Bausch + Lomb S1/A IPO registration (amended) | BLCO 30 Mar 22

Exhibit 10.4

REDACTED

Certain identified information, indicated by [*****], has been excluded from the

exhibit because it is both (i) not material and (ii) would likely cause competitive harm if publicly disclosed.

TAX MATTERS AGREEMENT

between

BAUSCH HEALTH COMPANIES INC.,

on behalf of itself

and the members

of the Parent Group

and

BAUSCH + LOMB CORPORATION,

on behalf of itself

and the members

of the SpinCo Group

Dated as of March 30, 2022

TABLE OF CONTENTS


		PAGE
Section 1.	Definitions		1
Section 2.	Sole Tax Sharing Agreement		7
Section 3.	Allocation of Taxes		8
Section 4.	Preparation and Filing of Tax Returns		9
Section 5.	Apportionment of Tax Attributes		11
Section 6.	Utilization of Tax Attributes		12
Section 7.	Deductions and Reporting for Certain Awards		13
Section 8.	Tax Refunds		14
Section 9.	Certain Representations and Covenants		14
Section 10.	[Intentionally Omitted]		17
Section 11.	Indemnities		17
Section 12.	Payments		18
Section 13.	Guarantees		19
Section 14.	Communication and Cooperation		19
Section 15.	Audits and Contest		20
Section 16.	Notices		21
Section 17.	Costs and Expenses		22
Section 18.	Effectiveness; Termination and Survival		22
Section 19.	Specific Performance		22
Section 20.	Construction		23
Section 21.	Entire Agreement; Amendments and Waivers		24
Section 22.	Governing Law		25
Section 23.	Jurisdiction		25
Section 24.	WAIVER OF JURY TRIAL		25
Section 25.	Dispute Resolution		26
Section 26.	Counterparts; Effectiveness; Third-Party Beneficiaries		26
Section 27.	Successors and Assigns		26
Section 28.	Authorization		27
Section 29.	Change in Tax Law		27
Section 30.	Performance		27

Schedules

Schedule A – Specified Restructuring Transactions

TAX MATTERS AGREEMENT

This TAX MATTERS AGREEMENT (the “Agreement”) is entered into as of March 30, 2022 between Bausch Health Companies Inc., a corporation continued under the laws of the Province of British Columbia, Canada (“Parent”), on behalf of itself and the members of the Parent Group, as defined below, and Bausch + Lomb Corporation, a company incorporated under the laws of Canada (“SpinCo,” and together with Parent, the “Parties”), on behalf of itself and the members of the SpinCo Group, as defined below.

W I T N E S S E T H:

WHEREAS, in connection with the initial public offering of SpinCo (the “IPO”), Parent and SpinCo have entered into a Master Separation Agreement, dated as of March 30, 2022 (the “Separation Agreement”), pursuant to which the IPO and certain other related transactions will be consummated;

WHEREAS, the Separation Agreement also contemplates that, after the IPO, Parent may effect the Distribution;

WHEREAS, prior to and in anticipation of the IPO, Parent effected, and caused its Subsidiaries to effect, the Separation in accordance with, and subject to the terms of, the Separation Agreement;

WHEREAS, each of the Specified Restructuring Transactions and, if effected, the Distribution, is intended to qualify for its Intended Tax Treatment; and

WHEREAS, Parent and SpinCo desire to set forth their agreement on the rights and obligations of Parent, SpinCo and the members of the Parent Group and the SpinCo Group, respectively, with respect to (a) the administration and allocation of Canadian and non-Canadian Taxes, incurred in (i) Taxable periods (or portions thereof) ending on or before the Separation Date and (ii) Taxable periods (or portions thereof) beginning after the Separation Date and ending on or before the Distribution Date, (b) Taxes resulting from the Separation and, if effected, the Distribution, and (c) various other Tax matters.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:

Section 1. Definitions.

(a) As used in this Agreement:

“Affiliate” has the meaning set forth in the Separation Agreement.

“Agreement” has the meaning set forth in the recitals hereto.

“Amalgamations” has the meaning set forth in the Separation Agreement.

“Ancillary Agreements” means all Ancillary Agreements (as defined in the Separation Agreement) other than this Agreement.

“Applicable Law” (or “Applicable Tax Law,” as the case may be) means, with respect to any Person, any federal, provincial, state, county, municipal, local, multinational or non-Canadian statute, treaty, law, common law, ordinance, rule, regulation, order, writ, injunction, judicial decision, decree, permit or other legally binding requirement of any Governmental Authority applicable to such Person or any of its respective properties, assets, officers, directors, employees, consultants or agents (in connection with such officer’s, director’s, employee’s, consultant’s or agent’s activities on behalf of such Person).

“Arrangement Agreement” has the meaning set forth in the Separation Agreement.

“Business Day” has the meaning set forth in the Separation Agreement.

“Closing of the Books Method” means the apportionment of items between portions of a Taxable period based on a closing of the books and records on the close of the Separation Date (in the event that the Separation Date is not the last day of the Taxable period, as if the Separation Date were the last day of the Taxable period), subject to adjustment for items accrued on the Separation Date that are properly allocable to the Taxable period following the Separation Date, as determined by Parent in accordance with Applicable Law; provided that Taxes not based upon or measured by net or gross income or specific events shall be apportioned between the Pre- and Post-Separation Periods on a pro rata basis in accordance with the number of days in each Taxable period.

“Code” means the Internal Revenue Code of 1986, as amended.

“Combined Group” means any group consisting of at least one member that filed or was required to file (or will file or be required to file) a Tax Return on an affiliated, consolidated, combined, unitary, fiscal unity or other group basis (including as permitted by Section 1501 of the Code) that includes at least one member of the Parent Group and at least one member of the SpinCo Group.

“Combined Tax Return” means a Tax Return filed in respect of Taxes for a Combined Group.

“Company” means Parent or SpinCo (or the appropriate member of each of their respective Groups), as appropriate.

