the Grant Price or any Tax-Related Items in connection with the Stock Option.
Personal Data. This provision supplements Section 12 of the Agreement:
You hereby authorize the Company and the Company’s representatives to discuss with and obtain all relevant information from all personnel, professional or not, involved in the administration and operation of the Plan. You further authorize the Company, any Affiliate and the Administrator to disclose and discuss the Plan with their advisors. You further authorize the Company and any Affiliate to record such information and to keep such information in your employee file.
Securities Law Information. You are permitted to sell shares of Stock acquired under the Plan through the designated broker appointed under the Plan, if any, provided that the sale of shares of Stock takes place outside Canada through the facilities of a stock exchange on which the shares of Stock are listed (i.e., the New York Stock Exchange).
Tax Information. All or a portion of the shares of Stock subject to the Stock Option may be “non-qualified securities” within the meaning of the Income Tax Act (Canada).
Nature of Grant. The following provision supplements Section 13(k) of the Agreement:
For purposes of the Stock Options, your employment or service relationship will be considered terminated as of the earliest of: (a) the date that your employment or service relationship with the Company or one of its Affiliates is terminated; (b) the date that you receive a notice of termination of employment or service; and (c) the date upon which you cease to actively provide services, regardless of any period during which notice, pay in lieu of notice or related payments or damages are provided or required to be provided under local law. You will not earn or be entitled to any pro-rated vesting for that portion of time before the date on which your right to vest terminates, nor will you be entitled to any compensation for lost vesting. The Administrator shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of the Stock Option grant (including whether you may still be considered to be providing services while on a leave of absence). Notwithstanding the foregoing, if applicable employment legislation
explicitly requires continued entitlement to vesting during a statutory notice period, your right to vest in the Stock Options, if any, will terminate effective as of the last date of the minimum statutory notice period, but you will not earn or be entitled to pro-rated vesting if the vesting date falls after the end of your statutory notice period, nor will you be entitled to any compensation for lost vesting.
French Language Documents. The following provision will apply if you are a resident of Quebec:
A French translation of this Agreement and certain other documents related to the Stock Option will be made available to you as soon as reasonably practicable. You understand that, from time to time, additional information related to the Stock Option may be provided in English and such information may not be immediately available in French. However, upon request, the Company will provide a translation of such information into French as soon as reasonably practicable. Notwithstanding anything to the contrary in the Agreement, and unless you indicate otherwise, the French translation of this Agreement and certain other documents related to the Stock Option will govern your participation in the Plan.
CHILE
Securities Law Information. The offer of the Stock Option constitutes a private offering of securities in Chile effective as of the Grant Date. This offer of the Stock Option is made subject to general ruling N° 336 of the Commission for the Financial Market (Comisión para el Mercado Financiero, “CMF”). The offer refers to securities not registered at the securities registry or at the foreign securities registry of the CMF, and, therefore, such securities are not subject to oversight of the CMF. Given that the Stock Option is not registered in Chile, the Company is not required to provide public information about the Stock Option or the shares of Stock in Chile. Unless the Stock Option and/or the shares of Stock are registered with the CMF, a public offering of such securities cannot be made in Chile.
Esta oferta de opción sobre acciones (“Opción”) constituye una oferta privada de valores en Chile y se inicia en la Fecha de la Concesión. Esta oferta de Opción se acoge a las disposiciones de la Norma de Carácter General Nº 336 (“NCG 336”) de la Comisión para el Mercado Financiero de Chile (“CMF”). Esta oferta versa sobre valores no inscritos en el Registro de Valores o en el Registro de Valores Extranjeros que lleva la CMF, por lo que tales valores no están sujetos a la fiscalización de ésta. Por tratarse los Opciónes de valores no registrados en Chile, no existe obligación por parte de la Compañía de entregar en Chile información pública respecto de los Opciónes or sus Acciones. Estos valores no podrán ser objeto de oferta pública en Chile mientras no sean inscritos en el Registro de Valores correspondiente.
CHINA
The following provisions govern your participation in the Plan if you are a national of the People’s Republic of China (“China”) resident in mainland China, as determined by the Company in its sole discretion:
Mandatory Cashless Sell-All Exercise. As permitted under Section 3 of the Agreement and unless and until the Committee determines otherwise, the method of exercise of the Stock Option shall be limited to mandatory cashless, sell-all exercise.
Limitations on Exercisability Following Termination of Employment. Notwithstanding any provision in the Agreement or the Plan to the contrary, in the event your employment terminates for any reason, your Stock Option will no longer be exercisable after the earlier of: (i) the period set forth in Section 4 of the Agreement; (ii) the last day of the 90 day period beginning on the date of termination of employment (or such earlier date as may be required by China State Administration of Foreign Exchange (“SAFE”)); and (iii) the Expiration Date specified in Section 2 of the Agreement.
Exchange Control Restrictions. You understand and agree that, pursuant to local exchange control requirements, you will be required immediately to repatriate to China the proceeds from the sale of any shares of Stock acquired under the Plan. You further understand that such repatriation of proceeds may need to be effected through a special bank account established by the Company or its Affiliate, and you hereby consent and agree that proceeds from the sale of shares of Stock acquired under the Plan may be transferred to such account by the Company on your behalf prior to being delivered to you and that no interest shall be paid with respect to funds held in such account. The proceeds may be paid to you in U.S. dollars or local currency at the Company’s discretion. If the proceeds are paid to you in U.S. dollars, you understand that a U.S. dollar bank account in China must be established and maintained so that the proceeds may be deposited into such account. If the proceeds are paid to you in local currency, you acknowledge that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions. You agree to bear any currency fluctuation risk between the time the shares of Stock are sold and the net proceeds are converted into local currency and distributed to you.
You further agree to comply with any other requirements that may be imposed by the Company and its Affiliates in the future in order to facilitate compliance with exchange control requirements in China.
Administration. The Company shall not be liable for any costs, fees, lost interest or dividends or other losses you may incur or suffer resulting from the enforcement of the terms of this Addendum or otherwise from the Company’s operation and enforcement of the Plan, the Agreement and the Award in accordance with Chinese law including, without limitation, any applicable SAFE rules, regulations and requirements.
The above requirements will not apply to non-Chinese nationals, unless otherwise required by the Company or by SAFE.
BY ELECTRONICALLY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THE PLAN, THE AGREEMENT AND THIS ADDENDUM.
COLOMBIA
Nature of Grant. This provision supplements Section 13 of the Agreement:
You acknowledge that, pursuant to Article 128 of the Colombian Labor Code, the Plan and related benefits do not constitute a component of your “salary” for any legal purpose. Therefore, they will not be included and/or considered for purposes of calculating any and all labor benefits, such as legal/fringe benefits, vacations, indemnities, payroll taxes, social insurance contributions and/or any other labor-related amount which may be payable.
Securities Law Information. The shares of Stock are not and will not be registered with the Colombian registry of publicly held securities (Registro Nacional de Valores y Emisores) and, therefore, the shares of Stock may not be offered to the public in Colombia. Nothing in the Agreement should be construed as making a public offer of securities in Colombia.
COSTA RICA
No country-specific provisions.
CZECH REPUBLIC
No country-specific provisions.
DENMARK
Treatment of Stock Option Upon Termination of Employment. Notwithstanding any provisions in the Agreement to the contrary, the treatment of the Stock Option upon your termination of employment shall be governed by the Danish Act on the Use of Rights to Purchase or Subscribe for Shares etc. in Employment Relationships (the “Stock Option Act”), as in effect at the time of your termination of employment (as determined by the Administrator, in its discretion, in consultation with legal counsel). You acknowledge having received an “Employer Information Statement” in Danish, which is being provided to comply with the Stock Option Act.
EGYPT
No country-specific provisions.
FINLAND
No country-specific provisions.
FRANCE
Nature of the Award. The Stock Option is not granted under the French specific regime provided by Articles L. 225-177 and seq. or L. 22-10-59 and L. 22-10-60 of the French commercial code, as amended.
Use of English Language. You acknowledge and agree that it is your express wish that this Agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Vous reconnaissez et consentez que c’est votre souhait exprès qui cet accord, de meme que tous documents, toutes notifications et tous procédés légaux est entré dans, donné ou instituté conformément ci-annexé ou relatant directement ou indirectement ci-annexé, est formulé dans l’anglais.
GERMANY
Exchange Control Information. Cross-border payments in in excess of EUR 12,500 must be reported to the German Federal Bank (Bundesbank). If you make or receive a payment in excess of this amount (including if you acquire shares of Stock with a value in excess of this amount or sell shares of Stock via a foreign broker, bank or service provider and receive proceeds in excess of this amount) and/or if the Company withholds shares of Stock with a value in excess of EUR 12,500 to recover Tax-Related Items in connection with the Stock Option, you must report the payment and/or the value of the shares of Stock received and/or withheld to Bundesbank, either electronically using the “General Statistics Reporting Portal” (“Allgemeines Meldeportal Statistik”) available on the Bundesbank website (www.bundesbank.de) or via such other method (e.g., by email or telephone) as is permitted or required by Bundesbank.
The report must be submitted monthly or within other such timing as is permitted or required by Bundesbank.
GREECE
No country-specific provisions.
HONG KONG
Lapse of Restrictions. If, for any reason, shares of Stock are issued to you within six months after the Grant Date, you agree that you will not sell or otherwise dispose of any such shares of Stock prior to the six-month anniversary of the Grant Date.
IMPORTANT NOTICE/WARNING. The contents of this document have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of the documents, you should obtain independent professional advice. The Stock Option and shares of Stock issued upon exercise do not constitute a public offering of securities under Hong Kong law and are available only to employees of the Company or its Affiliates. The Agreement, the Plan and other incidental communication materials have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong. The Stock Option is intended only for the personal use of each eligible employee of the Employer, the Company or any Affiliate and may not be distributed to any other person.
Wages. The Stock Option and shares of Stock subject to the Stock Option do not form part of your wages for the purposes of calculating any statutory or contractual payments under Hong Kong law.
Nature of Scheme. You understand that the Company specifically intends that the Plan will not be an occupational retirement scheme for purposes of the Occupational Retirement Schemes Ordinance (“ORSO”).
INDIA
Mandatory Cashless Sell-All Exercise. As permitted under Section 3 of the Agreement and unless and until the Committee determines otherwise, the method of exercise of the Stock Option shall be limited to mandatory cashless, sell-all exercise.
Exchange Control Information. You must repatriate any funds received in connection with the Stock Option (e.g., proceeds from the shares of Stock and the receipt of dividends) within such time as prescribed under applicable Indian exchange control laws, which may be amended from time to time.
You should obtain a foreign inward remittance certificate (“FIRC”) from the bank in which you deposit the foreign currency and maintain the FIRC as evidence of the repatriation of funds in the event the Reserve Bank of India or the Employer requests proof of repatriation. It is the your responsibility to comply with these requirements. Neither the Company nor the Employer will be liable for any fines or penalties resulting from your failure to comply with any applicable laws. You may be required to provide information regarding funds received from participation in the Plan to the Company and/or the Employer to enable them to comply with their filing requirements under exchange control laws in India.
INDONESIA
No country-specific provisions.
IRELAND
No country-specific provisions.
ISRAEL
102 Sub-Plan. The Stock Option is granted to you pursuant to the Israeli Sub-Plan to the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Israeli Sub-Plan”), and is subject to the terms and conditions stated in the Israeli Sub-Plan, the Plan, and the Agreement, including this Addendum. By accepting the Stock Option you acknowledge and agree to be bound by the terms of the Israeli Sub-Plan and consent to the terms of the “Consent Letter - 102 Capital Gain Awards” attached hereto as Appendix A (the “Consent Letter”). If you do not affirmatively accept the Stock Option (and accordingly, the terms of the Israeli Sub-Plan, the Agreement and the Consent Letter) within ninety (90) days after the Grant Date, the Stock Option may not qualify under the capital gain tax treatment.
Until further election by the Company, the Stock Option and any shares of Stock received upon exercise of the Stock Option are intended to qualify for the tax treatment available in Israel pursuant to the provisions of the “capital gain track” under Section 102 (“Section 102”) of the Israeli Income Tax Ordinance [New Version], 1961 (the “ITO”), including the provisions of the Income Tax Rules (Tax Benefits in Shares Issuance to Employees), 2003 and any Tax Ruling. However, in the event the Stock Option does not meet the requirements of Section 102 of the ITO, such Stock Option and the underlying shares of Stock shall not qualify for the favorable tax treatment under the capital gain track. The Company makes no representations or guarantees that the Stock Option will qualify for favorable tax treatment and will not be liable or responsible if favorable tax treatment is not available under Section 102.
The Stock Option is subject to the trust (the “Trust”) established by the trust and services agreement (the “Trust Agreement”) with ESOP Management and Trust Services Ltd. (the “Trustee”).
To receive the tax treatment provided for in Sections 102(b)(2) and 102(b)(3) of the ITO, shares of Stock acquired by you upon exercise of the Stock Option will be issued directly to the Trustee or controlled by the Trustee under a supervisory trustee arrangement, and will be held by the Trustee on your behalf or controlled by the Trustee at least until the end of the Required Holding Period (as defined in the Israeli Sub-Plan), which is currently twenty-four (24) months from the Grant Date, or any other period determined under the ITO as now in effect or as hereafter amended or by the Israeli Income Tax Authority. Subject to the conclusion of the Required Holding Period and any further period included herein, shares of Stock acquired by you upon exercise of the Stock Option will be held or controlled by the Trustee until their sale, unless you request to release the shares of Stock to your direct holding, in which case the release will be subject to the receipt by the Trustee of an acknowledgment from the Israeli Income Tax Authority that you have paid all applicable taxes due pursuant to the ITO and Section 102, or the Trustee withholds any applicable tax due pursuant to the ITO and Section 102. Notwithstanding the foregoing, in the event you elect to sell or release any shares of Stock acquired upon exercise of the Stock Option prior to the conclusion of the Required Holding Period, the tax consequences under Section 102 shall apply to and shall be borne solely by you, as further set forth in the Israeli Sub-Plan.
The Company may at its sole discretion replace the Trustee from time to time and instruct the transfer of all Stock Options and shares of Stock held and/or administered by such Trustee at such time to its successor and the provisions of your Agreement shall apply to the new Trustee mutatis mutandis.
Any and all Tax-Related Items due in relation to the Stock Option and shares of Stock shall be borne solely by you and in the event of death, by your heirs. The Company, the Employer and/or the Trustee shall withhold Tax-Related Items according to the requirements under the applicable laws, the rules, and regulations, including withholding Tax-Related Items at source. Furthermore, you hereby agree to indemnify the Company, the Employer and/or the Trustee and hold them harmless against and from any and all liability for any such Tax-Related Items or interest or penalty thereon, including without limitation, liabilities relating to the necessity to withhold, or to have withheld, any such Tax-Related Items from any payment made to you. The Company, the Employer and/or the Trustee, to the extent permitted by law, shall have the right to deduct from any payment otherwise due to you, or from proceeds of the sale of any shares of Stock, an amount equal to any Tax-Related Items required by law to be withheld with respect to such shares of Stock. You will pay to the Company, the Employer or the Trustee any Tax-Related Items that the Company, the Employer or the Trustee may be required to withhold with respect to any shares of Stock that cannot be satisfied by the means previously described. The Company may refuse to deliver any shares of Stock if you fail to comply with your obligations in connection with the Tax-Related Items as described in this section. Any fees associated with any vesting, sale, transfer or any act in relation to the Stock Option and the shares of Stock, shall be borne by you. The Trustee, the Company and/or the Employer shall be entitled to withhold or deduct such fees from payments otherwise due to/from the Company, the Employer or the Trustee.
Securities Law Information. The Company has obtained from the Israel Securities Authority an exemption from the requirement to file a prospectus in relation to the Plan. Copies of the Plan and the Form S-8 registration statement for the Plan filed with the U.S. Securities and Exchange Commission are available by contacting your local human resources manager.
ITALY
Mandatory Cashless Sell-All Exercise. As permitted under Section 3 of the Agreement and unless and until the Committee determines otherwise, the method of exercise of the Stock Option shall be limited to mandatory cashless, sell-all exercise.
Plan. This provision supplements Section 13 of the Agreement: You further acknowledge that you have read and specifically and expressly approve the following sections of the Agreement: Grant of Stock Option, Exercise of Stock Option, Termination of Employment, Recoupment Policy, Satisfaction of Tax Obligations, Nature of Grant, and Choice of Law and Venue.
JAPAN
No country-specific provisions.
KAZAKHSTAN
Securities Law Information. This offer is addressed only to certain eligible employees of the Company and its Affiliates in the form of Shares to be issued by the Company, subject to the terms and conditions of the Agreement and the Plan. Neither the Plan nor the Agreement has been approved, nor do they need to be approved, by the National Bank of Kazakhstan. This offer is intended only for the original recipient and is not for general circulation in the Republic of Kazakhstan.
LEBANON
Securities Law Information. The Plan does not constitute the marketing or offering of securities in Lebanon pursuant to Law No. 161 (2011), the Capital Markets Law. Offerings under the Plan are being made only to eligible employees of the Company and its Affiliates.
MALAYSIA
Award Conditioned upon Election to Pay Taxes Directly to the Malaysian Inland Revenue Board. You understand and agree that your Award is conditioned upon your completing, signing and submitting a letter to your Employer, indicating your election to pay any income tax or other tax liability arising in connection with taxable income recognized under the Plan directly to the Malaysian Inland Revenue Board. (You may contact your Employer to request a form letter for this purpose.) You understand that if you fail to file such an election letter with your Employer, your Award will be null and void.
Consent to Collection, Processing and Transfer of Personal Data. This provision replaces Section 12 of the Agreement in its entirety:
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You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data, as described in this Addendum and any other grant materials by and among, as applicable, the Company and Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company and Affiliates may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of Stock or directorships held in the Company, details of all Stock Options or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the exclusive purpose of implementing, administering and managing the Plan (“Data”). The Data is supplied by the Company and also by you through information collected in connection with the Agreement and the Plan.
You understand that Data will be transferred to the current stock plan service providers or a stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. You understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than your country. You understand that if you reside outside the United States, you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative:. You authorize the Company, the stock plan service provider and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Stock received upon exercise of the Stock Option may be deposited. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that if you reside outside the United States, you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data, limit the processing of Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. Further, you understand that you are providing the consent herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your employment status or service and career with the Company will not be adversely affected; the only adverse consequence of refusing or withdrawing your consent is that the Company may not be able to grant you Stock Options or other equity awards or administer or maintain such awards. Therefore, you understand that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
Please take note that by electronically accepting this Agreement, you have confirmed that you explicitly, voluntarily and unambiguously consent to the collection, use and transfer of your personal data in accordance with the terms in this notification. However, if for any reason you do not consent to the processing of your personal data, you have the right to reject such consent by contacting your local human resources representative:.
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Anda dengan ini secara eksplisit dan tanpa sebarang keraguan mengizinkan pengumpulan, penggunaan dan pemindahan, dalam bentuk elektronik atau lain-lain, data peribadi anda seperti yang diterangkan dalam Lampiran ini dan apa-apa bahan pemberian Opsyen saham terhad yang lain oleh dan di antara, seperti yang berkenaan, Syarikat dan Ahli Gabungan untuk tujuan eksklusif bagi melaksanakan, mentadbir dan menguruskan penyertaan anda di dalam Pelan.
Anda memahami bahawa Syarikat Ahli Gabungan mungkin memegang maklumat peribadi tertentu tentang anda, termasuk, tetapi tidak terhad kepada, nama anda, alamat rumah dan nombor telefon, tarikh lahir, nombor insurans sosial atau nombor pengenalan lain, gaji, kewarganegaraan, jawatan, apa-apa syer saham Biasa atau jawatan pengarah yang dipegang dalam Syarikat, butir-butir semua Opsyen saham terhad, atau apa-apa hak lain atas syer Biasa saham yang dianugerahkan, dibatalkan, dilaksanakan, terletak hak, tidak diletak hak ataupun yang belum dijelaskan bagi faedahanda, untuk tujuan eksklusif bagi melaksanakan, mentadbir dan menguruskan Pelan tersebut (“Data”). Data tersebut dibekalkan oleh Syarikat dan juga oleh anda berkenaan dengan Perjanjian dan Pelan.
Anda memahami bahawa Data ini akan dipindahkan kepada pembekal perkhidmatan pelan saham semasa atau pembekal perkhidmatan pelan saham yang mungkin dipilih oleh Syarikat pada masa depan, yang membantu Syarikat dengan pelaksanaan, pentadbiran dan pengurusan Pelan. Anda memahami bahawa penerima-penerima Data mungkin berada di Amerika Syarikat atau mana-mana tempat lain, dan bahawa negara penerima-penerima (contohnya, Amerika Syarikat) mungkin mempunyai undang-undang privasi data dan perlindungan yang berbeza daripada negara anda. Anda memahami bahawa sekiranya anda menetap di luar Amerika Syarikat, anda boleh meminta satu senarai yang mengandungi nama-nama dan alamat-alamat penerima-penerima Data yang berpotensi dengan menghubungi wakil sumber manusia tempatan anda:. Anda memberi kuasa kepada Syarikat, pembekal perkhidmatan pelan saham dan mana-mana penerima-penerima kemungkinan lain yang mungkin akan membantu Syarikat (pada masa sekarang atau pada masa depan) dengan melaksanakan, mentadbir dan menguruskan Pelan untuk menerima, memiliki, menggunakan, mengekalkan dan memindahkan Data, dalam bentuk elektronik atau lain-lain, bagi tujuan melaksanakan, mentadbir dan menguruskan penyertaan anda di dalam Pelan, termasuk segala pemindahan Data tersebut sebagaimana yang dikehendaki kepada broker, egen eskrow atau pihak ketiga dengan siapa syer Biasa saham diterima semasa peletakhakan saham terhad Opsyen mungkin didepositkan. Anda memahami bahawa Data hanya akan disimpan selagi ia adalah diperlukan untuk melaksanakan, mentadbir, dan menguruskan penyertaan anda dalam Pelan. Anda memahami bahawa sekiranya anda menetap di luar Amerika Syarikat, anda boleh, pada bila-bila masa, melihat Data, meminta maklumat tambahan mengenai penyimpanan dan pemprosesan Data, meminta bahawa pindaan-pindaan dilaksanakan ke atas Data, mengehadkan pemprosean Data atau menolak atau menarik balik persetujuan dalam ini, dalam mana-mana kes, tanpa kos, dengan menghubungi secara bertulis wakil sumber manusia tempatan. Selanjutnya, anda memahami bahawa anda memberikan persetujuan di sini secara sukarela semata-mata. Sekiranya anda tidak bersetuju, atau sekiranya anda kemudian membatalkan persetujuan anda, status pekerjaan atau perkhidmatan dan kerjaya anda dengan Syarikat tidak akan terjejas; satu-satunya akibat buruk sekiranya anda tidak bersetuju atau menarik balik persetujuan andaadalah bahawa Syarikat tidak akan dapat memberikan Opsyen saham terhad anda atau anugerah ekuiti lain atau mentadbir atau mengekalkan anugerah-anugerah tersebut. Oleh itu, anda memahami bahawa keengganan atau penarikan balik persetujuan anda boleh menjejaskan keupayaan anda untuk mengambil bahagian dalam Pelan. Untuk maklumat lebih lanjut mengenai akibat-akibat keengganan anda untuk memberikan keizinan atau penarikan balik keizinan, anda memahami bahawa anda boleh menghubungi wakil sumber manusia tempatan.
Sila ambil perhatian bahawa dengan menerima Perjanjian ini secara elektronik, anda mengesahkan bahawa anda secara eksplisit, sukarela, dan tanpa sebarang keraguan bersetuju dengan pengumpulan, penggunaan, dan pemindahan data peribadi anda mengikut terma-terma dalam notis ini. Walaubagaimanapun, jika atas apa-apa sebab-sebab tertentu anda tidak bersetuju dengan pemprosesan data peribadi anda, anda mempunyai hak untuk menolak persetujuan anda dengan menghubungi wakil sumber manusia tempatan anda:.
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MEXICO
Securities Law Information. You expressly recognize and acknowledge that the Company’s grant of the Stock Option and the underlying shares of Stock under the Plan have not been registered with the National Register of Securities maintained by the Mexican National Banking and Securities Commission and cannot be offered or sold publicly in Mexico. In addition, the Plan, the Agreement and any other document relating to the Stock Option may not be publicly distributed in Mexico. These materials are addressed to you only because of your existing relationship with the Company and these materials should not be reproduced or copied in any form. The offer contained in these materials does not constitute a public offering of securities but rather constitutes a private placement of securities addressed specifically to individuals who are present employees of the Employer in Mexico made in accordance with the provisions of the Mexican Securities Market Law, and any rights under such offering shall not be assigned or transferred.
Acknowledgement of the Agreement. By accepting the Stock Option, you acknowledge that have received a copy of the Plan and the Agreement, including this Addendum, which you have reviewed. You further acknowledge that you accept all the provisions of the Plan and the Agreement, including this Addendum. You also acknowledge that you have read and specifically and expressly approve the terms and conditions set forth in Section 13 of the Agreement, which clearly provide as follows:
(1) Your participation in the Plan does not constitute an acquired right;
(2) The Plan and your participation in it are offered by the Company on a wholly discretionary basis;
(3) Your participation in the Plan is voluntary; and
(4) The Company and its Affiliates are not responsible for any decrease in the value of any shares of Stock acquired at exercise of the Stock Option.
Reconocimiento del Contrato. Al aceptar la Opción, Usted reconoce que ha recibido una copia del Plan y del contrato, incluyendo este Apéndice, mismos que ha revisado. Usted reconoce, además, que acepta todas las disposiciones del Plan, y del contrato, incluyendo este Apéndice. También reconoce que ha leído y aprueba de forma expresa los términos y condiciones establecidos en la sección doce 13 del contrato que claramente dispone lo siguiente:
(1) Su participación en el Plan no constituye un derecho adquirido;
(2) El Plan su participación en el mismo son ofrecidos por la Compañía de forma totalmente discrecional;
(3) Su participación en el Plan es voluntaria; y
(4) La Compañía y sus afiliados no son responsables por cualquier disminución en el valor de las Acciones adquiridas al momento de tener derecho conforme a la Opción.
Labor Law Acknowledgement and Policy Statement. By accepting the Stock Option, you acknowledge that Boston Scientific Corporation, with registered offices at 300 Boston Scientific Way, Marlborough, Massachusetts 01752, United States of America, is solely responsible for the administration of the Plan. You further acknowledge your participation in the Plan, the grant of the Stock Option and any acquisition of shares of Stock under the Plan do not constitute an employment relationship between you and Boston Scientific Corporation because you are participating in the Plan on a wholly commercial basis and your sole employer is a Mexican legal entity (“Boston Scientific-Mexico”). Based on the foregoing, you expressly acknowledge that the Plan and the benefits that you may derive from participation in the Plan do not establish any rights between you and your Employer, Boston Scientific-Mexico, and do not form part of the employment conditions and/or benefits provided by Boston Scientific-Mexico, and any modification of the Plan or its termination shall not constitute a change or impairment of the terms and conditions of your employment.
