THIRD SUPPLEMENTAL INDENTURE

EXHIBIT 4.1

Execution Copy

 

 

5.375% SENIOR NOTES DUE 2018

THIRD SUPPLEMENTAL INDENTURE

between

BAXTER INTERNATIONAL INC.,

and

Dated as of May 22, 2008

 

 

TABLE OF CONTENTS

				Page
ARTICLE 1 Definitions
Section 1.01.		Definition of Terms.			1
ARTICLE 2 The Notes
Section 2.01.		Designation.			2
Section 2.02.		Principal Amount; Series Treatment.			2
Section 2.03.		Maturity.			3
Section 2.04.		Interest.			3
Section 2.05.		Form of Notes			3
Section 2.06.		Transfers Restrictions			4
Section 2.07.		Transfers and Exchanges			5
ARTICLE 3 Redemption Of The Notes
Section 3.01.		Optional Redemption by Company			5
ARTICLE 4 Change of Control
Section 4.01.		Offer to Purchase Upon Change of Control Triggering Event			5
ARTICLE 5 Execution Of The Notes
Section 5.01.		Execution; Certificates			5
ARTICLE 6 Miscellaneous
Section 6.01.		Ratification of Indenture.			5
Section 6.02.		Trustee Not Responsible for Recitals.			6
Section 6.03.		Governing Law.			6
Section 6.04.		Separability.			6
Section 6.05.		Counterparts.			6

     THIRD SUPPLEMENTAL INDENTURE, dated as of May 22, 2008 (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 Company’s 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 5.375% Senior Notes due 2018 (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;

     (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 May 22, 2008.

     “ 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 Note. 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 “5.375% Senior Notes due 2018” 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

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 June 1, 2018.

     Section 2.04. Interest . The Notes will bear interest at the rate of 5.375% per annum from May 22, 2008 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 December 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 Note may from time to time

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 Note 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 a Global Note:

     (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,

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 holder’s 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.

     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.

      IN WITNESS WHEREOF , the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date first above written.

(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 EXCEP