“Distribution” has the meaning set forth in the Separation Agreement.

“Distribution Date” has the meaning set forth in the Separation Agreement.

“Equity Interests” means any stock or other securities treated as equity for Tax purposes, options, warrants, rights, convertible debt, or any other instrument or security that affords any Person the right, whether conditional or otherwise, to acquire stock or to be paid an amount determined by reference to the value of stock.

“Escheat Payment” means any payment required to be made to a Governmental Authority pursuant to an abandoned property, escheat or similar law.

“Final Determination” means (i) with respect to U.S. federal income Taxes, (A) a “determination” as defined in Section 1313(a) of the Code (including, for the avoidance of doubt, an executed IRS Form 906) or (B) the execution of an IRS Form 870-AD (or any successor form thereto), as a final resolution of Tax liability for any Taxable period, except that a Form 870-AD (or successor form thereto) that reserves the right of the taxpayer to file a claim for refund or the right of the IRS to assert a further deficiency shall not constitute a Final Determination with respect to the item or items so reserved; (ii) with respect to Taxes other than U.S. federal income Taxes, any final determination of liability in respect of a Tax that, under Applicable Tax Law, is not subject to further appeal, review or modification through proceedings or otherwise; (iii) with respect to any Tax, any final disposition by reason of the expiration of the applicable statute of limitations (giving effect to any extension, waiver or mitigation thereof); or (iv) with respect to any Tax, the payment of such Tax by any member of the Parent Group or any member of the SpinCo Group, whichever is responsible for payment of such Tax under Applicable Tax Law, with respect to any item disallowed or adjusted by a Taxing Authority; provided, in the case of this clause (iv), that the provisions of Section 15 hereof have been complied with, or, if such section is inapplicable, that the Company responsible under this Agreement for such Tax is notified by the Company paying such Tax that it has determined that no action should be taken to recoup such disallowed item, and the other Company agrees with such determination.

“Governmental Authority” has the meaning set forth in the Separation Agreement.

“Group” has the meaning set forth in the Separation Agreement.

“Income Tax” means any Tax imposed on, or measured by reference to, net income or gains, and any Taxes imposed in lieu of such a Tax.

“Income Tax Return” means any Tax Return in respect of an Income Tax.

“Indemnitee” means the Party which is entitled to seek indemnification from another Party pursuant to the provisions of Section 11.

“Intended Tax Treatment” means the qualification of (i) the Distribution (including the Amalgamations), if effected, for the Intended U.S. Tax Treatment,” and (ii) the Specified Restructuring Transactions as being free from Tax to the extent set forth on Schedule A.

“Intended U.S. Tax Treatment” has the meaning set forth in the Separation Agreement.

“IPO” has the meaning set forth in the recitals hereto.

“IRS” means the United States Internal Revenue Service.

“Joint Tax Return” means any (i) Combined Tax Return or (ii) Tax Return that includes Tax Items attributable to both the Parent Business and the SpinCo Business.

“Parent” has the meaning set forth in the recitals hereto.

“Parent Business” has the meaning set forth in the Separation Agreement.

“Parent Compensatory Equity Interests” means any options, stock appreciation rights, restricted stock, stock units or other rights with respect to the capital stock of Parent that are granted by any member of the Parent Group in connection with employee, independent contractor or director compensation or other employee benefits (including, for the avoidance of doubt, options, stock appreciation rights, restricted stock, restricted stock units, performance share units or other rights issued in respect of any of the foregoing by reason of the IPO or any subsequent transaction).

“Parent Group” has the meaning set forth in the Separation Agreement.

“Parent Separate Tax Return” means any Separate Tax Return of or including any member of the Parent Group.

“Person” has the meaning set forth in the Separation Agreement.

“Post-Separation Period” means any Taxable period (or portion thereof) beginning after the Separation Date.

“Pre-Separation Period” means any Taxable period (or portion thereof) ending on or before the Separation Date.

“Separate Tax Return” means any Tax Return required to be filed by a member of the Parent Group or a member of the SpinCo Group that is not a Joint Tax Return.

“Separation” has the meaning set forth in the Separation Agreement.

“Separation Agreement” has the meaning set forth in the recitals hereto.

“Separation Date” has the meaning set forth in the Separation Agreement.

“Separation Taxes” means any (i) any Taxes (other than Canadian Taxes relating to the Distribution) imposed on any member of the Parent Group or the SpinCo Group solely as a result of the transactions undertaken to effect the Separation or, if effected, the Distribution, including as a result of the failure of the Intended Tax Treatment of the Separation or, if effected, the Distribution, and (ii) any Taxes incurred by a shareholder of Parent (or former shareholder of Parent) that are required to be paid or reimbursed by Parent pursuant to any legal determination, solely as a result of the failure of the Intended Tax Treatment of the Separation or, if effected, the Distribution.

“Specified Restructuring Transaction” means each of the transactions set forth on Schedule A.

“SpinCo Active Trade or Business” means the SpinCo Business (as defined in the Separation Agreement).

“SpinCo Business” has the meaning set forth in the Separation Agreement.

“SpinCo Carried Item” means any Tax Attribute of the SpinCo Group that may or must be carried from one Taxable period to another prior Taxable period, or carried from one Taxable period to another subsequent Taxable period, under the Code or other Applicable Tax Law.

“SpinCo Compensatory Equity Interests” means any options, stock appreciation rights, restricted stock, stock units or other rights with respect to the capital stock of SpinCo that are granted by any member of the SpinCo Group in connection with employee, independent contractor or director compensation or other employee benefits (including, for the avoidance of doubt, options, stock appreciation rights, restricted stock, restricted stock units, performance share units or other rights issued in respect of any of the foregoing by reason of the IPO or any subsequent transaction).