You further understand that your participation in the Plan is the result of a unilateral and discretionary decision of Boston Scientific Corporation, therefore, Boston Scientific Corporation reserves the absolute right to amend and/or discontinue your participation in the Plan at any time, without any liability to you.
Finally, you hereby declare that you do not reserve to yourself any action or right to bring any claim against Boston Scientific Corporation for any compensation or damages regarding any provision of the Plan or the benefits derived under the Plan, and that you therefore grant a full and broad release to Boston Scientific Corporation its Affiliates, branches, representation offices, shareholders, officers, agents and legal representatives, with respect to any claim that may arise.
Reconocimiento de Ley Laboral y Declaración de la Política. Al aceptar el Otorgamiento de la Opción, Usted reconoce que Boston Scientific Corporation, con oficinas registradas en 300 Boston Scientific Way, Marlborough, Massachusetts 01752, Estados Unidos de América, es únicamente responsable de la administración del Plan. Usted además reconoce que su participación en el Plan, la concesión de Opción y cualquier adquisición de acciones de conformidad con el Plan no constituyen una relación de trabajo entre Usted y Boston Scientific Corporation, ya que Usted está participando en el Plan sobre una base totalmente comercial y su único patrón es una sociedad mercantil Mexicana (“Boston Scientific-México”). Derivado de lo anterior, Usted expresamente reconoce que el Plan y los beneficios que pueden derivarle de la participación en el Plan no establecen ningún derecho entre Usted y su Patrón, Boston Scientific-México, y no forman parte de las condiciones de trabajo y/o prestaciones otorgadas por Boston Scientific-México, y cualquier modificación Waiver of Termination Rights.
al Plan o su terminación no constituirá un cambio o perjuicio de los términos y condiciones de su trabajo.
Usted además entiende que su participación en el Plan es resultado de una decisión unilateral y discrecional de Boston Scientific Corporation, por lo tanto Boston Scientific Corporation se reserva el derecho absoluto de modificar el Plan y/o discontinuar su participación en el Plan en cualquier momento, sin responsabilidad alguna para hacia Usted.
Finalmente, Usted declara que no se reserva acción o derecho alguno para presentar una reclamación o demanda en contra de Boston Scientific Corporation por cualquier compensación o daño o perjuicio en relación con cualquier disposición del Plan o los beneficios derivados del Plan y, por lo tanto, otorga un amplio y total finiquito a Boston Scientific Corporation, sus afiliados, afiliadas, sucursales, oficinas de representación, accionistas, directores, funcionarios, agentes y representantes con respecto a cualquier reclamación o demanda que pudiera surgir.
NETHERLANDS
By accepting the Stock Option, you hereby waive any and all rights to compensation or damages as a result of the termination of employment with Boston Scientific Corporation and the Employer for any reason whatsoever, insofar as those rights result or may result from (i) the loss or diminution in value of such rights or entitlements under the Plan, or (ii) your ceasing to have rights under, or ceasing to be entitled to any awards under the Plan as a result of such termination.
PERU
Securities Law Information. The grant of the Stock Option is considered a private offering in Peru; therefore, it is not subject to registration. For more information concerning the grant, you acknowledge that you should refer to the Plan, the Agreement, and any other materials made available by the Company. For more information regarding the Company, you acknowledge that you should refer to the Company’s most recent annual report on Form 10-K and quarterly report on Form 10-Q available at www.sec.gov.
Additional Acknowledgement of Nature of Plan and the Stock Option. By accepting the Stock Option, you understand, acknowledge and agree that the Stock Option are being granted ex gratia by the
POLAND
No country-specific provisions.
PORTUGAL
Language Consent. You hereby expressly declare that you have full knowledge of the English language and have read, understood and fully accepted and agreed with the terms and conditions established in the Plan and the Agreement.
Conhecimento da Lingua. Por meio do presente, eu declaro expressamente que tem pleno conhecimento da língua inglesa e que li, compreendi e livremente aceitei e concordei com os termos e condições estabelecidas no Plano e no Acordo.
PUERTO RICO
No country-specific provisions.
ROMANIA
Language Consent. By accepting the grant of the Stock Option, you acknowledge that you are proficient in reading and understanding English and fully understand the terms of the documents related to the grant (the Agreement and the Plan), which were provided in the English language. You accept the terms of those documents accordingly.
Consimtamant cu Privire la Limba. Acceptând acordarea opțiune de stoc, recunoașteți că sunteți competenți în citirea și înțelegerea limbii engleze și înțelegeți pe deplin termenii documentelor legate de subvenție (Acordul de acordare și planul), care au fost furnizate în limba engleză. Acceptați termenii acestor documente în consecință.
RUSSIA
THE PROVISIONS BELOW ARE CURRENT AS OF DECEMBER 2022 AND MAY NOT ADDRESS THE CURRENT LEGAL AND TAX CONSIDERATIONS AND REQUIREMENTS ASSOCIATED WITH AWARDS IN RUSSIA. YOU SHOULD CONSULT WITH A LEGAL AND TAX ADVISOR TO ENSURE COMPLIANCE WITH APPLICABLE LAW AS IT RELATES TO YOUR PARTICIPATION IN THE PLAN.
U.S. Transaction. You understand that the Stock Option shall be valid and this Agreement shall be concluded and become effective only when the Agreement is received by the Company in the United States. Upon exercise of the Stock Option, any shares of Stock to be issued to you shall be delivered to you through a bank or brokerage account in the United States. In no event will shares of Stock be delivered to you in Russia; instead, all shares of Stock acquired upon exercise of the Stock Option will be maintained on your behalf in the United States. You are not permitted to sell shares of Stock acquired at vesting directly to a Russian legal entity or resident.
Securities Law Information. You acknowledge that the Stock Option, the Equity Award and Acceptance Summary, the Agreement, the Plan and all other materials that you may receive regarding participation in the Plan do not constitute advertising or an offering of securities in Russia.
The shares of Stock acquired pursuant to the Plan have not and will not be registered in Russia and, therefore, neither the Stock Option nor the shares of Stock may be used for offering or public circulation in Russia.
Cashless Exercise Provision. Notwithstanding anything to the contrary in the Agreement, depending on the development of local regulatory requirements, the Company reserves the right to restrict exercise of your Stock Option to a cashless exercise through a licensed securities broker acceptable to the Company, such that all shares of Stock subject to the exercised Stock Option will be sold immediately upon exercise and the proceeds of sale, less the Grant Price, any Tax-Related Items and broker’s fees or commissions, will be remitted to you in accordance with any applicable exchange control laws and regulations.
Repatriation Requirements. You agree to promptly repatriate proceeds resulting from the sale of shares of Stock acquired under the Plan to a foreign currency account at an authorized bank in Russia if legally required at the time shares of Stock are sold and to comply with all applicable local foreign exchange rules and regulations. Neither the Company nor any of its Affiliates shall be liable for any fines or penalties resulting from your failure to comply with applicable laws.
The repatriation requirement may not apply with respect to cash amounts received in an account that is considered by the Central Bank of Russia to be a foreign brokerage account opened with a financial market institution other than a bank. Statutory exceptions to the repatriation requirement also may apply.
Anti-Corruption Notification. Anti-corruption laws prohibit certain public servants, their spouses and their dependent children from owning any foreign source financial instruments (e.g., shares of Stock of foreign companies such as the Company). Accordingly, you should inform the Company if you are covered by these laws because you should not hold shares of Stock acquired under the Plan.
Labor Law Information. If you continue to hold shares of Stock acquired upon exercise of the Stock Option after an involuntary termination of employment, you may not be eligible to receive unemployment benefits in Russia.
Vesting and Exercise of Stock Option. Depending on the development of local regulatory requirements, the Company reserves the right to postpone the vesting and/or the ability to exercise the Stock Option, to restrict exercise of the Stock Option to a cashless sell-all exercise and/or to pay any proceeds related to the Stock Option to you through local payroll, or to cancel the Stock Option for no consideration.
SAUDI ARABIA
Securities Law Information. The grant of the Stock Option is not subject to the regulations concerning public offers and private placements under the Law on Capital Markets.
SINGAPORE
Private Placement. The grant of the Stock Option under the Plan is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”). The Plan has not been and will not be lodged or registered as a prospectus with the Monetary Authority of Singapore and is not regulated by any financial supervisory authority pursuant to any legislation in Singapore. Accordingly, statutory liability under the SFA in relation to the content of prospectuses would not apply. You should note that the Stock Option is subject to section 257 of the SFA and you will not be able to make any subsequent sale of the shares of Stock in Singapore, or any offer of such subsequent sale of the shares of Stock subject to the Stock Option in Singapore, unless such sale or offer in is made (i) after six months from the Grant Date or (ii) pursuant to the exemptions under Part XIII Division (1) Subdivision (4) (other than section 280) of the SFA.
SOUTH AFRICA
Securities Law Information. In compliance with South African securities law, the documents listed below are available for review on the Company’s external and internal sites at the web addresses listed below:
1. Boston Scientific Corporation’s most recent Annual Report (Form 10-K): https://www.sec.gov/cgi-bin/browse-edgar?CIK=bsx&owner=exclude&action=getcompany&Find=Search.
2. The Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan: This document can be accessed at https://us.etrade.com/home -> My Stock Plan -> Holdings -> click on a grant date and select “View Grant Documents”.
3. Boston Scientific Corporation Non-Qualified Stock Option Grant and Amended and Restated 2011 Long-Term Incentive Plan Q&A Summary Sheet: This document can be accessed at https://us.etrade.com/home -> My Stock Plan -> Holdings -> click on a grant date and select “View Grant Documents”.
4. Boston Scientific Corporation Equity Award and Acceptance Summary: This
document can be accessed at https://us.etrade.com/home -> My Stock Plan ->
Holdings -> click on a grant date and select “View Grant Documents”.
You acknowledge that you may have copies of the above documents sent to you, at no charge, on written request being mailed to Boston Scientific Corporation, attn: Corporate Compensation, 300 Boston Scientific Way, Marlborough, MA 01752, USA.
You understand that you are advised to carefully read the materials provided before making a decision whether to participate in the Plan and to contact your tax advisor for specific information concerning your personal tax situation with regard to Plan participation.
SOUTH KOREA
Consent to Collection, Processing and Transfer of Personal Data. By electronically accepting this Agreement:
1.You agree to the collection, use, processing and transfer of Data as described in Section 12 of the Agreement; and
2.You agree to the processing of your unique identifying information (resident registration number) as described in Section 12 of the Agreement.
Domestic Broker Requirement for Selling Shares. Residents of South Korea may not be permitted to sell foreign securities (such as shares of Stock acquired under the Plan) through non-Korean brokers (such as Morgan Stanley Smith Barney LLC and its affiliates) or deposit funds resulting from the sale of shares of Stock in an account with an overseas financial institution. For this reason, you may be restricted from using a cashless exercise method to exercise the Stock Option. If you wish to sell shares of Stock acquired under the Plan, applicable law may require you to transfer the shares of Stock to a domestic investment broker in Korea and to effect the sale through such broker. You acknowledge and agree that you are solely responsible for engaging a domestic broker, to the extent required. Non-compliance with the requirement to sell shares of Stock through a domestic broker can result in significant penalties. Because applicable law and regulations may change without notice, you should consult with a legal advisor to ensure compliance with applicable law as it relates to your participation in the Plan.
SPAIN
Acknowledgement of Discretionary Nature of the Plan; No Vested Rights. This provision supplements the terms of the Agreement.
In accepting the Stock Option grant, you acknowledge that you consent to participation in the Plan and have received a copy of the Plan.
You understand that the Company has unilaterally, gratuitously and in its sole discretion granted Stock Options under the Plan to individuals who may be employees of the Company or its Affiliates throughout the world. The decision is a limited decision that is entered into upon the express assumption and condition that any grant will not economically or otherwise bind the Company or any of its Affiliates on an ongoing basis.
Consequently, you understand that the Stock Option is granted on the assumption and condition that the Stock Option and the shares of Stock acquired upon exercise of the Stock Option shall not become a part of any employment contract (either with the Company or any of its Affiliates) and shall not be considered a mandatory benefit, salary for any purposes (including severance compensation) or any other right whatsoever. In addition, you understand that this grant would not be made to you but for the assumptions and conditions referenced above; thus, you acknowledge and freely accept that should any or all of the assumptions be mistaken or should any of the conditions not be met for any reason, the Stock Option grant shall be null and void.
You understand and agree that, as a condition of the Stock Option grant, your termination of employment for any reason (including the reasons listed below) will automatically result in the loss of the Stock Option to the extent the Stock Option has not vested as of date you cease active employment. In particular, you understand and agree that any unvested Stock Option as of the date you cease active employment and any vested portion of the Stock Option not exercised within the post-termination exercise period set out in the Agreement will be forfeited without entitlement to the underlying shares of Stock or to any amount of indemnification in the event of the termination of employment by reason of, but not limited to, resignation or retirement prior to the first anniversary of the Grant Date, disciplinary dismissal adjudged to be with cause, disciplinary dismissal adjudged or recognized to be without cause, individual or collective dismissal on objective grounds, whether adjudged or recognized to be with or without cause, material modification of the terms of employment under Article 41 of the Workers’ Statute, relocation under Article 40 of the Workers’ Statute, Article 50 of the Workers’ Statute, unilateral withdrawal by the Employer and under Article 10.3 of the Royal Decree 1382/1985. You acknowledge that you have read and specifically accept the conditions referred to in the Agreement regarding the impact of a termination of employment on your Stock Option.
BY ELECTRONICALLY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THE PLAN, THE AGREEMENT AND THIS ADDENDUM.
SWEDEN
Tax Withholding. The following provision shall supplement Section 10 of the Agreement:
Without limiting the Company’s and the Employer’s authority to satisfy their withholding obligations for Tax-Related Items as set forth in the Section 10 of the Agreement, in accepting the grant of the Stock Option, you authorize the Company to sell shares of Stock otherwise deliverable to you upon exercise of the Stock Option to satisfy Tax-Related Items, regardless of whether the Company and/or the Employer have an obligation to withhold such Tax-Related Items.
TAIWAN
Securities Law Information. This Award and the shares of Stock to be issued pursuant to the Plan are available only for Employees. The Award is not a public offer of securities by a Taiwanese company.
TURKEY
Securities Law Information. Under Turkish law, you are not permitted to sell shares of Stock acquired under the Plan in Turkey. The shares of Stock are currently traded on the New York Stock Exchange, which is located outside Turkey and the shares of Stock may be sold through this exchange.
UNITED ARAB EMIRATES
Securities Law Information. The Plan is an employee equity incentive plan and is only being offered to select employees in the United Arab Emirates. The Plan and the Agreement are intended for distribution only to such employees and must not be delivered to, or relied on by, any other person. The Emirates Securities and Commodities Authority has no responsibility for reviewing or verifying any documents in connection with the Plan. Neither the Ministry of Economy nor the Dubai Department of Economic Development have approved the Plan or the Agreement nor taken steps to verify the information set out therein, and have no responsibility for such documents. You should conduct your own due diligence on the securities offered under the Plan. If you do not understand the contents of the Agreement or the Plan, you should consult an authorized financial advisor.
UNITED KINGDOM
Income Tax and Social Insurance Contribution Withholding. The following provision shall supplement Section 10 of the Agreement:
Without limitation Section 10 of the Agreement, you agree that you are liable for all Tax-Related Items and hereby covenant to pay all such Tax-Related Items, as and when requested by the Company, the Employer or by HM Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority). You also agree to indemnify and keep indemnified the Company and the Employer against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on your behalf to HMRC (or any other tax authority or any other relevant authority).
Notwithstanding the foregoing, you understand that if you are a director or executive officer (within the meaning of Section 13(k) of the U.S. Securities Exchange Act of 1934, as amended), the terms of the immediately foregoing provision may not apply. In the event that you are a director or executive officer and income tax due is not collected from or paid by you within 90 days after the UK tax year in which an event giving rise to the indemnification described above occurs, the amount of any uncollected tax may constitute a benefit on which additional income tax and national insurance contributions may be payable. You acknowledge that you ultimately will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for reimbursing the Company or the Employer (as applicable) for the value of any employee national insurance contributions due on this additional benefit, which the Company and/or the Employer may recover from you at any time thereafter by any of the means referred to in Section 10 of the Agreement.
Exclusion of Claim. You acknowledge and agree that you will have no entitlement to compensation or damages insofar as such entitlement arises or may arise from your ceasing to have rights under or to be entitled to the Award, whether or not as a result of your termination of employment (whether the termination is in breach of contract or otherwise), or from the loss or diminution in value of the Award. Upon the grant of your Award, you shall be deemed irrevocably to have waived any such entitlement.
* * * *
APPENDIX A
CONSENT LETTER
102 CAPITAL GAIN AWARDS FOR PARTICIPANTS RESIDING IN ISRAEL
Dear Participant,
Boston Scientific Corporation (the “Company”) has elected to apply the capital gains route in accordance with the provisions of Section 102 of the Israeli Income Tax Ordinance (the “Ordinance”) on awards granted under the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Incentive Plan”) to Israeli Participants (as defined in the Israeli sub-plan to the Incentive Plan (the “Israel Sub-Plan”), which was approved by the Executive Compensation and Human Resources Committee of the Company’s Board of Directors on November 14, 2022) and any future incentive plan implemented by the Company in Israel (“Awards” and “Capital Gains Route”), subject to the Company’s absolute discretion to change such election on future grants, with or without advance notice. Unless otherwise notified to you in writing by the Company, the Awards shall be granted to you under the Capital Gains Route, subject to compliance with the requirements of such tax route.
The Capital Gains Route election will enable you to enjoy lower tax rates on a portion of the income received upon disposition of the shares of Company common stock (“Shares”) issued to you from or in connection to the Awards, provided however that all the requirements under Section 102 of the Ordinance and the Income Tax (Tax Abatement on the Grant of Shares to Employees) Regulations 2003 (the “Regulations”) are met.
Below you will find a brief description of the Israeli income tax consequences of the Capital Gains Route. PLEASE NOTE THAT THE SUMMARY BELOW IS ONLY A BRIEF SUMMARY THAT DOES NOT COVER ALL THE PROVISIONS OF SECTION 102 OF THE ORDINANCE AND THE REGULATIONS AND IS NOT INTENDED TO PROVIDE ANY TAX ADVICE. IN ADDITION, THE TAX LAWS AND REGULATIONS DESCRIBED HEREIN ARE SUBJECT TO CHANGE. THEREFORE, IT IS RECOMMENDED THAT YOU CONSULT WITH A TAX ADVISER BEFORE ACCEPTING THE TERMS OF THIS CONSENT LETTER OR BEFORE ACCEPTING ANY AWARDS OR DISPOSING OF SHARES.
The main restrictions that are included under Section 102 of the Ordinance are as follows:
(1) Your Awards and the Shares issued under such Awards will be held in trust or controlled by a trustee for at least a period determined in Section 102 under the Capital Gains Route (“Required Holding Period”) (currently twenty-four months from the date in which the Awards were granted to you).
(2) During the Required Holding Period you will not be able to sell, pledge, release from trust or otherwise perform any transaction in connection to the Awards or Shares granted to you.
Provided that all conditions set by the Ordinance under the Capital Gains Route are met, including the above conditions, you will, in general, be taxed as follows:
•The lower of (1) the difference between the fair market value of the underlying Shares on the grant date and the exercise price (plus any transactional expenses incurred in connection with the sale) and (2) the difference between the sale proceeds and the exercise price (plus any transactional expenses incurred in connection with the sale) will be treated as ordinary income subject to income tax and employee/employer social insurance contributions (to the extent the applicable contribution ceiling has not been exceeded). For tax purposes, the fair market value of the Shares at grant is deemed to be the average price of the Shares over the 30 trading days preceding the grant.
•The remainder of the gain, if any, will be treated as a capital gain and will be taxed at the capital gains tax rate of 25%. No social insurance contributions will be due on this portion of the gain.
In addition, a surtax may be imposed if your income is in excess of the applicable annual threshold.
If you sell your Shares, or release the Shares from trust, before the end of the Holding Period, you will immediately be subject to income tax on the gain, at your marginal income tax rate, and will be also required to pay social security and health tax contributions on all your profit.
In order to enable you to enjoy the benefits of the Capital Gains Route, please express your acceptance and confirmation of the following terms, by accepting the Award through the electronic acceptance procedures established by the Company:
1. I undertake to comply with all the terms and conditions set under Section 102 of the Ordinance with regard to the Capital Gains Route and the Regulations.
2. I have had the opportunity to obtain the advice of counsel prior to accepting this Consent Letter. I am familiar with and understand the provisions of Section 102 of the Ordinance in general, and the tax arrangement under the Capital Gains Route in particular, and agree to comply with such provisions, as amended from time to time.
3. I agree that Awards granted to me, and the Shares that may be derived from such Awards, will be held or controlled by a trustee for at least the duration of the Required Holding Period, as determined in Section 102 under the Capital Gains Route (currently twenty-four months from the date in which the Awards were granted).
4. I agree to the trust deed signed between the Company, my employer and the trustee available at Trust Deed RSU-Stock Option - Hebrew.pdf.
5. I understand that any release of such Awards or Shares from trust, or any sale of the Shares prior to the termination of the Required Holding Period, will result in taxation at my marginal tax rate, in addition to deductions of appropriate social security and health tax contributions.
6. I authorize the Company and/or my employer to provide the trustee with any information required for administrating the grant of the Awards, including without limitation information about my Awards, income tax rates, salary bank account, contact details and identification number and any reasonable information required by the trustee.
7. I declare that I am a resident of the state of Israel for tax purposes and agree to notify the Company upon any change in the residence address and acknowledge that if I cease to be an Israeli resident or if my engagement with the Company or any affiliate is terminated, the Awards and underlying Shares shall remain subject to Section 102, the trust agreement and the applicable equity plan and grant document.
8. I understand and agree that until the Company will determine otherwise, my acceptance of the terms of this Consent Letter will be sufficient, to apply to all potential future grants of Awards. I hereby confirm that by accepting this Consent Letter, I will be deemed to have elected to accept the terms and conditions herein in respect of any such potential future grant of Awards.
9. I acknowledge, understand and agree that the Awards are an extraordinary, one-time benefit granted to me, and do not create any contractual or other right to receive future grant of Awards.
10. I understand that neither the Company nor any affiliates guarantee that any Awards granted to me will be eligible for tax benefits pursuant to the Capital Gains Route and I agree that I will not hold the Company and/or any affiliate and/or the trustee liable for any tax consequences relating to my Awards, including any penalties or other negative tax consequences I could receive or be subject to if my Awards do not obtain the Capital Gains Route tax treatment, regardless of the reason for the Capital Gains Route tax treatment not being available.
* * * *
415138311-v12\NA_DMS
ANNEX 1
OFFER DOCUMENT
BOSTON SCIENTIFIC CORPORATION
AMENDED AND RESTATED 2011 LONG-TERM INCENTIVE PLAN
OFFER TO AUSTRALIAN RESIDENT EMPLOYEES
INVESTMENT IN SHARES OF STOCK INVOLVES A DEGREE OF RISK. EMPLOYEES WHO PARTICIPATE IN THE PLAN SHOULD MONITOR THEIR PARTICIPATION AND CONSIDER ALL RISK FACTORS RELEVANT TO THE ACQUISITION OF SHARES OF STOCK UNDER THE PLAN AS SET OUT IN THIS OFFER DOCUMENT AND THE ADDITIONAL DOCUMENTS. ANY ADVICE CONTAINED IN THIS OFFER DOCUMENT IN RELATION TO THE STOCK OPTION BEING OFFERED UNDER THE PLAN DOES NOT TAKE INTO ACCOUNT THE OBJECTIVES, FINANCIAL SITUATION AND NEEDS OF ANY INDIVIDUAL EMPLOYEE. EMPLOYEES SHOULD CONSIDER OBTAINING THEIR OWN FINANCIAL PRODUCT ADVICE FROM A PERSON LICENSED BY THE AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (“ASIC”) TO GIVE SUCH ADVICE.
OFFER TO AUSTRALIAN RESIDENT EMPLOYEES
BOSTON SCIENTIFIC CORPORATION
AMENDED AND RESTATED 2011 LONG-TERM INCENTIVE PLAN
This ESS Offer Document sets out information about the invitation to participate in the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Plan”) for Australian resident employees of Boston Scientific Corporation (the “Company”) and its Affiliates. The offer to participate in the Plan is being made under Division 1A of Part 7.12 of the Corporations Act 2001 (the “Act”, and “Division 1A of the Act”). For purposes of Division 1A of the Act, this document is to be regarded as an ESS Offer Document.
The purpose of the Plan is to encourage ownership in the Company by key personnel whose long-term employment is considered essential to the Company’s continued progress, and thereby, encourage recipients to act in the shareowners’ interest and share in the Company’s success. We hope you will take the time to review this information carefully.
Terms defined in the Plan have the same meaning in this ESS Offer Document.
1. OFFER OF STOCK OPTIONS
This is an offer made by the Company under the Plan to eligible employees of the Company or an Affiliate to accept stock options (an “Award”) granted under and in accordance with the terms of the Plan.
2. TERMS OF GRANT
The specific terms of your of grant are set out in the Global Non-Qualified Stock Option Award Agreement and addendum (“Option Agreement” or “Award Agreement”).
The Award Agreement forms part of this ESS Offer Document. The rules of the Plan are incorporated into the Award Agreement and this ESS Offer Document by reference. By accepting a grant of the Award, you will be bound by the rules of the Plan and the applicable Award Agreement.
3. ADDITIONAL DOCUMENTS
In addition to the information set out in this ESS Offer Document, the following documents (collectively “Additional Documents”) are made available to you and set out the specific terms of your grant:
(a)the Plan;
(b)the Non-Qualified Stock Option Prospectus Letter;
(c)the Plan Equity Award and Acceptance Summary;
(d)the Option Agreement;
(e)the Non-Qualified Stock Option Grant and Plan Global Q&A Summary Sheet; and
(f)the Stock Options Tax Supplement.
The Additional Documents provide further information necessary to make an informed investment decision in relation to your participation in the Plan.
4. RELIANCE ON STATEMENTS
You should not rely upon any oral statements made to you in relation to this offer. You should only rely upon the statements contained in this ESS Offer Document and the Additional Documents when considering your participation in the Plan.
5. WHAT IS A STOCK OPTION?
A stock option gives its holder the right, but not the obligation, to purchase a specified number of shares of Stock at a specified exercise price if certain conditions are met. A stock option is subject to a substantial risk of forfeiture and to restrictions on its sale or other transfer.
6. HOW MANY SHARES OF STOCK WILL I RECEIVE UNDER THE STOCK OPTION AWARD AND WHAT IS THE PURCHASE PRICE OF THE SHARES OF STOCK?
The number of shares of Stock subject to the stock option award is set forth in the Option Agreement. Please note that you do not pay any monetary consideration to receive the stock options. However, you will have to pay an exercise price to receive shares of Stock upon exercise of the stock option.
