As filed with the Securities and Exchange Commission on April 10, 2003.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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 of registrant's principal executive offices)
Baxter International Inc. and Subsidiaries Deferred Compensation Plan
(Full title of the Plan)
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Jan Stern Reed
Corporate Secretary and Associate General Counsel
Baxter International Inc.
One Baxter Parkway
Deerfield, Illinois 60015
(847) 948-2000
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(Name, address, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum
Title of Amount to be Proposed maximum offering aggregate offering Amount of registration
securities to be registered registered price per unit price(1) fee
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Baxter International Inc. $20,000,000 100% $20,000,000 $1,618
Deferred Compensation Plan
Obligations (2)
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(1) Estimated solely for the purpose of determining the registration fee.
(2) The Baxter International Inc. Deferred Compensation Plan obligations are
unsecured obligations of Baxter International Inc. to pay deferred
compensation in the future in accordance with the Baxter International Inc.
and Subsidiaries Deferred Compensation Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
Baxter International Inc. (the "Company" or "Registrant") hereby incorporates by
reference in this Registration Statement the documents listed below previously
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant document referred to in (a) above.
(c) The description of the Registrant's Common Stock which is contained in
the registration statement filed with the Commission under Section 12
of the Exchange Act, including any subsequent amendment or any report
filed for the purpose of updating such description.
(d) The description of the Registrant's Series B Junior Participating
Preferred Stock Purchase Rights (currently traded with the
Registrant's common stock, filed in the Registrant's Form 8-A dated
May 30, 2001.
All documents subsequently filed with the Commission by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Under the Baxter International Inc. and Subsidiaries Deferred Compensation Plan
(the "Plan"), certain management and highly compensated employees of Baxter
International Inc. (the "Company") and certain of its subsidiaries may defer a
portion of their base salary and bonus compensation.
Amounts deferred by a participant under the Plan will be credited to the
participant's deferral contribution account. The Plan permits the Company to
make excess matching contributions and discretionary contributions to an account
maintained for each Plan participant. The value of a participant's account will
be based on the performance of benchmark investment funds selected by the
participant under the Plan for purposes of accounting (as if the deferred
compensation had been so invested) and not for actual investment. Since no
participant deferrals or excess matching contributions or discretionary
contributions by the Company actually will be invested in any investment fund,
participants will not have any ownership interest in any investment fund. An
Administrative Committee appointed by the Compensation Committee of the Board of
Directors of the Company has the sole discretion to determine the
alternative benchmark investment funds available under the Plan as the
measurement mechanism to determine the rate of return on amounts deemed invested
in accordance with the terms of the Plan.
The obligations of the Company under the Plan (the "Obligations") are unsecured
general obligations to pay in the future the value of the deferred compensation
accounts adjusted to reflect the performance of the selected measurement
investment funds in accordance with the terms of the Plan. The Obligations will
rank without preference with other unsecured and unsubordinated indebtedness of
the Company from time to time outstanding and are, therefore, subject to the
risks of the Company's insolvency. The Company is not required to fund or
otherwise segregate assets to be used for the payment of the Obligations.
Obligations are generally payable under the Plan (i) after termination of
employment, (ii) in the event of an unforeseeable emergency as determined by the
Administrative Committee, and (iii) at the election of the participant, in a
future year designated by the participant which is at least 24 months after the
date the participant makes the election.
The Obligations cannot be assigned, alienated, pledged or encumbered. The
Obligations are not convertible into any security of the Company.