“SpinCo Disqualifying Action” means (a) any action (or the failure to take any action) by any member of the SpinCo Group after the Separation Date, (b) any event (or series of events) after the Separation Date involving the capital stock of SpinCo or any assets of any member of the SpinCo Group, or (c) any breach by any member of the SpinCo Group after the Separation Date of any representation, warranty or covenant made by them in this Agreement that, would affect the Intended Tax Treatment; provided, however, that the term “SpinCo Disqualifying Action” shall not include any action entered into pursuant to the Separation Agreement and any Ancillary Document or that is undertaken pursuant to the Separation or, if effected, the Distribution.

“SpinCo Group” has the meaning set forth in the Separation Agreement.

“SpinCo Separate Tax Return” means any Separate Tax Return of or including any member of the SpinCo Group.

“Tax” (and the correlative meaning, “Taxes,” “Taxing” and “Taxable”) means (i) any tax, including any tax based on or computed by reference to net income, gross income, gross receipts, recapture, alternative or add-on minimum, sales, use, business and occupation, value-added, trade, goods and services, ad valorem, franchise, profits, net wealth, license, business royalty, withholding, payroll, employment, capital, excise, transfer, recording, severance, stamp, occupation, premium, property, asset, real estate acquisition, environmental, custom duty, impost, obligation, assessment, levy, tariff or other tax, governmental fee or other like assessment or charge of any kind whatsoever (including any Escheat Payment), together with any interest and any penalty, addition to tax or additional amount imposed by a Taxing Authority; or (ii) any liability of any member of the Parent Group or the SpinCo Group for the payment of any amounts described in clause (i) as a result of any express or implied obligation to indemnify any other Person.

“Tax Adviser” means Davis Polk & Wardwell LLP.

“Tax Attribute” means (i) a net operating loss, net capital loss, unused investment credit, unused foreign tax credit, excess charitable contribution, unused general business credit, alternative minimum tax credit or any other Tax Item that could reduce a Tax liability, and (ii) to the extent not included in clause (i), any Tax basis, earnings and profits, previously taxed earnings and profits, overall foreign loss or other Tax attribute.

“Tax Item” means any item of income, gain, loss, deduction, credit, recapture of credit or any other item that can increase or decrease Taxes paid or payable.

“Tax Proceeding” means any Tax audit, dispute, examination, contest, litigation, arbitration, action, suit, claim, cause of action, review, inquiry, assessment, hearing, complaint, demand, investigation or proceeding (whether administrative, judicial or contractual).

“Tax Refund”means any Tax refund, credit in lieu thereof, offset or other similar item that results in a reduction in otherwise required Tax payments.

“Tax Representation Letters” means the representation letters to be provided by Parent and SpinCo to the Tax Adviser in connection with the rendering by the Tax Adviser of the US Tax Opinion.

“Tax Return” means any return, statement, report, declaration, form, election, bill, certificate, notice, filing, claim or surrender (including estimated Tax returns and reports, extension requests and forms, and information returns and reports), or statement or other document or written information (whether in tangible, electronic or other form) filed or required to be filed with any Taxing Authority, including any amendment thereof and any appendix, schedule, supplement, exhibit or attachment thereto made, prepared or filed by Law in respect of Taxes.

“Tax-Related Losses” means, with respect to any Taxes imposed pursuant to any settlement, determination, judgment or otherwise, (i) all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes, as well as any other out-of-pocket costs incurred in connection with such Taxes and (ii) all damages, costs, and expenses associated with stockholder litigation or controversies and any amount paid by any member of the Parent Group or any member of the SpinCo Group in respect of the liability of shareholders, whether paid to shareholders or to the IRS or any other Taxing Authority, in each case, relating to any Separation Taxes.

“Taxing Authority” means any Governmental Authority, including any province, state, municipality, political subdivision or governmental agency, responsible for the imposition, assessment, administration, collection, enforcement or determination of any Tax.

“Transfer Taxes” means all Canadian and non-Canadian sales, use, privilege, transfer, documentary, stamp, duties, real estate transfer, controlling interest transfer, recording and similar Taxes and fees (including any penalties, interest or additions thereto) imposed upon any member of the Parent Group or any member of the SpinCo Group in connection with the Separation or, if effected, the Distribution.

“Treasury Regulations” means the regulations promulgated from time to time under the Code as in effect for the relevant tax period.

“US Tax Opinion” means an opinion of Davis Polk & Wardwell LLP, or such other law or accounting firm as determined by Parent, to be dated at or prior to the Distribution Date, addressed to Parent and otherwise in a form acceptable to Parent, with respect to certain U.S. federal income tax consequences of the Distribution, if effected.

(b) Each of the following terms is defined in the Section set forth opposite such term:


Term		Section
Due Date		Section 12(a)
Parent Compensation Tax Asset		Section 7(a)
Past Practices		Section 4(f)(i)
Tax Arbiter		Section 25
Tax Refund Recipient		Section 8(c)

(c) All capitalized terms used but not defined herein shall have the same meanings as in the Separation Agreement. Any term used in this Agreement which is not defined in this Agreement or the Separation Agreement shall, to the extent the context requires, have the meaning assigned to it in the Code or the applicable Treasury Regulations thereunder (as interpreted in administrative pronouncements and judicial decisions) or in comparable provisions of Applicable Tax Law.

Section 2. Sole Tax Sharing Agreement. Any and all existing Tax sharing agreements or arrangements, written or unwritten, between any member of the Parent Group, on the one hand, and any member of the SpinCo Group, on the other hand, if not previously terminated, shall be terminated as of the Separation Date without any further action by the Parties thereto. After the Separation Date, no member of the Parent Group or the SpinCo Group shall have any further rights or liabilities thereunder, and this Agreement the Separation Agreement and the Ancillary Agreement (to the extent such agreements reflect an agreement between the Parties as to Tax sharing) shall be the sole Tax sharing agreements between the members of the Parent Group, on the one hand, and the members of the SpinCo Group, on the other hand.

Section 3. Allocation of Taxes.

