Registration No. 333-
Filed: December 30, 1996
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BAXTER INTERNATIONAL INC.
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(Exact name of registrant as specified in its charter)
Delaware 36-0781620
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Baxter Parkway
Deerfield, Illinois 60015
(847) 948-2000
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(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
J. Patrick Fitzsimmons
Corporate Counsel
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
(847) 948-3781
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to the public: from
time to time after this Registration Statement is declared effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
Calculation of Registration Fee
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Title of each
class of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price aggregate registration
be registered registered per unit offering price fee
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Debt Securities $700,000,000 100%* $700,000,000 $212,212
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*Estimated solely for the purpose of calculating the registration fee.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to Section 8(a), may determine.
[Baxter letterhead]
DEBT SECURITIES
Baxter International Inc. (the "Company") intends to offer from time to
time up to $700,000,000 aggregate principal amount (or the equivalent in
foreign denominated currency or European Currency Units ("ECU")) of its
senior, unsecured debt securities (the "Securities") on terms to be
determined when an agreement to sell is made. The specific designation,
aggregate principal amount, rate or method of calculation of any interest,
the time of payment of any interest, maturity, authorized denominations, any
initial public offering price, any redemption terms or prepayment rights,
repurchase rights, other specific terms, currency of payment, and any listing
on a securities exchange for each issue of Securities in respect of which
this Prospectus is being delivered (the "Offered Securities") are set forth
in the accompanying prospectus supplement (the "Prospectus Supplement"),
together with the terms of the offering of the Offered Securities, the net
proceeds to the Company from their sale, and the ratio of earnings to fixed
charges for appropriate periods.
The Securities may be sold directly, through agents, or through
underwriters or dealers. If any agents of the Company or any underwriters are
involved in the sale of the Offered Securities in respect of which this
Prospectus is being delivered, the names of such agents or underwriters and
any applicable commissions and discounts are set forth in the Prospectus
Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
______________________________________________________________________________
The date of this Prospectus is December , 1996
______________________________________________________________________________
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, (the "1934 Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
public reference facilities of the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the Commission's regional offices at Room
1400, 75 Park Place, New York, New York 10007 and 500 West Madison Street,
14th Floor, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549. Such reports, proxy statements
and other information concerning the Company can also be inspected at the
offices of the stock exchanges on which the Company's common stock is listed:
New York Stock Exchange, 20 Broad Street, New York, New York 10005; Chicago
Stock Exchange, 440 South LaSalle Street, Chicago, Illinois 60605; and
Pacific Stock Exchange, 301 Pine Street, San Francisco, California 94104.
______________________________________________________________________________
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company under the 1934 Act with the
Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 1996; and
(3) The Company's Current Reports on Form 8-K dated February 2 and 29,
April 19, August 29, October 1, and December 4, 1996.
All documents filed by the Company pursuant to sections 13(a), 13(c), 14
or 15(d) of the 1934 Act after the date of this Prospectus and prior to
termination of the offering of the Securities shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein or in the
Prospectus Supplement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus or the
Prospectus Supplement.
______________________________________________________________________________
The Company will provide without charge to each person to whom a copy of
this Prospectus and the Prospectus Supplement have been delivered, on the
written or oral request of such person, a copy of any or all of the documents
referred to above which have been or may be incorporated in this Prospectus
and the Prospectus Supplement by reference, other than exhibits to such
documents. Requests for such copies should be directed to: Stockholder
Services Department, Baxter International Inc., One Baxter Parkway,
Deerfield, Illinois 60015, Telephone: 847.948-4913.
______________________________________________________________________________
No person has been authorized to give any information or to make any
representation not contained in this Prospectus or, with respect to
particular Offered Securities, the Prospectus Supplement relating thereto,
and, if given or made, such information or representation must not be
relied upon as having been authorized by the Company or any agent, underwriter
or dealer. This Prospectus and any Prospectus Supplement do not constitute an
offer to sell or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it is unlawful to
make such offer in such jurisdiction. Neither the delivery of this Prospectus
or, with respect to particular Offered Securities, the Prospectus Supplement
relating thereto, nor any sale made under this Prospectus and any Prospectus
Supplement shall, under any circumstances, create an implication that there
has been no change in the affairs of the Company since the date hereof.
