Exhibit 1.1
BAXTER INTERNATIONAL INC.
Debt Securities
UNDERWRITING AGREEMENT
December 4, 2007
Baxter International Inc.
One Baxter Parkway
Deerfield, IL 60015
Attention: Robert M. Davis
Ladies and Gentlemen:
On behalf of the several Underwriters named in
Schedule I
hereto and for their
respective accounts, we offer to purchase, on and subject to the terms and conditions of, and
utilizing terms as defined in, the Underwriting Agreement Standard Provisions (
Debt
Securities
) dated as of December 4, 2007 (
Standard Provisions
), which is attached
hereto, the following securities (
Designated Securities
) on the following terms:
DEBT SECURITIES
Time of Sale: 12:10 p.m., Central Standard Time, December 4, 2007
Indenture: Indenture, dated as of August 8, 2006, with The Bank of New York Trust Company, N.A.
(as successor in interest to J.P. Morgan Trust Company, National Association), as supplemented by
the Second Supplemental Indenture, dated as of December 7, 2007, with The Bank of New York Trust
Company, N.A.
Trustee: The Bank of New York Trust Company, N.A.
Title of Designated Securities: 6.250% Senior Notes due December 1, 2037
Aggregate Principal Amount: $500,000,000
Initial Public Offering Price: 99.840% of the principal amount, plus interest, if any, from
December 7, 2007
Purchase Price by Underwriters: 98.965% or $494,825,000 (before expense reimbursement of $525,000
payable by the Underwriters to the Company on the Settlement Date)
Ranking: Senior unsecured
Interest Rate: 6.250%
Maturity: December 1, 2037
Interest Payment Dates: June 1 and December 1
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Regular Record Dates: May 15 and November 15 preceding the related interest payment date
Conversion or Exchange Provisions: None
Listing Requirements: None
Fixed or Variable Price Offering: None
Currency of Denomination: United States Dollars
Currency of Payment: United States Dollars
Form and Denomination: One or more global notes deposited with The Depositary Trust Company, or
its nominee; denominations of $2,000 and integral multiples of $1,000 in excess thereof
Overseas Paying Agents: Not applicable
Redemption Provisions: Make whole + 30bps
Sinking Fund: None
Dealer Concession: 0.50%
Reallowance Concession: 0.25%
Method of Payment: Fedwire same day funds
Settlement Date: December 7, 2007
Other Terms: Not applicable
If changes in the Standard Provisions have been agreed to, set forth below:
For purposes of the Underwriting Agreement, the Standard Provisions are amended as follows:
1. Section 7 of the Standard Provisions is amended and restated in its entirety to read as follows:
SECTION 7. CERTAIN AGREEMENTS OF THE UNDERWRITERS. Each Underwriter of the
Designated Securities represents and covenants with the Company that (i) without the consent
of the Company it has not made and will not make any offer relating to the Designated
Securities that would constitute a free writing prospectus as defined in Rule 405, other
than (a) a Permitted Free Writing Prospectus or (b) any free writing prospectus as defined
in Rule 405 that would not be required to be filed with the Commission that (1) is
substantially in the form of
Schedule III
to the Underwriting Agreement or (2)
consists of comparable bond pricing information; and (ii) it is not subject to any pending
proceeding under Section 8A of the Securities Act with respect to the offering (and will
promptly notify the Company if any such proceeding against it is initiated during the
Prospectus Delivery Period).
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Name and Address of Representative:
Banc of America Securities LLC
9 West 57
th
Street, 29
th
Floor
New York, New York 10019
UBS Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
The Representative named above and executing this Underwriting Agreement represents that the
Underwriters have authorized the Representative to enter into this Underwriting Agreement and to
act hereunder on their behalf.
The respective principal amounts of the Designated Securities to be purchased by each of the
Underwriters are set forth opposite their names in
Schedule I
hereto.
The provisions of the Standard Provisions are incorporated herein by reference.
The Closing will take place at 10:00 a.m., New York City time, on December 7, 2007, at the
offices of Mayer Brown LLP, 71 South Wacker Drive, Chicago, IL 60606, or at such other place as the
Representative and the Company may agree.
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Please signify your acceptance by signing the enclosed response to us in the space provided
and returning it to us.
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Very truly yours,
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BANC OF AMERICA SECURITIES LLC
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/s/ Lily Chang
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Name: Lily Chang
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Title: Principal
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UBS SECURITIES LLC
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/s/ Christian Stewart
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Name: Christian Stewart
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Title: Managing Director
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/s/ Jordan Matusow
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Name: Jordan Matusow
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Title: Director
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as Representative for itself and the other
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underwriters named in
Schedule I
attached
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hereto
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Accepted:
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BAXTER INTERNATIONAL INC.
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By
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/s/ Robert J. Hombach
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Name:
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Robert J. Hombach
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Title:
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Corporate Vice President and Treasurer
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SCHEDULE I
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Principal Amount of
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Underwriter
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Securities to be Purchased
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Banc of America Securities LLC
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$
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205,000,000
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UBS Securities LLC
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205,000,000
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Barclays Capital Inc.
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15,000,000
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Citigroup Global Markets Inc.
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15,000,000
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Deutsche Bank Securities, Inc.
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15,000,000
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Goldman, Sachs & Co.
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15,000,000
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HSBC Securities (USA) Inc.
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15,000,000
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J.P. Morgan Securities Inc.
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15,000,000
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Total
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$
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500,000,000
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SCHEDULE II
Attached Permitted Free Writing Prospectus:
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Number
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Date
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1
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December 4, 2007
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Filed pursuant to Rule 433
Registration No. 333-136224
Dated December 4, 2007
FINAL TERM SHEET
6.250% Senior Notes Due December 1, 2037
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Issuer:
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Baxter International Inc.
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Ratings:
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A3 (Stable) by Moodys, A+ (Stable) by S&P and A
(Stable) by Fitch
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Format:
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SEC-Registered
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Ranking:
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Senior Notes
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Offering Size:
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$500,000,000
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Trade Date:
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December 4, 2007
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Settlement Date:
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December 7, 2007 (T+3)
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Maturity:
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December 1, 2037
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Interest Payment Dates:
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Semi-annually on each June 1 and December 1
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First Pay Date:
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June 1, 2008
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Treasury Benchmark:
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4.75% due 2/15/37
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UST Spot (PX / Yield):
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106-00+ / 4.382
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Spread to UST:
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+ 188 bps
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Re-offer Yield to Maturity:
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6.262%
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Coupon:
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6.250%
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Issue Price:
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99.840%
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Net Proceeds to Issuer:
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98.965% or $494,825,000
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(before expense reimbursement)
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Day Count Basis:
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30 / 360
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Optional Redemption:
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Make Whole + 30 bps
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Minimum Denomination:
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$2,000 x $1,000
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CUSIP:
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071813 AX7
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Bookrunners:
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Banc of America Securities LLC, UBS Securities LLC
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Co-managers:
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Barclays Capital Inc., Citigroup Global Markets
Inc., Deutsche Bank Securities, Inc., Goldman,
Sachs & Co., HSBC Securities (USA) Inc., J.P.
Morgan Securities Inc.
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Note
: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
Banc of America Securities LLC toll-free at 1-800-294-1322 or UBS Securities LLC toll-free at
1-888-722-9555 ext. 337-1088.
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SCHEDULE III
Baxter International Inc.
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Issuer:
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Baxter International Inc.
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Description / Security Type:
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[ ]
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Size:
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$
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Maturity:
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__, 20__
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Coupon:
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____%
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Price:
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____% of face amount
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Yield to maturity:
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%
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Spread:
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[ ]
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[Spread to Benchmark Treasury:
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____%]
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[Benchmark Treasury [Price] and Yield:
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______ _____%]
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[Treasury Spot:
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[ ]]
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[Reoffer Yield
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[ ]]
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Interest Payment Dates:
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and
, commencing
, 200_
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Redemption Provisions:
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[
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[Make-whole call
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[At any time][Before the first call date] at a discount rate of Treasury plus __ basis points]
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Settlement:
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T+_;
__, 200_
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Denominations:
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[ ]
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[CUSIP:
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[ ]]
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[[Expected] Ratings:
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[ ]]
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[Bookrunners:
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[ ]]
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[Co-managers:
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[ ]]
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Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
Banc of America Securities LLC toll-free at 1-800-294-1322 or UBS Securities LLC toll-free at
1-888-722-9555 ext. 337-1088.
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BAXTER INTERNATIONAL INC.
Debt Securities
Underwriting Agreement
Standard Provisions
December 4, 2007
Ladies and Gentlemen:
From time to time Baxter International Inc., a Delaware corporation (the
Company
),
may enter into one or more underwriting agreements in the form attached as
Exhibit A
hereto
(each an
Underwriting Agreement
) that provide for the sale of certain of its debt
securities (the
Debt Securities
) specified in the particular Underwriting Agreement (the
Designated Securities
). The basic provisions set forth herein (the
Standard
Provisions
) to the extent applicable to securities of the type represented by the Designated
Securities will be incorporated by reference in any such Underwriting Agreement relating to a
particular issue of Designated Securities. Each Underwriting Agreement will be entered into, with
such additions and deletions to the Standard Provisions as the parties thereto may determine and
shall be specified in such Underwriting Agreement. The Underwriting Agreement may appoint a lead
underwriter or underwriters (collectively, the
Representative
) for the particular issue
of Designated Securities and will specify the underwriters participating in such offering (such
underwriters together with the Representative, the
Underwriters
, which term shall include
any Underwriter substituted pursuant to
Section 10
hereof). An Underwriting Agreement
shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by
an exchange of communications or any other rapid transmission device designed to produce a written
record of communications transmitted. The Underwriting Agreement, including the provisions of the
Standard Provisions incorporated therein by reference, is herein referenced as to
this
Agreement
.