7. WHAT IS THE EXERCISE PRICE OF THE STOCK OPTION?
The exercise price for the stock option is set out in the Option Agreement. The exercise price is denominated in U.S. dollars and must be paid in U.S. dollars. The Australian dollar amount required to exercise the stock options and acquire shares of Stock will be that amount which, when converted into U.S. dollars on the date of exercise, equals the exercise price. The Australian dollar equivalent of the exercise price will change with fluctuations in the U.S./Australian dollar exchange rate. For information on how to obtain the U.S./Australian dollar exchange rate, see section 14 below.
8. DO I HAVE RIGHTS AS A STOCKHOLDER OF THE COMPANY AS A RESULT OF AN AWARD OF STOCK OPTIONS?
No. You will not have the right to receive any cash or stock dividends or to vote the shares of Stock underlying your stock options until you satisfy the terms and conditions of your Option Agreement, exercise the stock options and the Company actually delivers the underlying shares of Stock to you upon satisfaction of such terms and conditions. The terms and conditions of the stock options may include (but are not limited to) a requirement that you remain in the continuous service with the Company or an Affiliate for a specified period of time.
9. WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?
The following individuals may be granted an Award under the Plan:
(i)a member of the Board or of the board of directors of an Affiliate (as defined in the Plan);
(ii)an employee of the Company; or
(iii)an employee of an Affiliate (as defined in the Plan).
10. HOW MANY SHARES OF STOCK ARE AVAILABLE FOR ISSUANCE UNDER THE PLAN?
Up to 168,450,000 shares of Common Stock may be subject to awards granted under the Plan. Shares of Common Stock delivered by the Company under the Plan may be authorized but unissued shares of Common Stock or previously issued shares of Common Stock acquired by the Company and held in treasury.
11. HOW CAN I OBTAIN THE UPDATED AUSTRALIAN DOLLAR EQUIVALENT OF THE CURRENT MARKET VALUE OF A SHARE AND ADDITIONAL INFORMATION REGARDING THE PLAN?
You may ascertain the market price of the shares of Stock by obtaining the current trading price of the Company’s shares of Stock on the NYSE at http://www.nyse.com under the code “BSX”.
The Australian dollar equivalent of that price can be obtained at: http://www.rba.gov.au/statistics/frequency/exchange-rates.html
12. ADDITIONAL INFORMATION RELEVANT TO AUSTRALIAN RESIDENT EMPLOYEES
Any advice given by the Company in connection with the offer under the Plan is general advice only, and employees should consider obtaining their own financial
product advice from an independent person who is licensed by ASIC to give such advice.
12.1 Who administers the Plan?
The Plan is administered by the Administrator (the Executive Compensation and Human Resources Committee of the Board) except to the extent the Administrator delegates administration pursuant to the Plan.
Subject to certain limitations, the Administrator may delegate all or a portion of the administration of the Plan to one or more executive officers of the Company, to the extent permitted by Delaware law and U.S. regulations.
In accordance with Section 7 of the Plan, the Administrator may at any time or times amend, alter, suspend, discontinue or terminate the Plan, in whole or in part.
12.2 What is a share of Stock in the Company?
Shares of common stock in a U.S. corporation are the same as ordinary shares of an Australian corporation. Each holder of Stock is entitled to one vote for every share of Stock held in the Company.
Dividends may be paid on the Stock out of any funds of the Company legally available for dividends at the discretion of the Board.
The only issued capital of the Company is currently common stock. The shares of Stock are listed and may be traded on the NYSE.
Shares of Stock are not subject to any further calls for payment of capital or for other assessment by the Company and have no sinking fund provisions, pre-emptive rights, conversion rights or redemption provisions.
12.3 What additional risk factors apply to Australian residents’ participation in the Plan?
You should have regard to risk factors relevant to investment in securities generally and, in particular, to the holding of shares of Stock. For example, the price at which the shares of Stock are quoted on the NYSE may increase or decrease due to a number of factors. There is no guarantee that the price of the shares of Stock will increase. Factors which may affect the price of the shares of Stock include fluctuations in the domestic and international market for the listed stocks, general economic conditions, including interest rates, inflation rates, legislation or regulation, the nature of the markets in which the Company operates and general operational and business risks.
More information about potential factors that could affect the Company's business and financial results is included in the Company's most recent Annual Report on Form 10-K and the Company's Quarterly Report on Form 10-Q. Copies of these reports are available at http://sec.gov and upon request to the Company.
In addition, you should be aware that the Australian dollar value of the shares of Stock you may acquire under the Plan will be affected by the U.S./Australian dollar exchange rate. Participating in the Plan involves risks related to fluctuations in this rate of exchange.
12.4 What are the Australian taxation consequences of participating in the Plan?
Please see the Stock Options Tax Supplement for information regarding the Australian tax treatment of your Award.
12.5 What are the U.S. taxation consequences of participation in the Plan?
Employees will not be subject to U.S. tax consequences by reason only of the acquisition of shares of Stock and/or the sale of shares of Stock. However, liability to U.S. taxes may accrue if an employee is otherwise subject to U.S. taxes.
Again, the above is an indication only of the likely U.S. taxation consequences for Australian resident employees who accepts the stock options granted under the Plan. Employees should seek advice as to the U.S. tax consequences of participation from their personal tax advisers.
13. OTHER RESTRICTIONS
In addition to any other limitations as identified in this ESS Offer Document, the Plan or as prescribed by the Administrator from time to time under the terms of the Plan, there is an overall restriction on the number of shares of Stock that can be issued to Australian employees.
14. STATUTORY TERMS AND CONDITIONS
As noted above, this offer is being made under Division 1A of Part 7.12 of the Act. To comply with that Division, the following terms are included:
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A. Application period |
This offer remains open until the date specified in your stock option (“Option”) documentation (the “Application Period”). You may accept this offer at any time up until then. |
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B. Acquisition of Options |
You cannot acquire any Options and purchase any shares of Stock until at least 14 days after receiving this ESS Offer Document. Accordingly, no such acquisition will occur until the 14th day after receiving this ESS Offer Document. |
C. Terms relating to disclosure |
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This offer is also subject to the following terms relating to disclosure: (a) this ESS Offer Document and the terms of the offer: (i) must not include a misleading or deceptive statement; and (ii) must not omit any information that would result in this document or terms of the offer being misleading or deceptive; (b) the Company must provide you with an updated ESS Offer Document as soon as practicable after becoming aware that the document that was provided has become out of date, or is otherwise not correct, in a material respect; (c) each person mentioned in items 2, 3 and 4 of the table below must notify, in writing, the Company as soon as practicable if, during the Application Period, the person becomes aware that: (i) a material statement in the documents mentioned in paragraph (a) is misleading or deceptive; or (ii) information was omitted from any of those documents that has resulted in one or more of those documents being misleading or deceptive; or (iii) a new circumstance has arisen during the Application Period which means the ESS Offer Document is out of date, or otherwise not correct, in a material respect; and (d) if you suffer loss or damage because of a contravention of a term of the offer covered by paragraph (a), (b) or (c) above, you can recover the amount of loss or damage in accordance with the table below. For the purposes of paragraph (d) above, an ESS participant must be able to recover loss or damage in accordance with the following table: Item You may recover loss or damage suffered as a result of a contravention of from these people...
1 a term of the offer covered by any of the following paragraphs: paragraph (a) (misleading or deceptive statements and omissions); paragraph (b) (out of date ESS Offer Document) the Company
2 a term of the offer covered by any of the following paragraphs: paragraph (a) (misleading or deceptive statements and omissions); paragraph (b) (out of date ESS Offer Document) each director of the Company
3 a term of the offer covered by any of the following paragraphs: paragraph (a) (misleading or deceptive statements and omissions); paragraph (b) (out of date ESS Offer Document) a person named, with their consent, in an ESS Offer Document or the terms of the offer as a proposed director of the Company
4 a term of the offer covered by paragraph (a) (misleading or deceptive statements and omissions) a person named, with their consent, in the ESS Offer Document or the terms of the offer as having made: the misleading or deceptive statement; or a statement on which the misleading or deceptive statement is based
5 a term of the offer covered by paragraph (c) (failure to notify the Company of misleading or deceptive statement and omissions or new circumstances) the person mentioned in item 2, 3 or 4 of this table who failed to notify the Company in accordance with the term covered by paragraph (c)
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D. Exclusions from liability |
A person mentioned in the table in section D above is not liable for any loss or damage suffered by you because of a contravention of a term of the offer covered by paragraph (a) or (b) of section D above if:
(a)the person:
(i)made all inquiries (if any) that were reasonable in the circumstances; and
(ii)after doing so, believed on reasonable grounds that the statement was not misleading or deceptive; or
(b)the person did not know that the statement was misleading or deceptive; or
(c)the person placed reasonable reliance on information given to the person by:
(i)if the person is a body corporate or a responsible entity of a registered scheme - someone other than a director, employee or agent of the body corporate or responsible entity; or
(ii)if the person is an individual—someone other than an employee or agent of the individual; or
(d)for a person mentioned in column 2 of item 3 or 4 of the table in section D above - the person proves that they publicly withdrew their consent to being named in the document in that way; or
(e)the contravention arose because of a new circumstance that has arisen since the ESS offer document was prepared and the person proves that they were not aware of the matter.
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We urge you to carefully review the information contained in this Offer Document and the Additional Documents. If you have any questions, please send them to: BSCEquityCompSupport@bsci.com.
Yours sincerely,
Boston Scientific Corporation
EX-10.2
3
exhibit102-bscx2024grantxr.htm
EX-10.2
Document
Exhibit 10.2
EMPLOYEE COPY
PLEASE RETAIN FOR YOUR RECORDS
Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan
Global Restricted Stock Unit Award Agreement
This Global Restricted Stock Unit Award Agreement (the “Agreement”) is between you and Boston Scientific Corporation, a Delaware corporation, (the “Company”) in connection with the award of Restricted Stock Units (the “Award”) by the Committee under the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Plan”). Capitalized terms used but not defined in this Agreement shall have the same meaning as assigned to them in the Plan. The applicable terms and conditions of the Plan are incorporated into and made a part of this Agreement.
1. Grant of Units. The Committee hereby grants you that number of Restricted Stock Units as set forth in your Equity Award and Acceptance Summary (the “Units”). Each Unit represents the Company’s commitment to issue to you one share of Stock subject to the conditions set forth in this Agreement. This Award is granted pursuant to and is subject to the provisions of the Plan and the terms and conditions of this Agreement and any applicable Addendum.
2. Vesting. The Units shall vest and shares of Stock will be issued to you in accordance with the schedule provided in your Equity Award and Acceptance Summary. Except as otherwise provided in Sections 4, 5, 6, 7 and 8 below, the Units will vest, subject to the conditions described in Section 7 below. Shares of Stock for Units that vest in accordance with this Section 2 will be delivered to you within fifteen (15) days after the applicable vesting date but in no event later than the last day of the calendar year that includes the applicable vesting date. No shares of Stock shall otherwise be issued to you prior to the date on which the Units vest. Notwithstanding anything in the Agreement to the contrary, the Company may, in its sole discretion, settle the Units in the form of a cash payment to the extent that settlement in shares of Stock is prohibited under local law or would require the Company and/or any of its Affiliates to obtain the approval of or complete any legal or regulatory filing with any governmental and/or regulatory body in your country of residence (or country of employment, if different). Alternatively, the Company may, in its sole discretion, settle the Units in the form of shares of Stock but require you to sell such Stock immediately or within a specified time following your termination of employment (in which case, this Agreement shall give the Company the authority to issue sales instructions on your behalf).
3. Participant’s Rights in Stock. The shares of Stock, if and when issued to you pursuant to this Agreement, shall be registered in your name and evidenced in a manner as determined by the Company, in its sole discretion. Under no circumstance will you be deemed, by virtue of the granting of the Units, to be a holder of any shares of Stock underlying the Units or be entitled to the rights or privileges of a holder of such shares of Stock (including the right to receive dividends or vote the shares of Stock), unless and until the Units have vested with respect to such shares of Stock and the shares of Stock have been issued to you.
4. Death. In the event you terminate employment by reason of death, any Units that have not vested prior to the date of your death shall immediately vest and shares of Stock shall be issued in accordance with your will or the laws of descent and distribution. Shares of Stock for Units which vest under this Section 4 will be delivered within sixty (60) days after your employment termination date.
5. Retirement. If you terminate employment by reason of your Retirement, any Units that have not vested prior to the date of your Retirement shall immediately vest and shares of Stock shall be issued to you, provided you have remained in continuous service with the Company or an Affiliate through the first anniversary of the Grant Date. In the event that your Retirement occurs prior to the first anniversary of the Grant Date, all unvested Units shall immediately terminate and be forfeited in their entirety. Shares of Stock for Units which vest under this Section 5 will be delivered within thirty (30) days after your employment termination date. For purpose of this Section 5, a “Retirement” shall not include (i) a termination of your employment for Cause (as defined in Section 7 of this Agreement) or (ii) a resignation by you after being notified that the entity that employs you has elected to terminate your employment for Cause.
In this regard, if you are a local national of and employed in a country that is a member of the European Union, the grant of the Units and the terms and conditions governing the Units are intended to comply with the age discrimination provisions of the EU Equal Treatment Framework Directive, as implemented into local law (the “Age Discrimination Rules”). To the extent that a court or tribunal of competent jurisdiction determines that any provision of the Units is invalid or unenforceable, in whole or in part, under the Age Discrimination Rules, the Company, in its sole discretion, shall have the power and authority to revise or strike such provision to the minimum extent necessary to make it valid and enforceable to the full extent permitted under local law.
6. Disability. If you terminate employment by reason of your Disability (as the term is defined in the Plan or determined under local law), any Units that have not vested prior to the date of your termination by reason of Disability shall immediately vest and shares of Stock shall be issued to you. Shares of Stock for Units which vest under this Section 6 will be delivered within thirty (30) days after your employment termination date.
7. Other Termination of Employment; Certain Vesting Conditions. If your employment terminates for any reason other than death, Retirement or Disability, any Units that have not vested prior to the date of your termination shall terminate and be forfeited on the effective date of such termination, except if your employment terminates for Cause, in which case, all unvested Units shall be forfeited upon notice to you of your termination for Cause.
(a) Definition of Cause. For purposes of this Agreement, “Cause” shall mean termination of your employment by the entity that employs you as a result of the occurrence of any of the following, as determined by the Company in its sole discretion:
(i)your violation of the Company’s Code of Conduct or your violation of any written policy of the Company;
(ii)your breach of your Agreement Concerning Employment, if any, or any other written agreement between you and the Company or the entity that employs you (if different);
(iii)your commission of an act of fraud, embezzlement, dishonesty or theft in connection with your duties or in the course of your employment;
(iv)your engaging in any gross or willful misconduct that causes harm, or is likely to cause harm, to the Company’s business or its reputation;
(v)your being charged with, convicted of, or pleading guilty or no contest to, any felony or any other crime involving dishonesty or moral turpitude.
(vi)your failure to substantially perform the essential duties of your employment (other than such failure resulting from your Retirement, Death or Disability as set forth in Sections 4, 5 and 6 of this Agreement).
(b) Continuous Employment; Effective Date of Termination. Subject to Sections 4, 5 and 6 of this Agreement, the issuance of shares of Stock is conditioned on your continuous employment with the Company or an Affiliate through and on the applicable anniversary of the Grant Date as set forth in Section 2 above. For purposes of the vesting conditions set forth in this Agreement, the effective date of your termination shall be deemed to be the last day of your active service with the Company or an Affiliate (if applicable). Notwithstanding anything to the contrary in the Plan or this Agreement, and for purposes of clarity, the date of your termination of employment shall not be extended by any statutory or common law notice of termination period.
8. Change in Control of the Company. In the event you are employed by the Company or an Affiliate at the time of a Change in Control, any Units that have not vested prior to the Change in Control shall immediately vest and shares of Stock will be issued to you immediately prior to the Change in Control; provided, however, that if you have entered into a Change in Control agreement with the Company, the Units will vest according to the provisions of the Change in Control agreement. In the event you have terminated employment with the Company or an Affiliate prior to a Change in Control as a result of death, Disability, or Retirement occurring on or after the first anniversary of the Grant Date, and the Change in Control occurs following your termination of employment, shares of Stock for any Units that have vested under Section 4, 5 or 6 but which have not yet been issued will be issued immediately prior to the Change in Control. Notwithstanding the foregoing and unless otherwise specifically provided in any agreement of the Company or any of its Affiliates with you pertaining to the effect of a Change in Control on outstanding Awards which is in effect as of the Change in Control, if this Award is subject to and not exempt from the application of Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) and provides for settlement or payment upon a Change in Control, the definition of Change in Control shall be limited to events which qualify as a change in the ownership of a corporation within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(v), or a change in the ownership of a substantial portion of the assets of a corporation within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(vii); provided, however, that this requirement shall not cause an event that would not otherwise be considered a Change in Control under the definition of a Change in Control under the Plan to be considered a Change in Control.
9. Recoupment Policies.
(a) Executive Committee Recoupment Policy. Pursuant to the Company’s recoupment policy and to the extent permitted by governing law, the Board, in its discretion, may seek Recovery of the Award granted to you if you are a Current Executive Committee Member or Former Executive Committee Member and, in the judgment of the Board, you, while serving in such capacity as a Current Executive Committee Member, commit misconduct or a gross dereliction of duty that results in a material violation of Company policy and causes significant harm to the Company.
(i) Definitions. The following terms, when used in this Section 9, shall have the meaning set forth below:
(1) “Current Executive Committee Member” means any individual currently designated as a corporate officer of the Company who is in an organizational job level of E-4 or E-5 (or any equivalent level under any future organizational framework).
(2) “Former Executive Committee Member” means any individual previously (but not currently) designated as a corporate officer of the Company who is in an organizational job level of E-4 or E-5 (or any equivalent level under any future organizational framework).
(3) “Recovery” means the forfeiture or cancellation of unvested Units.
(b) Other Compensation Recoupment Authority. The Units and any compensation associated therewith and any proceeds therefrom are subject to forfeiture, recovery by the Company or other action pursuant to any compensation recovery policy (i) in effect as of the Grant Date, as such policy may be amended from time to time, which includes but is not limited to the Company’s Dodd-Frank Clawback Policy and (ii) any other compensation recovery policy adopted after the Grant Date to facilitate compliance with applicable law, including in response to the requirements of Section 10D of the Exchange Act, the U.S. Securities and Exchange Commission’s final rules thereunder, and any applicable listing rules or other rules and regulations implementing the foregoing.
(c) Instructions to Brokerage Firm. For purposes of Sections 9(a) and 9(b) of this Agreement, you expressly and explicitly authorize the Company to issue instructions, on your behalf, to any brokerage firm and/or third party administrator engaged by the Company to hold any shares of Stock and other amounts acquired pursuant to the Units to re-convey, transfer or otherwise return such shares of Stock and/or other amounts to the Company upon the Company’s enforcement of the Company’s recoupment policy, the Company’s Dodd-Frank Clawback Policy and any other compensation recovery policy adopted by the Board or the Committee.
(d) No Constructive Termination. No recovery of compensation as described in this Section 9 will be an event giving rise to your right to resign for “good reason” or “constructive termination” (or similar term) under any plan of, or agreement with, the Company and/or an Affiliate and you.
10. Consideration for Stock. The shares of Stock subject to the Units are intended to be issued for no cash consideration.
11. Issuance of Stock. The Company shall not be obligated to issue any shares of Stock until (a) all federal, state and local laws and regulations, as the Company may deem applicable, have been complied with; (b) the shares have been listed or authorized for listing upon official notice to the New York Stock Exchange, Inc. or have otherwise been accorded trading privileges; and (c) all other legal matters in connection with the issuance and delivery of the shares have been approved by the Company’s legal department.
12. Transferability; Restrictions on Shares; Legend on Certificate. Until the vesting conditions of this Award have been satisfied and shares of Stock have been issued in accordance with the terms of this Agreement and any applicable Addendum or by action of the Committee, the Units awarded under this Agreement are not transferable and you shall not sell, transfer, assign, pledge, gift, hypothecate or otherwise dispose of or encumber the Units awarded under this Agreement. Transfers of shares of Stock by you are subject to the Company’s Stock Trading Policy and applicable securities laws. Shares of Stock issued to you in certificate form or to your book entry account upon satisfaction of the vesting and other conditions of this Award may be restricted from transfer or sale by the Company and evidenced by stop-transfer instructions upon your book entry account or restricted legend(s) affixed to certificates in the form as the Company or its counsel may require with respect to any applicable restrictions on sale or transfer.
13. Satisfaction of Tax Obligations. Regardless of any action the Company or the Affiliate that employs you (the “Employer”) (if applicable) takes with respect to any or all income tax (including U.S. federal, state and local taxes and/or non-U.S. taxes), social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you acknowledge and agree that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that the Company and/or the Employer (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Units or the shares of Stock issued upon vesting of the Units, and (b) do not commit to structure the terms of the Award (or any aspect of the Units) to reduce or eliminate your liability for Tax-Related Items.
Upon the issuance of shares of Stock or the satisfaction of any vesting condition with respect to the shares of Stock to be issued hereunder, if your country of residence (and/or the country of employment, if different) requires withholding of Tax-Related Items, the Company may hold back from the total number of shares of Stock to be delivered to you, and shall cause to be transferred to the Company, whole shares of Stock that have an aggregate Fair Market Value sufficient to pay the Tax-Related Items required to be withheld with respect to the shares of Stock, or to the extent it would not result in adverse accounting treatment, the Company may, in its sole discretion, hold back shares of Stock based on a rate of up to the maximum applicable withholding rate. If the obligation for Tax-Related Items is satisfied by holding back shares of Stock to be delivered upon settlement of the Units, for tax purposes, you are deemed to have been issued the full number of shares of Stock subject to the Units, notwithstanding that a number of shares of Stock are held back solely for the purpose of paying the Tax-Related Items. You will have no further rights with respect to any shares of Stock that are retained by the Company pursuant to this provision. By accepting the grant of the Units, you expressly consent to the withholding of shares of Stock and/or cash as provided for hereunder.
Alternatively, you hereby authorize the Company (on your behalf and at your direction pursuant to this authorization) to immediately sell a sufficient whole number of shares of Stock acquired upon vesting resulting in sale proceeds sufficient to pay the Tax-Related Items required to be withheld. You agree to sign any agreements, forms and/or consents that reasonably may be requested by the Company (or the Company’s designated brokerage firm) to effectuate the sale of the shares of Stock (including, without limitation, as to the transfer of the sale proceeds to the Company to satisfy the Tax-Related Items required to be withheld). Further, the Company or the Employer may, in its discretion, withhold any amount necessary to pay the Tax-Related Items from your salary or any other amounts payable to you, with no withholding of shares of Stock or sale of shares of Stock, or may require you to submit a cash payment equivalent to the Tax-Related Items required to be withheld with respect to the Units.
All other Tax-Related Items related to the grant of the Units and any shares of Stock delivered in settlement thereof are your sole responsibility. In no event shall whole shares be withheld by or delivered to the Company in satisfaction of any Tax-Related Items in excess of the maximum statutory tax withholding required by law.
You agree to indemnify the Company and its Affiliates against any and all liabilities, damages, costs and expenses that the Company and its Affiliates may hereafter incur, suffer or be required to pay with respect to the payment or withholding of any Tax-Related Items.
The Units are intended to comply with or be exempt from the requirements of Code Section 409A. The Plan and this Agreement shall be administered and interpreted in a manner consistent with this intent. If the Company determines that the Agreement is subject to Code Section 409A and that it has failed to comply with the requirements of that Section, the Company may, in its sole discretion, and without your consent, amend this Agreement to cause it to comply with Code Section 409A or be exempt from Code Section 409A.
Notwithstanding any provision of this Agreement to the contrary, in the event that any settlement or payment of this Award occurs as a result of your termination of employment and the Company determines that you are a “specified employee” (as that term is defined under Code Section 409A) subject to Code Section 409A at the time your termination of employment, and provided further that such payment or settlement does not otherwise qualify for an applicable exemption from Code Section 409A, then no such settlement or payment shall be paid to you until the date that is the earlier to occur of: (i) your death, or (ii) six (6) months and one (1) day following your termination of employment. Any portion of this Award delayed as a result of the preceding sentence, which is (i) in whole or in part, settled in cash and (ii) based on the value of Stock, shall be based on the value of the Stock at the time the Award would have otherwise been settled or paid without application of the delay described in the preceding sentence. If this Award does not otherwise qualify for an applicable exemption from Code Section 409A, the terms “Retirement”, “terminate,” “termination,” “termination of employment,” and variations thereof as used in this agreement, are intended to mean a termination of employment that constitutes a “separation from service” as such term is defined under Code Section 409A. Notwithstanding any action or inaction by the Administrator, you are exclusively responsible for any tax consequences under Code Section 409A resulting from this Award.
14. Repatriation and Legal/Tax Compliance Requirements. If you are resident or employed outside of the United States, you agree to repatriate all payments attributable to the shares of Stock and/or cash acquired under the Plan (including, but not limited to, dividends and any proceeds derived from the sale of the shares of Stock acquired pursuant to the Units) in accordance with local foreign exchange rules and regulations in your country of residence (and country of employment, if different). In addition, you agree to take any and all actions, and consent to any and all actions taken by the Company and the Employer, as may be required to allow the Company and the Employer to comply with local laws, rules and regulations in your country of residence (and country of employment, if different). Finally, you agree to take any and all actions as may be required to comply with your personal legal and tax obligations under local laws, rules and regulations in your country of residence (and country of employment, if different).
15. Data Privacy. You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this Agreement and any other grant materials by and among, as applicable, the Employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company and the Employer may hold certain personal information about you, including (but not limited to) your name, home address, email address and telephone number, date of birth, social insurance, passport or other identification number (e.g., resident registration number), salary, nationality, job title, any shares of Stock or directorships held in the Company, and details of all Units awarded to you or any other entitlements to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor (“Data”) for the purpose of implementing, managing and administering the Plan.
You understand that Data may be transferred to any third parties assisting the Company with the implementation, administration and management of the Plan, including but not limited to Morgan Stanley Smith Barney LLC and its affiliates (“Morgan Stanley”) or any successor or any other third party that the Company or Morgan Stanley (or its successor) may engage to assist with the administration of the Plan from time to time. You understand the recipients of the Data may be located in your country, in the United States or elsewhere, and that the recipients’ country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative.
You authorize the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the your participation in the Plan. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of Stock acquired upon vesting of the Units. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. Further, you understand that you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later revoke your consent, your employment status or service with the Employer will not be adversely affected; the only consequence of refusing or withdrawing your consent is that the Company would not be able to grant you Units or other equity awards or administer or maintain such awards. Therefore, you understand that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to
consent or withdrawal of consent, you understand that you may contact your local human resources representative.
