Exhibit 5
June 10, 2003
To the Board of Directors of
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
In connection with the filing with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), of a Registration
Statement on Form S-3 (the "Registration Statement"), relating to the public
offering by Baxter International Inc., a Delaware Corporation (the "Company"),
organized under the General Corporation Law of the State of Delaware (the
"Law"), of up to $1,000,000,000 in the aggregate of (i) shares of common stock
of the Company, $1 par value per share (the "Common Stock"), (ii) debt
securities of the Company (the "Debt Securities") to be issued pursuant to an
Indenture (the "Indenture"), dated as of April 26, 2002, between the Company and
the trustee named in the prospectus pertaining to the offering of any such debt
securities (the "Trustee"), (iii) shares of preferred stock of the Company (the
"Preferred Stock"), (iv) warrants representing rights to purchase Debt
Securities, Preferred Stock or Common Stock (the "Warrants"), (v) shares of
convertible preferred stock of the Company (the "Convertible Preferred Stock"),
(vi) convertible preferred debt securities of the Company (the "Convertible Debt
Securities"), (vii) equity purchase contracts, representing rights to purchase
common stock or preferred stock or other equity (the "Equity Purchase
Contracts") and (viii) equity purchase units, representing ownership of Equity
Purchase Contracts and Debt Securities, Preferred Stock or debt obligations of
third parties, including U.S. Treasury securities (the "Equity Purchase Units")
(collectively, (i) through (viii) above, the "Offered Securities"), including up
to an additional $70,000,000 aggregate amount of such Offered Securities that
have been previously registered in accordance with Rule 462(b) under the Act, I
have examined such corporate records, certificates and other documents and such
questions of law as I have considered necessary for the purposes of these
opinions.
On the basis of the above examination, I advise you that, in my opinion:
1. The Company has been duly incorporated and is an existing corporation in
good standing under the Law, and the laws of the State of Delaware.
2. When (i) the terms of the issuance and sale of the Common Stock have been
duly approved by all necessary action of the board of directors of the
Company (the "Board of Directors") (or a duly authorized committee
thereof), so as not to violate any applicable law or result in a default
under or a breach of any
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agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company and (ii) certificates for the shares
of Common Stock have been duly executed, authenticated, issued and
delivered as contemplated by the Registration Statement and any prospectus
supplement relating thereto, against payment of the consideration fixed
therefor by the Board of Directors (or a duly authorized committee
thereof), the Common Stock (including any Common Stock issued upon
conversion or exchange under the terms of any other of the Offered
Securities) will be, when issued, duly authorized, validly issued, fully
paid and non-assessable.
3. The execution and delivery of the Indenture and the Debt Securities have
been duly authorized by the Company. The Indenture has been duly executed
and delivered by the Company and, assuming the Indenture has been duly
executed and delivered by the Trustee, when the Debt Securities have been
duly executed, authenticated, issued, delivered and paid for as
contemplated by the Registration Statement and any prospectus supplement
relating thereto and in accordance with the Indenture, assuming the terms
of such Debt Securities have been duly established so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, the Debt Securities (including any Debt
Securities issued upon conversion or exchange under the terms of any other
of the Offered Securities) will be validly issued and will constitute valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability relating to or affecting the rights of creditors and
to general equity principles (whether considered in a proceeding at law or
in equity).
4. When (i) the terms of the Preferred Stock and of its issuance and sale have
been duly established in conformity with the Company's Certificate of
Incorporation, as amended, and approved by all necessary corporate action
of the Board of Directors (or a duly authorized committee thereof), so as
not to violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and so as to comply
with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company, (ii) a Certificate of
Designation fixing and determining the terms of the Preferred Stock has
been filed with the Secretary of State of the State of Delaware and (iii)
the Preferred Stock has been duly issued and sold as contemplated by the
Registration Statement and any prospectus supplement relating thereto,
against payment of the consideration fixed therefore by the Board of
Directors (or a duly authorized committee thereof), the Preferred Stock
(including any Preferred Stock issued upon conversion or exchange under the
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terms of any other of the Offered Securities) will be, when issued, duly
authorized, validly issued, fully paid and non-assessable.
5. When (i) the issuance and terms of the Warrants, the terms of the offering
thereof and related matters have been duly approved by all necessary
corporate action of the Board of Directors (or a duly authorized committee
thereof) so as not to violate any applicable law or result in a default
under or a breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company, (ii) the
warrant agreement or agreements relating to the Warrants have been duly
authorized and validly executed and delivered by the Company and the
warrant agent appointed by the Company, and (iii) the Warrants or
certificates representing the Warrants have been duly executed,
authenticated, issued and delivered as contemplated by the Registration
Statement and any prospectus supplement relating thereto, against payment
of the consideration fixed therefor by the Board of Directors (or a duly
authorized committee thereof), the Warrants (including any Warrants issued
upon conversion or exchange under the terms of any other of the Offered
Securities) will be, when issued, duly authorized and validly issued.