The terms and rights of any particular issue of Designated Securities shall be as specified in
the Underwriting Agreement related thereto and in or pursuant to the indenture (the
Indenture
) identified in the Underwriting Agreement. The obligation of the Company to
issue and sell any of the Designated Securities and the obligation of the Underwriters to purchase
any of the Designated Securities shall be evidenced by the Underwriting Agreement with respect to
the Designated Securities specified therein.
The Company has filed with the Securities and Exchange Commission (the
Commission
)
an automatic shelf registration statement on Form S-3 as defined in Rule 405 under the Securities
Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder
(collectively, the
Securities Act
) in respect of the Designated Securities; such
registration statement has become effective pursuant to the Securities Act and the Indenture filed
as an exhibit to such registration statement has been duly qualified under the Trust Indenture Act
of 1939, as amended (the
Trust Indenture Act
). The Company has filed, or shall file,
with the Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Designated Securities and reflecting the terms of the Designated
Securities and plan of distribution arising from the Underwriting Agreement (the
Prospectus
Supplement
). The term
Registration Statement
as used with respect to a particular
issue of Designated Securities, means the registration statement, as amended at the time of such
registration statements effectiveness for purposes of Section 11 of the Securities Act as such
section applies to the Company and
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the Underwriters for the Designated Securities pursuant to Rule 430B(f)(2) under the Securities Act
(the
Effective Time
), including (i) all documents then filed as a part thereof or
incorporated or deemed to be incorporated by reference therein and (ii) any information contained
or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act, to the extent such information is deemed, pursuant to Rule 430B(f)(1)
under the Securities Act, to be part of the Registration Statement at the Effective Time.
As used herein, the following terms shall have the following meanings:
Base Prospectus
means the prospectus included in the Registration Statement
exclusive of any prospectus supplement relating to the Designated Securities.
Permitted Free Writing Prospectus
means any free writing prospectus (as defined in
Rule 405 under the Securities Act) relating to the Designated Securities attached as
Schedule
II
to the Underwriting Agreement for the Designated Securities.
Prospectus
means the Base Prospectus together with the Prospectus Supplement in the
form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in the offering of the Designated Securities.
Preliminary Prospectus
means a preliminary prospectus supplement filed with the
Commission pursuant to Rule 424(b) under the Securities Act specifically relating to a particular
issue of Designated Securities together with the Base Prospectus.
All references in this Agreement to financial statements and schedules and other information
which is contained, included or stated (or other references of like import) in the
Registration Statement, Prospectus or Preliminary Prospectus shall be deemed to mean and include
all such financial statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or Preliminary Prospectus, as the case may be,
as of the Effective Time of the Registration Statement or the date of such Prospectus or
Preliminary Prospectus; and all references in this Agreement to the Registration Statement,
Prospectus or Preliminary Prospectus shall be deemed to include any documents filed under the
Securities Exchange Act of 1934, as amended, including the rules and regulations of the Commission
promulgated thereunder (collectively, the
Exchange Act
), that are deemed to be
incorporated by reference thereunder.
SECTION 1.
REPRESENTATIONS AND WARRANTIES
. The Company represents and warrants to
each Underwriter named in the applicable Underwriting Agreement as follows:
(a) The Company was a well known seasoned issuer as defined in Rule 405 of the
Securities Act (i) at the time of the filing of the Registration Statement, (ii) at the time
of filing the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c)) made any offer relating to the Designated
Securities in reliance on the exemption of Rule 163 and (iv) at the Effective Time; and at
the earliest time after the initial filing of the Registration Statement that the Company or
another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2))
of the Designated Securities and at the Effective Time, the Company was not and is not an
ineligible issuer, as defined in Rule 405.
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(b) The Registration Statement is an automatic effective registration statement as
defined under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No
order suspending the effectiveness of the Registration Statement has been issued by the
Commission and, to the Companys knowledge, no proceeding for that purpose or pursuant to
Section 8A of the Securities Act against the Company or related to the offering of
Designated Securities has been initiated or threatened by the Commission.
(c) (i) each document filed by the Company pursuant to the Exchange Act that is
incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale
Information (as defined below) complied when so filed in all material respects with the
Exchange Act, and each document, if any, hereafter filed by the Company and so incorporated
by reference in the Prospectus will comply when so filed in all material respects with the
Exchange Act; (ii) the Registration Statement, at the Effective Time and at the Time of
Sale, and the Prospectus and any Permitted Free Writing Prospectuses, as of their respective
dates, comply and, as amended or supplemented, if applicable, will comply, in all material
respects with the Securities Act; and (iii) (A) at the Effective Time of the Registration
Statement it did not and, as amended or supplemented, will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (B) at the Time of Sale, the Time
of Sale Information (as defined below) did not and, at the Closing Time (as defined below),
the Time of Sale Information will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and (C) the Prospectus as of
the date of the Prospectus Supplement will not, and the Prospectus (as amended or
supplemented, other than as to supplements relating only to securities other than the
Designated Securities) as of the Closing Time will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that these representations and warranties do not apply to
(a) statements or omissions in the Registration Statement, any Preliminary Prospectus, the
Prospectus, any amendments or supplements to the foregoing, or in the Time of Sale
Information, made in reliance upon and in conformity with information furnished to the
Company in writing by or on behalf of any Underwriter through the Representative expressly
for use therein and (b) the Statement of Eligibility and Qualification (the
Form
T-1
), included as an exhibit to the Registration Statement.
(d) The Company (including its agents and representatives, other than the Underwriters
in their capacity as such) has not used, authorized, approved or referred to and will not
use, authorize, approve or refer to any free writing prospectus as defined in Rule 405,
other than a Permitted Free Writing Prospectus or any free writing prospectus as defined in
Rule 405 that would not be required to be filed with the Commission that is substantially in
the form of
Schedule III
to the Underwriting Agreement. The Company has not used and
will not use a Permitted Free Writing Prospectus except in compliance with Rules 164 and 433
under the Securities Act and otherwise in compliance with the Securities Act.
(e) This Agreement has been duly authorized, executed and delivered by the Company.
(f) Since the date of the latest audited financial statements included or incorporated
by reference in the Registration Statement, the Time of Sale Information and Prospectus,
except
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as otherwise stated therein or contemplated thereby, (i) there has been no material
adverse change in the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings or the ability to continue to conduct
business in the usual and ordinary course of the Company and its subsidiaries considered as
one enterprise (a
Material Adverse Effect
) and (ii) there has been no material
transaction entered into by the Company or any of its subsidiaries other than transactions
in the ordinary course of business or transactions which are not material in relation to the
Company and its subsidiaries considered as one enterprise.
(g) PricewaterhouseCoopers LLP, the accountants who certified the financial statements
and schedules filed with the Commission as a part of the Registration Statement and included
in the Time of Sale Information and the Prospectus, to the Companys knowledge, is an
independent registered public accounting firm with respect to the Company and its
subsidiaries as required by the Securities Act.
(h) The consolidated financial statements included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus present fairly, in
all material respects, the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of their operations for
the periods specified. Such financial statements have been prepared in conformity with
accounting principles generally accepted in the United States applied on a consistent basis
during the periods involved, except as may be indicated therein. The supporting schedules
included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus present fairly, in all material respects, the information
required to be stated therein.
(i) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware and has the corporate power and
authority to own, lease and operate its properties and to conduct its business as described
in the Registration Statement, the Time of Sale Information and the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the failure to so qualify
would not result in a Material Adverse Effect.
(j) Each of Baxter Healthcare Corporation, a Delaware corporation, and Baxter World
Trade Corporation, a Delaware corporation (together, the
Significant
Subsidiaries
), is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power and authority to own, lease and
operate its properties and conduct its business as now being conducted; each Significant
Subsidiary is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, except where the
failure to so qualify would not result in a Material Adverse Effect.
(k) Except as set forth in the Registration Statement, the Time of Sale Information and
the Prospectus, there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened against or affecting the Company or any Significant Subsidiary, which
could reasonably be expected to result in a Material Adverse Effect or would reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated by the Underwriting Agreement.
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(l) The Designated Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement with respect to such
Designated Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered, will be entitled to the benefits provided by the
Indenture and will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except to the extent that
the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting creditors rights
generally and (ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law). The Designated Securities will conform in
all material respects to the description thereof contained in the Time of Sale Information
and the Prospectus.
(m) The Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed, and delivered by the Company and (assuming due authorization,
valid execution, and delivery thereof by the Trustee) is a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, except to the
extent that the enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws affecting creditors
rights generally and (ii) general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law). The Indenture conforms in all material
respects to the description thereof contained in the Registration Statement, Time of Sale
Information and the Prospectus.
(n) Neither the Company nor any of the Significant Subsidiaries is (A) in violation of
its respective charter or by-laws or other similar organizational documents or (B) in
default in the performance or observance of any obligation, agreement, covenant or condition
contained in any bond, debenture, note or other evidence of indebtedness or in any contract,
indenture, mortgage, loan agreement or lease to which it is a party or by which it or its
properties is bound, except, with respect to clause (B) above, for such defaults that would
not result in a Material Adverse Effect;
(o) The execution and delivery of this Agreement and the Indenture, and the incurrence
of the obligations set forth herein and therein and the consummation of the transactions
contemplated herein and therein will not conflict with or constitute a breach of, or default
under (i) the respective charter and by-laws of the Company or any Significant Subsidiary,
(ii) any bond, debenture, note or other evidence of indebtedness or any contract, indenture,
mortgage, loan agreement or lease to which the Company or any Significant Subsidiary is a
party or by it is bound, or (iii) any statute, law, administrative regulation or
administrative or court decree, except, with respect to clauses (ii) and (iii) above, for
such conflicts, breaches or defaults that would not result in a Material Adverse Effect.