______________________________________________________________________________
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THE COMPANY
Baxter International Inc. ("Baxter"), through its subsidiaries (the
"Company") is a global medical-products company with a leading position in
technologies related to the blood and circulatory system. It has
market-leading positions in four global businesses: BIOTECHNOLOGY, which
develops therapies and products in transfusion medicine; CARDIOVASCULAR
MEDICINE, which develops products and expands services to treat late-stage
cardiovascular disease; RENAL, which develops products and services to
improve therapies to fight kidney disease; and INTRAVENOUS SYSTEMS AND
MEDICAL PRODUCTS, which develops technologies and systems to improve
intravenous medication delivery, and distributes disposable medical products
overseas. Baxter was incorporated in Delaware in 1931.
The Company's principal executive offices are located at One Baxter
Parkway, Deerfield, Illinois 60015, Telephone: 847.948-2000.
______________________________________________________________________________
USE OF PROCEEDS
Except as otherwise set forth in the Prospectus Supplement relating to
the Offered Securities, net proceeds from the sale of the Securities will be
used for working capital purposes, to repay existing debt, for capital
expenditures and for general corporate purposes.
______________________________________________________________________________
DESCRIPTION OF SECURITIES
The Securities are to be issued under an indenture, as supplemented (the
"Indenture"), a copy of which is an exhibit to the Registration Statement.
The following summary does not purport to be complete, and where particular
provisions of the Indenture are referred to, such provisions, including
definitions of certain terms, are incorporated by reference as a part of such
summary of terms, which is qualified in its entirety by such reference.
GENERAL
The Securities will be senior unsecured obligations of the Company,
ranking prior to any subordinated debt of the Company.
The Indenture does not limit the amount of Securities which can be
issued thereunder and provides that Securities may be issued in one or more
series up to the aggregate principal amount which may be authorized from time
to time by the Company. The Indenture does not restrict the amount of
additional unsecured debt (whether senior or subordinated) which the Company
may incur nor does the Indenture limit the amount which the Company may apply
to the payment of dividends or the redemption or purchase of shares of its
stock. Except as otherwise described in this Prospectus (see "Description of
Securities--Restrictions on Mergers, Consolidations and Transfers of Assets"),
the Prospectus Supplement, the Indenture and the Securities do not contain
any covenants which restrict the Company's incurring additional indebtedness
which might be deemed a highly-leveraged transaction, or which might result
in a change in ratings of the Securities. If such covenants are included in
the terms of any Offered Securities, they will be described in the related
Prospectus Supplement.
Reference is made to the Prospectus Supplement for the following terms
of the Offered Securities: (i) the designation, aggregate principal amount,
currency and authorized denominations of the Offered Securities; (ii) the
percentage of their principal amount at which the Offered Securities will be
offered; (iii) the date or dates on which the Offered Securities will mature;
(iv) the rate or rates per annum, if any, at which the Offered Securities
will bear interest; (v) the times at which any such interest will be payable;
and (vi) any redemption terms and other special terms.
Except as otherwise provided in the Prospectus Supplement, the principal
of and any interest on the Securities will be payable at the office or agency
of the Company designated in the form of Security and described in the
Prospectus Supplement. Interest may be paid at the option of the Company by
check
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mailed to the address of the registered owner of the Securities. The
Company will also maintain an office where Securities of a particular series
may be presented for registration of transfer or for exchange for Securities
of like series of different denominations. (Sections 2.01, 2.03, 2.06)
Except as otherwise provided in the Prospectus Supplement, the
Securities will be issued only in fully registered form without coupons. The
Registrar or co-Registrar need not exchange or register the transfer of any
Security selected for redemption. Also, it need not exchange or register the
transfer of any Securities of a series for a period of 15 days before a
selection of Securities of that series to be redeemed. The Company may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Securities. (Section 2.06)
DEFINITIONS
The following terms are defined in the Indenture. (Section 4.01)
The term CONSOLIDATED NET TANGIBLE ASSETS is defined to mean the total
amount of assets which would be included on a consolidated balance sheet of
the Company and its Subsidiaries under generally accepted accounting
principles (less applicable reserves and other properly deductible items)
after deducting therefrom: (i) all short-term liabilities and liability
items, except for indebtedness payable by its terms more than one year from
the date of incurrence thereof (or renewable or extendible at the option of
the obligor for a period ending more than one year after such date of
incurrence) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount, unamortized expense incurred in the issuance of
debt, and other like intangibles (except prepaid royalties).