16. Nature of Grant. By participating in the Plan, you acknowledge, understand and agree that:
(a)the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Administrator at any time, to the extent permitted by the Plan;
(b)the grant of the Units is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants or benefits in lieu of Units, even if Units have been granted in the past;
(c)all decisions with respect to future grants of Units, if any, will be at the sole discretion of the Administrator;
(d)the grant of the Units and your participation in the Plan shall not create a right to employment or be interpreted as forming an employment or service contract with the Company, the Employer or Affiliate and shall not interfere with the ability of the Company, the Employer or any Affiliate, as applicable, to terminate your employment or service relationship (if any);
(e)you are voluntarily participating in the Plan;
(f)the Units are not intended to replace any pension rights or compensation;
(g)the Units, the underlying Shares, and the income and value of same are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, holiday pay, pension or retirement or welfare benefits or similar payments;
(h)the future value of the underlying shares of Stock is unknown, indeterminable and cannot be predicted with certainty;
(i)no claim or entitlement to compensation or damages shall arise from (i) the forfeiture of the Units resulting from the termination of your employment or other service relationship (for any reason and whether or not in breach of local labor laws and whether or not later found to be invalid) and/or (ii) the forfeiture or cancellation of the Units and/or recoupment of any shares of Stock, cash, or other benefits acquired under the Plan resulting from the application of the Company’s recoupment policies contemplated under Section 9 of this Agreement;
(j)unless otherwise agreed with the Company in writing, the Units, the underlying shares of Stock and the income from and value of same are not granted as
consideration for, or in connection with, any service you may provide as a director of an Affiliate;
(k)for purposes of the Units, your employment or other service relationship will be considered terminated as of the date you are no longer actively providing services to the Company or one of its Affiliates (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any), and unless otherwise expressly provided in this Agreement or determined by the Company, your right to vest in the Units under this Agreement, if any, will terminate as of such date and will not be extended by any notice period (e.g., your period of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any); the Administrator shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of the Unit grant (including whether you may still be considered to be providing services while on an approved leave of absence); and
(l)the following provisions apply only if you are providing services outside the United States: (A) the Units, the underlying shares of Stock, and the income from and value of same are not part of normal or expected compensation or salary for any purpose; and (B) neither the Company, the Employer nor any Affiliate shall be liable for any foreign exchange rate fluctuation between your local currency and the U.S. dollar that may affect the value of the Units or of any amount due to you pursuant to the settlement of the Units or the subsequent sale of any shares of Stock acquired upon settlement.
17. Not a Public Offering. The grant of the Units under the Plan is not intended to be a public offering of securities in your country of residence (and country of employment, if different). The Company has not submitted any registration statement, prospectus or other filings to the local securities authorities unless otherwise required under local law, and the grant of the Units is not subject to the supervision of the local securities authorities.
18. No Advice Regarding Grant. No Employee of the Company is permitted to advise you regarding your participation in the Plan or your acquisition or sale of the shares of Stock subject to the Units. Investment in shares of Stock involves a degree of risk. Before deciding whether to participate in the Plan, you should carefully consider all risk factors relevant to the acquisition of shares of Stock under the Plan, and you should carefully review all of the materials related to the Units and the Plan. You are hereby advised to consult with your own personal tax, legal and financial advisors before taking any action related to the Plan.
19. Investment Intent. You acknowledge that the acquisition of the shares of Stock to be issued hereunder is for investment purposes without a view to distribution thereof.
20. Insider Trading Restrictions/Market Abuse Laws. You acknowledge that, depending on your or your broker’s country of residence or where the shares of Stock are listed, you may be subject to insider trading restrictions and/or market abuse laws that may affect your ability to accept, acquire, sell or otherwise dispose of shares of Stock, rights to those shares of Stock (e.g., Units) or rights linked to the value of shares (e.g., phantom awards, futures) during such times you are considered to have “inside information” regarding the Company, as defined in the laws or regulations in your country. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed insider information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Keep in mind that third parties include fellow employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. You acknowledge that it is your responsibility to comply with any restrictions and are advised to speak to your personal advisor on this matter.
21. Electronic Delivery of Documents. The Company may, in its sole discretion, deliver any documents related to the Units and participation in the Plan or future grants of Units that may be granted under the Plan, by electronic means unless otherwise prohibited by local law. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party-designated by the Company.
22. Language. If you are resident outside of the United States, you hereby acknowledge and agree that it is your express intent that this Agreement and any applicable Addendum, the Plan and all other documents, notices and legal proceedings entered into, given or instituted pursuant to the Units, be drawn up in English. You acknowledge that you are proficient in the English language and understand the terms of this Agreement or have had the ability to consult with an advisor who is sufficiently proficient in the English language. If you have received this Agreement and any applicable Addendum, the Plan or any other documents related to the Units translated into a language other than English, and if the meaning of the translated version is different than the English version, the English version will control.
23. Addendum. Notwithstanding any provision of this Agreement to the contrary, the Units shall be subject to any special terms and conditions for your country of residence (and country of employment, if different) as are forth in the applicable addendum to the Agreement (the “Addendum”). Further, if you transfer your residence and/or employment to another country reflected in the Addendum to this Agreement, the special terms and conditions for such country will apply to you to the extent the Company determines, in its sole discretion, that the application of such terms and conditions is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan (or the Company may establish alternative terms and conditions as may be necessary or advisable to accommodate your transfer). Any applicable Addendum shall constitute part of this Agreement.
24. Additional Requirements. The Administrator reserves the right to impose other requirements on the Units, any shares of Stock acquired pursuant to the Units and your participation in the Plan to the extent the Administrator determines, in its sole discretion, that such other requirements are necessary or advisable in order to comply with local laws or to facilitate the administration of the Plan. Such requirements may include (but are not limited to) requiring you to sign any agreements or undertakings that may be necessary to accomplish the foregoing.
25. Legal Notices. Any legal notice necessary under this Agreement shall be addressed to the Company in care of its General Counsel at the principle executive offices of the Company and to you at the address appearing in the personnel records of the Company for you or to either party at such other address as either party may designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
26. Award Subject to the Plan; Conflicts. The Units granted pursuant to this Agreement and any applicable Addendum is subject to the Plan. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. This Agreement contains terms and provisions established by the Committee specifically for the grant described herein. Unless the Committee has exercised its authority under the Plan to establish specific terms of an Award, the terms of the Plan shall govern. Subject to the limitations set forth in the Plan, the Committee retains the right to alter or modify the Units granted pursuant to this Agreement as the Committee may determine are in the best interests of the Company. You hereby accept the Units subject to all the terms and provisions of the Plan and this Agreement and agree that all decisions under, and interpretations of, the Plan and this Agreement by the Administrator, Committee or the Board shall be final, binding and conclusive upon you and your heirs and legal representatives.
27. Governing Law and Venue. The interpretation, performance and enforcement of this Agreement shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof) and applicable federal laws. For purposes of litigating any dispute under the Agreement, including the Addendum, the parties hereby submit to and consent to the exclusive jurisdiction of The Commonwealth of Massachusetts and agree that such litigation shall be conducted only in the courts of Boston, or the federal courts for the United States for the District of Massachusetts and no other courts where the grant of the Units is made and/or to be performed.
28. Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement.
29. Severability. You agree that the provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
30. Waiver. You understand that the waiver by the Company with respect to your compliance of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach of a provision of this Agreement.
31. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be the one and the same instrument.
IN WITNESS WHEREOF, the Company, by its duly authorized officer, and the Participant have executed and delivered this Agreement as a sealed instrument as of the date and year first above written.
BOSTON SCIENTIFIC CORPORATION
Michael F. Mahoney
President and Chief Executive Officer
BOSTON SCIENTIFIC CORPORATION
ADDENDUM TO THE AWARD AGREEMENT
RELATING TO RESTRICTED STOCK UNITS GRANTED
PURSUANT TO THE
AMENDED AND RESTATED 2011 LONG-TERM INCENTIVE PLAN
In addition to the terms of the Plan and the Agreement, the Units are subject to the following additional terms and conditions. All defined terms contained in this Addendum shall have the same meaning as set forth in the Plan and the Agreement. Pursuant to Section 23 of the Agreement, if you transfer your residence and/or employment to another country reflected in the Addendum, the additional terms and conditions for such country (if any) will apply to you to the extent the Company determines, in its sole discretion, that the application of such terms and conditions is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan (or the Company may establish alternative terms and conditions as may be necessary or advisable to accommodate your transfer).
EUROPEAN UNION (“EU”) / EUROPEAN ECONOMIC AREA (“EEA”), UNITED KINGDOM AND SWITZERLAND
Personal Data. This provision replaces Section 15 of the Agreement:
Pursuant to applicable personal data protection laws, the Company and the Employer hereby notify you of the following in relation to your Personal Data (defined below) and the collection, processing and transfer in electronic or other form of such Personal Data in relation to the grant of the Units and your participation in the Plan. The collection, processing and transfer of your Personal Data is necessary for the legitimate purpose of the Company and the Employer’s administration of the Plan and your participation in the Plan, and your denial and/or objection to the collection, processing and transfer of Personal Data may affect your participation in the Plan. As such, by accepting the Award, you acknowledge the collection, use, processing and transfer of Personal Data as described herein.
You understand that the Company and the Employer hold certain personally identifiable information about you, specifically, your name, home address and telephone number, date of birth, social security number or other employee identification number, salary, nationality, job title, any shares of Stock or directorships held in the Company, details of all Units or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of managing and administering the Plan (“Personal Data”). The Personal Data may be provided by you to or collected, where lawful, from third parties. The Company or the Employer each act as controllers of the Personal Data and will process the Personal Data in this context for the exclusive legitimate purpose of implementing, administering and managing your participation in the Plan and meeting related legal obligations associated with these actions.
The processing will take place through electronic and non-electronic means according to logics and procedures correlated to the purposes for which the Personal Data was collected and with confidentiality and security provisions as set forth by applicable laws and regulations. Personal Data will be accessible within the Company’s organization only by those persons requiring access for purposes of the implementation, administration and operation of the Plan and other aspects of the employment relationship and for participation in the Plan.
The Company and the Employer will transfer Personal Data amongst themselves as necessary for the purpose of implementation, administration and management of your participation in the Plan, and the Company and the Employer may each further transfer Personal Data to third parties assisting the Company or the Employer in the implementation, administration and management of the Plan, including Morgan Stanley Smith Barney LLC and its affiliates or any successor or other third party that the Company, the Employer or Morgan Stanley Smith Barney LLC and its affiliates (or its successor) may engage to assist with the administration of the Plan from time to time. These recipients may be located in the EU/EEA, the United Kingdom, Switzerland or elsewhere throughout the world, such as the United States. By participating in the Plan, you understand that these recipients may receive, possess, use, retain and transfer the Personal Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Personal Data as may be required for the administration of the Plan and/or the subsequent holding of shares of Stock on your behalf to a broker or other third party with whom you may elect to deposit any shares of Stock acquired pursuant to the Plan. You further understand that you may request a list with the names and addresses of any potential recipients of your Personal Data by contacting your local Human Resources manager or the Company’s Human Resources Department. When transferring Personal Data to these potential recipients, the Company and the Employer provide appropriate safeguards in accordance with EU Standard Contractual Clauses or other legally binding and permissible arrangements. You may request a copy of such safeguards from your local human resources manager or the Company’s Human Resources Department.
To the extent provided by law, you may, at any time, have the right to request: access to Personal Data, rectification of Personal Data, erasure of Personal Data, restriction of processing of Personal Data, and portability of Personal Data. You may also have the right to object, on grounds related to a particular situation, to the processing of Personal Data, as well as opt-out of the Plan herein, in any case without cost, by contacting in writing your Human Resources manager. Your provision of Personal Data is a contractual requirement. You understand, however, that the only consequence of refusing to provide Personal Data is that the Company may not be able to grant the Units to you, or grant other equity awards or administer or maintain such equity awards. For more information on the consequences of your refusal to provide Personal Data, you understand that you may contact your local human resources manager or the Company’s Human Resources Department.
When the Company and the Employer no longer need to use Personal Data for the purposes above or do not need to retain it for compliance with any legal or regulatory purpose, each will take reasonable steps to remove Personal Data from their systems and/or records containing the Personal Data and/or take steps to properly anonymize it so that you can longer be identified from it.
ARGENTINA
Type of Offering. Neither the grant of the Units, nor the issuance of shares of Stock subject to the grant, constitutes a public offering.
AUSTRALIA
Securities Law Information. This grant is being made under Division 1A, Part 7.12 of the Australia Corporations Act (Cth). Please note that if you offer shares of Stock for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. You should obtain legal advice on the relevant disclosure obligations prior to making any such offer.
Breach of Law. Notwithstanding anything to the contrary in the Agreement or the Plan, you will not be entitled to, and shall not claim any benefit (including without limitation a legal right) under the Plan if the provision of such benefit would give rise to a breach of Part 2D.2 of the Corporations Act 2001 (Cth), any other provision of that Act, or any other applicable statute, rule or regulation which limits or restricts the giving of such benefits.
Tax Information. The Plan is a program to which Subdivision 83A-C of the Income Tax Assessment Act 1997 (Cth) (the “Act”) applies (subject to the conditions in that Act).
AUSTRIA
No country-specific provisions.
BELGIUM
No country-specific provisions.
BRAZIL
Compliance with Law. By accepting the Units, you acknowledge that you agree to comply with applicable Brazilian laws and to pay any and all applicable taxes associated with the vesting of the Units, the receipt of any dividends, and the sale of shares of Stock acquired under the Plan.
Labor Law Policy and Acknowledgement. This provision supplements Section 16 of the Agreement:
By accepting the Units, you agree that (i) the benefits provided under the Agreement and the Plan are the result of commercial transactions unrelated to your employment; (ii) the Agreement and the Plan are not a part of the terms and conditions of your employment; and (iii) the income from the Units, if any, is not part of your remuneration from employment.
CANADA
Settlement in Shares. Notwithstanding anything to the contrary in the Agreement or the Plan, all Units shall be settled only in shares of Stock (and shall not be settled in cash).
Personal Data. This provision supplements Section 15 of the Agreement:
You hereby authorize the Company and the Company’s representatives to discuss with and obtain all relevant information from all personnel, professional or not, involved in the administration and operation of the Plan. You further authorize the Company, any Affiliate and the Administrator to disclose and discuss the Plan with their advisors. You further authorize the Company and any Affiliate to record such information and to keep such information in your employee file.
Securities Law Information. You are permitted to sell shares of Stock acquired under the Plan through the designated broker appointed under the Plan, if any, provided that the sale of shares of Stock takes place outside Canada through the facilities of a stock exchange on which the shares are listed (i.e., the New York Stock Exchange).
Nature of Grant. The following provision supplements Section 16(k) of the Agreement:
For purposes of the Units, your employment or service relationship will be considered terminated as of the earliest of: (a) the date that your employment or service relationship with the Company or one of its Affiliates is terminated; (b) the date that you receive a notice of termination of employment or service; and (c) the date upon which you cease to actively provide services, regardless of any period during which notice, pay in lieu of notice or related payments or damages are provided or required to be provided under local law. You will not earn or be entitled to any pro-rated vesting for that portion of time before the date on which your right to vest terminates, nor will you be entitled to any compensation for lost vesting. The Administrator shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of the Unit grant (including whether you may still be considered to be providing services while on a leave of absence). Notwithstanding the foregoing, if applicable employment legislation explicitly requires continued entitlement to vesting during a statutory notice period, your right to vest in the Units, if any, will terminate effective as of the last date of the minimum statutory notice period, but you will not earn or be entitled to pro-rated vesting if the vesting date falls after the end of your statutory notice period, nor will you be entitled to any compensation for lost vesting.
French Language Documents. The following provision will apply if you are a resident of Quebec:
A French translation of this Agreement and certain other documents related to the Units will be made available to you as soon as reasonably practicable. You understand that, from time to time, additional information related to the Units may be provided in English and such information may not be immediately available in French. However, upon request, the Company will provide a translation of such information into French as soon as reasonably practicable. Notwithstanding anything to the contrary in the Agreement, and unless you indicate otherwise, the French translation of this Agreement and certain other documents related to the Units will govern your participation in the Plan.
CHILE
Securities Law Information. The offer of the Units constitutes a private offering of securities in Chile effective as of the Grant Date. This offer of Units is made subject to general ruling N° 336 of the Commission for the Financial Market (Comisión para el Mercado Financiero, “CMF”). The offer refers to securities not registered at the securities registry or at the foreign securities registry of the CMF, and, therefore, such securities are not subject to oversight of the CMF. Given that the Units are not registered in Chile, the Company is not required to provide public information about the Units or the shares of Stock in Chile. Unless the Units and/or the shares of Stock are registered with the CMF, a public offering of such securities cannot be made in Chile.
Esta oferta de Unidades de Acciones Restringidas (“Units”) constituye una oferta privada de valores en Chile y se inicia en la Fecha de la Concesión. Esta oferta de Units se acoge a las disposiciones de la Norma de Carácter General Nº 336 (“NCG 336”) de la Comisión para el Mercado Financiero de Chile (“CMF”). Esta oferta versa sobre valores no inscritos en el Registro de Valores o en el Registro de Valores Extranjeros que lleva la CMF, por lo que tales valores no están sujetos a la fiscalización de ésta. Por tratarse los Units de valores no registrados en Chile, no existe obligación por parte de la Compañía de entregar en Chile información pública respecto de los Units or sus Acciones. Estos valores no podrán ser objeto de oferta pública en Chile mientras no sean inscritos en el Registro de Valores correspondiente.
CHINA
The following provisions govern your participation in the Plan if you are a national of the People’s Republic of China (“China”) resident in mainland China, as determined by the Company in its sole discretion:
Shares of Stock Must Be Held with Designated Broker. All shares of Stock issued upon settlement of your Units will be deposited into a personal brokerage account established with the Company’s designated broker, Morgan Stanley Smith Barney LLC (or any successor broker designated by the Company), on your behalf. You understand that you may sell the shares of Stock at any time after they are deposited in such account, however, you may not transfer the shares of Stock out of the brokerage account.
If the Company changes its designated broker, you acknowledge and agree that the Company may transfer any shares of Stock issued under the Plan to the new designated broker, if necessary for legal or administrative reasons. You agree to sign any documentation necessary to facilitate the transfer of shares of Stock.
Mandatory Sale of Shares Following Termination of Employment. You are required to sell all shares of Stock acquired upon vesting of the Units no later than 90 days following your termination of employment with the Company and its Affiliates (or such earlier date as may be required by the China State Administration of Foreign Exchange (“SAFE”)), in which case, this Addendum shall give the Company the authority to issue sales instructions on your behalf). If any shares remain outstanding on the 90th day following your employment termination date (or such earlier date as may be required by SAFE), you hereby direct, instruct and authorize the Company to issue sale instructions on your behalf.
You agree to sign any additional agreements, forms and/or consents that reasonably may be requested by the Company (or the Company’s designated brokerage firm) to effectuate the sale of the shares of Stock (including, without limitation, as to the transfer of the sale proceeds and other exchange control matters noted below) and shall otherwise cooperate with the Company with respect to such matters. You acknowledge that neither the Company nor the designated brokerage firm is under any obligation to arrange for such sale of shares of Stock at any particular price (it being understood that the sale will occur in the market) and that broker’s fees and similar expenses may be incurred in any such sale. In any event, when the shares of Stock are sold, the sale proceeds, less any tax withholding, any broker’s fees or commissions, and any similar expenses of the sale will be remitted to you in accordance with applicable exchange control laws and regulations.
Exchange Control Restrictions. You understand and agree that, pursuant to local exchange control requirements, you will be required immediately to repatriate to China the proceeds from the sale of any shares of Stock acquired under the Plan. You further understand that such repatriation of proceeds may be effected through a special bank account established by the Company or its Affiliate, and you hereby consent and agree that proceeds from the sale of shares of Stock acquired under the Plan may be transferred to such account by the Company on your behalf prior to being delivered to you and that no interest shall be paid with respect to funds held in such account. The proceeds may be paid to you in U.S. dollars or local currency at the Company’s discretion. If the proceeds are paid to you in U.S. dollars, you understand that a U.S. dollar bank account in China must be established and maintained so that the proceeds may be deposited into such account. If the proceeds are paid to you in local currency, you acknowledge that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to exchange control restrictions. You agree to bear any currency fluctuation risk between the time the shares of Stock are sold and the net proceeds are converted into local currency and distributed to you. You further agree to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.
Administration. The Company shall not be liable for any costs, fees, lost interest or dividends or other losses you may incur or suffer resulting from the enforcement of the terms of this Addendum or otherwise from the Company’s operation and enforcement of the Plan, the Agreement and the Award in accordance with Chinese law including, without limitation, any applicable SAFE rules, regulations and requirements.
The above requirements will not apply to non-Chinese nationals, unless otherwise required by the Company or by SAFE.
BY ELECTRONICALLY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THE PLAN, THE AGREEMENT AND THIS ADDENDUM.
COLOMBIA
Nature of Grant. This provision supplements Section 16 of the Agreement:
You acknowledge that, pursuant to Article 128 of the Colombian Labor Code, the Plan and related benefits do not constitute a component of your “salary” for any legal purpose. Therefore, they will not be included and/or considered for purposes of calculating any and all labor benefits, such as legal/fringe benefits, vacations, indemnities, payroll taxes, social insurance contributions and/or any other labor-related amount which may be payable.
Securities Law Information. The shares of Stock are not and will not be registered with the Colombian registry of publicly held securities (Registro Nacional de Valores y Emisores) and, therefore, the shares of Stock may not be offered to the public in Colombia. Nothing in the Agreement should be construed as making a public offer of securities in Colombia.
COSTA RICA
No country-specific provisions.
CZECH REPUBLIC
No country-specific provisions.
DENMARK
Treatment of Units upon Termination of Service. Notwithstanding any provisions in the Agreement to the contrary, the treatment of the Units upon your termination of employment shall be governed by the Danish Act on the Use of Rights to Purchase or Subscribe for Shares etc. in Employment Relationships (the “Stock Option Act”), as in effect at the time of your termination of employment (as determined by the Administrator, in its discretion, in consultation with legal counsel).
You acknowledge having received an “Employer Information Statement” in Danish, which is provided to comply with the Stock Option Act.
EGYPT
No country-specific provisions.
FINLAND
No country-specific provisions.
FRANCE
Type of Grant. The Units are granted as French-Qualified Restricted Stock Units and are intended to qualify for the special tax and social security treatment applicable to shares of Stock granted for no consideration under Sections L. 225-197-1 to L. 225-197-5 and Sections L. 22-10-59 to L. 22-10-60 of the French Commercial Code, as amended. The Award is granted subject to the terms and conditions of the Rules of the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan French Sub-Plan (the “French Sub-Plan”).
Capitalized terms not defined herein, the Agreement or the Plan shall have the meanings ascribed to them in the French Sub-Plan.
Certain events may affect the status of the Units as French-Qualified RSUs or the underlying shares of Stock, and the Award or the underlying shares of Stock may be disqualified in the future. The Company does not make any undertaking or representation to maintain the qualified status of the French-Qualified RSUs or of the underlying shares of Stock.
(a)Restrictions on Sale or Transfer of Shares of Stock.
(1)Minimum Vesting/Issuance Period. The Award will vest according to the vesting schedule set forth in the Equity Award and Acceptance Summary, provided, however, that under no circumstances will shares of Stock underlying the Award be issued and delivered to a French Participant prior to the expiration of such period as is required to comply with the minimum mandatory period applicable to the Award under Section L. 225-197-1 of the French Commercial Code, as amended, the relevant sections of the French Tax Code and/or the relevant sections of the French Social Security Code, as amended, except in the case of your death. The minimum mandatory period is currently one (1) year from the Grant Date.
(2)Minimum Mandatory Holding Period. You may not sell or transfer the shares of Stock acquired upon vesting of the Award until such time as is required to comply with the minimum mandatory holding period applicable to the Award under Section L. 225-197-1 of the French Commercial Code, as amended, the relevant sections of the French Tax Code and/or the relevant sections of the French Social Security Code, as amended, except in the case of your death or Disability (as defined in the French Sub-Plan). The minimum mandatory holding period is currently two (2) years from the Grant Date.
Except in the case of your termination of employment due to death or Disability (as defined in the French Sub-Plan), the minimum mandatory holding period restriction will continue to apply even if you are no longer an Employee.
(3)Closed Periods. You may not sell any Stock issued upon vesting of the Award during certain Closed Periods, to the extent applicable to the Stock underlying the Award granted by the Company, as described in the French Sub-Plan.
(b)Termination of Service Due to Death. In the event of your death, your heirs may request the issuance of the Stock underlying any French-Qualified RSUs that have not vested prior to your death subject to the Award within six (6) months from the date of your death. If your heirs do not request the shares of Stock within six (6) months from the date of your death, the Award will be forfeited.
Use of English Language. You acknowledge and agree that it is your express wish that this Agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Utilisation de la langue anglaise. Vous reconnaissez et acceptez qu’il est de votre volonté que le présent accord, ainsi que tous documents, toutes notifications et toutes procédures judiciaires conclues, reçues ou intentées en vertu des présentes ou s’y rapportant directement ou indirectement, soient rédigés en anglais.
GERMANY
Exchange Control Information. Cross-border payments in in excess of EUR 12,500 must be reported to the German Federal Bank (Bundesbank). If you receive a payment in excess of this amount (including if you acquire shares of Stock with a value in excess of this amount or sell shares via a foreign broker, bank or service provider and receive proceeds in excess of this amount) and/or if the Company withholds shares with a value in excess of EUR 12,500 to recover taxes due by you in connection with your Units, you must report the payment and/or the value of the shares received and/or withheld to Bundesbank, either electronically using the “General Statistics Reporting Portal” (“Allgemeines Meldeportal Statistik”) available on the Bundesbank website (www.bundesbank.de) or via such other method (e.g., by email or telephone) as is permitted or required by Bundesbank.
The report must be submitted monthly or within other such timing as is permitted or required by Bundesbank.
GREECE
No country-specific provisions.
HONG KONG
Settlement in Shares. Notwithstanding anything to the contrary in the Agreement, Addendum or the Plan, the Units shall be settled only in shares of Stock (and may not be settled in cash).
Lapse of Restrictions. If, for any reason, shares of Stock are issued to you within six months after the Grant Date, you agree that you will not sell or otherwise dispose of any such shares of Stock prior to the six-month anniversary of the Grant Date.
IMPORTANT NOTICE/WARNING. The contents of this document have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of the documents, you should obtain independent professional advice. The Units and shares of Stock issued at vesting do not constitute a public offering of securities under Hong Kong law and are available only to employees of the Company or its Affiliates. The Agreement, the Plan and other incidental communication materials have not been prepared in accordance with and are not intended to constitute a “prospectus” for a public offering of securities under the applicable securities legislation in Hong Kong. The Units are intended only for the personal use of each eligible employee of the Employer, the Company or any Affiliate and may not be distributed to any other person.
Wages. The Units and shares of Stock subject to the Units do not form part of your wages for the purposes of calculating any statutory or contractual payments under Hong Kong law.