(p) No consent, approval, authorization, order, decree, registration or filing or
qualification of or with any court or governmental agency or body is required in connection
with the execution and delivery of this Agreement or the Indenture or the consummation by
the Company of the transactions contemplated herein and therein, except such as have been
obtained or rendered, as the case may be.
(q) The Company is not required to be registered under the Investment Company Act of
1940, as amended (the
Investment Company Act
).
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SECTION 2.
TIME OF SALE; SALE AND DELIVERY; CLOSING
.
(A)
TIME OF SALE
. The
Time of Sale
shall occur and be confirmed by
specification in the Underwriting Agreement. The Preliminary Prospectus and the Permitted Free
Writing Prospectuses, if any, together with the Base Prospectus, in the aggregate, are hereinafter
referred to as the
Time of Sale Information
.
(B)
PUBLIC OFFERING
. The Company understands that the Underwriters intend to make a
public offering of the Designated Securities as soon after the effectiveness of the Underwriting
Agreement as in the judgment of the Representative is advisable, and initially to offer the
Designated Securities on the terms set forth in the Prospectus. The Company acknowledges and
agrees that the Underwriters may offer and sell Designated Securities to or through any affiliate
of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or
through any Underwriter.
(C)
SALES TO UNDERWRITERS
. Pursuant to the applicable Underwriting Agreement, the
Company will agree to sell to the several Underwriters named in
Schedule I
thereto and the
Underwriters, upon the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, will agree to purchase from the Company severally and not
jointly the principal amounts of Debt Securities set forth opposite their names in
Schedule
I
thereto, at the respective purchase prices set forth in such Underwriting Agreement, plus
accrued interest, if any, from the date set forth therein to the date of payment and delivery.
(D)
PAYMENT
. Designated Securities to be purchased by each Underwriter pursuant to
the Underwriting Agreement relating thereto, in such authorized denominations and registered in
such names as the Representative may request upon at least forty-eight hours prior notice to the
Company, shall be delivered by or on behalf of the Company to the Representative for the account of
such Underwriter, against payment by such Underwriter or on its behalf of the purchase price
therefore in the funds and in the manner specified in such Underwriting Agreement, all at the place
and time and date specified in such Underwriting Agreement or at such other place and time and date
as the Representative and the Company may agree upon in writing, such time and date being herein
called the
Closing Time
for such Designated Securities.
SECTION 3.
COVENANTS
.
(A)
Covenants of the Company
. The Company covenants with each Underwriter of the
Designated Securities as follows:
(1)
COMPLIANCE WITH SECURITIES LAWS
. To prepare the Prospectus Supplement in
relation to the applicable Designated Securities in a form approved by the Underwriters and to file
such Prospectus Supplement with the Commission within the time periods specified by Rule 424(b)
under the Securities Act not later than the Commissions close of business on the second business
day following the execution and delivery of the Underwriting Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b); and
to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the
Securities Act.
(2)
DELIVERY OF REGISTRATION STATEMENTS AND PROSPECTUSES
. The Company will furnish to
the Representative and counsel for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and each amendment thereto which shall become effective on
or prior to the Closing Time and, so long as the delivery of a prospectus by any Underwriter or
dealer is required under the Securities Act (or required to be delivered but for Rule 172) in
connection with the sales of the Designated Securities (the
Prospectus Delivery Period
),
as many copies of the Prospectus and any amendments thereof and supplements thereto as well as each
Permitted Free Writing Prospectus (if applicable) as the Representative may reasonably request;
provided, that the Company shall
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not be required to furnish copies of the Prospectus if the conditions of Rule 172(c) under the
Securities Act are satisfied by the Company.
(3)
CONTINUED COMPLIANCE WITH SECURITIES LAWS
. (A) If at any time during the
Prospectus Delivery Period, (i) any event shall occur or condition shall exist as a result of which
the Registration Statement, Time of Sale Information or Prospectus would include any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at the time the
Registration Statement, Time of Sale Information or Prospectus is delivered to a purchaser or (ii)
if it shall be necessary at any such time to amend or supplement the Registration Statement or
Prospectus in order to comply with the requirements of the Securities Act, the Exchange Act or the
Trust Indenture Act, and (B) if at any time prior to the Closing Time (i) any event shall occur or
condition shall exist as a result of which the Time of Sale Information, as then amended or
supplemented, would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it shall be necessary to amend or supplement the Time of Sale Information to
comply with the requirements of the Securities Act, the Exchange Act or the Trust Indenture Act,
the Company will promptly notify the Underwriters thereof, and will promptly prepare and file with
the Commission, such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement, Prospectus or the Time of Sale Information, as the
case may be, comply with such requirements, and the Company will furnish to the Underwriters and to
such dealers as the Representative may designate, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request. Before filing any amendment or
supplement to the Registration Statement, the Prospectus or the Time of Sale Information, whether
before or after the time that the Registration Statement becomes effective, the Company will
furnish to the Representative and counsel for the Underwriters a copy of the proposed amendment or
supplement for review.
(4)
COMPLIANCE WITH THE EXCHANGE ACT
. During the Prospectus Delivery Period, the
Company will comply, in a timely manner, with all applicable requirements under the Exchange Act
relating to the filing with the Commission of the Companys reports pursuant to Section 13(a),
13(c) or 15(d) of the Exchange Act and, if then applicable, the Companys proxy statement pursuant
to Section 14(a) of the Exchange Act.
(5)
NOTICE TO THE REPRESENTATIVE
. During the Prospectus Delivery Period, the Company
will advise the Representative (i) of the time when any amendment to the Registration Statement has
been filed or becomes effective, (ii) of the time when any supplement to the Prospectus or any
amendment to the Prospectus or any Permitted Free Writing Prospectus has been filed, (iii) of any
request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or any other request by the Commission for any additional information,
(iv) of the issuance by the Commission of any order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any prospectus relating
to the Designated Securities; or (v) of the suspension of the qualification of such Designated
Securities for offer or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose; and the Company will use reasonable efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration Statement, preventing
or suspending the use of any prospectus or suspending any such qualification of the Securities; and
if any such order is issued or the Company receives notice suspending the Registration Statement,
preventing or suspending the use of any prospectus relating to the Designated Securities or
suspending any such qualification of the Designated Securities and, if any such order is issued,
will obtain as soon as reasonably possible the withdrawal thereof.
- 16 -
(6)
FILING FEES
. The Company agrees to pay the required Commission filing fees
relating to the Designated Securities within the time required by Rule 456(b)(1) without regard to
the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(7)
BLUE SKY QUALIFICATIONS
. The Company will use its best efforts, in cooperation
with the Underwriters, to qualify the Designated Securities for offering and sale under the
securities laws of such jurisdictions as the Representative may reasonably request and will
continue such qualification in effect so long as required for distribution of the Designated
Securities;
provided
,
however
, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction.
(8)
EARNINGS STATEMENT
. The Company will make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen months after the
date of each Underwriting Agreement, an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act.
SECTION 4.
PAYMENT OF EXPENSES
. The Company will pay all expenses incident to the
performance of its obligations under the Underwriting Agreement, including (i) the preparation,
printing and filing of the Registration Statement, the Preliminary Prospectus, any Permitted Free
Writing Prospectus, the Time of Sale of Information and the Prospectus (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation,
issuance and delivery of the Designated Securities to the Underwriters, (iii) the fees and
disbursements of the Companys counsel, accountants and other advisors or agents (including
transfer agents and registrars), as well as the fees and disbursements of the Trustee and its
counsel, (iv) the qualification of the Designated Securities under state securities laws in
accordance with the provisions of Section 3(A)(7) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith and in connection
with the preparation, printing and delivery of the Blue Sky Survey, and any amendment thereto, (v)
the delivery to the Underwriters of copies of each Preliminary Prospectus, any Permitted Free
Writing Prospectus and the Prospectus and any amendments or supplements thereto, (vi) the fees
charged by nationally recognized statistical rating organizations for the rating of the Designated
Securities and (vii) the fees and expenses incurred with respect to the listing, if any, of
Designated Securities on any securities exchange.
SECTION 5.
CONDITIONS OF UNDERWRITERS OBLIGATIONS
. The obligations of the
Underwriters to purchase and pay for the Designated Securities pursuant to the applicable
Underwriting Agreement are subject to the accuracy of the representations and warranties of the
Company contained in
Section 1
hereof or in certificates of any officer of the Company
delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(A) No order suspending the effectiveness of the Registration Statement shall be in effect,
and no proceeding for such purpose shall be pending before or threatened by the Commission; and all
requests by the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representative.
(B) Subsequent to the execution and delivery of the Underwriting Agreement, (i) no downgrading
shall have occurred in the rating accorded the Companys debt securities by any nationally
recognized statistical rating organization, as such term is defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative implications, or changed
its outlook, with possible negative implications, with respect to its rating of any of the
Companys debt securities.
- 17 -
(C) The Prospectus and any Permitted Free Writing Prospectus as amended or supplemented in
relation to the applicable Designated Securities shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act
(in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the
Securities Act).
(D) At Closing Time, the Representative shall have received the opinion, relating to the
Designated Securities and substantially to the effect set forth in
Exhibit B
hereto, dated
such date, of an Associate General Counsel of the Company, or such other person named in the
Underwriting Agreement.
(E) At Closing Time, the Representative shall have received the opinion, dated such date, of
counsel for the Underwriters, relating to the Designated Securities and such other matters as the
Representative may reasonably request.