The term PRINCIPAL FACILITY is defined to include any manufacturing
plant, warehouse, office building or parcel of real property owned by the
Company, or any Restricted Subsidiary, that has a gross book value of in
excess of 2% of Consolidated Net Tangible Assets other than any such property
which, in the opinion of the Board of Directors, is not of material
importance to the business conducted by the Company and its Subsidiaries
taken as a whole.
The term RESTRICTED SUBSIDIARY is defined to include any corporation in
which the Company owns voting securities entitling it to elect a majority of
the directors and which either is designated a Restricted Subsidiary in
accordance with the Indenture or (i) existed as such on the date of the
Indenture or is the successor to, or owns, any equity interest in, a
corporation which so existed, (ii) has its principal business and assets in
the United States (including Puerto Rico and other territories and
possessions), (iii) such business is other than the obtaining of financing in
capital markets outside the United States or the financing of the acquisition
or disposition of real or personal property or dealing in real property for
residential or office building purposes, and (iv) does not have assets
substantially all of which consist of the securities of one or more
corporations which are not Restricted Subsidiaries.
The term SALE AND LEASEBACK TRANSACTION is defined to include a sale or
transfer made by the Company or a Restricted Subsidiary of any Principal
Facility which has been in operation, use, or commercial production (or in
the case of a parcel of real property, has been owned) by the Company or any
Restricted Subsidiary for more than 120 days prior to such sale or transfer
if such sale or transfer is made with the intention of leasing such
Principal Facility to the Company or a Restricted Subsidiary, except (i) a
lease for a period of not exceeding 36 months and (ii) a lease that secures
or relates to certain governmental obligations issued in connection with the
financing of the cost of construction or acquisition of such Principal
Facility.
The term SECURED DEBT is defined to include any indebtedness for
borrowed money of the Company or any Restricted Subsidiary which is secured
by (i) a Security Interest in any Principal Facility or portion thereof or
(ii) a Security Interest in shares of stock owned by the Company in a
Restricted Subsidiary or in indebtedness for money borrowed by a Restricted
Subsidiary from the Company or another Restricted Subsidiary. The securing in
the foregoing manner of any debt which immediately prior thereto was not
Secured Debt shall be deemed to be the creation of Secured Debt at the time
such security is given.
The term SUPERIOR INDEBTEDNESS is defined to include any obligation of
the Company or any Restricted Subsidiary which (i) as of the date of its
creation, was or may be payable by its terms more than one year from the date
of incurrence thereof, (ii) under generally accepted accounting principles
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should be shown as a liability on a consolidated balance sheet of the
Company, and (iii) in the case of such an obligation of the Company, is not
subordinate and junior in right of payment to the prior payment of the
Securities.
RESTRICTION ON SECURED DEBT
The Indenture provides that the Company will not, and will not cause or
permit a Restricted Subsidiary to, create, incur, assume or guarantee any
Secured Debt unless the Securities will be secured equally and ratably with
(or prior to) such Secured Debt, with certain exceptions. Among permitted
Secured Debt is indebtedness secured by (i) certain Security Interests to
secure payment of the cost of acquisition, construction, development or
improvement of property, (ii) Security Interests on property at the time of
its acquisition by the Company or a Restricted Subsidiary, which Security
Interests secure obligations assumed by the Company or a Restricted
Subsidiary, or on the property or on the outstanding shares of indebtedness
of a corporation at the time it becomes a Restricted Subsidiary or is merged
into the Company or a Restricted Subsidiary or the Company or a Restricted
Subsidiary acquires the properties of such corporation substantially as an
entirety, (iii) Security Interests arising from conditional sales agreements
or title retention agreements with respect to property acquired by the
Company or any Restricted subsidiary, (iv) Security Interests securing
governmental obligations issued in connection with the financing of the cost
of construction or acquisition of a Principal Facility, (v) Security Interests
securing indebtedness of a Restricted Subsidiary owing to the Company or to
another Restricted Subsidiary, (vi) mechanics' and other statutory liens in
respect of obligations not due or being contested, (vii) liens for taxes not
yet delinquent or being contested in good faith, (viii) judgment liens
arising in connection with legal proceedings so long as such proceedings are
being contested and execution is stayed, (ix) certain landlords' liens on
fixtures, (x) the extension of existing Security Interests on Principal
Facilities to additions, extensions or improvements, (xi) certain Security
Interests in favor, or made at the request, of governmental bodies, and (xii)
Security Interests by reason of deposits to qualify the Company or a
Restricted Subsidiary to conduct business or to maintain self-insurance.