6. When (i) the issuance and terms of the Convertible Preferred Stock, the
terms of the offering thereof and related matters have been duly approved
by all necessary corporate action of the Board of Directors (or a duly
authorized committee thereof) so as not to violate any applicable law or
result in a default under or a breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Company, (ii) a Certificate of Designation fixing and determining
the terms of the Convertible Preferred Stock has been filed with the
Secretary of State of the State of Delaware and (iii) the Convertible
Preferred Stock has been duly issued and sold as contemplated by the
Registration Statement and any prospectus supplement relating thereto,
against payment of the consideration fixed therefore by the Board of
Directors (or a duly authorized committee thereof), the Convertible
Preferred Stock (including any Convertible Preferred Stock issued upon
conversion or exchange under the terms of any other of the Offered
Securities) will be, when issued, duly authorized, validly issued, fully
paid and non-assessable.
7. When (i) the terms of the Convertible Debt Securities, the terms of the
offering thereof and related matters have been duly approved by all
necessary corporate action of the Board of Directors (or a duly authorized
committee thereof), so as not to violate any applicable law or result in a
default under or a breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company and
(ii) have been validly executed and delivered by the Company as
contemplated by the Registration Statement and any
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prospectus supplement relating thereto, against payment of the
consideration fixed therefor by the Board of Directors (or a duly
authorized committee thereof), the Convertible Debt Securities (including
any Convertible Debt Securities issued upon conversion or exchange under
the terms of any other of the Offered Securities) will constitute valid and
legally binding obligations of the Company enforceable against the Company
in accordance with their terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability relating to or affecting the rights of creditors and
to general equity principles (whether considered in a proceeding at law or
in equity).
8. When (i) the terms of the Equity Purchase Contracts, the terms of the
offering thereof and related matters have been duly approved by all
necessary corporate action of the Board of Directors (or a duly authorized
committee thereof), so as not to violate any applicable law or result in a
default under or a breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company and
(ii) the Equity Purchase Contracts have been validly executed and delivered
by the Company as contemplated by the Registration Statement and any
prospectus supplement relating thereto, against payment of the
consideration fixed therefor by the Board of Directors (or a duly
authorized committee thereof), the Equity Purchase Contracts will
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability relating to or affecting the rights
of creditors and to general equity principles (whether considered in a
proceeding at law or in equity).
9. When (i) the creation of and the issuance and terms of the Equity Purchase
Units, the terms of the offering thereof and related matters have been duly
approved by all necessary corporate action of the Board of Directors (or a
duly authorized committee thereof), so as not to violate any applicable law
or result in a default under or a breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Company, (ii) the deposit agreement relating to the Equity
Purchase Units has been duly authorized and validly executed and delivered
by the Company and the depositary appointed by the Company and (iii) the
Equity Purchase Units or certificates representing the Equity Purchase
Units have been duly executed, authenticated, issued and delivered as
contemplated by the Registration Statement and any prospectus supplement
relating thereto, against payment of the consideration fixed therefor by
the Board of Directors (or a duly authorized committee thereof), the Equity
Purchase Units will be duly authorized and validly issued.
The opinions set forth in paragraphs 1 though 9 above are subject to the
following additional qualifications:
(a) I express no opinion as to (1) any waiver of inconvenient forum set forth
in any agreement or (2) any provision relating to judgments in currencies
other than United States dollars. I express no opinion concerning whether a
United States federal court would accept jurisdiction in any dispute,
action, suit or proceeding arising out of, or relating to, any agreement or
the transactions contemplated thereby.
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(b) The opinions expressed above are limited to the federal laws of the United
States, the Law of the State of Delaware (and Illinois), and the Act, as
currently in effect. In particular (and without limiting the generality of
the foregoing) I express no opinion (1) as to the laws of any country
(other than the federal laws of the United States of America) or as to the
effect of such laws (whether limiting, prohibitive or otherwise) on any of
the rights or obligations of any party to or beneficiary of any agreements
or (2) concerning the effect (if any) of any law of any jurisdiction
(except the States of Illinois and Delaware) in which any holder of any
securities issued by the Company is located that limits the rate of
interest that such holder may charge or collect. In addition (and without
limiting the generality of the foregoing), my opinions are subject to the
effects of, and I express no opinion with respect to the application of or
compliance with, state securities or "blue sky" laws, statutes, rules or
regulations.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Legal
Matters" in the Prospectus. In giving such consent, I do not thereby admit that
I am within the category of persons whose consent is required under Section 7 of
the Act.
Sincerely,
/s/ Thomas J. Sabatino, Jr.
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Thomas J. Sabatino, Jr.
Senior Vice President
and General Counsel
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