(F) On the date of the Underwriting Agreement and at Closing Time, the Representative shall
have received from PricewaterhouseCoopers LLP, or such other firm as may be selected by the Company
as the Companys independent registered public accounting firm from time to time, a letter dated as
of such date, in form and substance reasonably satisfactory to the Representatives, containing
statements and information of the type ordinarily included in accountants comfort letters to
underwriters with respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement, the Time of Sale Information and
Prospectus.
(G) At Closing Time, there has been no Material Adverse Effect since the date of the
Underwriting Agreement or since the respective dates as of which information is given in the Time
of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding
any amendment or supplement thereto) the effect of which is such as to make it, in the reasonable
judgment of the Representative, impracticable or inadvisable to proceed with completion of the
offering or the sale of and payment for the Designated Securities; and the Representative shall
have received a certificate of the Company, dated the date of the Closing Time and signed by an
authorized officer of the Company, to the foregoing effect.
(H) At Closing Time, the Representative shall have received a certificate of the Company,
dated the date of the Closing Time and signed by an authorized officer of the Company, to the
effect that the representations and warranties of the Company contained in
Section 1
are
true and correct (or, with respect to the representations and warranties contained in
Section
1
that are not qualified as to materiality, true and correct in all material respects) with the
same force and effect as though expressly made at the Closing Time. The officer making such
certificate may rely upon the best of his knowledge as to proceedings pending or threatened.
SECTION 6.
INDEMNIFICATION
. (a) The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted as such fees and expenses are incurred) that arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, any Permitted Free Writing Prospectus or the
Prospectus as amended or supplemented, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with information furnished in writing to the Company by any
- 18 -
Underwriter through the Representative expressly for the use therein;
provided
,
however
, that the foregoing indemnity with respect to the Preliminary Prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Designated Securities, where it shall have been determined by a
court of competent jurisdiction by final and nonappealable judgment that (i) prior to the Time of
Sale the Company shall have notified such Underwriter in writing that the Preliminary Prospectus
contains an untrue statement of material fact or omits to state therein a material fact required to
be stated therein in order to make the statements therein not misleading, (ii) such untrue
statement or omission of a material fact was corrected in an amended or supplemented Preliminary
Prospectus or, where permitted by law, an issuer free writing prospectus (as defined in Rule 433
under the Securities Act), (iii) the Company shall have filed such amended or supplemented
Preliminary Prospectus or issuer free writing prospectus with the Commission on Form 8-K prior to
the Time of Sale correcting such untrue statement or omission of a material fact prior to the Time
of Sale, (iv) the Company provided such corrected Preliminary Prospectus or issuer free writing
prospectus to such Underwriter sufficiently far enough in advance of the Time of Sale so that such
corrected Preliminary Prospectus or issuer free writing prospectus could have been provided to such
person prior to the Time of Sale, and the Company requested in writing that the Underwriters
deliver such amended Preliminary Prospectus or issuer free writing prospectus to the persons to
whom the Underwriters are selling the Designated Securities, (v) the Underwriter did not send or
give such corrected Preliminary Prospectus or issuer free writing prospectus to such person at or
prior to the Time of Sale of the Designated Securities to such person, and (vi) such loss, claim,
damage or liability would not have occurred had the Underwriter delivered the corrected Preliminary
Prospectus or issuer free writing prospectus to such person as provided for in clause (v) above.
Each Underwriter agrees, severally and not jointly to indemnify and hold harmless the Company,
its directors, its officers and any person controlling the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, with respect to any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with any information
furnished in writing by such Underwriter through the Representative expressly for use in the
Registration Statement, any Preliminary Prospectus, any Permitted Free Writing Prospectus, the Time
of Sale Information or the Prospectus or any amendment or supplement thereto.
Promptly after receipt by any person of notice of any claim or the institution of any
proceeding (including any governmental investigation) in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
indemnified party
)
shall promptly notify the person against whom such indemnity may be sought (the
indemnifying
party
) in writing;
provided
,
that
the failure to notify the indemnifying party
shall not relieve it from any liability that it may have under such preceding paragraphs except to
the extent that it has been materially prejudiced through the forfeiture of substantive rights or
defenses) by such failure; and
provided
,
further
, that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to an indemnified party
otherwise than under such preceding paragraphs. The indemnifying party shall be entitled to
participate therein, and, to the extent that it elects (upon notice to the indemnified party),
jointly with any other similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party (who shall not, without the consent of the
indemnified party, be counsel to the indemnifying person). If the indemnifying party shall not have
so elected to assume such defense, then, upon request of the indemnified party, the indemnifying
party shall retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such proceeding and shall
pay the fees and disbursements of such counsel related to such proceeding. If the indemnifying
party shall so elect to assume such defense, the indemnifying party shall not be liable to the
indemnified party pursuant to this
Section 6
of any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof;
provided
,
- 19 -
however
, that any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party has failed within a reasonable time to retain counsel reasonably
satisfactory to the indemnified party. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties. Anything hereinabove to the contrary notwithstanding, any reference
in this
Section 6
to counsel reasonably satisfactory to, or designated by, the indemnified
party shall mean (i) in the case of parties indemnified pursuant to the second preceding paragraph,
counsel reasonably satisfactory to, or designated by, the Representative on behalf of all parties
so indemnified pursuant to such paragraph and (ii) in the case of parties indemnified pursuant to
the first preceding paragraph, counsel reasonably satisfactory to, or designated by, the Company.
The indemnifying party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying party shall, without
the written consent of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and
indemnification could have been sought hereunder by such indemnified party, unless such settlement
(x) includes an unconditional release of such indemnified party from all liability on claims that
are the subject matter of such proceeding and (y) does not include any statement as to, or any
admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(b)
CONTRIBUTION
. If the indemnification provided for in paragraph (a) of
Section
6
is unavailable as a matter of law to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefit received by the Company, on the one hand, and the Underwriters, on the other,
shall be deemed to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the Prospectus. The
relative fault of the Company, on the one hand, and of the Underwriters, on the other, shall be
determined by reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omissions.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this paragraph were determined by
pro rata
allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations provided for, in the respective cases, in clauses (i) and
(ii) of the immediately preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses,
- 20 -
claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this paragraph, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Designated
Securities underwritten by such Underwriter and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provision of this paragraph (b) concerning contribution, no indemnifying party
shall be required to make contribution in any circumstances in which such party would not have been
required to provide indemnification by the terms of paragraph (a). Nothing herein contained shall
be deemed to constitute a waiver by an indemnified party of such partys rights, if any, to receive
contribution pursuant to Section 11(f) of the Securities Act or other applicable law. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters obligations to contribute pursuant to this section are
several, in proportion to the respective amounts of Designated Securities underwritten by each of
such Underwriters, and not joint.
In the event that the indemnifying party is one or more of the Underwriters, then the
Representative shall act on behalf of the indemnifying party with respect to receipt of notice,
agreement as to retention of separate counsel and consent to settlement, and the indemnified party
may rely upon the action of the Representative as binding upon each such indemnifying party for
purposes of this section.
The remedies provided for in this
Section 6
are not exclusive and shall not limit any
rights and remedies which may otherwise be available to any indemnified party at law or in equity
SECTION 7.
CERTAIN AGREEMENTS OF THE UNDERWRITERS
. Each Underwriter of the
Designated Securities represents and covenants with the Company that (i) without the consent of the
Company it has not made and will not make any offer relating to the Designated Securities that
would constitute a free writing prospectus as defined in Rule 405, other than (a) a Permitted Free
Writing Prospectus or (b) any free writing prospectus as defined in Rule 405 that would not be
required to be filed with the Commission that is substantially in the form of
Schedule III
to the Underwriting Agreement; and (ii) it is not subject to any pending proceeding under Section
8A of the Securities Act with respect to the offering (and will promptly notify the Company if any
such proceeding against it is initiated during the Prospectus Delivery Period).
SECTION 8.
SURVIVABILITY
. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for the Designated
Securities.
SECTION 9.
TERMINATION
. This Agreement shall be subject to termination in the
discretion the Representative at any time subsequent to the date of the applicable Underwriting
Agreement prior to the Closing Time by notice to the Company if (i) trading generally on the New
York Stock Exchange shall have been suspended or materially limited; (ii) trading of the Companys
common stock shall have been suspended on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in the State of New York or the United States shall have been
declared by the appropriate authorities, or a material disruption in commercial banking or
securities settlement or clearance services in the United States adversely affecting transactions
of the type contemplated in the applicable Underwriting Agreement; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any
- 21 -
change in financial markets or any calamity or crisis, either within or outside the United States,
that, in the reasonable judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Designated
Securities on the terms and in the manner contemplated by the Underwriting Agreement, the Time of
Sale Information and the Prospectus. If any Underwriting Agreement is terminated pursuant to
Sections 5
and
9
hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities except as provided in
Sections 4
and
6
hereof;
provided
, however, if any Underwriting Agreement is terminated for any
reason (other than a default by the Underwriters under
Section 10
hereof), the Company
shall reimburse the Underwriters for all reasonable out-of-pocket expenses approved in writing by
the Representatives, including the reasonable fees and disbursements of counsel for the
Underwriters that shall have been reasonably incurred by them in connection with the proposed
purchase and sale of the Designated Securities.
SECTION 10.
DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Designated Securities which it or they
are obligated to purchase under the applicable Underwriting Agreement (the
Defaulted
Securities
), then the Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(A) if the number or aggregate principal amount, as the case may be, of Defaulted Securities
does not exceed 10% of the number or aggregate principal amount, as the case may be, of Designated
Securities to be purchased on such date pursuant to such Underwriting Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in
the proportions that their respective underwriting obligations under such Underwriting Agreement
bear to the underwriting obligations of all non-defaulting Underwriters, or
(B) if the number or aggregate principal amount, as the case may be, of Defaulted Securities
exceeds 10% of the number or aggregate principal amount, as the case may be, of Designated
Securities to be purchased on such date pursuant to such Underwriting Agreement, such Underwriting
Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the
Company.