Nature of the Program. The Company specifically intends that the Plan will not be treated as an occupational retirement scheme for purposes of the Occupational Retirement Schemes Ordinance (“ORSO”). To the extent any court, tribunal or legal/regulatory body in Hong Kong determines that the Plan constitutes an occupational retirement scheme for the purposes of ORSO, the grant of the Units shall be null and void.
INDIA
Forced Sale of Shares. Due to regulatory requirements in India, the Company reserves the right to require that you sell all shares of Stock delivered to you, either immediately upon receipt of such shares of Stock or upon your termination of employment.
In this regard, you agree that the Company is authorized to instruct Morgan Stanley Smith Barney LLC and its affiliates or any successor or other third party that the Company may engage to assist with the administration of the Plan from time to time, to assist with any such mandatory sale of shares of Stock (on your behalf pursuant to this authorization), and you expressly authorize the designated broker to complete the sale of such shares of Stock. You also agree to sign any agreements, forms and/or consents that may be reasonably requested by the Company (or the designated broker) to effectuate the sale of the shares of Stock and shall otherwise cooperate with the Company with respect to such matters, provided that you shall not be permitted to exercise any influence over how, when or whether the sales occur. You acknowledge that Morgan Stanley Smith Barney LLC and its affiliates or subsequent designated broker is under no obligation to arrange for the sale of the shares of Stock at any particular price. Due to fluctuations in the Stock price and/or applicable exchange rates between the date the shares of Stock are delivered to you and (if later) the date on which the shares of Stock are sold, the amount of proceeds ultimately distributed to you may be more or less than the market value of the shares of Stock on the relevant vesting date or the date on which the shares are delivered to you. Upon the sale of the shares of Stock, the cash proceeds from the sale of shares of Stock (less any applicable Tax-Related Items, brokerage fees or commissions) will be delivered to you in accordance with applicable laws and regulations, as determined by the Company in its sole discretion.
Alternatively, depending on applicable regulatory requirements then in effect, the Company reserves the discretion to determine whether to settle any vested Units in cash.
INDONESIA
No country-specific provisions.
IRELAND
Settlement in Shares. Notwithstanding anything to the contrary in the Agreement or the Plan, all Units shall be settled only in shares of Stock (and shall not be settled in cash).
ISRAEL
102 Sub-Plan. The Units are granted to you pursuant to the Israeli Sub-Plan to the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Israeli Sub-Plan”), and are subject to the terms and conditions stated in the Israeli Sub-Plan, the Plan, and the Agreement, including this Addendum. By accepting the Units, you acknowledge and agree to be bound by the terms of the Israeli Sub-Plan and consent to the terms of the “Consent Letter - 102 Capital Gain Awards” attached hereto as Appendix A (the “Consent Letter”). If you do not affirmatively accept the Units (and accordingly, the terms of the Israeli Sub-Plan, the Agreement and the Consent Letter) within ninety (90) days after the Grant Date, the Units may not qualify under the capital gain tax treatment.
Until further election by the Company, the Units and any shares of Stock received upon vesting of the Units are intended to qualify for the tax treatment available in Israel pursuant to the provisions of the “capital gain track” under Section 102 (“Section 102”) of the Israeli Income Tax Ordinance [New Version], 1961 (the “ITO”), including the provisions of the Income Tax Rules (Tax Benefits in Shares Issuance to Employees), 2003 and any Tax Ruling. However, in the event the Units do not meet the requirements of Section 102 of the ITO, such Units and the underlying shares of Stock shall not qualify for the favorable tax treatment under the capital gain track. The Company makes no representations or guarantees that the Units will qualify for favorable tax treatment and will not be liable or responsible if favorable tax treatment is not available under Section 102.
The Units are subject to the trust (the “Trust”) established by the trust and services agreement (the “Trust Agreement”) with ESOP Management and Trust Services Ltd. (the “Trustee”). To receive the tax treatment provided for in Sections 102(b)(2) and 102(b)(3) of the ITO, shares of Stock acquired by you upon vesting of the Units will be issued directly to the Trustee or controlled by the Trustee under a supervisory trustee arrangement, and will be held by the Trustee on your behalf or controlled by the Trustee at least until the end of the Required Holding Period (as defined in the Israeli Sub-Plan), which is currently twenty-four (24) months from the Grant Date, or any other period determined under the ITO as now in effect or as hereafter amended or by the Israeli Income Tax Authority. Subject to the conclusion of the Required Holding Period and any further period included herein, shares of Stock acquired by you upon vesting of the Units will be held or controlled by the Trustee until their sale, unless you request to release the shares of Stock to your direct holding, in which case the release will be subject to the receipt by the Trustee of an acknowledgment from the Israeli Income Tax Authority that you have paid all applicable taxes due pursuant to the ITO and Section 102, or the Trustee withholds any applicable tax due pursuant to the ITO and Section 102. You will not be permitted to elect to sell or release any shares of Stock acquired upon vesting of the Units prior to the conclusion of the Required Holding Period.
The Company may at its sole discretion replace the Trustee from time to time and instruct the transfer of all Units and shares of Stock held and/or administered by such Trustee at such time to its successor and the provisions of your Agreement shall apply to the new Trustee mutatis mutandis.
Any and all Tax-Related Items due in relation to the Units and shares of Stock shall be borne solely by you and in the event of death, by your heirs. The Company, the Employer and/or the Trustee shall withhold Tax-Related Items according to the requirements under the applicable laws, the rules, and regulations, including withholding Tax-Related Items at source. Furthermore, you hereby agree to indemnify the Company, the Employer and/or the Trustee and hold them harmless against and from any and all liability for any such Tax-Related Items or interest or penalty thereon, including without limitation, liabilities relating to the necessity to withhold, or to have withheld, any such Tax-Related Items from any payment made to you.
The Company, the Employer and/or the Trustee, to the extent permitted by law, shall have the right to deduct from any payment otherwise due to you, or from proceeds of the sale of any shares of Stock, an amount equal to any Tax-Related Items required by law to be withheld with respect to such shares of Stock. You will pay to the Company, the Employer or the Trustee any Tax-Related Items that the Company, the Employer or the Trustee may be required to withhold with respect to any shares of Stock that cannot be satisfied by the means previously described. The Company may refuse to deliver any shares of Stock if you fail to comply with your obligations in connection with the Tax-Related Items as described in this section. Any fees associated with any vesting, sale, transfer or any act in relation to the Units and the shares of Stock, shall be borne by you. The Trustee, the Company and/or the Employer shall be entitled to withhold or deduct such fees from payments otherwise due to/from the Company, the Employer or the Trustee.
Securities Law Information. The Company has obtained from the Israel Securities Authority an exemption from the requirement to file a prospectus in relation to the Plan. Copies of the Plan and the Form S-8 registration statement for the Plan filed with the U.S. Securities and Exchange Commission are available by contacting your local human resources manager.
ITALY
Plan. This provision supplements Section 16 of the Agreement:
You further acknowledge that you have read and specifically and expressly approve the following sections of the Agreement: Vesting, Other Termination of Employment, Certain Vesting Conditions, Recoupment Policy, Issuance of Stock, Satisfaction of Tax Obligations, Nature of Grant, and Choice of Law and Venue.
JAPAN
No country-specific provisions.
KAZAKHSTAN
Securities Law Information. This offer is addressed only to certain eligible employees of the Company and its Affiliates in the form of shares of Stock to be issued by the Company, subject to the terms and conditions of the Agreement and the Plan. Neither the Plan nor the Agreement has been approved, nor do they need to be approved, by the National Bank of Kazakhstan. This offer is intended only for the original recipient and is not for general circulation in the Republic of Kazakhstan.
LEBANON
Securities Law Information. The Plan does not constitute the marketing or offering of securities in Lebanon pursuant to Law No. 161 (2011), the Capital Markets Law. Offerings under the Plan are being made only to eligible employees of the Company and its Affiliates.
MALAYSIA
Award Conditioned upon Election to Pay Taxes Directly to the Malaysian Inland Revenue Board. You understand and agree that your Award is conditioned upon your completing, signing and submitting a letter to your Employer, indicating your election to pay any income tax or other tax liability arising in connection with taxable income recognized under the Plan directly to the Malaysian Inland Revenue Board. (You may contact your Employer to request a form letter for this purpose.) You understand that if you fail to file such an election letter with your Employer, your Award will be null and void.
Consent to Collection, Processing and Transfer of Personal Data. This provision replaces Section 15 of the Agreement in its entirety:
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You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data, as described in this Addendum and any other grant materials by and among, as applicable, the Company and Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company and Affiliates may hold certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of Stock or directorships held in the Company, details of all Units or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the exclusive purpose of implementing, administering and managing the Plan (“Data”). The Data is supplied by the Company and also by you through information collected in connection with the Agreement and the Plan.
You understand that Data will be transferred to the current stock plan service providers or a stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. You understand that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country (e.g., the United States) may have different data privacy laws and protections than your country. You understand that if you reside outside the United States, you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative:. You authorize the Company, the stock plan service provider and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any transfer of such Data as may be required to a broker, escrow agent or other third party with whom the shares of Stock received upon vesting of the Units may be deposited. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that if you reside outside the United States, you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data, limit the processing of Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. Further, you understand that you are providing the consent herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your employment status or service and career with the Company will not be adversely affected; the only adverse consequence of refusing or withdrawing your consent is that the Company may not be able to grant you Units or other equity awards or administer or maintain such awards. Therefore, you understand that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
Please take note that by electronically accepting this Agreement, you have confirmed that you explicitly, voluntarily and unambiguously consent to the collection, use and transfer of your personal data in accordance with the terms in this notification. However, if for any reason you do not consent to the processing of your personal data, you have the right to reject such consent by contacting your local human resources representative:.
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Anda dengan ini secara eksplisit dan tanpa sebarang keraguan mengizinkan pengumpulan, penggunaan dan pemindahan, dalam bentuk elektronik atau lain-lain, data peribadi anda seperti yang diterangkan dalam Lampiran ini dan apa-apa bahan pemberian unit saham terhad yang lain oleh dan di antara, seperti yang berkenaan, Syarikat dan Ahli Gabungan untuk tujuan eksklusif bagi melaksanakan, mentadbir dan menguruskan penyertaan anda di dalam Pelan.
Anda memahami bahawa Syarikat Ahli Gabungan mungkin memegang maklumat peribadi tertentu tentang anda, termasuk, tetapi tidak terhad kepada, nama anda, alamat rumah dan nombor telefon, tarikh lahir, nombor insurans sosial atau nombor pengenalan lain, gaji, kewarganegaraan, jawatan, apa-apa syer saham Biasa atau jawatan pengarah yang dipegang dalam Syarikat, butir-butir semua unit saham terhad, atau apa-apa hak lain atas syer Biasa saham yang dianugerahkan, dibatalkan, dilaksanakan, terletak hak, tidak diletak hak ataupun yang belum dijelaskan bagi faedahanda, untuk tujuan eksklusif bagi melaksanakan, mentadbir dan menguruskan Pelan tersebut (“Data”). Data tersebut dibekalkan oleh Syarikat dan juga oleh anda berkenaan dengan Perjanjian dan Pelan.
Anda memahami bahawa Data ini akan dipindahkan kepada pembekal perkhidmatan pelan saham semasa atau pembekal perkhidmatan pelan saham yang mungkin dipilih oleh Syarikat pada masa depan, yang membantu Syarikat dengan pelaksanaan, pentadbiran dan pengurusan Pelan. Anda memahami bahawa penerima-penerima Data mungkin berada di Amerika Syarikat atau mana-mana tempat lain, dan bahawa negara penerima-penerima (contohnya, Amerika Syarikat) mungkin mempunyai undang-undang privasi data dan perlindungan yang berbeza daripada negara anda. Anda memahami bahawa sekiranya anda menetap di luar Amerika Syarikat, anda boleh meminta satu senarai yang mengandungi nama-nama dan alamat-alamat penerima-penerima Data yang berpotensi dengan menghubungi wakil sumber manusia tempatan anda:. Anda memberi kuasa kepada Syarikat, pembekal perkhidmatan pelan saham dan mana-mana penerima-penerima kemungkinan lain yang mungkin akan membantu Syarikat (pada masa sekarang atau pada masa depan) dengan melaksanakan, mentadbir dan menguruskan Pelan untuk menerima, memiliki, menggunakan, mengekalkan dan memindahkan Data, dalam bentuk elektronik atau lain-lain, bagi tujuan melaksanakan, mentadbir dan menguruskan penyertaan anda di dalam Pelan, termasuk segala pemindahan Data tersebut sebagaimana yang dikehendaki kepada broker, egen eskrow atau pihak ketiga dengan siapa syer Biasa saham diterima semasa peletakhakan saham terhad unit mungkin didepositkan. Anda memahami bahawa Data hanya akan disimpan selagi ia adalah diperlukan untuk melaksanakan, mentadbir, dan menguruskan penyertaan anda dalam Pelan. Anda memahami bahawa sekiranya anda menetap di luar Amerika Syarikat, anda boleh, pada bila-bila masa, melihat Data, meminta maklumat tambahan mengenai penyimpanan dan pemprosesan Data, meminta bahawa pindaan-pindaan dilaksanakan ke atas Data, mengehadkan pemprosean Data atau menolak atau menarik balik persetujuan dalam ini, dalam mana-mana kes, tanpa kos, dengan menghubungi secara bertulis wakil sumber manusia tempatan. Selanjutnya, anda memahami bahawa anda memberikan persetujuan di sini secara sukarela semata-mata. Sekiranya anda tidak bersetuju, atau sekiranya anda kemudian membatalkan persetujuan anda, status pekerjaan atau perkhidmatan dan kerjaya anda dengan Syarikat tidak akan terjejas; satu-satunya akibat buruk sekiranya anda tidak bersetuju atau menarik balik persetujuan andaadalah bahawa Syarikat tidak akan dapat memberikan unit saham terhad anda atau anugerah ekuiti lain atau mentadbir atau mengekalkan anugerah-anugerah tersebut. Oleh itu, anda memahami bahawa keengganan atau penarikan balik persetujuan anda boleh menjejaskan keupayaan anda untuk mengambil bahagian dalam Pelan. Untuk maklumat lebih lanjut mengenai akibat-akibat keengganan anda untuk memberikan keizinan atau penarikan balik keizinan, anda memahami bahawa anda boleh menghubungi wakil sumber manusia tempatan.
Sila ambil perhatian bahawa dengan menerima Perjanjian ini secara elektronik, anda mengesahkan bahawa anda secara eksplisit, sukarela, dan tanpa sebarang keraguan bersetuju dengan pengumpulan, penggunaan, dan pemindahan data peribadi anda mengikut terma-terma dalam notis ini. Walaubagaimanapun, jika atas apa-apa sebab-sebab tertentu anda tidak bersetuju dengan pemprosesan data peribadi anda, anda mempunyai hak untuk menolak persetujuan anda dengan menghubungi wakil sumber manusia tempatan anda:.
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MEXICO
Securities Law Information. You expressly recognize and acknowledge that the Company’s grant of the Units and the underlying shares of Stock under the Plan have not been registered with the National Register of Securities maintained by the Mexican National Banking and Securities Commission and cannot be offered or sold publicly in Mexico.
In addition, the Plan, the Agreement and any other document relating to the Units may not be publicly distributed in Mexico. These materials are addressed to you only because of your existing relationship with the Company and these materials should not be reproduced or copied in any form. The offer contained in these materials does not constitute a public offering of securities but rather constitutes a private placement of securities addressed specifically to individuals who are present employees of the Employer in Mexico made in accordance with the provisions of the Mexican Securities Market Law, and any rights under such offering shall not be assigned or transferred.
Acknowledgement of the Agreement. By accepting the Units, you acknowledge that you have received a copy of the Plan and the Agreement, including this Addendum, which you have reviewed. You further acknowledge that you accept all the provisions of the Plan and the Agreement, including this Addendum. You also acknowledge that you have read and specifically and expressly approve the terms and conditions set forth in the “Nature of Grant” section of the Agreement, which clearly provide as follows:
(1) Your participation in the Plan does not constitute an acquired right;
(2) The Plan and your participation in it are offered by the Company on a wholly discretionary basis;
(3) Your participation in the Plan is voluntary; and
(4) The Company and its Affiliates are not responsible for any decrease in the value of any shares of Stock acquired at vesting of the Units.
Reconocimiento del Contrato. Al aceptar los Unidades, usted reconoce que ha recibido una copia del Plan y del Contrato con inclusión de este Apéndice, que le ha examinado. Usted reconoce, además, que usted acepta todas las disposiciones del Plan y del Contrato. Usted también reconoce que ha leído y, concretamente, y aprobar de forma expresa los términos y condiciones establecidos en la “Naturaleza del Otorgamiento” que claramente dispone lo siguiente:
(1) Su participación en el Plan no constituye un derecho adquirido;
(2) El Plan y su participación en el Plan se ofrecen por Boston Scientific Corporation en su totalidad sobre una base discrecional;
(3) Su participación en el Plan es voluntaria; y
(4) Boston Scientific Corporation y sus afiliadas no son responsables de ninguna disminución en el valor de las acciones adquiridas en la adquisición de los Unidades.
Labor Law Acknowledgement and Policy Statement. By accepting the Units, you acknowledge that Boston Scientific Corporation, with registered offices at 300 Boston Scientific Way, Marlborough, Massachusetts 01752, United States of America, is solely responsible for the administration of the Plan.
You further acknowledge that your participation in the Plan, the grant of Units and any acquisition of shares of Stock under the Plan do not constitute an employment relationship between you and Boston Scientific Corporation because you are participating in the Plan on a wholly commercial basis and your sole employer is a Mexican legal entity (“Boston Scientific-Mexico”). Based on the foregoing, you expressly acknowledge that the Plan and the benefits that you may derive from participation in the Plan do not establish any rights between you and the Employer, Boston Scientific-Mexico, and do not form part of the employment conditions and/or benefits provided by Boston Scientific-Mexico, and any modification of the Plan or its termination shall not constitute a change or impairment of the terms and conditions of your employment.
You further understand that your participation in the Plan is the result of a unilateral and discretionary decision of Boston Scientific Corporation, therefore, Boston Scientific Corporation reserves the absolute right to amend and/or discontinue your participation in the Plan at any time, without any liability to you.
Finally, you hereby declare that you do not reserve to you any action or right to bring any claim against Boston Scientific Corporation for any compensation or damages regarding any provision of the Plan or the benefits derived under the Plan, and that you therefore grant a full and broad release to Boston Scientific Corporation, its Affiliates, branches, representation offices, shareholders, officers, agents and legal representatives, with respect to any claim that may arise.
Reconocimiento de Ausencia de Relación Laboral y Declaración de la Política. Al aceptar los Unidades, usted reconoce que Boston Scientific Corporation, con oficians registradas on 300 Boston Scientific Way, Marlborough, Massachusetts 01752, Estados Unidos de América, es el único responsable de la administración del Plan. Además, usted acepta que su participación en el Plan, la concesión de los Unidades y cualquier adquisición de acciones en el marco del Plan no constituyen una relación laboral entre usted y Boston Scientific Corporation porque usted está participando en el Plan en su totalidad sobre una base comercial y su único empleador es una sociedad mercantil Mexicana (“Boston Scientific-Mexico”). Derivado de lo anterior, usted expresamente reconoce que el Plan y los beneficios que pueden derivarse de la participación en el Plan no establece ningún derecho entre usted y su Empleador, Boston Scientific-Mexico, y que no forman parte de las condiciones de empleo y / o prestaciones previstas por Boston Scientific-Mexico, y cualquier modificación del Plan o la terminación de su contrato no constituirá un cambio o deterioro de los términos y condiciones de su empleo.
Además, usted entiende que su participación en el Plan es causada por una decisión discrecional y unilateral de Boston Scientific Corporation, por lo que Boston Scientific Corporation se reserva el derecho absoluto a modificar y/o suspender su participación en el Plan en cualquier momento, sin responsabilidad alguna para con usted.
Finalmente, usted manifiesta que no se reserva ninguna acción o derecho que origine una demanda en contra de Boston Scientific Corporation, por cualquier compensación o daño en relación con cualquier disposición del Plan o de los beneficios derivados del mismo, y en consecuencia usted otorga un amplio y total finiquito a Boston Scientific Corporation, sus afiliadas, sucursales, oficinas de representación, sus accionistas, directores, agentes y representantes legales con respecto a cualquier demanda que pudiera surgir.
NETHERLANDS
Waiver of Termination Rights. By accepting the Units, you hereby waive any and all rights to compensation or damages as a result of the termination of employment with the Company and the Employer for any reason whatsoever, insofar as those rights result or may result from (a) the loss or diminution in value of such rights or entitlements under the Plan, or (b) your ceasing to have rights under, or ceasing to be entitled to any awards under the Plan as a result of such termination.
NEW ZEALAND
Securities Law Information.
Warning
This is an offer of Units which, upon vesting and settlement in accordance with the terms of the Plan and the Agreement, will be converted into shares of Stock. Shares of Stock give you a stake in the ownership of Boston Scientific Corporation. You may receive a return if dividends are paid.
If Boston Scientific Corporation runs into financial difficulties and is wound up, you will be paid only after all creditors and holders of preference shares have been paid. You may lose some or all of your investment.
New Zealand law normally requires people who offer financial products to give information to investors before they invest. This information is designed to help investors to make an informed decision. The usual rules do not apply to this offer because it is made under an employee share purchase scheme. As a result, you may not be given all the information usually required. You will also have fewer other legal protections for this investment.
Ask questions, read all documents carefully, and seek independent financial advice before committing.
Prior to the vesting and settlement of the Units, you will not have any rights of ownership (e.g., voting or dividend rights) with respect to the underlying shares of Stock.
No interest in any Units may be transferred (legally or beneficially), assigned, mortgaged, charged or encumbered.
The shares of Stock are quoted on the New York Stock Exchange. This means that if you acquire shares of Stock under the Plan, you may be able to sell them on the New York Stock Exchange if there are interested buyers. You may get less than you invested. The price will depend on the demand for the shares of Stock.
You also are hereby notified that the documents listed below are available for review on sites at the web addresses listed below:
1.Boston Scientific Corporation’s most recent Annual Report (Form 10-K): https://www.sec.gov/cgi-bin/browse-edgar?CIK=bsx&owner=exclude&action=getcompany&Find=Search.
2.Boston Scientific Corporation’s most recent published financial statements (Form 10-Q or 10-K) and the auditor’s report on those financial statements: https://www.sec.gov/cgi-bin/browse-edgar?CIK=bsx&owner=exclude&action=getcompany&Find=Search.
3.The Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan: This document can be accessed at https://us.etrade.com/home -> My Stock Plan -> Holdings -> click on a grant date and select “View Grant Documents”.
4.Boston Scientific Corporation Restricted Stock Unit Award Agreement and Amended and Restated 2011 Long-Term Incentive Plan Q&A Summary Sheet: This document can be accessed at https://us.etrade.com/home -> My Stock Plan -> Holdings -> click on a grant date and select “View Grant Documents”.
5.Boston Scientific Corporation Equity Award and Acceptance Summary: This document can be accessed at https://us.etrade.com/home -> My Stock Plan -> Holdings -> click on a grant date and select “View Grant Documents”.
A copy of the above documents will be sent to you free of charge on written request being mailed to: Boston Scientific Corporation, Corporate Compensation, 300 Boston Scientific Way, Marlborough, MA 01752, USA.
NORWAY
No country-specific provisions.
PAKISTAN
Forced Sale of Shares. The Company reserves the right to force the immediate sale of the shares of Stock to be issued upon vesting and settlement of the Units. If applicable, you agree that the Company is authorized to instruct its designated broker, on your behalf, to assist with the mandatory sale of such shares of Stock and you expressly authorizes the Company’s designated broker to complete the sale of such shares of Stock. You expressly acknowledge that the Company’s designated broker is under no obligation to arrange for the sale of shares of Stock at any particular price. Upon the sale of shares of Stock, you shall receive the cash proceeds from the sale of shares of Stock, less any brokerage fees or commissions and subject to any obligation to satisfy Tax-Related Items. You also acknowledge that you are unaware of any material non-public information with respect to the Company or any securities of the Company as of the date of the Agreement.
PERU
Securities Law Information. The grant of Units is considered a private offering in Peru; therefore, it is not subject to registration. For more information concerning the grant, you acknowledge that you should refer to the Plan, the Agreement, and any other materials made available by the Company. For more information regarding the Company, you acknowledge that you should refer to the Company’s most recent annual report on Form 10-K and quarterly report on Form 10-Q available at www.sec.gov.
Additional Acknowledgement of Nature of Plan and the Units. By accepting the Units, you understand, acknowledge and agree that the Units are being granted ex gratia by the Company.
PHILIPPINES
Settlement in Cash. Pursuant Section 2 of the Agreement, the Company shall settle your Units in the form of a cash payment unless, at the time of vesting, share settlement does not trigger the need for any approval from and/or filing with the Philippines Securities and Exchange Commission.
POLAND
No country-specific provisions.
PORTUGAL
Language Consent. You hereby expressly declare that you have full knowledge of the English language and have read, understood and fully accepted and agreed with the terms and conditions established in the Plan and the Agreement.
Conhecimento da Lingua. Por meio do presente, eu declaro expressamente que tem pleno conhecimento da língua inglesa e que li, compreendi e livremente aceitei e concordei com os termos e condições estabelecidas no Plano e no Acordo.
PUERTO RICO
No country-specific provisions.
ROMANIA
Language Consent. By accepting the grant of Units, you acknowledge that you are proficient in reading and understanding English and fully understand the terms of the documents related to the grant (the Agreement and the Plan), which were provided in the English language. You accept the terms of those documents accordingly.
Consimtamant cu Privire la Limba. Acceptând acordarea unităților de Unit-uri, recunoașteți că sunteți competenți în citirea și înțelegerea limbii engleze și înțelegeți pe deplin termenii documentelor legate de subvenție (Acordul de acordare și planul), care au fost furnizate în limba engleză. Acceptați termenii acestor documente în consecință.
RUSSIA
THE PROVISIONS BELOW ARE CURRENT AS OF DECEMBER 2022 AND MAY NOT ADDRESS THE CURRENT LEGAL AND TAX CONSIDERATIONS AND REQUIREMENTS ASSOCIATED WITH AWARDS IN RUSSIA. YOU SHOULD CONSULT WITH A LEGAL AND TAX ADVISOR TO ENSURE COMPLIANCE WITH APPLICABLE LAW AS IT RELATES TO YOUR PARTICIPATION IN THE PLAN.
U.S. Transaction. You understand that the Units shall be valid and this Agreement shall be concluded and become effective only when the Agreement is received by the Company in the United States. Upon vesting of the Units, any shares of Stock to be issued to you shall be delivered to you through a bank or brokerage account in the United States. In no event will shares of Stock be delivered to you in Russia; instead, all shares of Stock acquired upon vesting of the Units will be maintained on your behalf in the United States. You are not permitted to sell shares of Stock acquired at vesting directly to a Russian legal entity or resident.