Additionally, such permitted Secured Debt includes any extension, renewal or
refunding, in whole or in part, of any Secured Debt permitted at the time of
the original incurrence thereof.
In addition to the foregoing, the Company and its Restricted
Subsidiaries may create, incur, assume or guarantee Secured Debt, without
equally and ratably securing the Securities, if the sum of (i) the amount of
Secured Debt entered into after the date of the Indenture and otherwise
prohibited by the Indenture plus (ii) the aggregate present value of Sale and
Leaseback Transactions entered into after the date of the Indenture and
otherwise prohibited by the Indenture does not exceed 5% of Consolidated Net
Tangible Assets. (Section 4.04)
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit
any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction,
unless (i) the Company or such Restricted Subsidiary would be entitled to
incur Secured Debt permitted by the Indenture only by reason of the provision
described in the preceding paragraph equal in amount to the value of the Sale
and Leaseback Transaction without equally and ratably securing the Securities
or (ii) the Company or a Restricted Subsidiary applies or commits to apply an
amount equal to the net proceeds of the property sold pursuant to the Sale
and Leaseback Transaction (a) to the acquisition, construction or improvement
of a Principal Facility or (b) to the redemption of Securities or to the
repayment of other Superior Indebtedness of the Company or of any Restricted
Subsidiary. In lieu of applying all or any part of such amount to the
redemption of Securities, the Company may deliver to the Trustee Securities
for cancellation and thereby reduce the amount to be applied to the
redemption of Securities by an amount equivalent to the aggregate principal
amount of Securities delivered. Securities so redeemed or delivered will not
be used as credits against any mandatory sinking fund payments. (Section 4.05)
RESTRICTIONS ON TRANSFERS OF PRINCIPAL FACILITIES
The Indenture provides that the Company will not itself, or permit any
Restricted Subsidiary to, transfer any Principal Facility to any Subsidiary
which is not a Restricted Subsidiary unless it applies or commits to apply an
amount equal to the fair value of such Principal Facility at the time of such
transfer
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(i) to the acquisition or improvement of a Principal Facility or (ii) to the
optional redemption of Securities or to the repayment of other Superior
Indebtedness of the Company or of any Restricted Subsidiary. In lieu of
applying all or any part of such amount to the redemption of Securities, the
Company may deliver to the Trustee Securities for cancellation and thereby
reduce the amount to be applied to the redemption of Securities by the
principal amount of the Securities so delivered. Securities so redeemed or
delivered will not be used as credits against any mandatory sinking fund
payments. (Section 4.06)
RESTRICTIONS ON MERGERS, CONSOLIDATIONS AND TRANSFERS OF ASSETS
The Indenture provides that the Company will not consolidate or merge
into or transfer or lease all or substantially all of its assets to another
person unless (i) the person is a corporation organized under the laws of the
United States of America or any state thereof which assumes by supplemental
indenture all the obligations of the Company relating to the Securities and
the Indenture and (ii) immediately after the transaction no Default exists.
Upon any such consolidation, merger or transfer, the successor corporation
will be substituted for the Company under the Indenture. The successor
corporation may then exercise every power and right of the Company under the
Indenture, and the Company will be released from all of its liabilities and
obligations in respect of the Securities and the Indenture. In the event the
Company leases all or substantially all of its assets, the lessee corporation
will be the successor to the Company and may exercise every power and right
of the Company under the Indenture but the Company will not be released from
its obligations to pay the principal of and interest on the Securities.