No action taken pursuant to this
Section 10
shall relieve any defaulting Underwriter
from liability in respect to its default.
In the event of any such default which does not result in a termination of the applicable
Underwriting Agreement either the Representative or the Company shall have the right to postpone
the Closing Time for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or arrangements.
SECTION 11.
NOTICES
. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered or faxed and confirmed
to them, at the address of the Representative described in the applicable Underwriting Agreement;
or, if sent to the Company, will be mailed, delivered or faxed and confirmed to it, at One Baxter
Parkway, Deerfield, Illinois, 60015; attention Corporate Secretary.
SECTION 12.
PARTIES
. This Agreement shall each inure to the benefit of and be binding
upon the Company, the Representative and any other Underwriters and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any
person, firm or
- 22 -
corporation, other than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in
Section 6
and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other person, firm or
corporation.
SECTION 13.
RELATIONSHIP
. The Company acknowledges and agrees that (i) the purchase
and sale of the Designated Securities pursuant to the Underwriting Agreement is an arms-length
commercial transaction between the Company and each Underwriter, (ii) in connection therewith, and
with the process leading to such transaction, each Underwriter is acting solely as a principal and
not as the agent or fiduciary of the Company or any of its subsidiaries, (iii) each Underwriter has
not assumed an advisory or fiduciary responsibility in favor of the Company or any of its
subsidiaries with respect to the offering contemplated by the Underwriting Agreement or the process
leading thereto (irrespective of whether any Underwriter has advised or is currently advising the
Company or any of its subsidiaries on other matters) or any other obligation to the Company or any
of its subsidiaries except the obligations expressly set forth in the Underwriting Agreement, and
(iv) the Company has consulted its own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that any Underwriter has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the Company or any of its
subsidiaries, in connection with such transaction or the process leading thereto.
SECTION 14.
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 15.
EFFECT OF HEADINGS
. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
- 23 -
Exhibit A
BAXTER INTERNATIONAL INC.
Debt Securities
UNDERWRITING AGREEMENT
[ ], 200[ ]
Baxter International Inc.
One Baxter Parkway
Deerfield, IL 60015
Attention: Robert M. Davis
Ladies and Gentlemen:
On behalf of the several Underwriters named in
Schedule I
hereto and for their
respective accounts, we offer to purchase, on and subject to the terms and conditions of, and
utilizing terms as defined in, the Underwriting Agreement Standard Provisions (
Debt
Securities
) dated as of
(
Standard Provisions
), which is attached
hereto, the following securities (
Designated Securities
) on the following terms:
DEBT SECURITIES
Time of Sale:
Indenture:
Trustee:
Title of Designated Securities:
Aggregate Principal Amount:
Initial Public Offering Price:
Purchase Price by Underwriters:
Ranking:
Interest Rate:
Maturity:
Interest Payment Dates:
Regular Record Dates:
Conversion or Exchange Provisions:
Listing Requirements:
Fixed or Variable Price Offering:
Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agents:
Redemption Provisions:
Sinking Fund:
Dealer Concession:
Reallowance Concession:
Method of Payment:
Settlement Date:
Other Terms:
If changes in the Standard Provisions have been agreed to, set forth below:
Name and Address of Representative:
The Representative named above and executing this Underwriting Agreement represents that the
Underwriters have authorized the Representative to enter into this Underwriting Agreement and to
act hereunder on their behalf.
The respective principal amounts of the Designated Securities to be purchased by each of the
Underwriters are set forth opposite their names in
Schedule I
hereto.
The provisions of the Standard Provisions are incorporated herein by reference.
The Closing will take place at [___], New York City time, on [
], 20[___], at the
offices of Mayer Brown LLP, 71 South Wacker Drive, Chicago, IL 60606, or at such other place as the
Representative and the Company may agree.
Please signify your acceptance by signing the enclosed response to us in the space provided
and returning it to us.
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Very truly yours,
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[Representative]
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Name:
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Title:
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as Representative for itself and the other
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underwriters named in
Schedule I
attached
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hereto
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Accepted:
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BAXTER INTERNATIONAL INC.
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By
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Name:
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Title:
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SCHEDULE I
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Principal Amount of
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Underwriter
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Securities to be Purchased
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Total
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[$ ]
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SCHEDULE II
Attached Permitted Free Writing Prospectus:
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Number
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Date
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1
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[ ], 200[ ]
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Filed pursuant to Rule 433
Registration No. 333-136224
Dated
, 2007
FINAL TERM SHEET
___% Notes Due ___
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Issuer:
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Baxter International Inc.
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Expected Ratings:
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[ ]
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Format:
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[ ]
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Ranking:
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[ ]
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Offering Size:
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$[ ]
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Trade Date:
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[ ]
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Settlement Date:
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[ ] (T+3)
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Maturity:
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[ ]
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Interest Payment Dates:
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[ ]
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First Pay Date:
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[ ]
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Treasury Benchmark:
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[ ]
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UST Spot (PX / Yield):
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[ ]
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Spread to UST:
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[ ]
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Re-offer Yield to Maturity:
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[ ]%
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Coupon:
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[ ]%
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Issue Price:
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[ ]%
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Net Proceeds to Issuer:
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$[ ]
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Day Count Basis:
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[ ]
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Optional Redemption:
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[ ]
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Minimum Denomination:
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[ ]
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CUSIP:
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[ ]
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Bookrunners:
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[ ]
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Co-managers:
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[ ]
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Note
: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
[
] toll-free at [
] [or emailing [ ] at [. ]].
SCHEDULE III
Baxter International Inc.
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Issuer:
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Baxter International Inc.
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Description / Security Type:
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[ ]
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Size:
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$
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Maturity:
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__, 20__
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Coupon:
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____%
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Price:
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____% of face amount
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Yield to maturity:
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____%
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Spread:
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[ ]
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[Spread to Benchmark Treasury:
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____%]
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[Benchmark Treasury [Price] and Yield:
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______ _____%]
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[Treasury Spot:
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[ ]]
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[Reoffer Yield
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[ ]]
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Interest Payment Dates:
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and
, commencing
, 200_
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Redemption Provisions:
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[
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[Make-whole call
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[At any time][Before the first call date] at a discount rate of Treasury plus __ basis points]
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Settlement:
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T+_; _________ __, 200_
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Denominations:
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[ ]
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[CUSIP:
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[ ]]
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[[Expected] Ratings:
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[ ]]
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[Bookrunners:
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[ ]]
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[Co-managers:
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[ ]]
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Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you request it by calling
toll-free 1-[xxx-xxx-xxxx] [or emailing [ ] at [. ]]
Exhibit B
FORM OF OPINION OF COMPANYS CORPORATE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(D)
(i) This Agreement has been duly authorized, executed and delivered by the Company.
(ii) The Indenture has been duly authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery thereof by the Trustee, the Indenture is a
valid and binding agreement of the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors rights generally and by general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law).
(iii) The Designated Securities have been duly authorized and executed by the Company and,
when duly authenticated by the Trustee and issued and delivered by the Company against payment
therefor in accordance with the terms of this Agreement and the Indenture, the Designated
Securities will constitute valid and binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
creditors rights generally and by general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(iv) The Registration Statement became effective upon filing with the Commission pursuant to
Rule 462 under the Securities Act and, pursuant to Section 309 of the Trust Indenture Act, the
Indenture has been qualified under the Trust Indenture Act, and (a) such counsel has been orally
advised by the Commission that no stop order suspending the effectiveness of the Registration
Statement has been issued and (b) to such counsels knowledge, no proceedings for that purpose have
been instituted or are pending or threatened.
(v) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has the corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the Registration
Statement, the Prospectus and the Time of Sale Information and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in which such
qualification is required, except (i) where the failure to so qualify would not result in a
Material Adverse Effect and (ii) in the case of good standing, for any jurisdiction not recognizing
the legal concept of good standing.
(vi) Each Significant Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with corporate power and
authority to own, lease and operate its properties and conduct its business as now being conducted;
and to such counsels knowledge, each Significant Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in which such
qualification is required, except (i) where the failure to so qualify would not result in a
Material Adverse Effect and (ii) in the case of good standing, for any jurisdiction not recognizing
the legal concept of good standing.
(vii) Except as set forth in the Registration Statement, the Time of Sale Information and
Prospectus, there is no action, suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of such counsel, threatened against or
affecting
the Company or any Significant Subsidiary, which could reasonably be expected to result in a
Material Adverse Effect.
(viii) The execution and delivery by the Company of this Agreement and the Indenture, and the
incurrence by the Company of the obligations set forth therein and the consummation by the Company
of the transactions contemplated thereby will not conflict with or constitute a breach of, or
default under (i) the respective charter or bylaws of the Company or any Significant Subsidiary,
(ii) any bond, debenture, note or other evidence of indebtedness or any contract, indenture,
mortgage, loan agreement or lease to which the Company or any Significant Subsidiary is a party or
by it is bound, or (iii) any statute, law, administrative regulation or administrative or court
decree, except, with respect to clauses (ii) and (iii) above, for such conflicts, breaches or
defaults that would not result in a Material Adverse Effect and except further that such counsel
may state that the opinion set forth in clause (iii) is limited to those statutes, laws or
regulations in effect on the date of this opinion which, in such counsels experience, are normally
applicable to transactions of the type contemplated by this Agreement but without such counsel
having made any special investigation as to the applicability of any specific law, rule or
regulation beyond such investigation made by such counsel in the course of such counsels ongoing
representation of the Company.