Securities Law Information. You acknowledge that the Units, the Equity Award and Acceptance Summary, the Agreement, the Plan and all other materials that you may receive regarding participation in the Plan do not constitute advertising or an offering of securities in Russia. The shares of Stock acquired pursuant to the Plan have not and will not be registered in Russia and, therefore, neither the Units nor the shares of Stock may be used for offering or public circulation in Russia.
Repatriation Requirements. You agree to promptly repatriate proceeds resulting from the sale of shares of Stock acquired under the Plan to a foreign currency account at an authorized bank in Russia if legally required at the time shares of Stock are sold and to comply with all applicable local foreign exchange rules and regulations. Neither the Company nor any of its Affiliates shall be liable for any fines or penalties resulting from your failure to comply with applicable laws.
The repatriation requirement may not apply with respect to cash amounts received in an account that is considered by the Central Bank of Russia to be a foreign brokerage account opened with a financial market institution other than a bank. Statutory exceptions to the repatriation requirement also may apply.
Anti-Corruption Notification. Anti-corruption laws prohibit certain public servants, their spouses and their dependent children from owning any foreign source financial instruments (e.g., shares of Stock of foreign companies such as the Company). Accordingly, you should inform the Company if you are covered by these laws because you should not hold shares of Stock acquired under the Plan.
Labor Law Information. If you continue to hold shares of Stock acquired upon settlement of the Units after an involuntary termination of employment, you may not be eligible to receive unemployment benefits in Russia.
Settlement of Units. Depending on applicable restrictions then in effect, the Company has the sole discretion to postpone the vesting and/or settlement of any Units, to determine whether to settle any vested Units in shares of Stock or in cash, or to cancel such Units for no consideration.
SAUDI ARABIA
Securities Law Information. The grant of the Units is not subject to the regulations concerning public offers and private placements under the Law on Capital Markets.
SINGAPORE
Private Placement. The grant of the Units is being made pursuant to the “Qualifying Person” exemption under section 273(1)(f) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (“SFA”). The Plan has not been and will not be lodged or registered as a prospectus with the Monetary Authority of Singapore and is not regulated by any financial supervisory authority pursuant to any legislation in Singapore. Accordingly, statutory liability under the SFA in relation to the content of prospectuses would not apply. You should note that the Units are subject to section 257 of the SFA and you will not be able to make any subsequent sale of the shares of Stock in Singapore, or any offer of such subsequent sale of the shares of Stock subject to the grant in Singapore, unless such sale or offer is made (i) after six months from the Grant Date or (ii) pursuant to the exemptions under Part XIII Division 1 Subdivision (4) (other than section 280) of the SFA.
SOUTH AFRICA
Securities Law Information. In compliance with South African securities law, the documents listed below are available for review on the Company’s external and internal sites at the web addresses listed below:
1.Boston Scientific Corporation’s most recent Annual Report (Form 10-K): https://www.sec.gov/cgi-bin/browse-edgar?CIK=bsx&owner=exclude&action=getcompany&Find=Search.
2.The Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan: This document can be accessed at https://us.etrade.com/home -> My Stock Plan -> Holdings -> click on a grant date and select “View Grant Documents”.
3.Boston Scientific Corporation Restricted Stock Unit Award Agreement and Amended and Restated 2011 Long-Term Incentive Plan Q&A Summary Sheet: This document can be accessed at https://us.etrade.com/home -> My Stock Plan -> Holdings -> click on a grant date and select “View Grant Documents”.
4.Boston Scientific Corporation Equity Award and Acceptance Summary: This document can be accessed at https://us.etrade.com/home -> My Stock Plan -> Holdings -> click on a grant date and select “View Grant Documents”.
You acknowledge that you may have copies of the above documents sent to you, at no charge, on written request being mailed to Boston Scientific Corporation, attn: Corporate Compensation, 300 Boston Scientific Way, Marlborough, MA 01752, USA.
You understand that you are advised to carefully read the materials provided before making a decision whether to participate in the Plan and to contact your tax advisor for specific information concerning your personal tax situation with regard to Plan participation.
SOUTH KOREA
Consent to Collection, Processing and Transfer of Personal Data. By electronically accepting this Agreement:
1.You agree to the collection, use, processing and transfer of Data as described in Section 15 of the Agreement; and
2.You agree to the processing of your unique identifying information (resident registration number) as described in Section 15 of the Agreement.
Domestic Broker Requirement. Residents of South Korea may not be permitted to sell foreign securities (such as shares of Stock acquired under the Plan) through non-Korean brokers (such as Morgan Stanley Smith Barney LLC and its affiliates) or deposit funds resulting from the sale of shares of Stock in an account with an overseas financial institution.
If you wish to sell shares of Stock acquired under the Plan, applicable law may require you to transfer the shares of Stock to a domestic investment broker in Korea and to effect the sale through such broker. You acknowledge and agree that you are solely responsible for engaging a domestic broker, to the extent required. Non-compliance with the requirement to sell shares of Stock through a domestic broker can result in significant penalties. Because applicable law and regulations may change without notice, you should consult with a legal advisor to ensure compliance with applicable law as it relates to your participation in the Plan.
SPAIN
Acknowledgement of Discretionary Nature of the Plan; No Vested Rights. This provision supplements the terms of the Agreement.
In accepting the grant of Units, you acknowledge that you consent to participation in the Plan and have received a copy of the Plan.
You understand that the Company has unilaterally, gratuitously and in its sole discretion granted Units under the Plan to individuals who may be employees of the Company or its Affiliates throughout the world. The decision is a limited decision that is entered into upon the express assumption and condition that any grant will not economically or otherwise bind the Company or any of its Affiliates on an ongoing basis. Consequently, you understand that the Units are granted on the assumption and condition that the Units and the shares of Stock acquired upon vesting of the Units shall not become a part of any employment contract (either with the Company or any of its Affiliates) and shall not be considered a mandatory benefit, salary for any purposes (including severance compensation) or any other right whatsoever. In addition, you understand that this grant would not be made to you but for the assumptions and conditions referenced above; thus, you acknowledge and freely accept that should any or all of the assumptions be mistaken or should any of the conditions not be met for any reason, the grant of the Units shall be null and void.
You understand and agree that, as a condition of the grant of the Units, your termination of employment for any reason (including the reasons listed below) will automatically result in the loss of the Units to the extent the Units have not vested as of date that you cease active employment. In particular, you understand and agree that any unvested Units as of the date you cease active employment will be forfeited without entitlement to the underlying shares of Stock or to any amount of indemnification in the event of the termination of employment by reason of, but not limited to, resignation or retirement prior to the first anniversary of the Grant Date, disciplinary dismissal adjudged to be with cause, disciplinary dismissal adjudged or recognized to be without cause, individual or collective dismissal on objective grounds, whether adjudged or recognized to be with or without cause, material modification of the terms of employment under Article 41 of the Workers’ Statute, relocation under Article 40 of the Workers’ Statute, Article 50 of the Workers’ Statute, unilateral withdrawal by the Employer and under Article 10.3 of the Royal Decree 1382/1985.
You acknowledge that you have read and specifically accept the conditions referred to in the Agreement regarding the impact of a termination of employment on your Award.
BY ELECTRONICALLY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THE PLAN, THE AGREEMENT AND THIS ADDENDUM.
SWEDEN
Tax Withholding. The following provision shall supplement Section 13 of the Agreement:
Without limiting the Company’s and the Employer’s authority to satisfy their withholding obligations for Tax-Related Items as set forth in the Section 13 of the Agreement, in accepting the grant of the Units, you authorize the Company to withhold shares of Stock or to sell shares of Stock otherwise deliverable to you upon settlement of the Units to satisfy Tax-Related Items, regardless of whether the Company and/or the Employer have an obligation to withhold such Tax-Related Items.
SWITZERLAND
Securities Law Information. Neither this document nor any other materials relating to the Units (i) constitutes a prospectus according to articles 35 et seq. of the Swiss Federal Act on Financial Services (“FinSA”) (ii) may be publicly distributed or otherwise made publicly available in Switzerland to any person other than an employee of the Corporation or a Subsidiary or (iii) has been or will be filed with, approved or supervised by any Swiss reviewing body according to article 51 FinSA or any Swiss regulatory authority, including the Swiss Financial Market Supervisory Authority, FINMA.
TAIWAN
Securities Law Information. This Award and the shares of Stock to be issued pursuant to the Plan are available only for Employees. The Award is not a public offer of securities by a Taiwanese company.
THAILAND
No country-specific provisions.
TURKEY
Securities Law Information. Under Turkish law, you are not permitted to sell shares of Stock acquired under the Plan in Turkey. The shares of Stock are currently traded on the New York Stock Exchange, which is located outside Turkey and the shares of Stock may be sold through this exchange.
UNITED ARAB EMIRATES
Securities Law Information. The Plan is an employee equity incentive plan and is only being offered to select employees in the United Arab Emirates. The Plan and the Agreement are intended for distribution only to such employees and must not be delivered to, or relied on by, any other person. The Emirates Securities and Commodities Authority has no responsibility for reviewing or verifying any documents in connection with the Plan. Neither the Ministry of Economy nor the Dubai Department of Economic Development have approved the Plan or the Agreement nor taken steps to verify the information set out therein, and have no responsibility for such documents. You should conduct your own due diligence on the securities offered under the Plan. If you do not understand the contents of the Agreement or the Plan, you should consult an authorized financial advisor.
UNITED KINGDOM
Income Tax and Social Insurance Contribution Withholding. The following provision shall supplement Section 13 of the Agreement:
Without limitation Section 13 of the Agreement, you agree that you are liable for all Tax-Related Items and hereby covenant to pay all such Tax-Related Items, as and when requested by the Company, the Employer or by HM Revenue and Customs (“HMRC”) (or any other tax authority or any other relevant authority). You also agree to indemnify and keep indemnified the Company and the Employer against any Tax-Related Items that they are required to pay or withhold or have paid or will pay on your behalf to HMRC (or any other tax authority or any other relevant authority).
Notwithstanding the foregoing, you understand that if you are a director or executive officer (within the meaning of Section 13(k) of the U.S. Securities Exchange Act of 1934, as amended), the terms of the immediately foregoing provision may not apply. In the event that you are a director or executive officer and income tax due is not collected from or paid by you within 90 days after the UK tax year in which an event giving rise to the indemnification described above occurs, the amount of any uncollected tax may constitute a benefit on which additional income tax and national insurance contributions may be payable. You acknowledge that you ultimately will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for reimbursing the Company or the Employer (as applicable) for the value of any employee national insurance contributions due on this additional benefit, which the Company and/or the Employer may recover from you at any time thereafter by any of the means referred to in Section 13 of the Agreement.
Exclusion of Claim. You acknowledge and agree that you will have no entitlement to compensation or damages insofar as such entitlement arises or may arise from your ceasing to have rights under or to be entitled to the Award, whether or not as a result of your termination of employment (whether the termination is in breach of contract or otherwise), or from the loss or diminution in value of the Award.
Upon the grant of your Award, you shall be deemed irrevocably to have waived any such entitlement.
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APPENDIX A
CONSENT LETTER
102 CAPITAL GAIN AWARDS FOR PARTICIPANTS RESIDING IN ISRAEL
Dear Participant,
Boston Scientific Corporation (the “Company”) has elected to apply the capital gains route in accordance with the provisions of Section 102 of the Israeli Income Tax Ordinance (the “Ordinance”) on awards granted under the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Incentive Plan”) to Israeli Participants (as defined in the Israeli sub-plan to the Incentive Plan (the “Israel Sub-Plan”), which was approved by the Executive Compensation and Human Resources Committee of the Company’s Board of Directors on November 14, 2022) and any future incentive plan implemented by the Company in Israel (“Awards” and “Capital Gains Route”), subject to the Company’s absolute discretion to change such election on future grants, with or without advance notice. Unless otherwise notified to you in writing by the Company, the Awards shall be granted to you under the Capital Gains Route, subject to compliance with the requirements of such tax route.
The Capital Gains Route election will enable you to enjoy lower tax rates on a portion of the income received upon disposition of the shares of Company common stock (“Shares”) issued to you from or in connection to the Awards, provided however that all the requirements under Section 102 of the Ordinance and the Income Tax (Tax Abatement on the Grant of Shares to Employees) Regulations 2003 (the “Regulations”) are met.
Below you will find a brief description of the Israeli income tax consequences of the Capital Gains Route. PLEASE NOTE THAT THE SUMMARY BELOW IS ONLY A BRIEF SUMMARY THAT DOES NOT COVER ALL THE PROVISIONS OF SECTION 102 OF THE ORDINANCE AND THE REGULATIONS AND IS NOT INTENDED TO PROVIDE ANY TAX ADVICE. IN ADDITION, THE TAX LAWS AND REGULATIONS DESCRIBED HEREIN ARE SUBJECT TO CHANGE. THEREFORE, IT IS RECOMMENDED THAT YOU CONSULT WITH A TAX ADVISER BEFORE ACCEPTING THE TERMS OF THIS CONSENT LETTER OR BEFORE ACCEPTING ANY AWARDS OR DISPOSING OF SHARES.
The main restrictions that are included under Section 102 of the Ordinance are as follows:
(1) Your Awards and the Shares issued under such Awards will be held in trust or controlled by a trustee for at least a period determined in Section 102 under the Capital Gains Route (“Required Holding Period”) (currently twenty-four months from the date in which the Awards were granted to you).
(2) During the Required Holding Period you will not be able to sell, pledge, release from trust or otherwise perform any transaction in connection to the Awards or Shares granted to you.
Provided that all conditions set by the Ordinance under the Capital Gains Route are met, including the above conditions, you will, in general, be taxed as follows:
•The fair market value of the underlying Shares at grant will be treated as ordinary income subject to income tax and employee/employer social insurance contributions (to the extent the applicable contribution ceiling has not been exceeded). For tax purposes, the fair market value of the Shares at grant is deemed to be the average price of the Shares over the 30 trading days preceding the grant.
•The remainder of the gain, if any, will be treated as a capital gain and will be taxed at the capital gains tax rate of 25%. No social insurance contributions will be due on this portion of the gain.
In addition, a surtax may be imposed if your income is in excess of the applicable annual threshold.
If the Company were to permit you to sell your Shares, or release the Shares from trust, before the end of the Holding Period, you will immediately be subject to income tax on the gain, at your marginal income tax rate, and will be also required to pay social security and health tax contributions on all your profit.
In order to enable you to enjoy the benefits of the Capital Gains Route, please express your acceptance and confirmation of the following terms, by accepting the Award through the electronic acceptance procedures established by the Company:
1. I undertake to comply with all the terms and conditions set under Section 102 of the Ordinance with regard to the Capital Gains Route and the Regulations.
2. I have had the opportunity to obtain the advice of counsel prior to accepting this Consent Letter. I am familiar with and understand the provisions of Section 102 of the Ordinance in general, and the tax arrangement under the Capital Gains Route in particular, and agree to comply with such provisions, as amended from time to time.
3. I agree that Awards granted to me, and the Shares that may be derived from such Awards, will be held or controlled by a trustee for at least the duration of the Required Holding Period, as determined in Section 102 under the Capital Gains Route (currently twenty-four months from the date in which the Awards were granted).
4. I agree to the trust deed signed between the Company, my employer and the trustee available at Trust Deed RSU-Stock Option - Hebrew.pdf.
5. I understand that any release of such Awards or Shares from trust, or any sale of the Shares prior to the termination of the Required Holding Period, will result in taxation at my marginal tax rate, in addition to deductions of appropriate social security and health tax contributions.
6. I authorize the Company and/or my employer to provide the trustee with any information required for administrating the grant of the Awards, including without limitation information about my Awards, income tax rates, salary bank account, contact details and identification number and any reasonable information required by the trustee.
7. I declare that I am a resident of the state of Israel for tax purposes and agree to notify the Company upon any change in the residence address and acknowledge that if I cease to be an Israeli resident or if my engagement with the Company or any affiliate is terminated, the Awards and underlying Shares shall remain subject to Section 102, the trust agreement and the applicable equity plan and grant document.
8. I understand and agree that until the Company will determine otherwise, my acceptance of the terms of this Consent Letter will be sufficient, to apply to all potential future grants of Awards. I hereby confirm that by accepting this Consent Letter, I will be deemed to have elected to accept the terms and conditions herein in respect of any such potential future grant of Awards.
9. I acknowledge, understand and agree that the Awards are an extraordinary, one-time benefit granted to me, and do not create any contractual or other right to receive future grant of Awards.
10. I understand that neither the Company nor any of its affiliates guarantee that any Awards granted to me will be eligible for tax benefits pursuant to the Capital Gains Route and I agree that I will not hold the Company and/or any affiliate and/or the trustee liable for any tax consequences relating to my Awards, including any penalties or other negative tax consequences I could receive or be subject to if my Awards do not obtain the Capital Gains Route tax treatment, regardless of the reason for the Capital Gains Route tax treatment not being available.
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EX-10.3
4
exhibit103-bscx2024grantxt.htm
EX-10.3
Document
Exhibit 10.3
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Boston Scientific Corporation
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Participant: %%FIRST_NAME%-% %%LAST_NAME%-% |
Employee ID: %%EMPLOYEE_IDENTIFIER%-% |
Award Type: Performance Share Unit Award Agreement |
Plan Name: rTSR PERFORMANCE SHARE PROGRAM - |
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Award Date: %%OPTION_DATE,'Month DD, YYYY'%-% |
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Total Granted: %%TOTAL_SHARES_GRANTED%-% |
BOSTON SCIENTIFIC
INTENT TO GRANT
PERFORMANCE SHARE UNIT AWARD AGREEMENT
This Agreement, dated as of the %%OPTION_DATE,'Month DD, YYYY'%-% (the “Grant Date”), is between you and Boston Scientific Corporation, a Delaware corporation (the “Company”), in connection with the Award of Performance Share Units by the Company under the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Plan”). Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in either the Plan or in the Relative Total Shareholder Return Performance Share Program (the “Program”) for the period beginning January 1, 2024 and ending on December 31, 2026 (the “Performance Period”).
1. Grant and Acceptance of Award. The Company hereby indicates its award to you that number of Performance Share Units (the “Units”) set forth herein this Agreement (the “Award”). Each Unit represents the Company’s commitment to issue to you shares of the Company’s common stock, par value USD 0.01 per share (“Stock”), subject to certain eligibility, performance and other conditions set forth herein. The Award is intended to be granted pursuant to and is subject to the terms and conditions of this Agreement and the provisions of the Plan and the Program.
-Rev. 1.2024 rTSR Program
2. Eligibility Conditions upon Award of the Units. You hereby acknowledge the intent of the Company to award the Units subject to certain eligibility, performance and other conditions set forth herein.
3. Satisfaction of Performance-Based Conditions. Subject to the eligibility conditions described in Sections 2 and 7 of this Agreement, except as otherwise provided in Sections 8 and 9 of this Agreement and Appendix B, and the satisfaction of the performance conditions set forth on Appendix A to this Agreement during the Performance Period, the Company intends to award shares of Stock hereunder to you at the end of the Performance Period. Shares of Stock shall be issued during the period January 1 to March 15 of the calendar year following the end of the Performance Period based on actual performance as determined at the first Committee meeting following the Performance Period. Except as set forth in Section 9 of this Agreement, no shares of Stock in settlement of the Units shall be issued to you prior to the end of the Performance Period.
4. Participant’s Rights in Stock. The shares of Stock, if and when issued hereunder, shall be registered in your name and evidenced in the manner as the Company may determine. During the period prior to the issuance of shares of Stock, you will have no rights of a stockholder of the Company with respect to the shares of Stock, including no right to receive dividends or vote the shares of Stock underlying each Award.
5. Death or Disability. In the event that your employment with the Company or its subsidiaries or Affiliates is terminated due to death or Disability (as the term is defined in the Plan or determined under local law), prior to the end of the Performance Period, shares of Stock shall be issued during the period January 1 to March 15 of the calendar year following the end of the Performance Period based on actual performance as determined at the first Committee meeting following the Performance Period.
6. Retirement. In the event that your employment with the Company or its subsidiaries or Affiliates is terminated due to Retirement after December 31, 2024, but prior to the end of the Performance Period, shares of Stock shall be issued during the period January 1 to March 15 of the calendar year following the end of the Performance Period on a prorated basis based on actual performance as determined at the first Committee meeting following the Performance Period. The number of shares of Stock to be issued under the prorated Award shall be determined by calculating (a)(i) the number of Units set forth herein multiplied by (ii) the quotient of the number of full and partial months that you worked during the Performance Period (rounded up to the nearest whole month) divided by 36, and then multiplying the product of (a)(i) and (a)(ii) by (b) the percentile performance amount, as calculated in accordance with the terms of the Program. In the event that you terminate your employment due to Retirement prior to January 1, 2025, the Award shall be forfeited in its entirety.
1.2024 2 rTSR Program For purpose of this Section 6, a “Retirement” shall not include (i) a termination of your employment for Cause (as defined in Section 7(b) of this Agreement) or (ii) a resignation by you after being notified that the Company has elected to terminate your employment for Cause.
7. Other Termination of Employment -- Eligibility Conditions.
(a) If your employment with the Company and its Affiliates or subsidiaries is terminated or you separate from the Company and its Affiliates or subsidiaries for any reason other than death, Retirement or Disability, any Units that remain subject to eligibility conditions shall be void and no shares of Stock shall be issued. Except as set forth in Sections 5, 6 and 8, eligibility to be issued shares of Stock is conditioned on your continuous employment with the Company or an Affiliate through and on the last day of the Performance Period.
For purposes of the vesting conditions set forth in this Agreement, the effective date of your termination shall be deemed to be the last day of your active service with the Company or an Affiliate (if applicable). Notwithstanding anything to the contrary in the Plan or this Agreement, and for purposes of clarity, the date of your termination of employment shall not be extended by any statutory or common law notice of termination period.
(b) Any Units not previously settled (without regard to whether the performance-based vesting condition has been satisfied) shall be cancelled and forfeited immediately upon notice to you of your termination for Cause.
For purposes of this Agreement, “Cause” shall mean termination of your employment by the Company as a result of the occurrence of any of the following, as determined by the Company in its sole discretion:
(1)your violation of the Company’s Code of Conduct or your violation of any written policy of the Company;
(2)your breach of your Agreement Concerning Employment, if any, or any other written agreement between you and the Company;
(3)your commission of an act of fraud, embezzlement, dishonesty or theft in connection with your duties or in the course of your employment;
(4)your engaging in any gross or willful misconduct that causes harm, or is likely to cause harm, to the Company’s business or its reputation;
(5)your being charged with, convicted of, or pleading guilty or no contest to, any felony or any other crime involving dishonesty or moral turpitude.
-Rev. 1.2024 3 rTSR Program
(6)your failure to substantially perform the essential duties of your employment (other than such failure resulting from your Retirement, Death or Disability as set forth in Sections 4, 5 and 6 of this Agreement).
8. Change in Control of the Company. Subject to the terms of any separate Change in Control or similar agreement to which you are bound, in the event you are employed by the Company or an Affiliate at the time of a Change in Control after December 31, 2024, but prior to the end of the Performance Period, shares of Stock shall be issued immediately prior to the Change in Control on a prorated basis based on actual performance using the last day of the month preceding the date on which the Change in Control is consummated as the ending date of the Performance Period in lieu of December 31, 2026, as determined by the Committee immediately prior to the consummation of the Change in Control. The number of shares of Stock to be issued under the prorated Award shall be determined by calculating (a)(i) the number of Units set forth herein multiplied by (ii) the quotient of the number of full and partial months during the Performance Period (rounded up to the nearest whole month) prior to the consummation of the Change in Control divided by 36, and then multiplying the product of (a)(i) and (a)(ii) by (b) the percentile performance amount as calculated in accordance with the terms of the Program. In the event that a Change in Control occurs prior to January 1, 2025, the Award shall be forfeited in its entirety.
In the event that your employment with the Company or its subsidiaries or Affiliates is terminated due to death or Disability prior to a Change in Control and a Change in Control occurs after December 31, 2024, but prior to the end of the Performance Period, shares of Stock shall be issued immediately prior to the Change in Control based on actual performance using the last day of the month preceding the date on which the Change in Control is consummated as the ending date of the Performance Period in lieu of December 31, 2026, as determined by the Committee immediately prior to the consummation of the Change in Control.
In the event that your employment with the Company or its subsidiaries or Affiliates is terminated due to Retirement prior to a Change in Control after December 31, 2024 and a Change in Control occurs after December 31, 2024, but prior to the end of the Performance Period, shares of Stock shall be issued immediately prior to the Change in Control on a prorated basis as determined under Section 6 based on actual performance using the last day of the month preceding the date on which the Change in Control is consummated as the ending date of the Performance Period in lieu of December 31, 2026, as determined by the Committee immediately prior to the consummation of the Change in Control.
9. Recoupment Policies.
(a) Executive Committee Recoupment Policy. Pursuant to the Company’s recoupment policy and to the extent permitted by governing law, the Board, in its discretion, may seek Recovery of the Award granted to you if you are a Current Executive Committee Member or Former Committee Member and if, in the judgment of
1.2024 4 rTSR Program the Board, you, while serving in such capacity as a Current Executive Committee Member, commit misconduct or a gross dereliction of duty that results in a material violation of Company policy and causes significant harm to the Company.
(i) Definitions. The following terms, when used in this Section 9, shall have the meaning set forth below:
(1) “Current Executive Committee Member” means any individual currently designated as a corporate officer of the Company who is in an organizational job level of E-4 or E-5 (or any equivalent level under any future organizational framework).
(2) “Former Executive Committee Member” means any individual previously (but not currently) designated as a corporate officer of the Company who is in an organizational job level of E-4 or E-5 (or any equivalent level under any future organizational framework).
(3) “Recovery” means the forfeiture or cancellation of unvested Units.
(b) Other Compensation Recoupment Authority. The Units and any compensation associated therewith and any proceeds therefrom are subject to forfeiture, recovery by the Company or other action pursuant to any compensation recovery policy (i) in effect as of the Grant Date, as such policy may be amended from time to time, which includes but is not limited to the Company’s Dodd-Frank Clawback Policy and (ii) any other compensation recovery policy adopted after the Grant Date to facilitate compliance with applicable law, including in response to the requirements of Section 10D of the Exchange Act, the U.S. Securities and Exchange Commission’s final rules thereunder, and any applicable listing rules or other rules and regulations implementing the foregoing.
(c) Instructions to Brokerage Firm. For purposes of Sections 9(a) and 9(b) of this Agreement, you expressly and explicitly authorize the Company to issue instructions, on your behalf, to any brokerage firm and/or third party administrator engaged by the Company to hold any shares of Stock and other amounts acquired pursuant to the Units to re-convey, transfer or otherwise return such shares of Stock and/or other amounts to the Company upon the Company’s enforcement of the Company’s recoupment policy, the Company’s Dodd-Frank Clawback Policy and any other compensation recovery policy adopted by the Board or the Committee.
(d) No Constructive Termination. No recovery of compensation as described in this Section 9 will be an event giving rise to your right to resign for “good reason” or “constructive termination” (or similar term) under any plan of, or agreement with, the Company and/or an Affiliate and you.