(a) General Allocation Principles. Except as provided in Section 3(c), all Taxes shall be allocated as follows:

(i) Allocation of Taxes Reflected on Joint Tax Returns. Parent shall be allocated all Taxes reported, or required to be reported, on any Joint Tax Return that any member of the Parent Group or SpinCo Group files or is required to file under Applicable Tax Law; provided, however, that to the extent any such Joint Tax Return includes any Tax Item attributable to (A) any member of the SpinCo Group or (B) the SpinCo Business, in each case, in respect of any Post-Separation Period, SpinCo shall be allocated all Taxes attributable to such member(s) of the SpinCo Group or the SpinCo Business, as applicable, as determined pursuant to Section 3(b).

(ii) Allocation of Taxes Reflected on Separate Tax Returns.

(A) Parent shall be allocated all Taxes reported, or required to be reported, on a Parent Separate Tax Return.

(B) SpinCo shall be allocated all Taxes reported, or required to be reported, on a SpinCo Separate Tax Return.

(iii) Taxes Not Reported on Tax Returns.

(A) Parent shall be allocated any Tax attributable to any member of the Parent Group that is not required to be reported on a Tax Return.

(B) SpinCo shall be allocated any Tax attributable to any member of the SpinCo Group that is not required to be reported on a Tax Return.

(b) Allocation Conventions.

(i) General. All Taxes allocated pursuant to Section 3(a) shall be allocated between the Pre-Separation Period and the Post-Separation Period in accordance with the Closing of the Books Method; provided, however, that if Applicable Tax Law does not permit a SpinCo Group member to close its Taxable year on the Separation Date, the Tax attributable to the operations of the members of the SpinCo Group for any Post-Separation Period shall be the Tax computed using a hypothetical closing of the books consistent with the Closing of the Books Method (except to the extent otherwise agreed upon by Parent and SpinCo).

(ii) Section 3(a)(i) Proviso Allocations. For purposes of the proviso in Section 3(a)(i), the amount of Taxes attributable to the member(s) of the SpinCo Group or the SpinCo Business, as applicable, shall be determined by Parent on a pro forma basis prepared (A) assuming that such member(s) were not included in the group of companies filing the applicable Joint Tax Return, but rather filed a separate Joint Tax Return that includes only such member(s), (B) including only

Tax Items of such member(s), (C) except as provided in clause (E) hereof, using all elections, accounting methods and conventions used on such Joint Tax Return for such period, (D) applying the highest statutory marginal Tax rate in effect for such period, (E) assuming that such member(s) elect not to carry back any net operating losses and (F) assuming that such member(s) utilization of any Tax Attribute carryforward or carryback is limited to the Tax Attributes of such member(s) arising in Post-Separation Periods determined in accordance with this Section 3(b)(ii); provided that the amount of Taxes so determined shall not be less than zero.

(iii) Certain Separation Date Items. Any Tax Item of SpinCo or any member of the SpinCo Group arising from a transaction engaged in outside the ordinary course of business on the Separation Date shall be allocable to SpinCo; provided that the foregoing shall not include any action that is undertaken pursuant to the Separation.

(c) Special Allocation Rules. Notwithstanding any other provision in this Section 3, the following Taxes shall be allocated as follows:

(i) Taxes Relating to Parent Compensatory Equity Interests. Any Tax liability (including, for the avoidance of doubt, the satisfaction of any withholding Tax obligation) relating to the issuance, exercise, vesting or settlement of any Parent Compensatory Equity Interest shall be allocated in a manner consistent with Section 7.

(ii) Separation Taxes and Tax-Related Losses. Any liability for (x) Separation Taxes and (y) Tax-Related Losses, in each case, resulting from a SpinCo Disqualifying Action shall, in each case, be allocated in a manner consistent with Section 11(a)(iii) and Section 11(b)(iii).

(iii) Taxes Covered by the Separation Agreement or Ancillary Agreements. Subject to the preceding clauses of Section 3(c), any liability or other matter relating to Taxes that is specifically addressed in the Separation Agreement or any Ancillary Agreement (including, with Canadian Taxes relating to the Distribution, in the Arrangement Agreement) shall be allocated or governed as provided in such agreement.

Section 4. Preparation and Filing of Tax Returns.

(a) Parent Prepared Tax Returns. Parent shall prepare and file, or cause to be prepared and filed, all (i) Joint Tax Returns and (ii) Parent Separate Tax Returns. To the extent any Joint Tax Return reflects operations of the SpinCo Group for a Taxable period that includes the Separation Date, Parent shall include in such Joint Tax Return the results of such member of the SpinCo Group, as the case may be, on the basis of the Closing of the Books Method to the extent permitted by Applicable Tax Law. If a member of the SpinCo Group is responsible for the filing of any such Tax Return under Applicable Tax Law, Parent shall, subject to the procedures set forth in Sections 4(c), 4(d) and 4(e), deliver such prepared Tax Return to SpinCo in advance of the applicable filing deadline.

(b) SpinCo Prepared Tax Returns. SpinCo shall prepare and file all SpinCo Separate Tax Returns.

(c) Determination of Responsible Party. Parent, in consultation with SpinCo, shall determine which Party or their respective Affiliates is required to file any Joint Tax Return or Separate Tax Return under Applicable Tax Law.

(d) Provision of Information. SpinCo shall maintain all necessary information for Parent (or any of its Affiliates) to file any Tax Return that Parent is required or permitted to file under this Section 4, and shall provide to Parent all such necessary information in accordance with the Parent Group’s past practice. Parent shall maintain all necessary information for SpinCo (or any of its Affiliates) to file any Tax Return that SpinCo is required or permitted to file under this Section 4, and shall provide SpinCo with all such necessary information in accordance with the Parent Group’s past practice.