(Article 5)
WAIVERS AND MODIFICATION OF THE INDENTURE
Certain amendments of the Indenture and waivers of its terms may be made
by the Company and the Trustee without the consent of any of the holders of
Securities while others may be made only with the consent of the holders of a
majority in principal amount of the outstanding Securities of each series
issued under the Indenture which is affected by the amendment or waiver,
provided that no such amendment or waiver may, without the consent of the
Securityholder affected: (i) reduce the principal of or change the fixed
maturity of any such Security or reduce the amount of or change the time for
payment of any mandatory sinking fund or like payment; (ii) reduce the rate
of or change the time for payment of any interest on any Security; (iii)
change the currency of payment of any Security; (iv) impair the right to
institute suit for the enforcement of any payment of the principal of, or
interest on, any Security; or (v) reduce the amount of Securities whose
holders must consent to an amendment or waive any terms of the Indenture with
respect to the series (Section 9.01, 9.02). The Company is authorized to fix
a record date for the purpose of determining Securityholders whose consents
will be sought and the Trustee is authorized to accept such consents if
received within 60 days of the record date. (Section 9.07)
DEFAULTS AND REMEDIES
The Indenture defines an Event of Default with respect to any series of
Securities as: (i) default for 30 days in the payment of any interest on such
series; (ii) default for five days in any payment of principal on such series
when due; (iii) default for 60 days after appropriate notice in performance
of any other agreement in the Indenture with respect to such series or in the
Securities of such series; (iv) uncured or unwaived default on any other
obligation for borrowed money of the Company (including default by the
Company on any guaranty of an obligation for borrowed money of a Restricted
Subsidiary) beyond any period of grace with respect thereto if (a) the
aggregate principal amount of such obligation in respect of which principal
or interest is and remains in default is in excess of $50,000,000, (b) either
the default has resulted in acceleration of the time of payment of principal
or the default is a nonpayment of principal or interest which, under the
terms of the obligation, could result in the immediate acceleration of the
time of payment, and (c) the default is not being contested by the Company in
good faith and by appropriate proceedings; or (v) certain events of
bankruptcy. No Event of Default with respect to a particular series of
Securities necessarily constitutes an Event of Default with respect to any
other series of Securities issued under the Indenture, other than under
preceding clauses (iv) or (v). In case an Event of Default shall occur and be
continuing with respect to any series of Securities, the Trustee or the
holders of not less than 25% in principal amount of the Securities then
outstanding of the series may declare the principal of such series (or such
portion of the principal as may be specified as due upon acceleration at that
time in the terms of that series) to be due and payable. Any Event of Default
with respect to a particular series of
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Securities may be waived by the holders of a majority in principal amount of
the outstanding Securities of such series, except a failure to pay the
principal of, or interest on, such Security. (Sections 6.01, 6.02, 6.04)
The Indenture requires the Company to file annually with the Trustee an
Officer's Certificate as to the absence of Defaults under the terms of the
Indenture. The Indenture provides that the Trustee may withhold notice to the
holders of the Securities of any Default (except in payment of principal or
interest) if it considers it in the interest of the holders of the Securities
to do so. (Sections 4.07, 7.05)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the
Indenture provides that the Trustee shall be under no obligation to exercise
any of its rights or powers under the Indenture at the request of the
Securityholders unless the Trustee receives satisfactory Indemnity. Subject
to such provisions for indemnification and certain other rights of the
Trustee, the Indenture provides that the holders of a majority in principal
amount of the outstanding Securities of any series affected may direct the
time, method and place of conducting any proceeding for any remedy for that
series which is available to the Trustee or exercising any trust or power
conferred on the Trustee for the benefit of such series. (Sections 6.05, 7.01)
DEFEASANCE AND TERMINATION OF OBLIGATIONS
By irrevocably depositing in trust with the Trustee an amount of money
or the equivalent in U.S. Government Obligations or, in the case of Securities
denominated in a foreign currency, Foreign Government Obligations which is
sufficient to pay the principal of, interest and any mandatory sinking fund
payments on, a series of Securities to maturity or redemption, (a) the
Company may be relieved of all of its obligations under the Indenture and
under such series of Securities (except certain administrative obligations
and obligations to compensate, reimburse and indemnify the Trustee), if the
series of Securities matures or is to be called for redemption within one
year, (b) the Company may be relieved of all of its obligations under the
Indenture and under such series of Securities (except certain administrative
obligations and obligations to compensate, reimburse and indemnify the
Trustee), if such series of Securities so provides; and (c) the Company may
terminate all of its obligations under restrictive covenants relating to
creation of secured debt (Section 4.04), sale and leaseback transactions
(Section 4.05), and transfers of principal facilities (Section 4.06) and
failure to comply with these provisions will not be an Event of Default with
respect to a series of Securities which so provides. (Section 8.01)
In cases (a) and (b), holders of such a series of Securities would be
able to look only to the trust fund for payment of principal of, interest and
any mandatory sinking fund payments on, such series of Securities until
maturity.