-Rev. 1.2024 5 rTSR Program
10. Consideration for Stock. The shares of Stock are intended to be issued for no cash consideration.
11. Issuance of Stock. The Company shall not be obligated to issue any shares of Stock until (i) all United States (“U.S.”) federal, state, local and non-U.S. laws and regulations as the Company may deem applicable have been complied with; (ii) the shares of Stock have been listed or authorized for listing upon official notice to the New York Stock Exchange, Inc. or have otherwise been accorded trading privileges; and (iii) all other legal matters in connection with the issuance and delivery of the shares of Stock have been approved by the Company’s legal department.
12. Satisfaction of Tax Obligations. Regardless of any action the Company or the Affiliate that employs you (the “Employer”) (if applicable) takes with respect to any or all income tax (including U.S. federal, state and local taxes and/or non-U.S. taxes), social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you acknowledge and agree that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that the Company and/or the Employer (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Units or the shares of Stock issued upon vesting of the Units, and (b) do not commit to structure the terms of the Award (or any aspect of the Units) to reduce or eliminate your liability for Tax-Related Items.
Upon the issuance of shares of Stock or the satisfaction of any vesting condition with respect to the shares of Stock to be issued hereunder, if your country of residence (and/or the country of employment, if different) requires withholding of Tax-Related Items, the Company may hold back from the total number of shares of Stock to be delivered to you, and shall cause to be transferred to the Company, whole shares of Stock that have an aggregate Fair Market Value sufficient to pay the Tax-Related Items required to be withheld with respect to the shares of Stock, or to the extent it would not result in adverse accounting treatment, the Company may, in its sole discretion, hold back shares of Stock based on a rate of up to the maximum applicable withholding rate. If the obligation for Tax-Related Items is satisfied by holding back shares of Stock to be delivered upon settlement of the Units, for tax purposes, you are deemed to have been issued the full number of shares of Stock subject to the Units, notwithstanding that a number of shares of Stock are held back solely for the purpose of paying the Tax-Related Items. You will have no further rights with respect to any shares of Stock that are retained by the Company pursuant to this provision. By accepting the grant of the Units, you expressly consent to the withholding of shares of Stock and/or cash as provided for hereunder.
Alternatively, you hereby authorize the Company (on your behalf and at your direction pursuant to this authorization) to immediately sell a sufficient whole number of shares of Stock acquired upon vesting resulting in sale proceeds sufficient to pay the Tax-Related Items required to be withheld. You agree to sign any agreements, forms and/or consents that reasonably may be requested by the Company (or the Company’s
-Rev. 1.2024 6 rTSR Program -Rev.
designated brokerage firm) to effectuate the sale of the shares of Stock (including, without limitation, as to the transfer of the sale proceeds to the Company to satisfy the Tax-Related Items required to be withheld). Further, the Company or the Employer may, in its discretion, withhold any amount necessary to pay the Tax-Related Items from your salary or any other amounts payable to you, with no withholding of shares of Stock or sale of shares of Stock, or may require you to submit a cash payment equivalent to the Tax-Related Items required to be withheld with respect to the Units.
All other Tax-Related Items related to the grant of the Units and any shares of Stock delivered in settlement thereof are your sole responsibility. In no event shall whole shares of Stock be withheld by or delivered to the Company in satisfaction of any Tax-Related Items in excess of the maximum statutory tax withholding required by law. You agree to indemnify the Company and its Affiliates against any and all liabilities, damages, costs and expenses that the Company and its Affiliates may hereafter incur, suffer or be required to pay with respect to the payment or withholding of any Tax-Related Items.
The Units are intended to comply with or be exempt from the requirements of Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). The Plan and this Agreement shall be administered and interpreted in a manner consistent with this intent. If the Company determines that the Agreement is subject to Code Section 409A and that it has failed to comply with the requirements of that Section, the Company may, in its sole discretion, and without your consent, amend this Agreement to cause it to comply with Code Section 409A or be exempt from Code Section 409A.
Notwithstanding any provision of this Agreement to the contrary, in the event that any settlement or payment of this Award occurs as a result of your termination of employment and the Company determines that you are a “specified employee” (as that term is defined under Code Section 409A) subject to Code Section 409A at the time your termination of employment, and provided further that such payment or settlement does not otherwise qualify for an applicable exemption from Code Section 409A, then no such settlement or payment shall be paid to you until the date that is the earlier to occur of: (i) your death, or (ii) six (6) months and one (1) day following your termination of employment. Any portion of this Award delayed as a result of the preceding sentence, which is (i) in whole or in part, settled in cash and (ii) based on the value of shares of Stock, shall be based on the value of the shares of Stock at the time the Award would have otherwise been settled or paid without application of the delay described in the preceding sentence. If this Award does not otherwise qualify for an applicable exemption from Code Section 409A, the terms “Retirement”, “terminate,” “termination,” “termination of employment,” and variations thereof as used in this agreement, are intended to mean a termination of employment that constitutes a “separation from service” as such term is defined under Code Section 409A. Notwithstanding any action or inaction by the Administrator, you are exclusively responsible for any tax consequences under Code Section 409A resulting from this Award.
13. Investment Intent. You acknowledge that the acquisition of the shares of Stock to be issued hereunder is for investment purposes without a view to distribution thereof.
14. Limits on Transferability; Restrictions on Shares; Legend on Certificate. Until the eligibility conditions of this Award have been satisfied and shares of Stock have been issued in accordance with the terms of this Agreement or by action of the Committee, the Units awarded hereunder are not transferable and shall not be sold, transferred, assigned, pledged, gifted, hypothecated or otherwise disposed of or encumbered by you. Transfers of shares of Stock by you are subject to the Company’s Stock Trading Policy and applicable securities laws. Shares of Stock issued to you in certificate form or to your book entry account upon satisfaction of the vesting and other conditions of this Award may be restricted from transfer or sale by the Company and evidenced by stop-transfer instructions upon your book entry account or restricted legend(s) affixed to certificates in the form as the Company or its counsel may require with respect to any applicable restrictions on sale or transfer.
15. Award Subject to the Plan and the Program. The Award to be made pursuant to this Agreement is made subject to the Plan and the Program. The terms and provisions of the Plan and the Program, as each may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained in this Agreement and a term or provision of the Plan or the Program, the applicable terms and conditions of the Plan or Program will govern and prevail. However, no amendment of the Program after the grant date may materially and adversely impair a participant's rights under awards made pursuant to the Program without the participant's consent unless the amendment is necessary or desirable to facilitate compliance with applicable law, as determined in the sole discretion of the Committee.
16. No Rights to Continued Employment. The Company’s intent to issue the shares of Stock hereunder shall not confer upon you any right to continued employment or other association with the Company or any of its Affiliates or subsidiaries; and this Agreement shall not be construed in any way to limit the right of the Company or any of its subsidiaries or Affiliates to terminate your employment or other association with the Company or to change the terms of such employment or association at any time.
17. Legal Notices. Any legal notice necessary under this Agreement shall be addressed to the Company in care of its General Counsel at the principle executive offices of the Company and to you at the address appearing in the personnel records of the Company for you or to either party at such other address as either party may designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
18. Appendix. Notwithstanding any provision of this Agreement to the contrary, the Units shall be subject to any special terms and conditions for your country of residence (and country of employment, if different) as are forth in the applicable
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appendix to the Agreement (the “Appendix”). Further, if you transfer your residence and/or employment to another country reflected in the Appendices to these Agreements, the special terms and conditions for such country will apply to you to the extent the Company determines, in its sole discretion, that the application of such terms and conditions is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan (or the Company may establish alternative terms and conditions as may be necessary or advisable to accommodate your transfer). Any applicable Appendix shall constitute part of this Agreement.
19. Governing Law and Venue. The interpretation, performance and enforcement of this Agreement shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof) and applicable federal laws. For purposes of litigating any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereby submit and consent to the exclusive jurisdiction of the Commonwealth of Massachusetts and agree that such litigation shall be conducted only in the Commonwealth of Massachusetts, or the federal courts for the United States for the District of Massachusetts, and no other courts, where this Award is made and/or to be performed.
20. Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement.
21. Severability. You agree that the provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
22. Waiver. You understand that the waiver by the Company with respect to your compliance of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach of a provision of this Agreement.
23. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to the one and the same instrument.
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APPENDIX A
PLAN: AMENDED AND RESTATED 2011 LONG-TERM INCENTIVE PLAN
The Performance Share Units will pay out in shares of Stock in a range of 0% to 200% of the number of Performance Share Units as follows:
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rTSR* Performance
Percentile Rank
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Performance Share Units as a Percent of Target |
75th Percentile or above |
200% |
55th Percentile |
100% |
25th Percentile |
30% |
Below 25th Percentile |
0% |
*Relative Total Shareholder Return
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BOSTON SCIENTIFIC CORPORATION
ADDENDUM TO THE AWARD AGREEMENT
RELATING TO PERFORMANCE SHARE UNITS GRANTED
PURSUANT TO THE
AMENDED AND RESTATED 2011 LONG-TERM INCENTIVE PLAN
APPENDIX B
This Appendix B contains supplemental terms and conditions for awards of Units granted under the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Plan”) to Participants who reside outside the United States or who are otherwise subject to the laws of a country other than the United States. Capitalized terms used but not defined herein shall have the same meanings ascribed to them in the Agreement.
Section I of this Appendix B contains special terms and conditions that govern the Units outside of the United States. Section II of this Appendix B includes special terms and conditions in the specific countries listed therein.
This Appendix B may also include information regarding exchange controls, taxation of awards and certain other issues of which you should be aware with respect to participation in the Plan. The information is based on the securities, exchange control, tax and other laws concerning the Units in effect as of December 2023. Such laws are often complex and change frequently; the information may be out of date at the time you vest in the Units or sell shares of Stock acquired under the Plan. As a result, the Company strongly recommends that you not rely on the information noted herein as the only source of information relating to the consequences of your participation in the Plan.
In addition, this Appendix B is general in nature, does not discuss all of the various laws, rules and regulations which may apply to your particular situation and the Company does not assure you of any particular result. Accordingly, you should seek appropriate professional advice as to how the relevant laws in your country apply to your specific situation.
Finally, if you are a citizen or resident of a country other than the one in which you are currently working, transferred employment after the Award was granted or is considered a resident of another country for local law purposes, the information contained herein may not be applicable to you in the same manner. In addition, the Company shall, in its sole discretion, determine to what extent the terms and conditions contained herein will apply under these circumstances (or the Company may establish alternative terms and conditions as may be necessary or advisable).
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Section I. All Countries Outside the United States
Nature of Grant. In accepting the grant, you acknowledge that:
(a)the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Administrator at any time, to the extent permitted by the Plan;
(b)the grant of the Units is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants or benefits in lieu of Units, even if Units have been granted in the past;
(c)all decisions with respect to future grants of Units, if any, will be at the sole discretion of the Administrator;
(d)the grant of the Units and your participation in the Plan shall not create a right to employment or be interpreted as forming an employment or service contract with the Company, the Employer or Affiliate and shall not interfere with the ability of the Company, the Employer or any Affiliate, as applicable, to terminate your employment or service relationship (if any);
(e)you are voluntarily participating in the Plan;
(f)the Units are not intended to replace any pension rights or compensation;
(g)the Units, the underlying shares of Stock, and the income and value of same are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, holiday pay, pension or retirement or welfare benefits or similar payments;
(h)the future value of the underlying shares of Stock is unknown, indeterminable and cannot be predicted with certainty;
(i)no claim or entitlement to compensation or damages shall arise from (i) the forfeiture of the Units resulting from the termination of your employment or other service relationship by the Company or the Employer (for any reason, and whether or not in breach of local labor laws and whether or not later found to be invalid) and/or (ii) the forfeiture or cancellation of the Units and/or recoupment of any shares of Stock, cash, or other benefits acquired under the Plan resulting from the application of the Company’s recoupment policies contemplated under Section 9 of this Agreement;
(j)unless otherwise agreed with the Company in writing, the Units, the underlying shares of Stock and the income from and value of same are not granted as
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consideration for, or in connection with, any service you may provide as a director of an Affiliate;
(k)for purposes of the Units, your employment or other service relationship will be considered terminated as of the date you are no longer actively providing services to the Company or one of its Affiliates (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any), and unless otherwise expressly provided in this Agreement or determined by the Company, your right to vest in the Units under this Agreement, if any, will terminate as of such date and will not be extended by any notice period (e.g., your period of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any); the Committee shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of the Unit grant (including whether you may still be considered to be providing services while on an approved leave of absence); and
(l)the following provisions apply only if you are providing services outside the United States: (A) the Units, the underlying shares of Stock, and the income from and value of same are not part of normal or expected compensation or salary for any purpose; and (B) neither the Company, the Employer nor any Affiliate shall be liable for any foreign exchange rate fluctuation between your local currency and the U.S. dollar that may affect the value of the Units or of any amount due to you pursuant to the settlement of the Units or the subsequent sale of any shares of Stock acquired upon settlement.
Electronic Delivery of Documents. The Company may, in its sole discretion, decide to deliver any documents related to the Units granted under and participation in the Plan or future Units that may be granted under the Plan by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
Language. You hereby acknowledge and agree that it is your express intent that this Agreement and any applicable Appendix, the Plan and all other documents, notices and legal proceedings entered into, given or instituted pursuant to the Units, be drawn up in English. You acknowledge that you are proficient in the English language and understand the terms of this Agreement or have had the ability to consult with an advisor who is sufficiently proficient in the English language. If you have received this Agreement and any applicable Appendix, the Plan or any other documents related to the Units translated into a language other than English, and if the meaning of the translated version is different than the English version, the English version will control.
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Insider Trading Restrictions/Market Abuse Laws. You acknowledge that, depending on your or your broker’s country of residence or where the shares of Stock are listed, you may be subject to insider trading restrictions and/or market abuse laws that may affect your ability to accept, acquire, sell or otherwise dispose of shares of Stock, rights to those shares of Stock (e.g., Units) or rights linked to the value of shares (e.g., phantom awards, futures) during such times you are considered to have “inside information” regarding the Company, as defined in the laws or regulations in your country. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed insider information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Keep in mind that third parties include fellow employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. You acknowledge that it is your responsibility to comply with any restrictions and are advised to speak to your personal advisor on this matter.
Section II. Country-Specific Terms and Conditions
COUNTRIES OUTSIDE THE EUROPEAN UNION (“EU”) / EUROPEAN ECONOMIC AREA (“EEA”), UNITED KINGDOM AND SWITZERLAND
Data Privacy: If you do not reside and/or are not employed in the EU / EEA, the United Kingdom or Switzerland, the following provision applies:
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this Agreement and any other Unit grant materials by and among, as applicable, the Employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company and the Employer may hold certain personal information about you, including (but not limited to) your name, home address, email address and telephone number, date of birth, social insurance, passport or other identification number (e.g., resident registration number), salary, nationality, job title, any shares of Stock or directorships held in the Company, and details of all Units awarded to you or any other entitlements to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor (“Data”) for the purpose of implementing, managing and administering the Plan.
You understand that Data may be transferred to any third parties assisting the Company with the implementation, administration and management of the Plan, including but not limited to Morgan Stanley Smith Barney LLC and its affiliates (“Morgan Stanley”) or any successor or any other third party that the Company or Morgan Stanley (or its successor) may engage to assist with the administration of the Plan from time to time.
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You understand the recipients of the Data may be located in your country, in the United States or elsewhere, and that the recipients’ country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative.
You authorize the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of Stock acquired upon vesting of the Units. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. Further, you understand that you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later revoke your consent, your employment status or service with the Employer will not be adversely affected; the only consequence of refusing or withdrawing your consent is that the Company would not be able to grant you Units or other equity awards or administer or maintain such awards. Therefore, you understand that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
COUNTRIES WITHIN THE EU / EEA, UNITED KINGDOM AND SWITZERLAND
Data Privacy: If you reside and/or are employed in the EU / EEA, the United Kingdom or Switzerland, the following provision applies:
Pursuant to applicable personal data protection laws, the Company and the Employer hereby notify you of the following in relation to your Personal Data (defined below) and the collection, processing and transfer in electronic or other form of such Personal Data in relation to the grant of the Units and your participation in the Plan. The collection, processing and transfer of your Personal Data is necessary for the legitimate purpose of the Company and the Employer’s administration of the Plan and your participation in the Plan, and your denial and/or objection to the collection, processing and transfer of Personal Data may affect your participation in the Plan. As such, by accepting the Award, you acknowledge the collection, use, processing and transfer of Personal Data as described herein.
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You understand that the Company and the Employer hold certain personally identifiable information about you, specifically, your name, home address and telephone number, date of birth, social security number or other employee identification number, salary, nationality, job title, any shares of Stock or directorships held in the Company, details of all Units or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of managing and administering the Plan (“Personal Data”). The Personal Data may be provided by you to or collected, where lawful, from third parties. The Company or the Employer each act as controllers of the Personal Data and will process the Personal Data in this context for the exclusive legitimate purpose of implementing, administering and managing your participation in the Plan and meeting related legal obligations associated with these actions.
The processing will take place through electronic and non-electronic means according to logics and procedures correlated to the purposes for which the Personal Data was collected and with confidentiality and security provisions as set forth by applicable laws and regulations. Personal Data will be accessible within the Company’s organization only by those persons requiring access for purposes of the implementation, administration and operation of the Plan and other aspects of the employment relationship and for participation in the Plan.
The Company and the Employer will transfer Personal Data amongst themselves as necessary for the purpose of implementation, administration and management of your participation in the Plan, and the Company and the Employer may each further transfer Personal Data to third parties assisting the Company or the Employer in the implementation, administration and management of the Plan, including Morgan Stanley Smith Barney LLC and its affiliates or any successor or other third party that the Company, the Employer or Morgan Stanley Smith Barney LLC (or its successor) may engage to assist with the administration of the Plan from time to time. These recipients may be located in the EU, EEA, the United Kingdom, Switzerland or elsewhere throughout the world, such as the United States. By participating in the Plan, you understand that these recipients may receive, possess, use, retain and transfer the Personal Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Personal Data as may be required for the administration of the Plan and/or the subsequent holding of shares of Stock on your behalf to a broker or other third party with whom you may elect to deposit any shares of Stock acquired pursuant to the Plan. You further understand that you may request a list with the names and addresses of any potential recipients of your Personal Data by contacting your local Human Resources manager or the Company’s Human Resources Department. When transferring Personal Data to these potential recipients, the Company and the Employer provide appropriate safeguards in accordance with EU Standard Contractual Clauses or other legally binding and permissible arrangements. You may request a copy of such safeguards from your local human resources manager or the Company’s Human Resources Department.
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To the extent provided by law, you may, at any time, have the right to request: access to Personal Data, rectification of Personal Data, erasure of Personal Data, restriction of processing of Personal Data, and portability of Personal Data. You may also have the right to object, on grounds related to a particular situation, to the processing of Personal Data, as well as opt-out of the Plan herein, in any case without cost, by contacting in writing your Human Resources manager. Your provision of Personal Data is a contractual requirement. You understand, however, that the only consequence of refusing to provide Personal Data is that the Company may not be able to grant the Units to you, or grant other equity awards or administer or maintain such equity awards. For more information on the consequences of your refusal to provide Personal Data, you understand that you may contact your local human resources manager or the Company’s Human Resources Department.
When the Company and the Employer no longer need to use Personal Data for the purposes above or do not need to retain it for compliance with any legal or regulatory purpose, each will take reasonable steps to remove Personal Data from their systems and/or records containing the Personal Data and/or take steps to properly anonymize it so that you can longer be identified from it.
FRANCE
Nature of the Award. The Units are not granted under the French specific regime provided by Articles L225-197-1 and seq. or L. 22-10-59 and L. 22-10-60 of the French commercial code, as amended.
Use of English Language. You acknowledge and agree that it is your express wish that this Agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English. Vous reconnaissez et consentez que c’est votre souhait exprès qui cet accord, de meme que tous documents, toutes notifications et tous procédés légaux est entré dans, donné ou instituté conformément ci-annexé ou relatant directement ou indirectement ci-annexé, est formulé dans l’anglais.
* * * * *
415543916-v5\NA_DMS
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EX-10.4
5
exhibit104-bscx2024grantxo.htm
EX-10.4
Document
Exhibit 10.4
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Boston Scientific Corporation
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Participant: %%FIRST_NAME%-% %%LAST_NAME%-% |
Employee ID: %%EMPLOYEE_IDENTIFIER%-% |
Award Type: Performance Share Unit Award Agreement |
Plan Name: ONSG PERFORMANCE SHARE PROGRAM |
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Award Date: %%OPTION_DATE,'Month DD, YYYY'%-% |
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Total Granted: %%TOTAL_SHARES_GRANTED%-% |
BOSTON SCIENTIFIC
INTENT TO GRANT
PERFORMANCE SHARE UNIT AWARD AGREEMENT
This Agreement, dated as of the %%OPTION_DATE,'Month DD, YYYY'%-% (the “Grant Date”), is between you and Boston Scientific Corporation, a Delaware corporation (the “Company”), in connection with the Award of Performance Share Units by the Company under the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Plan”). Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in either the Plan or in the Organic Net Sales Growth Performance Share Program (the “Program”) for the period beginning January 1, 2024 and ending on December 31, 2026 (the “Performance Period”).
1. Grant and Acceptance of Award. The Company hereby indicates its award to you that number of Performance Share Units (the “Units”) set forth herein this Agreement (the “Award”). Each Unit represents the Company’s commitment to issue to you shares of the Company’s common stock, par value USD 0.01 per share (“Stock”), subject to certain eligibility, performance and other conditions set forth herein. The Award is intended to be granted pursuant to and is subject to the terms and conditions of this Agreement and the provisions of the Plan and the Program.
2. Eligibility Conditions upon Award of the Units. You hereby acknowledge the intent of the Company to award the Units subject to certain eligibility, performance and other conditions set forth herein.
3. Satisfaction of Performance-Based Conditions. Subject to the eligibility conditions described in Sections 2 and 7 of this Agreement, except as otherwise provided in Sections 8 and 9 of this Agreement and Appendix B, and the satisfaction of the performance conditions set forth on Appendix A to this Agreement during the Performance Period, the Company intends to award shares of Stock hereunder to you at the end of the Performance Period. Shares of Stock shall be issued during the period January 1 to March 15 of the calendar year following the end of the Performance Period based on actual performance as determined at the first Committee meeting following the Performance Period. Except as set forth in Section 9 of this Agreement, no shares of Stock in settlement of the Units shall be issued to you prior to the end of the Performance Period.
4. Participant’s Rights in Stock. The shares of Stock, if and when issued hereunder, shall be registered in your name and evidenced in the manner as the Company may determine. During the period prior to the issuance of shares of Stock, you will have no rights of a stockholder of the Company with respect to the shares of Stock, including no right to receive dividends or vote the shares of Stock underlying each Award.
5. Death or Disability. In the event that your employment with the Company or its subsidiaries or Affiliates is terminated due to death or Disability (as the term is defined in the Plan or determined under local law), prior to the end of the Performance Period, shares of Stock shall be issued during the period January 1 to March 15 of the calendar year following the end of the Performance Period based on actual performance as determined at the first Committee meeting following the Performance Period.
6. Retirement. In the event that your employment with the Company or its subsidiaries or Affiliates is terminated due to Retirement after December 31, 2024, but prior to the end of the Performance Period, shares of Stock shall be issued during the period January 1 to March 15 of the calendar year following the end of the Performance Period on a prorated basis based on actual performance as determined at the first Committee meeting following the Performance Period. The number of shares of Stock to be issued under the prorated Award shall be determined by calculating (a)(i) the number of Units set forth herein multiplied by (ii) the quotient of the number of full and partial months that you worked during the Performance Period (rounded up to the nearest whole month) divided by 36, and then multiplying the product of (a)(i) and (a)(ii) by (b) the percentile performance amount, as calculated in accordance with the terms of the Program. In the event that you terminate your employment due to Retirement prior to January 1, 2025, the Award shall be forfeited in its entirety.
For purpose of this Section 6, a “Retirement” shall not include (i) a termination of your employment for Cause (as defined in Section 7(b) of this Agreement)
or (ii) a resignation by you after being notified that the entity that employs you has elected to terminate your employment for Cause.
7. Other Termination of Employment -- Eligibility Conditions.
(a) If your employment with the Company and its Affiliates or subsidiaries is terminated or you separate from the Company and its Affiliates or subsidiaries for any reason other than death, Retirement or Disability, any Units that remain subject to eligibility conditions shall be void and no shares of Stock shall be issued. Except as set forth in Sections 5, 6 and 8, eligibility to be issued shares of Stock is conditioned on your continuous employment with the Company or an Affiliate through and on the last day of the Performance Period.
For purposes of the vesting conditions set forth in this Agreement, the effective date of your termination shall be deemed to be the last day of your active service with the Company or an Affiliate (if applicable). Notwithstanding anything to the contrary in the Plan or this Agreement, and for purposes of clarity, the date of your termination of employment shall not be extended by any statutory or common law notice of termination period.
(b) Any Units not previously settled (without regard to whether the performance-based vesting condition has been satisfied) shall be cancelled and forfeited immediately upon notice to you of your termination for Cause.
For purposes of this Agreement, “Cause” shall mean termination of your employment by the entity that employs you as a result of the occurrence of any of the following, as determined by the Company in its sole discretion:
(1)your violation of the Company’s Code of Conduct or your violation of any written policy of the Company;
(2)your breach of your Agreement Concerning Employment, if any, or any other written agreement between you and the Company or the entity that employs you (if different);
(3)your commission of an act of fraud, embezzlement, dishonesty or theft in connection with your duties or in the course of your employment;
(4)your engaging in any gross or willful misconduct that causes harm, or is likely to cause harm, to the Company’s business or its reputation;
(5)your being charged with, convicted of, or pleading guilty or no contest to, any felony or any other crime involving dishonesty or moral turpitude;
(6)your failure to substantially perform the essential duties of your employment (other than such failure resulting from your Retirement, Death or Disability as set forth in Sections 5 and 6 of this Agreement).
8. Change in Control of the Company. Subject to the terms of any separate Change in Control or similar agreement to which you are bound, in the event you are employed by the Company or an Affiliate at the time of a Change in Control after December 31, 2024, but prior to the end of the Performance Period, shares of Stock shall be issued immediately prior to the Change in Control on a prorated basis based on actual performance using the last day of the month preceding the date on which the Change in Control is consummated as the ending date of the Performance Period in lieu of December 31, 2026, as determined by the Committee immediately prior to the consummation of the Change in Control. The number of shares of Stock to be issued under the prorated Award shall be determined by calculating (a)(i) the number of Units set forth herein multiplied by (ii) the quotient of the number of full and partial months during the Performance Period (rounded up to the nearest whole month) prior to the consummation of the Change in Control divided by 36, and then multiplying the product of (a)(i) and (a)(ii) by (b) the percentile performance amount as calculated in accordance with the terms of the Program. In the event that a Change in Control occurs prior to January 1, 2025, the Award shall be forfeited in its entirety.