(e) Right to Review. The Party responsible for preparing (or causing to be prepared) any Tax Return under this Section 4 shall make such Tax Return and related workpapers available for review by the other Party, if requested, to the extent (i) such Tax Return relates to Taxes for which the requesting Party would be liable under Section 3, (ii) such Tax Return relates to such Taxes described in clause (i) and the requesting Party would reasonably be expected to be liable in whole or in part for any additional Taxes owing as a result of adjustments to the amount of such Taxes reported on such Tax Return or (iii) such Tax Return relates to Taxes for which the requesting Party would reasonably be expected to have a claim for a Tax Refund under this Agreement. The Party responsible for preparing (or causing to be prepared) the relevant Tax Return shall (x) use its reasonable best efforts to make such portion of such Tax Return available for review as required under this paragraph sufficiently in advance of the due date for the filing of such Tax Return to provide the requesting Party with a meaningful opportunity to analyze and comment on such Tax Return and (y) use reasonable best efforts to have such Tax Return modified before filing, taking into account the Person responsible for payment of the Tax (if any) reported on such Tax Return and whether the amount of Tax liability allocable to the requesting Party with respect to such Tax Return is material. The Parties shall attempt in good faith to resolve any issues arising out of the review of such Tax Return.

(f) Special Rules Relating to the Preparation of Tax Returns.

(i) General. Except as provided in this Section 4(f)(i), SpinCo shall prepare (or cause to be prepared) any Tax Return, with respect to Taxable periods (or portions thereof) ending prior to or on the Separation Date, for which it is responsible under this Section 4 in accordance with past practices, accounting methods, elections or conventions (“Past Practices”) used by the members of the Parent Group prior to the Separation Date with respect to such Tax Return to the extent permitted by Applicable Law, and to the extent any items, methods or positions are not covered by Past Practices, as directed by Parent in its sole discretion to the extent permitted by Applicable Law.

(ii) Consistency with Intended Tax Treatment. All Tax Returns that include any member of the Parent Group or any member of the SpinCo Group shall be prepared in a manner that is consistent with the Intended Tax Treatment.

(iii) SpinCo Separate Tax Returns. With respect to any SpinCo Separate Tax Return, SpinCo and the other members of the SpinCo Group shall include Tax Items in such Tax Return in a manner that is consistent with the inclusion of such Tax Items in any related Tax Return for which Parent is responsible to the extent such Tax Items are allocated in accordance with this Agreement.

(iv) Election to File Joint Tax Returns. Parent shall be entitled in its sole discretion to file any Combined Tax Return if the filing of such Tax Return is elective under Applicable Tax Law. Each member of any such Combined Group shall execute and file such consents, elections and other documents as may be required, appropriate or otherwise requested by Parent in connection with the filing of such Joint Tax Returns.

(v) Preparation of Transfer Tax Returns. The Company required under Applicable Tax Law to file any Tax Returns in respect of Transfer Taxes shall prepare and file (or cause to be prepared and filed) such Tax Returns. If required by Applicable Tax Law, Parent and SpinCo shall, and shall cause their respective Affiliates to, cooperate in preparing and filing, and join the execution of, any such Tax Returns.

(g) Payment of Taxes. Parent shall pay (or cause to be paid) to the proper Taxing Authority the Tax shown as due on any Tax Return for which a member of the Parent Group is responsible for filing under this Section 4, and SpinCo shall pay (or cause to be paid) to the proper Taxing Authority the Tax shown as due on any Tax Return for which a member of the SpinCo Group is responsible for filing under this Section 4. If any member of the Parent Group is required to make a payment to a Taxing Authority for Taxes allocated to SpinCo under Section 3, SpinCo (on behalf of itself or the relevant member of the SpinCo Group) shall pay the amount of such Taxes to Parent (for the benefit of the relevant member of the Parent Group) in accordance with Section 11 and Section 12. If any member of the SpinCo Group is required to make a payment to a Taxing Authority for Taxes allocated to Parent under Section 3, Parent (on behalf of itself or the relevant member of the Parent Group) shall pay the amount of such Taxes to SpinCo (for the benefit of the relevant member of the SpinCo Group) in accordance with Section 11 and Section 12.

Section 5. Apportionment of Tax Attributes.

(a) General. Any Tax Attributes arising in a Pre-Separation Period will be allocated to (and the benefits and burdens of such Tax Attributes will inure to) the members of the Parent Group and the members of the SpinCo Group in accordance with Parent’s historical practice (including historical methodologies for making corporate allocations) and Applicable Tax Law, as determined by Parent in its sole discretion.

(b) Procedures. Upon receipt of a written request from SpinCo, Parent shall in good faith, based on information reasonably available to it, advise SpinCo in writing, as soon as reasonably practicable after the close of the relevant Taxable period in which the Separation Date occurs, of Parent’s estimate of the portion, if any, of any Tax Attributes identified in such written request which Parent determines is expected to be allocated or apportioned to the members of the SpinCo Group under Applicable Tax Law. In the event of any adjustment to the previously delivered estimate of any such Tax Attributes, Parent shall promptly advise SpinCo in writing of such adjustment. For the avoidance of doubt, Parent shall not be liable to any member of the SpinCo Group for any failure of any determination under this Section 5(b) to be accurate under Applicable Tax Law, provided such determination was made in good faith. All members of the SpinCo Group shall prepare all Tax Returns in accordance with the written notices provided by Parent to SpinCo pursuant to this Section 5(b).

(c) Adjustments. Except as otherwise provided herein, to the extent that the amount of Tax Attribute allocated to members of the Parent Group or the SpinCo Group pursuant to Section 5(b) is later reduced or increased by a Taxing Authority or as a result of a Tax Proceeding, such reduction or increase shall be allocated to the Company to which such Tax Attribute was allocated pursuant to this Section 5, as determined by Parent in good faith.

Section 6. Utilization of Tax Attributes.

(a) Amended Returns. Any amended Tax Return or claim for a Tax Refund with respect to any member of the SpinCo Group may be made only by the Party responsible for preparing the original Tax Return with respect to such member of the SpinCo Group pursuant to Section 4.