In case (c), if a series of Securities were declared due and payable
because of the occurrence of any Event of Default other than for failure to
comply with the restrictive covenants described in case (c), the amount of
money and U.S. Government Obligations or Foreign Government Obligations, as
the case may be, on deposit with the Trustee would be sufficient to pay
amounts due on the Securities of such series at the time of their stated
maturity but might not be sufficient to pay amounts due on the Securities of
the series at the time of the acceleration resulting from such Event of
Default. The Company, however, would remain liable for such payment.
In cases (a) and (b), the deposit of money or U.S. Government
Obligations or Foreign Government Obligations, as the case may be, is likely
to be treated as a taxable exchange of the series of Securities for an issue
of obligations of the trust or a direct interest in the cash and U.S.
Government Obligations or Foreign Government Obligations, as the case may be,
held in the trust fund. In that case holders of the Securities would
recognize gain or loss as if the trust obligations or the cash or U.S.
Government Obligations or Foreign Government Obligations deposited, as the
case may be, had actually been received by them in exchange for their
Securities. Such holders thereafter might be required to include in income a
different amount than would be includable in the absence of the defeasance.
Prospective investors are urged to consult their own tax advisors as to the
specific consequences of the defeasance.
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THE TRUSTEE
The Trustee for the Offered Securities will be named and any
relationship between the Trustee and the Company or its affiliates will be
described in the Prospectus Supplement.
_______________________________________________________________________________
PLAN OF DISTRIBUTION
The Company may sell Securities through underwriters or agents or
directly to other purchasers, including broker-dealers as principals. The
Prospectus Supplement with respect to the Offered Securities sets forth the
terms of the offering of the Offered Securities, including the name or names
of any underwriters and the respective amount of the Securities underwritten,
the names of any agents involved in the offer or sale of the Offered
Securities, the purchase price of the Offered Securities and the proceeds to
the Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any commissions payable to agents,
any initial public offering price, and any discounts or concessions allowed
or reallowed or paid to dealers. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
If the Offered Securities are sold through underwriters, they will be
acquired by the underwriters for their own account and may be resold from
time to time in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time
of sale. The Securities may be offered to the public either (i) through
underwriting syndicates or (ii) directly by one or more firms acting as
underwriters. The underwriter or underwriters with respect to a particular
underwritten offering of Offered Securities are named in the Prospectus
Supplement relating to such offering, and if an underwriting syndicate is
used, the managing underwriter or underwriters are set forth on the cover of
such Prospectus Supplement. Unless otherwise set forth in the Prospectus
Supplement, the obligations of the underwriters to purchase the Offered
Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the Offered Securities if any
are purchased.
If broker-dealers are used in the sale, the Company will sell the
Securities to the dealers as principals. The dealers may then resell the
Securities to the public at varying prices to be determined by such dealers
at the time of resale.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Unless otherwise indicated in
the Prospectus Supplement, any such agent is acting on a best efforts basis
for the period of its appointment. As one of the means of direct issuance of
the Securities, the Company may, through an agent, conduct an electronic
"dutch auction" of the Securities among potential purchasers who are eligible
to participate in such auction, as more fully described in the Prospectus
Supplement.
In the event that the Offered Securities are not listed on a national
securities exchange, certain broker-dealers may make a market in the Offered
Securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given that any
broker-dealer will make a market in the Offered Securities or as to the
liquidity of the trading market for the Offered Securities, whether or not
the Offered Securities are listed on a national securities exchange. The
Prospectus Supplement with respect to the Offered Securities will state, if
known, whether or not any broker-dealer intends to make a market in such
Offered Securities. If no such determination has been made, the Prospectus
Supplement will so state.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or broker-dealers to solicit offers from certain types
of institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future.