(ix) No consent, approval, authorization or order of or qualification or registration with any
court or other governmental body or agency is, to such counsels knowledge, required for the
performance by the Company of its obligations under this Agreement, the Designated Securities and
the Indenture, other than such registrations or qualifications as may be necessary under the Blue
Sky laws or other securities laws of the various states in which the Designated Securities may be
offered or sold.
(x) Such counsel shall state that the Registration Statement, at the effective time as set
forth in Rule 430B(f)(2) under the Securities Act, the Base Prospectus, as supplemented by the
Preliminary Prospectus Supplement, as of the date of the Preliminary Prospectus Supplement, and the
Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus
Supplement, each appeared on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act (other than financial statements or schedules and other
financial or statistical data included or incorporated by reference therein or excluded therefrom,
including the Form T-1, as to which such counsel need not express any opinion), and that each
document, if any, filed pursuant to the Exchange Act (other than the financial statements,
schedules and other financial information included or incorporated by reference therein or excluded
therefrom, as to which such counsel need not express any opinion) and incorporated by reference in
Time of Sale Information and the Prospectus, appeared on its face to be appropriately responsive in
all material respects with the Exchange Act and the rules and regulations thereunder, as of the
date on which they were filed with the Commission.
(xi) The statements in the Prospectus Supplement under the caption Description of the Notes
(other than the statements under the caption Book-Entry and Settlement) and the statements in
the Base Prospectus under the caption Description of Debt Securities (other than the statements
under the caption Book-Entry Securities) insofar as such statements purport to summarize certain
provisions of the documents referred to therein, fairly summarize such provisions in all material
respects.
In rendering such opinion, such counsel (1) may rely as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers and public officials, (2) may state
that such counsel expresses no opinion as to laws, rules, regulations, consents, approvals,
authorizations or other orders other than those of the State of Illinois, the General Corporation
Law of the State of Delaware and the federal law of the United States of America, and that no
opinion need be expressed on or in respect to Blue Sky or other state securities laws of the
various states in which Designated Securities may be offered or sold, and (3) may state that such
counsel has assumed for purposes of such counsels opinions
as to the enforceability of the Indenture and the Designated Securities that the laws of the
State of New York are the same as the laws of the State of Illinois in all respects relevant to
such opinions.
Such counsel also shall state that such counsel has participated in conferences with officers
and other representatives of the Company, representatives of the independent accountants of the
Company and representatives of the Underwriters and their counsel, at which the contents of the
Registration Statement, the Time of Sale Information and the Prospectus and related matters were
discussed, and, although such counsel is not passing upon, and does not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus and has
made no independent check or verification thereof (except to the extent referred to in paragraph
(xi) above), on the basis of the foregoing, no facts have come to such counsels attention which
have caused such counsel to believe that (a) the Registration Statement, at the effective time as
set forth in Rule 430B(f)(2) under the Securities Act, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (b) the Time of Sale Information, as of the Time of Sale,
contained an untrue statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; and (c) the Prospectus, as of the date of the Prospectus Supplement and as of the
Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each case counsel need
express no opinion as to financial statements or schedules or other financial or statistical data
included or incorporated by reference therein or excluded therefrom or the statements contained in
the exhibits to the Registration Statement, including the Form T-1.
EXHIBIT 4.1
Execution Copy
6.250% SENIOR NOTES DUE 2037
SECOND SUPPLEMENTAL INDENTURE
between
BAXTER INTERNATIONAL INC.,
as Issuer
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
Dated as of December 7, 2007
TABLE OF CONTENTS
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Page
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ARTICLE 1
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Definitions
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Section 1.01. Definition of Terms
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1
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ARTICLE 2
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The Notes
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Section 2.01. Designation
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2
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Section 2.02. Principal Amount; Series Treatment
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2
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Section 2.03. Maturity
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3
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Section 2.04. Interest
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3
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Section 2.05. Form of Notes
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3
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Section 2.06. Transfers Restrictions
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4
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Section 2.07. Transfers and Exchanges
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5
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ARTICLE 3
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Redemption Of The Notes
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Section 3.01. Optional Redemption by Company
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5
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ARTICLE 4
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Change of Control
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Section 4.01. Offer to Purchase Upon Change of Control Triggering Event
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5
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ARTICLE 5
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Execution Of The Notes
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Section 5.01. Execution; Certificates
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5
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ARTICLE 6
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Miscellaneous
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Section 6.01. Ratification of Indenture
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5
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Section 6.02. Trustee Not Responsible for Recitals
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6
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Section 6.03. Governing Law
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6
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Section 6.04. Separability
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6
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Section 6.05. Counterparts
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6
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-i-
SECOND SUPPLEMENTAL INDENTURE, dated as of December 7, 2007 (the
Supplemental
Indenture
), between Baxter International Inc., a Delaware corporation (the
Company
),
and The Bank of New York Trust Company, N.A. (as successor in interest to J.P. Morgan Trust
Company, National Association), as Trustee, under the Indenture, dated as of August 8, 2006 (the
Indenture
), between the Company and the Trustee.
WHEREAS, the Company executed and delivered the Indenture to the Trustee to provide for, among
other things, the issuance from time to time of the Companys debt securities in one or more series
as might be authorized under the Indenture;
WHEREAS, the Indenture provides that the Company and the Trustee may enter into an indenture
supplemental to the Indenture to establish the form and terms of any series of Securities (as
defined in the Indenture) as provided by Sections 2.01 and 3.01 of the Indenture;
WHEREAS, the Board of Directors of the Company has duly adopted resolutions authorizing the
Company to issue the Securities provided for in this Supplemental Indenture;
WHEREAS, the Company desires to enter into this Supplemental Indenture to provide for the
establishment of a series of Securities (as defined in the Indenture) to be known as the 6.250%
Senior Notes due 2037 (the
Notes
), the form, substance, terms, provisions and conditions
of which shall be set forth in the Indenture and this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental
Indenture and satisfy all requirements necessary to make (i) this Supplemental Indenture a valid
instrument in accordance with its terms and (ii) the Securities provided for hereby, when executed
and delivered by the Company and authenticated by the Trustee, the valid obligations of the
Company.
NOW THEREFORE, each party agrees as follows for the benefit of the other parties and for the
equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
Definitions
Section 1.01.
Definition of Terms
.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this Supplemental
Indenture unless the definition of such term is amended and supplemented pursuant to this
Supplemental Indenture;
(b) a term defined anywhere in this Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
1
(d) a reference to a Section or Article is to a Section or Article of this Supplemental
Indenture;
(e) headings are for convenience of reference only and do not affect interpretation;
(f) the following terms have the meanings given to them in this
Section 1.01(f)
:
Closing Date
means December 7, 2007.
Company
shall have the meaning set forth in the first paragraph hereof.
Depositary
means the clearing agency registered under the Exchange Act that is
designated to act as the Depositary for the Global Notes. The Depository Trust Company shall be
the initial Depositary, until a successor shall have been appointed and become such pursuant to the
applicable provisions of the Indenture, and thereafter, Depositary shall mean or include such
successor.
Global Note
shall have the meaning set forth in
Section 2.05(b)
.
Initial Notes
means (i) all Notes issued on the first date that Notes were
originally issued under this Supplemental Indenture, (ii) any additional Notes issued under
Section 2.02(a)
and (iii) any Notes issued in replacement therefor.
Notes
shall have the meaning set forth in the recitals above and shall include any
Global Note.
ARTICLE 2
The Notes
Section 2.01.
Designation
.
The Company hereby establishes a series of Securities designated the 6.250% Senior Notes due
2037 for issuance under the Indenture.
Section 2.02.
Principal Amount; Series Treatment
.
(a) The Notes shall be initially limited to an aggregate principal amount of $500,000,000.
The Company may, from time to time, without the consent of the Holders of the outstanding Notes,
issue additional Notes, so that such additional Notes and the outstanding Notes shall be
consolidated together and form a single series of Securities under the Indenture as supplemented by
this Supplemental Indenture. Any increase in the aggregate principal amount of the Notes shall be
evidenced by an Officers Certificate to be delivered to the Trustee, without any further action by
the Company.
(b) Any additional Notes issued under
Section 2.02(a)
shall have the same terms in all
respects as the corresponding series of Notes, except that interest will accrue on the additional
Notes from the most recent date to which interest has been paid on the Notes of such series (other
than the additional Notes) or if no interest has been paid on the Outstanding Notes of such
2
series from the first date that the Outstanding Notes were originally issued under the
Indenture, as supplemented by this Supplemental Indenture.
(c) For all purposes of the Indenture and this Supplemental Indenture, all Notes, whether
Initial Notes, or additional Notes issued under
Section 2.02(a)
, shall constitute one
series of Securities and shall vote together as one series of Securities.
(d) The Notes shall be issued in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
Section 2.03.
Maturity
.
The Notes will become due and payable on December 1, 2037.
Section 2.04.
Interest
. The Notes will bear interest at the rate of 6.250% per annum
from December 7, 2007 until the principal thereof becomes due and payable or to the date of
redemption or repurchase (if any) of the Notes, such interest to be payable semi-annually on June 1
and December 1 of each year, to the Holders of record of the Notes as of the close of business on
the May 15 and November 15 preceding such interest payment dates, commencing, in the case of the
Initial Notes or any additional Notes issued prior to such date, on June 1, 2008.
Section 2.05.
Form of Notes
.
(a) The Notes shall contain the terms set forth in, and shall be substantially in the form of,
Exhibit A
hereto. The terms and provisions contained in the form of Notes set forth in
Exhibit A
shall constitute, and are hereby expressly made, a part of the Indenture, as
supplemented by this Supplemental Indenture.
Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the Authorized Officers executing the same may
approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of the Indenture, as supplemented by this Supplemental Indenture, or as may be
required by the Depositary or as may be required to comply with any applicable law or with any rule
or regulation made pursuant thereto or with any rule or regulation of any securities exchange or
automated quotation system on which the Notes may be listed, or to conform to usage, or to indicate
any special limitations or restrictions to which any particular Notes are subject.
(b) So long as the Notes are eligible for book-entry settlement with the Depositary, or unless
otherwise required by law, or otherwise contemplated herein, all of the Notes shall be represented
by one or more Notes in global form registered in the name of the Depositary or the nominee of the
Depositary.
The Notes shall be issued initially in the form of one or more permanent Global Securities in
registered form, substantially in the form set forth in
Exhibit A
(the
Global
Note
), registered in the name of the nominee of the Depositary, deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Notes may from time to time
3
be increased or decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, in accordance with the instructions given by the Holder thereof, as
hereinafter provided.
The transfer and exchange of beneficial interests in any such Global Notes shall be effected
through the Depositary in accordance with the Indenture and the applicable procedures of the
Depositary. Except as provided in the Indenture, beneficial owners of a Global Note shall not be
entitled to have certificates registered in their names, will not receive or be entitled to receive
physical delivery of certificates in definitive form and will not be considered Holders of such
Global Note.
Any Global Note shall represent such of the Outstanding Notes as shall be specified therein
and shall provide that it shall represent the aggregate amount of Outstanding Notes from time to
time endorsed thereon and that the aggregate amount of Outstanding Notes represented thereby may
from time to time be increased or reduced to reflect redemptions, transfers or exchanges permitted
hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the
amount of outstanding Notes represented thereby shall be made by the Trustee in such manner and
upon instructions given by the Holder of such Notes in accordance with the Indenture and this
Supplemental Indenture. Payment of principal of and interest and premium, if any, on any Global
Note shall be made to the Holder of such Note.
Section 2.06.
Transfer Restrictions
. The following provisions shall apply only to
Global Notes:
(i) Each Global Note authenticated under this Supplemental Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered to such
Depositary or a nominee thereof or Trustee if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Note, and each such Global Note shall
constitute a single Note for all purposes of the Indenture and this Supplemental Indenture.
(ii) Notwithstanding any other provision in this Supplemental Indenture, no Global Note
may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note
in whole or in part may be registered, in the name of any Person other than the Depositary
or a nominee thereof except as provided in Section 3.05 of the Indenture. Any Note issued
in exchange for a Global Note or any portion thereof shall be a Global Note; provided that
any such Note so issued that is registered in the name of a Person other than the Depositary
or a nominee thereof shall not be a Global Note.
(iii) Securities issued in exchange for a Global Note or any portion thereof pursuant
to clause (ii) above shall be issued pursuant to Section 3.05 of the Indenture.
(iv) At such time as all interests in a Global Note have been redeemed, repurchased,
converted, canceled or exchanged for Notes in certificated form, such Global Note shall,
upon receipt thereof, be canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Trustee. At any time prior to such
cancellation, if any interest in a Global Note is redeemed,
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repurchased, converted, canceled or exchanged for Notes in certificated form, the
principal amount of such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Trustee, be appropriately reduced, and
an endorsement shall be made on such Global Note, by the Trustee or at the direction of the
Trustee, to reflect such reduction.
Section 2.07.
Transfers and Exchanges
. The Notes shall be transferred and exchanged
by the Holders thereof and the Trustee in accordance with the terms and conditions set forth in
Section 3.05 the Indenture.
ARTICLE 3
Redemption Of The Notes
Section 3.01.
Optional Redemption by Company
. The Notes may be redeemed at the option
of the Company on the terms and conditions set forth in the form of Note set forth as
Exhibit
A
.
ARTICLE 4
Change of Control
Section 4.01.
Offer to Purchase Upon Change of Control Triggering Event
. Upon the
occurrence of a Change of Control Triggering Event (as defined in the form of Note set forth as
Exhibit A
), and unless the Company has exercised its option to redeem the Notes pursuant to
Section 3.01
, the Company shall be required to make an offer to each holder of the Notes to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
that holders Notes on the terms and conditions set forth in the form of Note set forth as
Exhibit A
.
ARTICLE 5
Execution Of The Notes
Section 5.01.
Execution; Certificates
. The Notes and any Officers Certificate to be
delivered under the Indenture in connection with the authentication and delivery of the Notes shall
be executed and delivered as set forth in the Indenture.
ARTICLE 6
Miscellaneous
Section 6.01.
Ratification of Indenture
.
The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and
confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
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Section 6.02.
Trustee Not Responsible for Recitals
.
The recitals herein contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Indenture.
Section 6.03.
Governing Law
.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of New York, as applied to contracts made and performed within the State
of New York, without regards to principles of conflicts of law.
Section 6.04.
Separability
.
In case any one or more of the provisions contained in this Supplemental Indenture or in the
Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this
Supplemental Indenture or of the Notes, but this Supplemental Indenture and the Notes shall be
construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
Section 6.05.
Counterparts
.
This Supplemental Indenture may be executed in any number of counterparts each of which shall
be an original; but such counterparts shall together constitute but one and the same instrument.
6
IN WITNESS WHEREOF
, the parties hereto have caused this Second Supplemental Indenture to be duly
executed as of the date first above written.
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BAXTER INTERNATIONAL INC.
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By:
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/s/ Robert J. Hombach
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Name: Robert J. Hombach
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Title: Corporate Vice President
and Treasurer
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THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
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By:
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/s/ Janice Ott Rotunno
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Name: Janice Ott Rotunno
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Title: Vice President
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(Signature Page to Supplemental Indenture)
EXHIBIT A
[FACE OF NOTE]
[Each Global Note shall bear the following legend:]
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (DTC), to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of Cede & Co., or such
other name as requested by an authorized representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is required by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
CUSIP No. 071813 AX 7
ISIN US071813AX74
BAXTER INTERNATIONAL INC.
6.250% Senior Note due 2037
Baxter International Inc., a Delaware corporation (the
Company
), for value received,
hereby promises to pay to Cede & Co. or registered assigns, at the office or agency of the Company
in the City of New York, the principal sum of FIVE HUNDRED MILLION DOLLARS ($500,000,000) on
December 1, 2037, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and to pay interest,
semiannually on June 1 and December 1 of each year, commencing on June 1, 2008, on said principal
sum at said office or agency, in like coin or currency, at the rate per annum specified in the
title of this Note, from the June 1 and December 1, as the case may be, next preceding the date of
this Note to which interest has been paid, unless the date hereof is a date to which interest has
been paid, in which case from the date of this Note, or unless no interest has been paid on these
Notes, in which case from December 7, 2007 until payment of said principal sum has been made or
duly provided for; provided, that payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto as such address shall appear on the
Security Register or by wire transfer to an account maintained by the payee with a bank located in
the United States.
Notwithstanding the foregoing, if the date hereof is after the 15
th
day of May or
November, as the case may be, and before the following June 1 or December 1, as the case may be,
this Note shall bear interest from such June 1 or December 1;
provided
,
that
, if
the Company shall default in the payment of interest due on such June 1 or December 1, then this
Note shall bear interest from the next preceding June 1 or December 1, to which interest has been
paid or, if no interest has been paid on these Notes, from December 7, 2007. The interest so
payable on any June 1 or December 1, will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this Note is registered at
the close of business on the May 15 or November 15, as the case may be, preceding such June 1 or
December 1. Interest on this Note will be calculated on the basis of a 360-day year of twelve
30-day months.
Reference is made to the further provisions of this Note set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though fully set forth at
this place.
This Note shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee under the Indenture referred to on the
reverse hereof.
IN WITNESS WHEREOF, Baxter International Inc. has caused this instrument to be duly executed
on the date set forth below.
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Dated: December 7, 2007
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BAXTER INTERNATIONAL INC.
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By:
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Name:
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Robert J. Hombach
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Title:
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Corporate Vice President
and Treasurer
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(FORM OF CERTIFICATION OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein issued under the
within-mentioned Indenture.
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THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
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By:
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Authorized Signatory
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Dated:
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REVERSE OF NOTE
BAXTER INTERNATIONAL INC.
6.250% Senior Notes due 2037
This Note is one of a duly authorized issue of Securities of the Company of the series
hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of
August 8, 2006, as supplemented by the Second Supplemental Indenture, dated as of December 7, 2007
(both together herein called the
Indenture
), between the Company and The Bank of New York
Trust Company, N.A. (as successor in interest to J.P. Morgan Trust Company, National Association),
as trustee (herein called the
Trustee
which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities. This Note is one of a Series of
Securities of the Company designated as the 6.250% Senior Notes due 2037 (the
Notes
),
initially limited in aggregate principal amount of $500,000,000, subject to the issuance of
additional Notes as provided in the Indenture. Terms used but not defined herein shall have the
respective meanings set forth in the Indenture.
If any interest payment date, maturity date or redemption date of this Note falls on a day
that is not a Business Day, payment will be made on the next succeeding Business Day, and no
interest will accrue for the period from and after the interest payment date, maturity date or
redemption date, as the case may be, to the next succeeding Business Day. As used in this Note,
the term
Business Day
means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in the City of New York are authorized or obligated by or
pursuant to law, regulation or executive order to close.
The Indenture contains provisions for the defeasance at any time of the entire indebtedness of
the Notes or certain covenants set forth in the Indenture applicable to the Notes upon compliance
by the Company of certain conditions set forth therein, which provisions apply to this Note.
This Note is redeemable in whole at any time or in part, from time to time, at the option of
the Company (an
Optional Redemption
), at a make whole redemption price (the
Optional
Redemption Price
) equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid
interest thereon to the redemption date, and
(ii) the sum of the present values of the remaining scheduled payments of principal and
interest on the principal amount of the Notes to be redeemed (not including any portion of
the payment of interest accrued as of the date of redemption) discounted to the redemption
date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 30 basis points, plus accrued and unpaid interest thereon to the date
of redemption.