(b) No Carryback Election. The Parties hereby agree (i) not to make or cause to be made any election to claim, (A) in any Pre-Separation Period (other than in respect of a SpinCo Separate Tax Return) or (B) in any Joint Tax Return, a SpinCo Carried Item from a Post-Separation Period and (ii) to elect, to the extent permitted by Applicable Tax Law, to forgo the right to carry back any SpinCo Carried Item from a Post-Separation Period to (A) a Pre-Separation Period (other than in respect of a SpinCo Separate Tax Return) or (B) a Joint Tax Return.

(i) General. If a member of the SpinCo Group reasonably determines that it is required by Applicable Tax Law to carry back any SpinCo Carried Item to (i) a Pre-Separation Period (other than in respect of a SpinCo Separate Tax Return) or (ii) a Joint Tax Return, it shall notify Parent in writing of such determination at least ninety (90) days prior to filing the Tax Return on which such carryback will be reflected. Such notification shall include a description in reasonable detail of the basis for any expected Tax Refund and the amount thereof. If Parent disagrees with such determination, the Parties shall resolve their disagreement pursuant to the procedures set forth in Section 25.

(ii) Payment in respect of Certain Carrybacks. If a SpinCo Carried Item is carried back to (i) a Pre-Separation Period or (ii) a Joint Tax Return pursuant to Section 6(c)(i), Parent shall be required to make a payment to the SpinCo Group in an amount equal to the Tax Refund in respect of such SpinCo Carried Item in accordance with Section 8(c).

(d) Carryforwards to Separate Tax Returns. If a portion or all of any Tax Attribute is allocated to a member of a Combined Group pursuant to Section 5 and carried forward to a SpinCo Separate Tax Return, any Tax benefits arising from such carryforward shall be retained by the SpinCo Group. If a portion or all of any Tax Attribute is allocated to a member of a Combined Group pursuant to Section 5, and is carried forward to a Parent Separate Tax Return, any Tax benefits arising from such carryforward shall be retained by the Parent Group.

Section 7. Deductions and Reporting for Certain Awards.

(a) Deductions. The Parent Group shall be allocated, and be entitled to receive the Tax benefit of, any Tax deduction relating to (i) the issuance, exercise, vesting and/or settlement after the Separation Date of any Parent Compensatory Equity Interests and (ii) any liability after the Separation Date with respect to compensation or benefits assumed, retained, required to be paid, satisfied or provided by, or otherwise allocated to, any member of the Parent Group under the Separation Agreement or any Ancillary Agreement (each such deduction, a “Parent Compensation Tax Asset”). Parent and SpinCo acknowledge and agree that, to the extent permitted by Applicable Tax Law, Parent or a member of the Parent Group shall be entitled to, and shall, claim any such Tax deduction on a Tax Return of Parent or a member of the Parent Group.

(b) Payments for Parent Compensation Tax Assets. If, notwithstanding clause (a), a Parent Compensation Tax Asset gives rise to a Tax deduction for any member of the SpinCo Group in any Post-Separation Period, SpinCo shall pay over to Parent the actual Tax benefit received by SpinCo from the utilization of such Parent Compensation Tax Asset, determined using a “with and without” methodology (treating any deductions attributable to the use by a member of the SpinCo Group of a Parent Compensation Tax Asset as the last item claimed for any Taxable period, including after the utilization of any available Tax Attributes).

(c) Withholding and Reporting. All applicable withholding and reporting responsibilities (including all income, payroll or other Tax reporting related to income to any current or former employee) with respect to the issuance, exercise, vesting or settlement of any Parent Compensatory Equity Interests or SpinCo Compensatory Equity Interests shall be the responsibility of the Party to which such responsibility has been prescribed by Section 8.06 of the Employee Matters Agreement. Parent and SpinCo acknowledge and agree that the Parties shall cooperate with each other and with third-party providers to effectuate withholding and remittance of Taxes, as well as required Tax reporting, in a timely manner.

Section 8. Tax Refunds.

(a) Parent Tax Refunds. Parent shall be entitled to any Tax Refund (including any interest actually received on or in respect thereof) received by any member of the Parent Group or any member of the SpinCo Group, other than any Tax Refund to which SpinCo is entitled pursuant to Section 8(b) (or, with respect to any SpinCo Carried Item, Section 6). SpinCo shall not be entitled to any Tax Refund received by any member of the Parent Group or the SpinCo Group, except as set forth in Section 8(b).

(b) SpinCo Tax Refunds. SpinCo shall be entitled to any Tax Refund (including any interest actually received on or in respect thereof) received by any member of the Parent Group or any member of the SpinCo Group after the Separation Date with respect to any Tax allocated to a member of the SpinCo Group under this Agreement (including, for the avoidance of doubt, any amounts allocated to SpinCo pursuant to Section 3(c)(ii)), other than any Tax Refund resulting from a SpinCo Carried Item, which shall be governed by Section 6.

(c) Payment Procedures. A Company receiving (or realizing) a Tax Refund to which another Company is entitled hereunder (a “Tax Refund Recipient”) shall pay over the amount of such Tax Refund (including interest received from the relevant Taxing Authority, but net of any Taxes imposed with respect to such Tax Refund and any other reasonable costs associated therewith) within thirty (30) days of receipt thereof (or from the due date for payment of any Tax reduced thereby); provided, however, that the other Company, upon the request of such Tax Refund Recipient, shall repay the amount paid to the other Company (plus any penalties, interest or other charges imposed by the relevant Taxing Authority) in the event that, as a result of a subsequent Final Determination, a Tax Refund that gave rise to such payment is subsequently disallowed.

Section 9. Certain Representations and Covenants.

(a) Representations.