Agents, underwriters and broker-dealers may be entitled under agreements
entered into with the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act of
1933, as amended, or to contribution with respect to payments which the
agents,
8
underwriters or broker-dealers may be required to make in respect thereof.
Agents, underwriters and broker-dealers may be customers of, engage in
transactions with, or perform services for the Company in the ordinary course
of business.
_______________________________________________________________________________
LEGAL MATTERS
Certain legal matters in connection with this offering will be passed
upon for the Company by J. Patrick Fitzsimmons, Corporate Counsel of the
Company, and for the Underwriters by Sidley & Austin, One First National
Plaza, Chicago, Illinois 60603. Mr. Fitzsimmons is a full-time employee of
the Company and as of the date of this Prospectus, owns and holds options to
acquire shares of the Company's common stock. Sidley & Austin acts as special
counsel for the Company and certain subsidiaries of the Company on various
matters.
_______________________________________________________________________________
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of the Company for the year ended
December 31, 1995 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
With respect to the unaudited consolidated financial information of
Baxter for the three-month periods ended March 31, 1996 and 1995, the
six-month periods ended June 30, 1996 and 1995, and the nine-month periods
ended September 30, 1996 and 1995, incorporated by reference in this Proxy
Statement/Prospectus, Price Waterhouse LLP reported that they have applied
limited procedures in accordance with professional standards for a review of
such information. However, their separate reports dated May 14, 1996, August
13, 1996 and November 11, 1996, incorporated by reference herein, state that
they did not audit and they do not express an opinion on that unaudited
consolidated financial information. Price Waterhouse LLP has not carried out
any significant or additional audit tests beyond those which would have been
necessary if their report had not been included. Accordingly, the degree of
reliance on their report on such information should be restricted in light of
the limited nature of the review procedures applied. Price Waterhouse LLP is
not subject to the liability provisions of section 11 of the Securities Act
of 1933 for their report on the unaudited consolidated financial information
because that report is not a "report" or a "part" of the registration
statement prepared or certified by Price Waterhouse LLP within the meaning of
sections 7 and 11 of the Act.
9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The fees and expenses incurred by the registrant in connection
with the registration of the debt securities are estimated to be as follows:
Registration statement filing fee $212,212*
Accounting fees 25,000
Legal fees and expenses 40,000
Printing expenses 20,000
Trustee's fees 30,000
Blue Sky fees and legal investment expenses 10,000
Miscellaneous 12,788
--------
TOTAL $350,000
========
- -----------------------------------
* Actual, all others estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant, a Delaware corporation, is empowered by section 145 of
the Delaware General Corporation Law, subject to the procedures and
limitations stated therein, to indemnify any person against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in the defense of any
threatened, pending or completed action, suit or proceeding in which such
person is made a party by reason of his or her being or having been a director
or officer of the registrant. The statute provides that indemnification
pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Restated
Certificate of Incorporation of the registrant provides that the registrant
shall indemnify its directors and officers substantially to the fullest extent
permitted by the Delaware General Corporation Law.
The registrant is also empowered by section 102(b) of the Delaware
General Corporation Law to include a provision in its certificate of
incorporation to limit a director's liability to the registrant or its
stockholders for monetary damages for breaches of fiduciary duty as a
director. Article Eighth of the Restated Certificate of Incorporation states
that directors of the registrant shall not be liable for monetary damages for
breach of fiduciary duty "to the fullest extent permitted by the General
Corporation Law of Delaware as the same exists or may hereafter be amended."
As Delaware law now exists, directors will remain liable for damages for (i)
a breach of their duty of loyalty to the registrant and its stockholders;
(ii) their failure to act in good faith; (iii) their intentional misconduct
or knowing violation of law; (iv) improper dividend payments, stock
repurchases or redemptions; and (v) any transaction from which the director
derived an improper personal benefit.
Policies of insurance are maintained by the registrant under which the
directors and officers of the registrant are insured, within the limits and
subject to the limitations of the polices, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
The registrant has entered into indemnification agreements with its
officers and directors, which its stockholders have approved or ratified.
These agreements provide for full indemnification, including indemnification
for judgments or settlements against an officer or director in favor of the
registrant, with certain exceptions.
The proposed form of Underwriting Agreement, to be filed as Exhibit 1.1
to this registration statement provides for indemnification of directors and
officers of the registrant by the underwriters against certain liabilities.