In the event that your employment with the Company or its subsidiaries or Affiliates is terminated due to death or Disability prior to a Change in Control and a Change in Control occurs after December 31, 2024, but prior to the end of the Performance Period, shares of Stock shall be issued immediately prior to the Change in Control based on actual performance using the last day of the month preceding the date on which the Change in Control is consummated as the ending date of the Performance Period in lieu of December 31, 2025, as determined by the Committee immediately prior to the consummation of the Change in Control.
In the event that your employment with the Company or its subsidiaries or Affiliates is terminated due to Retirement prior to a Change in Control after December 31, 2024 and a Change in Control occurs after December 31, 2024, but prior to the end of the Performance Period, shares of Stock shall be issued immediately prior to the Change in Control on a prorated basis as determined under Section 6 based on actual performance using the last day of the month preceding the date on which the Change in Control is consummated as the ending date of the Performance Period in lieu of December 31, 2026, as determined by the Committee immediately prior to the consummation of the Change in Control.
9. Recoupment Policies.
(a) Executive Committee Recoupment Policy. Pursuant to the Company’s recoupment policy and to the extent permitted by governing law, the Board, in its discretion, may seek Recovery of the Award granted to you if you are a Current Executive Committee Member or Former Committee Member and if, in the judgment of the Board, you, while serving in such capacity as a Current Executive Committee Member commit misconduct or a gross dereliction of duty that results in a material violation of Company policy and causes significant harm to the Company.
(i) Definitions. The following terms, when used in this Section 9, shall have the meaning set forth below:
(1) “Current Executive Committee Member” means any individual currently designated as a corporate officer of the Company who is in an organizational job level of E-4 or E-5 (or any equivalent level under any future organizational framework).
(2) “Former Executive Committee Member” means any individual previously (but not currently) designated as a corporate officer of the Company who is in an organizational job level of E-4 or E-5 (or any equivalent level under any future organizational framework).
(3) “Recovery” means the forfeiture or cancellation of unvested Units.
(b) Other Compensation Recoupment Authority. The Units and any compensation associated therewith and any proceeds therefrom are subject to forfeiture, recovery by the Company or other action pursuant to any compensation recovery policy (i) in effect as of the Grant Date, as such policy may be amended from time to time, which includes but is not limited to the Company’s Dodd-Frank Clawback Policy and (ii) any other compensation recovery policy adopted after the Grant Date to facilitate compliance with applicable law, including in response to the requirements of Section 10D of the Exchange Act, the U.S. Securities and Exchange Commission’s final rules thereunder, and any applicable listing rules or other rules and regulations implementing the foregoing.
(c) Instructions to Brokerage Firm. For purposes of Sections 9(a) and 9(b) of this Agreement, you expressly and explicitly authorize the Company to issue instructions, on your behalf, to any brokerage firm and/or third party administrator engaged by the Company to hold any shares of Stock and other amounts acquired pursuant to the Units to re-convey, transfer or otherwise return such shares of Stock and/or other amounts to the Company upon the Company’s enforcement of the Company’s recoupment policy, the Company’s Dodd-Frank Clawback Policy and any other compensation recovery policy adopted by the Board or the Committee.
(d) No Constructive Termination. No recovery of compensation as described in this Section 9 will be an event giving rise to your right to resign for “good reason” or “constructive termination” (or similar term) under any plan of, or agreement with, the Company and/or an Affiliate and you.
10. Consideration for Stock. The shares of Stock are intended to be issued for no cash consideration.
11. Issuance of Stock. The Company shall not be obligated to issue any shares of Stock until (i) all United States (“U.S.”) federal, state, local and non-U.S. laws and regulations as the Company may deem applicable have been complied with; (ii) the shares of Stock have been listed or authorized for listing upon official notice to the New York Stock Exchange, Inc. or have otherwise been accorded trading privileges; and (iii) all other legal matters in connection with the issuance and delivery of the shares of Stock have been approved by the Company’s legal department.
12. Satisfaction of Tax Obligations. Regardless of any action the Company or the Affiliate that employs you (the “Employer”) (if applicable) takes with respect to any or all income tax (including U.S. federal, state and local taxes and/or non-U.S. taxes), social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), you acknowledge and agree that the ultimate liability for all Tax-Related Items legally due by you is and remains your responsibility and that the Company and/or the Employer (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Units or the shares of Stock issued upon vesting of the Units, and (b) do not commit to structure the terms of the Award (or any aspect of the Units) to reduce or eliminate your liability for Tax-Related Items.
Upon the issuance of shares of Stock or the satisfaction of any vesting condition with respect to the shares of Stock to be issued hereunder, if your country of residence (and/or the country of employment, if different) requires withholding of Tax-Related Items, the Company may hold back from the total number of shares of Stock to be delivered to you, and shall cause to be transferred to the Company, whole shares of Stock that have an aggregate Fair Market Value sufficient to pay the Tax-Related Items required to be withheld with respect to the shares of Stock, or to the extent it would not result in adverse accounting treatment, the Company may, in its sole discretion, hold back shares of Stock based on a rate of up to the maximum applicable withholding rate. If the obligation for Tax-Related Items is satisfied by holding back shares of Stock to be delivered upon settlement of the Units, for tax purposes, you are deemed to have been issued the full number of shares of Stock subject to the Units, notwithstanding that a number of shares of Stock are held back solely for the purpose of paying the Tax-Related Items. You will have no further rights with respect to any shares of Stock that are retained by the Company pursuant to this provision. By accepting the grant of the Units, you expressly consent to the withholding of shares of Stock and/or cash as provided for hereunder.
Alternatively, you hereby authorize the Company (on your behalf and at your direction pursuant to this authorization) to immediately sell a sufficient whole number of shares of Stock acquired upon vesting resulting in sale proceeds sufficient to pay the Tax-Related Items required to be withheld. You agree to sign any agreements, forms and/or consents that reasonably may be requested by the Company (or the Company’s
designated brokerage firm) to effectuate the sale of the shares of Stock (including, without limitation, as to the transfer of the sale proceeds to the Company to satisfy the Tax-Related Items required to be withheld). Further, the Company or the Employer may, in its discretion, withhold any amount necessary to pay the Tax-Related Items from your salary or any other amounts payable to you, with no withholding of shares of Stock or sale of shares of Stock, or may require you to submit a cash payment equivalent to the Tax-Related Items required to be withheld with respect to the Units.
All other Tax-Related Items related to the grant of the Units and any shares of Stock delivered in settlement thereof are your sole responsibility. In no event shall whole shares of Stock be withheld by or delivered to the Company in satisfaction of any Tax-Related Items in excess of the maximum statutory tax withholding required by law. You agree to indemnify the Company and its Affiliates against any and all liabilities, damages, costs and expenses that the Company and its Affiliates may hereafter incur, suffer or be required to pay with respect to the payment or withholding of any Tax-Related Items.
The Units are intended to comply with or be exempt from the requirements of Section 409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). The Plan and this Agreement shall be administered and interpreted in a manner consistent with this intent. If the Company determines that the Agreement is subject to Code Section 409A and that it has failed to comply with the requirements of that Section, the Company may, in its sole discretion, and without your consent, amend this Agreement to cause it to comply with Code Section 409A or be exempt from Code Section 409A.
Notwithstanding any provision of this Agreement to the contrary, in the event that any settlement or payment of this Award occurs as a result of your termination of employment and the Company determines that you are a “specified employee” (as that term is defined under Code Section 409A) subject to Code Section 409A at the time your termination of employment, and provided further that such payment or settlement does not otherwise qualify for an applicable exemption from Code Section 409A, then no such settlement or payment shall be paid to you until the date that is the earlier to occur of: (i) your death, or (ii) six (6) months and one (1) day following your termination of employment. Any portion of this Award delayed as a result of the preceding sentence, which is (i) in whole or in part, settled in cash and (ii) based on the value of shares of Stock, shall be based on the value of the shares of Stock at the time the Award would have otherwise been settled or paid without application of the delay described in the preceding sentence. If this Award does not otherwise qualify for an applicable exemption from Code Section 409A, the terms “Retirement”, “terminate,” “termination,” “termination of employment,” and variations thereof as used in this agreement, are intended to mean a termination of employment that constitutes a “separation from service” as such term is defined under Code Section 409A. Notwithstanding any action or inaction by the Administrator, you are exclusively responsible for any tax consequences under Code Section 409A resulting from this Award.
13. Investment Intent. You acknowledge that the acquisition of the shares of Stock to be issued hereunder is for investment purposes without a view to distribution thereof.
14. Limits on Transferability; Restrictions on Shares; Legend on Certificate. Until the eligibility conditions of this Award have been satisfied and shares of Stock have been issued in accordance with the terms of this Agreement or by action of the Committee, the Units awarded hereunder are not transferable and shall not be sold, transferred, assigned, pledged, gifted, hypothecated or otherwise disposed of or encumbered by you. Transfers of shares of Stock by you are subject to the Company’s Stock Trading Policy and applicable securities laws. Shares of Stock issued to you in certificate form or to your book entry account upon satisfaction of the vesting and other conditions of this Award may be restricted from transfer or sale by the Company and evidenced by stop-transfer instructions upon your book entry account or restricted legend(s) affixed to certificates in the form as the Company or its counsel may require with respect to any applicable restrictions on sale or transfer.
15. Award Subject to the Plan and the Program. The Award to be made pursuant to this Agreement is made subject to the Plan and the Program. The terms and provisions of the Plan and the Program, as each may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained in this Agreement and a term or provision of the Plan or the Program, the applicable terms and conditions of the Plan or Program will govern and prevail. However, no amendment of the Program after the grant date may materially and adversely impair a participant's rights under awards made pursuant to the Program without the participant's consent unless the amendment is necessary or desirable to facilitate compliance with applicable law, as determined in the sole discretion of the Committee.
16. No Rights to Continued Employment. The Company’s intent to issue the shares of Stock hereunder shall not confer upon you any right to continued employment or other association with the Company or any of its Affiliates or subsidiaries; and this Agreement shall not be construed in any way to limit the right of the Company or any of its subsidiaries or Affiliates to terminate your employment or other association with the Company or to change the terms of such employment or association at any time.
17. Legal Notices. Any legal notice necessary under this Agreement shall be addressed to the Company in care of its General Counsel at the principle executive offices of the Company and to you at the address appearing in the personnel records of the Company for you or to either party at such other address as either party may designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
18. Appendix. Notwithstanding any provision of this Agreement to the contrary, the Units shall be subject to any special terms and conditions for your country of residence (and country of employment, if different) as are forth in the applicable
appendix to the Agreement (the “Appendix”). Further, if you transfer your residence and/or employment to another country reflected in the Appendices to these Agreements, the special terms and conditions for such country will apply to you to the extent the Company determines, in its sole discretion, that the application of such terms and conditions is necessary or advisable in order to comply with local law or to facilitate the administration of the Plan (or the Company may establish alternative terms and conditions as may be necessary or advisable to accommodate your transfer). Any applicable Appendix shall constitute part of this Agreement.
19. Governing Law and Venue. The interpretation, performance and enforcement of this Agreement shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof) and applicable federal laws. For purposes of litigating any dispute that arises directly or indirectly from the relationship of the parties evidenced by this Agreement, the parties hereby submit and consent to the exclusive jurisdiction of the Commonwealth of Massachusetts and agree that such litigation shall be conducted only in the Commonwealth of Massachusetts, or the federal courts for the United States for the District of Massachusetts, and no other courts, where this Award is made and/or to be performed.
20. Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement.
21. Severability. You agree that the provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
22. Waiver. You understand that the waiver by the Company with respect to your compliance of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach of a provision of this Agreement.
23. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to the one and the same instrument.
[remainder of page intentionally left blank]
APPENDIX A
PLAN: AMENDED AND RESTATED 2011 LONG-TERM INCENTIVE PLAN
The Performance Share Units will pay out in shares of Stock in a range of 0% to 200% of the number of Performance Share Units as follows:
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ONSG* Performance
Percentile Rank
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Performance Share Units as a Percent of Target |
138.2% |
200% |
100.0% |
100% |
61.8% |
50% |
<61.8% |
0% |
Linear interpolation between points |
*Organic Net Sales Growth
BOSTON SCIENTIFIC CORPORATION
ADDENDUM TO THE AWARD AGREEMENT
RELATING TO PERFORMANCE SHARE UNITS GRANTED
PURSUANT TO THE
AMENDED AND RESTATED 2011 LONG-TERM INCENTIVE PLAN
APPENDIX B
This Appendix B contains supplemental terms and conditions for awards of Units granted under the Boston Scientific Corporation Amended and Restated 2011 Long-Term Incentive Plan (the “Plan”) to Participants who reside outside the United States or who are otherwise subject to the laws of a country other than the United States. Capitalized terms used but not defined herein shall have the same meanings ascribed to them in the Agreement.
Section I of this Appendix B contains special terms and conditions that govern the Units outside of the United States. Section II of this Appendix B includes special terms and conditions in the specific countries listed therein.
This Appendix B may also include information regarding exchange controls, taxation of awards and certain other issues of which you should be aware with respect to participation in the Plan. The information is based on the securities, exchange control, tax and other laws concerning the Units in effect as of December 2023. Such laws are often complex and change frequently; the information may be out of date at the time you vest in the Units or sell shares of Stock acquired under the Plan. As a result, the Company strongly recommends that you not rely on the information noted herein as the only source of information relating to the consequences of your participation in the Plan.
In addition, this Appendix B is general in nature, does not discuss all of the various laws, rules and regulations which may apply to your particular situation and the Company does not assure you of any particular result. Accordingly, you should seek appropriate professional advice as to how the relevant laws in your country apply to your specific situation.
Finally, if you are a citizen or resident of a country other than the one in which you are currently working, transferred employment after the Award was granted or is considered a resident of another country for local law purposes, the information contained herein may not be applicable to you in the same manner. In addition, the Company shall, in its sole discretion, determine to what extent the terms and conditions contained herein will apply under these circumstances (or the Company may establish alternative terms and conditions as may be necessary or advisable).
Section I. All Countries Outside the United States
Nature of Grant. In accepting the grant, you acknowledge that:
(a)the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Administrator at any time, to the extent permitted by the Plan;
(b)the grant of the Units is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants or benefits in lieu of Units, even if Units have been granted in the past;
(c)all decisions with respect to future grants of Units, if any, will be at the sole discretion of the Administrator;
(d)the grant of the Units and your participation in the Plan shall not create a right to employment or be interpreted as forming an employment or service contract with the Company, the Employer or Affiliate and shall not interfere with the ability of the Company, the Employer or any Affiliate, as applicable, to terminate your employment or service relationship (if any);
(e)you are voluntarily participating in the Plan;
(f)the Units are not intended to replace any pension rights or compensation;
(g)the Units, the underlying shares of Stock, and the income and value of same are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, holiday pay, pension or retirement or welfare benefits or similar payments;
(h)the future value of the underlying shares of Stock is unknown, indeterminable and cannot be predicted with certainty;
(i)no claim or entitlement to compensation or damages shall arise from (i) the forfeiture of the Units resulting from the termination of your employment or other service relationship (for any reason, and whether or not in breach of local labor laws and whether or not later found to be invalid) and/or (ii) the forfeiture or cancellation of the Units and/or recoupment of any shares of Stock, cash, or other benefits acquired under the Plan resulting from the application of the Company’s recoupment policies contemplated under Section 9 of this Agreement;
(j)unless otherwise agreed with the Company in writing, the Units, the underlying shares of Stock and the income from and value of same are not granted as
consideration for, or in connection with, any service you may provide as a director of an Affiliate;
(k)for purposes of the Units, your employment or other service relationship will be considered terminated as of the date you are no longer actively providing services to the Company or one of its Affiliates (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any), and unless otherwise expressly provided in this Agreement or determined by the Company, your right to vest in the Units under this Agreement, if any, will terminate as of such date and will not be extended by any notice period (e.g., your period of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are employed or the terms of your employment agreement, if any); the Committee shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of the Unit grant (including whether you may still be considered to be providing services while on an approved leave of absence); and
(l)the following provisions apply only if you are providing services outside the United States: (A) the Units, the underlying shares of Stock, and the income from and value of same are not part of normal or expected compensation or salary for any purpose; and (B) neither the Company, the Employer nor any Affiliate shall be liable for any foreign exchange rate fluctuation between your local currency and the U.S. dollar that may affect the value of the Units or of any amount due to you pursuant to the settlement of the Units or the subsequent sale of any shares of Stock acquired upon settlement.
Electronic Delivery of Documents. The Company may, in its sole discretion, decide to deliver any documents related to the Units granted under and participation in the Plan or future Units that may be granted under the Plan by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, to agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
Language. You hereby acknowledge and agree that it is your express intent that this Agreement and any applicable Appendix, the Plan and all other documents, notices and legal proceedings entered into, given or instituted pursuant to the Units, be drawn up in English. You acknowledge that you are proficient in the English language and understand the terms of this Agreement or have had the ability to consult with an advisor who is sufficiently proficient in the English language. If you have received this Agreement and any applicable Appendix, the Plan or any other documents related to the Units translated into a language other than English, and if the meaning of the translated version is different than the English version, the English version will control.
Insider Trading Restrictions/Market Abuse Laws. You acknowledge that, depending on your or your broker’s country of residence or where the shares of Stock are listed, you may be subject to insider trading restrictions and/or market abuse laws that may affect your ability to accept, acquire, sell or otherwise dispose of shares of Stock, rights to those shares of Stock (e.g., Units) or rights linked to the value of shares (e.g., phantom awards, futures) during such times you are considered to have “inside information” regarding the Company, as defined in the laws or regulations in your country. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed insider information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Keep in mind that third parties include fellow employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. You acknowledge that it is your responsibility to comply with any restrictions and are advised to speak to your personal advisor on this matter.
Section II. Country-Specific Terms and Conditions
COUNTRIES OUTSIDE THE EUROPEAN UNION (“EU”) / EUROPEAN ECONOMIC AREA (“EEA”), UNITED KINGDOM AND SWITZERLAND
Data Privacy: If you do not reside and/or are not employed in the EU / EEA, the United Kingdom or Switzerland, the following provision applies:
You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this Agreement and any other Unit grant materials by and among, as applicable, the Employer, the Company and its Affiliates for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that the Company and the Employer may hold certain personal information about you, including (but not limited to) your name, home address, email address and telephone number, date of birth, social insurance, passport or other identification number (e.g., resident registration number), salary, nationality, job title, any shares of Stock or directorships held in the Company, and details of all Units awarded to you or any other entitlements to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor (“Data”) for the purpose of implementing, managing and administering the Plan.
You understand that Data may be transferred to any third parties assisting the Company with the implementation, administration and management of the Plan, including but not limited to Morgan Stanley Smith Barney LLC and its affiliates (“Morgan Stanley”) or any successor or any other third party that the Company or Morgan Stanley (or its successor) may engage to assist with the administration of the Plan from time to time.
You understand the recipients of the Data may be located in your country, in the United States or elsewhere, and that the recipients’ country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative.
You authorize the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing your participation in the Plan. You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any shares of Stock acquired upon vesting of the Units. You understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative. Further, you understand that you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later revoke your consent, your employment status or service with the Employer will not be adversely affected; the only consequence of refusing or withdrawing your consent is that the Company would not be able to grant you Units or other equity awards or administer or maintain such awards. Therefore, you understand that refusing or withdrawing your consent may affect your ability to participate in the Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
COUNTRIES WITHIN THE EU / EEA, UNITED KINGDOM AND SWITZERLAND
Data Privacy: If you reside and/or are employed in the EU / EEA, the United Kingdom or Switzerland, the following provision applies:
Pursuant to applicable personal data protection laws, the Company and the Employer hereby notify you of the following in relation to your Personal Data (defined below) and the collection, processing and transfer in electronic or other form of such Personal Data in relation to the grant of the Units and your participation in the Plan. The collection, processing and transfer of your Personal Data is necessary for the legitimate purpose of the Company and the Employer’s administration of the Plan and your participation in the Plan, and your denial and/or objection to the collection, processing and transfer of Personal Data may affect your participation in the Plan. As such, by accepting the Award, you acknowledge the collection, use, processing and transfer of Personal Data as described herein.
You understand that the Company and the Employer hold certain personally identifiable information about you, specifically, your name, home address and telephone number, date of birth, social security number or other employee identification number, salary, nationality, job title, any shares of Stock or directorships held in the Company, details of all Units or any other entitlement to shares of Stock awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of managing and administering the Plan (“Personal Data”). The Personal Data may be provided by you to or collected, where lawful, from third parties. The Company or the Employer each act as controllers of the Personal Data and will process the Personal Data in this context for the exclusive legitimate purpose of implementing, administering and managing your participation in the Plan and meeting related legal obligations associated with these actions.
The processing will take place through electronic and non-electronic means according to logics and procedures correlated to the purposes for which the Personal Data was collected and with confidentiality and security provisions as set forth by applicable laws and regulations. Personal Data will be accessible within the Company’s organization only by those persons requiring access for purposes of the implementation, administration and operation of the Plan and other aspects of the employment relationship and for participation in the Plan.
The Company and the Employer will transfer Personal Data amongst themselves as necessary for the purpose of implementation, administration and management of your participation in the Plan, and the Company and the Employer may each further transfer Personal Data to third parties assisting the Company or the Employer in the implementation, administration and management of the Plan, including Morgan Stanley Smith Barney LLC and its affiliates (“Morgan Stanley”) or any successor or any other third party that the Company or Morgan Stanley (or its successor) may engage to assist with the administration of the Plan from time to time. These recipients may be located in the EU, EEA, the United Kingdom, Switzerland or elsewhere throughout the world, such as the United States. By participating in the Plan, you understand that these recipients may receive, possess, use, retain and transfer the Personal Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Personal Data as may be required for the administration of the Plan and/or the subsequent holding of shares of Stock on your behalf to a broker or other third party with whom you may elect to deposit any shares of Stock acquired pursuant to the Plan. You further understand that you may request a list with the names and addresses of any potential recipients of your Personal Data by contacting your local Human Resources manager or the Company’s Human Resources Department. When transferring Personal Data to these potential recipients, the Company and the Employer provide appropriate safeguards in accordance with EU Standard Contractual Clauses or other legally binding and permissible arrangements. You may request a copy of such safeguards from your local human resources manager or the Company’s Human Resources Department.
To the extent provided by law, you may, at any time, have the right to request: access to Personal Data, rectification of Personal Data, erasure of Personal Data, restriction of processing of Personal Data, and portability of Personal Data. You may also have the right to object, on grounds related to a particular situation, to the processing of Personal Data, as well as opt-out of the Plan herein, in any case without cost, by contacting in writing your Human Resources manager. Your provision of Personal Data is a contractual requirement. You understand, however, that the only consequence of refusing to provide Personal Data is that the Company may not be able to grant the Units to you, or grant other equity awards or administer or maintain such equity awards. For more information on the consequences of your refusal to provide Personal Data, you understand that you may contact your local human resources manager or the Company’s Human Resources Department.
When the Company and the Employer no longer need to use Personal Data for the purposes above or do not need to retain it for compliance with any legal or regulatory purpose, each will take reasonable steps to remove Personal Data from their systems and/or records containing the Personal Data and/or take steps to properly anonymize it so that you can longer be identified from it.
FRANCE
Nature of the Award. The Units are not granted under the French specific regime provided by Articles L225-197-1 and seq. or L. 22-10-59 and L. 22-10-60 of the French commercial code, as amended.
Use of English Language. You acknowledge and agree that it is your express wish that this Agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English. Vous reconnaissez et consentez que c’est votre souhait exprès qui cet accord, de meme que tous documents, toutes notifications et tous procédés légaux est entré dans, donné ou instituté conformément ci-annexé ou relatant directement ou indirectement ci-annexé, est formulé dans l’anglais.
* * * * *
EX-22
6
exhibit22-subsidiaryissuer.htm
EX-22
Document
EXHIBIT 22
Subsidiary Issuer of Guaranteed Securities
Boston Scientific (the “Registrant”) is the guarantor of the senior unsecured registered notes listed below issued by American Medical Systems Europe B.V., a wholly-owned finance subsidiary of the Registrant.
American Medical Systems Europe B.V.:
0.750% Senior Notes due 2025
1.375% Senior Notes due 2028
3.375% Senior Notes due 2029
1.625% Senior Notes due 2031
3.500% Senior Notes due 2032
1.875% Senior Notes due 2034
EX-31.1
7
exhibit311-ceo302q12024.htm
EX-31.1
Document
EXHIBIT 31.1
CERTIFICATIONS
I, Michael F. Mahoney, certify that:
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I have reviewed this Quarterly Report on Form 10-Q of Boston Scientific Corporation; |
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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3 |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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4 |
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
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d) |
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
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The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): |
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
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Date: |
May 1, 2024 |
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/s/ Michael F. Mahoney |
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Michael F. Mahoney |
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Chief Executive Officer |
EX-31.2
8
exhibit312-cfo302q12024.htm
EX-31.2
Document
EXHIBIT 31.2
CERTIFICATIONS
I, Daniel J. Brennan, certify that:
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I have reviewed this Quarterly Report on Form 10-Q of Boston Scientific Corporation; |
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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3 |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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4 |
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
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a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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c) |
Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
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d) |
Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
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5 |
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): |
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a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
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b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
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Date: |
May 1, 2024 |
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/s/ Daniel J. Brennan |
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Daniel J. Brennan |
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Executive Vice President and Chief Financial Officer |
EX-32.1
9
exhibit321-ceo906q12024.htm
EX-32.1
Document
EXHIBIT 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C.
SECTION 1350 AS ADOPTED PURSUANT TO SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Boston Scientific Corporation (the “Company”) for the period ended March 31, 2024 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned Chief Executive Officer of the Company hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that based on his knowledge:
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(1) |
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
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(2) |
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Boston Scientific Corporation. |
This certification shall not be deemed "filed" for any purpose, nor shall it be deemed to be incorporated by reference into any filing under the Securities Act of 1933 or the Securities Exchange Act of 1934 regardless of any general incorporation language in such filing.
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By: |
/s/ Michael F. Mahoney |
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Michael F. Mahoney |
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Chief Executive Officer |
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May 1, 2024 |
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EX-32.2
10
exhibit322-cfo906q12024.htm
EX-32.2
Document
EXHIBIT 32.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C.
SECTION 1350 AS ADOPTED PURSUANT TO SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of Boston Scientific Corporation (the “Company”) for the period ended March 31, 2024 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned Chief Financial Officer of the Company hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that based on his knowledge:
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(1) |
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
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(2) |
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Boston Scientific Corporation. |
This certification shall not be deemed "filed" for any purpose, nor shall it be deemed to be incorporated by reference into any filing under the Securities Act of 1933 or the Securities Exchange Act of 1934 regardless of any general incorporation language in such filing.
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By: |
/s/ Daniel J. Brennan |
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Daniel J. Brennan |
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Executive Vice President and Chief Financial Officer |
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May 1, 2024 |
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