(i) SpinCo and each other member of the SpinCo Group represents that as of the date hereof, it does not have any plan or intention, and covenants that, if the Distribution is effected, as of the Distribution Date it will not have any plan or intention:

(A) other than in connection with the Distribution, to liquidate SpinCo or to merge, amalgamate or consolidate any member of the SpinCo Group with any other Person subsequent to the Distribution;

(B) to sell, transfer or otherwise dispose of any material asset of any member of the SpinCo Group, except in the ordinary course of business;

(C) to take or fail to take any action in a manner that is inconsistent with the written information and representations furnished or to be furnished by SpinCo to the Tax Adviser in connection with the Tax Representation Letters or the Tax Opinion;

(D) to repurchase stock of SpinCo other than in a manner that satisfies the requirements of Section 4.05(1)(b) of IRS Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue Procedure by IRS Revenue Procedure 2003-48) and consistent with any representations made to the Tax Adviser in connection with the Tax Representation Letters; or

(E) to take or fail to take any action in a manner that management of SpinCo knows, or should know, is reasonably likely to contravene any agreement with a Taxing Authority entered into prior to the Separation Date or, if the Distribution is effected, the Distribution Date to which any member of the SpinCo Group or the Parent Group is a party.

(b) Covenants.

(i) So long as a Distribution could, in the reasonable discretion of Parent, be effected, SpinCo will not knowingly take or fail to take, or permit any member of the SpinCo Group to knowingly take or fail to take, any action that could reasonably be expected to preclude Parent from effectuating the Distribution in a manner that qualifies for its Intended Tax Treatment. If Parent determines, in its sole discretion, to effectuate a Distribution, SpinCo will take, and will cause any member of the SpinCo Group to take, any action reasonably requested by Parent in order to enable Parent to effectuate a Distribution in a manner that qualifies for its Intended Tax Treatment.

(ii) If the Distribution is effected, SpinCo shall not, and shall not permit any other member of the SpinCo Group to, take or fail to take any action that constitutes a SpinCo Disqualifying Action.

(iii) SpinCo shall not, and shall not permit any other member of the SpinCo Group to, take or fail to take any action that is inconsistent with the information and representations furnished or to be furnished by SpinCo to the Tax Adviser in connection with the Tax Representation Letters or the Tax Opinion.

(iv) SpinCo shall not, and shall not permit any other member of the SpinCo Group to, take or fail to take any action in a manner that management of SpinCo knows, or should know, is reasonably likely to contravene any agreement with a Taxing Authority entered into prior to the Separation Date or, if the Distribution is effected, the Distribution Date to which any member of the SpinCo Group or the Parent Group is a party.

(v) If the Distribution is effected, during the two-year period following the Distribution Date:

(A) SpinCo shall (x) maintain its status as a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code, (y) not engage in any transaction that would result in it ceasing to be a company engaged in the Active Trade or Business for purposes of Section 355(b)(2) of the Code, taking into account Section 355(b)(3) of the Code for purposes of each of clauses (x) and (y) hereof;

(B) SpinCo shall not repurchase stock of SpinCo in a manner contrary to the requirements of Section 4.05(1)(b) of IRS Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue Procedure by IRS Revenue Procedure 2003-48) or inconsistent with any representations made or to be made by SpinCo to the Tax Adviser in connection with the Tax Representation Letters;

(C) SpinCo shall not, and shall not agree to, merge, consolidate or amalgamate with any other Person other than in connection with the Distribution; and

(D) SpinCo shall not, and shall not permit any other member of the SpinCo Group to, (1) solicit any Person to make a tender offer for, or otherwise acquire or sell, the Equity Interests of SpinCo or any member of the SpinCo Group, (2) participate in or support any unsolicited tender offer for, or other acquisition or disposition of, the Equity Interests of SpinCo or any member of the SpinCo Group or (3) approve or otherwise permit any proposed business combination or any transaction which would result in any acquisition or disposition of the Equity Interests of SpinCo or any member of the SpinCo Group.

(vi) SpinCo shall not take or fail to take, or permit any other member of the SpinCo Group to take or fail to take, any action which prevents or could reasonably be expected to result in any Specified Restructuring Transaction or, if effected, the Distribution from qualifying for its Intended Tax Treatment.

(c) SpinCo Covenants Exceptions. Notwithstanding the provisions of Section 9(b), SpinCo and the other members of the SpinCo Group may take any action that would reasonably be expected to be inconsistent with the covenants contained in Section 9(b), if, prior to taking such action, either: (i) SpinCo notifies Parent of its proposal to take such action and SpinCo and Parent obtain a ruling from the IRS to the effect that such action will not affect the Intended Tax Treatment, provided that SpinCo agrees in writing to bear any expenses associated with obtaining such a ruling, and provided further that the SpinCo Group shall not be relieved of any liability under Section 11(a) of this Agreement by reason of seeking or having obtained such a ruling; or (ii) SpinCo notifies Parent of its proposal to take such action and delivers to Parent an unqualified opinion of counsel (A) from a Tax advisor recognized as an expert in federal income Tax matters, (B) acceptable to Parent in its sole discretion, (C) on which Parent may rely and (D) to the effect that such action “will” not affect the Intended Tax Treatment, provided that the SpinCo Group shall not be relieved of any liability under Section 11(a) of this Agreement by reason of having obtained such an opinion.

Section 10. [Intentionally Omitted]

Section 11. Indemnities.