Similar indemnification provisions were contained in the underwriting
agreements executed in connection with prior offerings and sales of
securities by the registrant.
ITEM 16. EXHIBITS
The exhibits to this registration statement are listed in the Exhibit
Index and are incorporated herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933:
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement; provided, however, that
paragraphs (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, as amended, that is incorporated
by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions referred to in Item 15 of the registration statement,
or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification is against public policy
as expressed in the Act and will be governed by the final
adjudication of such issue.
(6) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424 or 497 under the Securities Act
shall be deemed to be part of this registration statement as of
the time it was declared effective.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement, or amendment thereto, to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Township of West
Deerfield, Illinois, on the 30 day of December, 1996.
BAXTER INTERNATIONAL INC.
By: /s/ Vernon R. Loucks Jr.
------------------------
Vernon R. Loucks Jr.
Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement, or amendment thereto, has been signed below by the
following persons in the capacities indicated on the ______ day of December,
1996.
(i) Principal Executive Officer (iv) A Majority of the Board of Directors
/s/ Vernon R. Loucks Jr.
------------------------
Vernon R. Loucks Jr.
Chairman, Chief Executive Pei-yuan Chia
Officer and a Director John W. Colloton
Susan Crown
Mary Johnston Evans
Frank R. Frame
(ii) Principal Financial Officer: Martha R. Ingram
Harry M. Jansen Kraemer, Jr.
/s/ Harry M. Kraemer, Jr. Arnold J. Levine, Ph.D.
------------------------------- Georges C. St. Laurent, Jr.
Harry M. Jansen Kraemer, Jr. Monroe E. Trout, M.D.
Senior Vice President and Reed V. Tuchson, M.D.
Chief Financial Officer Fred L. Turner
and a Director
(iii) Principal Accounting Officer:
/s/ Brian P. Anderson By: /s/ Vernon R. Loucks Jr.
--------------------- ------------------------
Brian P. Anderson Vernon R. Loucks Jr.
Controller Director and Attorney-in Fact
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER*
- ------- ----------------------- -------
1.1** Form of Underwriting Agreement, filed as Exhibit 1.1
to the registration statement on Form S-3 (No. 33-6746)
(the "Shelf").
4.1** Amended and Restated Indenture, dated as of November 15,
1985, between the Company and Bank of America (formerly
Continental Bank, National Association) as trustee
("Trustee"), filed as Exhibit 4.1 to the Shelf.
4.1A** First Supplemental Indenture, dated as of May 18, 1988,
between the Company and Trustee, filed as Exhibit 4.1A
to the Shelf.
4.2** Form of Debenture with optional sinking fund and
redemption provisions, filed as Exhibit 4.2 to the
Company's registration statement on Form S-3
(No. 33-1665) (the "Form S-3").
4.3** Form of Note with optional redemption provisions, filed
as Exhibit 4.3 to the Form S-3.
4.4** Form of Deep Discount Note or Debenture, filed as
Exhibit 4.4 to the Form S-3.
4.5** Form of Zero Coupon Note of Debenture, filed as
Exhibit 4.5 to the Form S-3.
________________________________________________
* Contained only in the manually signed original,
filed with the Securities and Exchange Commission.
** Incorporated by reference.
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER*
- ------- ----------------------- -------
4.6** Form of Extendible Note, filed as Exhibit 4.6 to
the Form S-3.
4.7** Form of Floating Rate Note, filed as Exhibit 4.7 to
the Form S-3.
4.8** Form of Medium-Term Note, filed as Exhibit 4.9 to
the Form S-3.
5. Opinion and consent of J. Patrick Fitzsimmons.
12.1** Statements re computation of ratios filed as Exhibit 12
to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 (filed 1-4448).
23.1 Consent of Price Waterhouse LLP.
23.2 Awareness Letter of Price Waterhouse LLP.
24.3** Consent of J. Patrick Fitzsimmons
(included in Exhibit 5)
25. Powers of Attorney.
26.1** Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of Continental, filed as
Exhibit 26.1 to the Form S-3.
________________________________________________
* Contained only in the manually signed original,
filed with the Securities and Exchange Commission.
** Incorporated by reference.