Treasury Rate
means, with respect to any redemption date, the rate per annum equal
to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
Comparable Treasury Issue
means the United States Treasury security selected by an
Independent Investment Banker as having an actual or interpolated maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes.
Comparable Treasury Price
means, with respect to any redemption date, (1) the
average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Company obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker
means one of the Reference Treasury Dealers appointed
by the Company.
Reference Treasury Dealers
means (1) Banc of America Securities LLC and UBS
Securities LLC and their successors; provided, however, that if either of the foregoing shall cease
to be a primary U.S. Government securities dealer (
Primary Treasury Dealer
), the Company
shall substitute another nationally recognized investment banking firm that is a Primary Treasury
Dealer, and (2) at the option of the Company, additional Primary Treasury Dealers selected by the
Company.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Company, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m. New York
City time on the third Business Day preceding such redemption date.
Any redemption pursuant to the preceding paragraph will be made at the Optional Redemption
Price upon not less than 30 nor more than 60 days prior notice before the redemption date to the
Holders. If the Notes are only partially redeemed by the Company pursuant to an Optional
Redemption, the Notes will be redeemed by such method as the Trustee shall deem fair and
appropriate and in accordance with the Indenture. In the event of redemption of this Note in part
only, a new Note or Notes of this series for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof. Unless the Company defaults in payment of
the redemption price, on and after the redemption date interest will cease to accrue on the Notes
or portions thereof called for redemption.
If a Change of Control Triggering Event (as defined below) occurs, unless the Company has
exercised its option to redeem the Notes (as described above), the Company shall be required to
make an offer (the
Change of Control Offer
) to each holder of the Notes to repurchase all
or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that holders
Notes on the terms set forth below. In the Change of Control Offer, the Company shall be
required to offer payment in cash equal to 101% of the aggregate principal amount of Notes
repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to the date of
repurchase (the
Change of Control Payment
). Within 30 days following any Change of
Control Triggering Event or, at the option of the Company, prior to any Change of Control, but
after public announcement of the transaction that constitutes or may constitute the Change of
Control, a notice shall be mailed to holders of the Notes describing the transaction that
constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the
Notes on the date specified in the notice, which date shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed (the
Change of Control Payment Date
).
The notice shall, if mailed prior to the date of consummation of the Change of Control, state that
the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or
prior to the Change of Control Payment Date.
On the Change of Control Payment Date, the Company shall, to the extent
lawful:
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(1)
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accept for payment all Notes or portions of Notes properly tendered pursuant to
the Change of Control Offer;
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(2)
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deposit with the paying agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and
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(3)
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deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers Certificate stating the aggregate principal amount of Notes
or portions of Notes being repurchased.
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The Company shall not be required to make a Change of Control Offer upon the occurrence of a
Change of Control Triggering Event if a third party makes such an offer in the manner, at the times
and otherwise in compliance with the requirements for an offer made by the Company and the third
party repurchases all Notes properly tendered and not withdrawn under its offer. In addition, the
Company shall not repurchase any Notes if there has occurred and is continuing on the Change of
Control Payment Date an Event of Default, other than a default in the payment of the Change of
Control Payment upon a Change of Control Triggering Event.
The Company shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act
of 1934, as amended (the
Exchange Act
), and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the
provisions of any such securities laws or regulations conflict with the Change of Control Offer
provisions of the Notes, the Company shall comply with those securities laws and regulations and
shall not be deemed to have breached its obligations under the Change of Control Offer provisions
of the Notes by virtue of any such conflict.
For purposes of the Change of Control Offer provisions of the Notes, the following definitions
shall apply:
Change of Control
means the occurrence of any of the following: (1) the consummation
of any transaction (including, without limitation, any merger or consolidation) the
result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange
Act), other than the Company or one of its subsidiaries, becomes the beneficial owner (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the
Companys Voting Stock or other Voting Stock into which the Companys Voting Stock is reclassified,
consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the
direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or substantially all of the
Companys assets and the assets of its subsidiaries, taken as a whole, to one or more persons (as
that term is defined in the Indenture), other than the Company or one of its subsidiaries; (3) the
adoption of a plan relating to the Companys liquidation or dissolution; or (4) the replacement of
a majority of the Companys Board of Directors over a two-year period from the directors who
constituted the Companys Board of Directors at the beginning of such period, and such replacement
directors shall not have been approved by at least a majority of the Companys Board of Directors
then still in office (either by a specific vote or by approval of a proxy statement in which such
member was named as a nominee for election as a director) who either were members of such Board of
Directors at the beginning of such period or whose election as a member of such Board of Directors
was previously so approved. Notwithstanding the foregoing, a transaction shall not be deemed to be
a Change of Control if (1) the Company becomes a direct or indirect wholly-owned subsidiary of a
holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding
company immediately following that transaction are substantially the same as the holders of the
Companys Voting Stock immediately prior to that transaction or (B) immediately following that
transaction no person (as that term is used in Section 13(d)(3) of the Exchange Act) (other than
a holding company satisfying the requirements of this sentence) is the beneficial owner, directly
or indirectly, of more than 50% of the Voting Stock of such holding company.
Change of Control Triggering Event
means the occurrence of both a Change of
Control and a Rating Event.
Investment Grade Rating
means a rating equal to or higher than Baa3 (or the
equivalent) by Moodys and BBB- (or the equivalent) by S&P, and the equivalent investment grade
credit rating from any replacement Rating Agency or Rating Agencies.
Moodys
means Moodys Investors Service, Inc.
Rating Agencies
means (1) each of Moodys and S&P, and (2) if either Moodys or S&P
ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons
outside of the Companys control, a nationally recognized statistical rating organization within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company (as
certified by a resolution of the Companys Board of Directors) as a replacement agency for Moodys
or S&P, or both of them, as the case may be.
Rating Event
means the rating on the Notes is lowered by each of the Rating Agencies
and the Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any day
within the 60-day period (which 60-day period will be extended so long as the rating of the Notes
is under publicly announced consideration for a possible downgrade by any of the Rating Agencies
but no longer than 180 days) after the earlier of (1) the occurrence of a Change
of Control and (2) public notice of the Companys intention to effect a Change of Control;
provided, however, that a Rating Event otherwise arising by virtue of a particular reduction in
rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus
shall not be deemed a Rating Event for purposes of the definition of Change of Control Triggering
Event) if the Rating Agencies making the reduction in rating to which this definition would
otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the
Companys or its request that the reduction was the result, in whole or in part, of any event or
circumstance comprised of or arising as a result of, or in respect of, the applicable Change of
Control (whether or not the applicable Change of Control has occurred at the time of the Rating
Event).
S&P
means Standard & Poors Rating Services, a division of The McGraw-Hill
Companies, Inc.
Voting Stock
means, with respect to any specified person (as that term is used in
Section 13(d)(3) of the Exchange Act), as of any date, the capital stock of such person that is at
the time entitled to vote generally in the election of the board of directors of such person.
The Companys obligation to make a Change of Control Offer as set forth herein shall be
subject to the covenant defeasance provisions of Section 13.02(c) of the Indenture.
If an Event of Default, with respect to the Notes shall have occurred and be continuing, the
principal of this Note may be declared due and payable in the manner and with the effect set forth
in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the Holders of not less than a majority in aggregate principal amount of the Notes at the time
Outstanding of each series to be affected to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of the Notes subject to
the limitations set forth in the Indenture. It is also provided in the Indenture that, with
respect to certain defaults or Events of Default regarding the Securities of any series, the
Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of
such series may on behalf of the Holders of all the Securities of such series waive any such past
default or Event of Default and its consequences. The preceding sentence shall not, however, apply
to a default in the payment of the principal of or premium, if any, or interest on the Notes. Any
such consent or waiver by the Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and owners of this
Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether
or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligations of the Company, which are absolute and unconditional, to pay the
principal of, and any premium and interest on, this Note in the manner and at the respective times
herein provided.
The Notes are issuable in registered form without coupons in denominations of $2,000 and any
multiple of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, but
without the payment of any service charge, Notes may be exchanged for a like aggregate principal
amount of Notes of other authorized denominations at the office or agency of the Trustee in the
City of New York.
There is no sinking fund for the retirement of the Notes.
Upon due presentment for registration of transfer of this Note at the office or agency of the
Trustee in the City of New York, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or other governmental
charge imposed in connection therewith.
Prior to due presentment for registration of transfer, the Company, the Trustee and any agent
of the Company, or the Trustee may treat the registered Holder hereof as the owner of this Note
(whether or not this Note shall be overdue), for the purpose of receiving payment of the principal
hereof and premium, if any, and subject to the provisions on the face hereof, interest hereon, and
for all other purposes, and neither the Company, nor the Trustee nor any agent of the Company, or
the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained in the Indenture or
any indenture supplemental thereto or in any Note, or because of any indebtedness evidenced
thereby, shall be had against any past, present or future stockholder, employee, officer or
director, as such, of the Company, or of any predecessor or successor, either directly or through
the Company, or any predecessor or successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
This Note is the senior unsecured and unsubordinated obligation of the Company and will rank
on a parity with all other unsecured and unsubordinated indebtedness of the Company, including any
other Securities issued under the Indenture.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney
to transfer said Note on the books of
the Company with full power of substitution in the premises.
Schedule I
[Include as Schedule I only for a Global Note]
BAXTER INTERNATIONAL INC.
6.250% Senior Notes due 2037
No.
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Notation Explaining Principal
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Authorized Signature of
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Date
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Principal Amount
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Amount Recorded
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Trustee or Custodian
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