The Compensation Committee of the Board of Directors of the Company may amend
the Plan at any time, except that no amendment will decrease or restrict the
accounts of participants and beneficiaries at the time of the amendment. The
Compensation Committee may delegate the authority to amend the Plan to the
Administrative Committee.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities being registered hereby has been passed upon for
the Registrant by Thomas J. Sabatino, Jr., Senior Vice President and General
Counsel of the Registrant. Mr. Sabatino is an officer of the Registrant and
beneficially owns shares of Common Stock and holds options to purchase
additional shares of Common Stock. Mr. Sabatino is eligible to participate in
the Plan and may receive benefits under the Plan.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that the
Registrant may, and in some circumstances must, indemnify the directors and
officers of the Registrant against liabilities and expenses incurred by any such
person by reason of the fact that such person was serving in such capacity,
subject to certain limitations and conditions therein set forth. The
Registrant's Restated Certificate of Incorporation, as amended, provides for
indemnification of the Registrant's directors, officers, employees and other
agents to the extent and under the circumstances permitted by the DGCL. The
Registrant has also entered into agreements with its directors and officers that
will require the Registrant, among other things, to indemnify them against
certain liabilities that may arise by reason of their status or service as
directors or officers to the fullest extent permitted by law.
Item 8. Exhibits
Exhibit Number Description
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4.1* Baxter International Inc. and Subsidiaries Deferred
Compensation Plan, as amended and restated effective
January 1, 2002, filed as exhibit 10.9 to the company's
quarterly report on Form 10-Q for the quarter ended March
31, 2002.
4.2* First Amendment to Baxter International Inc. and
Subsidiaries Deferred Compensation Plan, filed as exhibit
10.10 to the company's quarterly report on Form 10-Q for
the quarter ended September 30, 2002.
5 Opinion of Legal Counsel.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Legal Counsel (included in Exhibit 5)
24 Power of Attorney (included in signature page)
*Incorporated herein by reference.
Item 9. Undertakings.
(a) The 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and 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 Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The Registrant further undertakes 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 Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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 hereof.
(c) 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 foregoing provisions, 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 Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the 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 whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
S I G N A T U R E S
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Deerfield, State of Illinois, on April 10, 2003.
BAXTER INTERNATIONAL INC.
By: /S/ Harry M. Jansen Kraemer, Jr.
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Harry M. Jansen Kraemer, Jr.
Chairman of the Board of Directors
and Chief Executive Officer
Each person whose signature appears below constitutes and appoints Harry M.
Jansen Kraemer, Jr. and Jan Stern Reed, and each of them, his or her true and
lawful attorney-in-fact and agent, with full power of substitution, for him or
her and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying all that such attorneys-in-fact and agents, or any of
them or their or his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities
indicated on April 10, 2003.
SIGNATURE TITLE
/S/ Harry M. Jansen Kraemer, Jr. Chairman of the Board of Directors and
------------------------------------ Chief Executive Officer
Harry M. Jansen Kraemer, Jr. (Principal Executive Officer)
/S/ Brian P. Anderson Senior Vice President and
------------------------------------ Chief Financial Officer
Brian P. Anderson (Principal Financial Officer and
Principal Accounting Officer)
/S/ Walter E. Boomer Director
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Walter E. Boomer
/S/ Pei-yuan Chia Director
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Pei-yuan Chia
/S/ John W. Colloton Director
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John W. Colloton
/S/ Susan Crown Director
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Susan Crown
/S/ Gail D. Fosler Director
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Gail D. Fosler
/S/ James R. Gavin III, M.D., Ph.D. Director
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James R. Gavin III, M.D., Ph.D.
/S/ Joseph B. Martin, M.D., Ph.D. Director
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Joseph B. Martin, M.D., Ph.D.
/S/ Thomas T. Stallkamp Director
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Thomas T. Stallkamp
/S/ Monroe E. Trout Director
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Monroe E. Trout
/S/ Fred L. Turner Director
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Fred L. Turner
EXHIBIT INDEX
Exhibit Number Description
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4.1* Baxter International Inc. and Subsidiaries Deferred
Compensation Plan, as amended and restated effective January
1, 2002, filed as exhibit 10.9 to the company's quarterly
report on Form 10-Q for the quarter ended March 31, 2002.
4.2* First Amendment to Baxter International Inc. and Subsidiaries
Deferred Compensation Plan, filed as exhibit 10.10 to the
company's quarterly report on Form 10-Q for the quarter ended
September 30, 2002.
5 Opinion of Legal Counsel.
23.1 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included in signature page)
*Incorporated herein by reference.