(a) SpinCo Indemnity to Parent. Except in the case of any liabilities described in Section 11(b), SpinCo and each other member of the SpinCo Group shall jointly and severally indemnify Parent and the other members of the Parent Group against, and hold them harmless, without duplication, from:

(i) any Tax liability allocated to SpinCo pursuant to Section 3;

(ii) any Tax liability and Tax-Related Losses attributable to a breach, after the Separation Date, by SpinCo or any other member of the SpinCo Group of any representation, covenant or provision contained in this Agreement (including, for the avoidance of doubt, any Taxes and Tax-Related Losses resulting from any breach for which the conditions set forth in Section 9(c) are satisfied);

(iii) any Separation Taxes and Tax-Related Losses attributable to a SpinCo Disqualifying Action (including, for the avoidance of doubt, any Taxes and Tax-Related Losses resulting from any action for which the conditions set forth in Section 9(c) are satisfied); and

(iv) all liabilities, costs, expenses (including reasonable expenses of investigation and attorneys’ fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the imposition, assessment or assertion of any Tax liability or damage described in (i), (ii) or (iii), including those incurred in the contest in good faith in appropriate proceedings relating to the imposition, assessment or assertion of any such Tax, liability or damage.

(b) Parent Indemnity to SpinCo. Except in the case of any liabilities described in Section 11(a), Parent and each other member of the Parent Group will jointly and severally indemnify SpinCo and the other members of the SpinCo Group against, and hold them harmless, without duplication, from:

(i) any Tax liability allocated to Parent pursuant to Section 3;

(ii) any Taxes imposed on any member of the SpinCo Group under Treasury Regulations Section 1.1502-6 (or similar or analogous provision of state, local or foreign law) solely as a result of any such member being or having been a member of a Combined Group;

(iii) any Separation Taxes and Tax-Related Losses, other than any such Separation Taxes and Tax-Related Losses described in Section 11(a)(iii); and

(iv) all liabilities, costs, expenses (including reasonable expenses of investigation and attorneys’ fees and expenses), losses, damages, assessments, settlements or judgments arising out of or incident to the imposition, assessment or assertion of any Tax liability or damage described in (i) or (ii), including those incurred in the contest in good faith in appropriate proceedings relating to the imposition, assessment or assertion of any such Tax, liability or damage.

(c) Discharge of Indemnity. SpinCo, Parent and the members of their respective Groups shall discharge their obligations under Section 11(a) or Section 11(b) hereof, respectively, by paying the relevant amount in accordance with Section 12, within thirty (30) Business Days of demand therefor or, to the extent such amount is required to be paid to a Taxing Authority prior to the expiration of such thirty (30) Business Days, at least ten (10) Business Days prior to the date by which the demanding party is required to pay the related Tax liability. Any such demand shall include a statement showing the amount due under Section 11(a) or Section 11(b), as the case may be. Notwithstanding the foregoing, if any member of the SpinCo Group or any member of the Parent Group disputes in good faith the fact or the amount of its obligation under Section 11(a) or Section 11(b), then no payment of the amount in dispute shall be required until any such good faith dispute is resolved in accordance with Section 25 hereof; provided, however, that any amount not paid within thirty (30) Business Days of demand therefor shall bear interest as provided in Section 12.

(d) Corresponding Tax Benefits. If an indemnification obligation of any member of the Parent Group or any member of the SpinCo Group, as the case may be, under this Section 11 arises in respect of an adjustment that makes allowable to an Indemnitee any reduction in Taxes payable by the Indemnitee or other Tax benefit which would not, but for such adjustment, be allowable, then any such indemnification obligation shall be an amount equal to (i) the amount otherwise due but for this Section 11(d), minus (ii) the reduction in actual cash Taxes payable by the Indemnitee in the Taxable year in which such indemnification obligation arises, determined on a “with and without” basis.

Section 12. Payments.

(a) Timing. All payments to be made under this Agreement (excluding, for the avoidance of doubt, any payments to a Taxing Authority described herein) shall be made in immediately available funds. Except as otherwise provided, all such payments will be due sixty (60) Business Days after the receipt of notice of such payment or, where no notice is required, sixty (60) Business Days after the fixing of liability or the resolution of a dispute (the “Due Date”). Payments shall be deemed made when received. Any payment that is not made on or before the Due Date shall bear interest at the rate equal to the “prime” rate as published on such Due Date in the Wall Street Journal, Eastern Edition, for the period from and including the date immediately following the Due Date through and including the date of payment. With respect to any payment required to be made under this Agreement, Parent has the right to designate, by written notice to SpinCo, which member of the Parent Group will make or receive such payment.

(b) [Intentionally Omitted]

(c) No Duplicative Payment. It is intended that the provisions of this Agreement shall not result in a duplicative payment of any amount required to be paid under the Separation Agreement or any Ancillary Agreement, and this Agreement shall be construed accordingly.

Section 13. Guarantees. Parent and SpinCo, as the case may be, each hereby guarantees and agrees to otherwise perform the obligations of each other member of the Parent Group or the SpinCo Group, respectively, under this Agreement.

Section 14. Communication and Cooperation.

(a) Consult and Cooperate. Parent and SpinCo shall consult and cooperate (and shall cause each other member of their respective Groups to consult and cooperate) fully at such time and to the extent reasonably requested by the other Party in connection with all matters subject to this Agreement. Such cooperation shall include:

(i) the retention, and provision on reasonable request, of any and all information including all books, records, documentation or other information pertaining to Tax matters relating to the SpinCo Group (or, in the case of any Tax Return of the Parent Group, the portion of such return that relates to Taxes for which the SpinCo Group may be liable pursuant to this Agreement), any necessary explanations of information, and access to personnel, until one year after the expiration of the applicable statute of limitation (giving effect to any extension, waiver or mitigation thereof);

(ii) the execution of any document that may be necessary (including to give effect to Section 15) or helpful in connection with any required Tax Return or in connection with any audit, proceeding, suit or action; and

(iii) the use of the parties’ commercially reasonable efforts to obtain any documentation from a Governmental Authority or a third party that may be necessary or helpful in connection with the foregoing.

(b) Provide Information. Except as set forth in Section 15, Parent and SpinCo shall keep each other reasonably informed with respect to any material development relating to the matters subject to this Agreement.

(c) Tax Attribute Matters. Parent and SpinCo shall promptly advise each other with respect to any proposed Tax adjustments that are the subject of an audit or investigation, or are the subject of any proceeding or litigation, and that may affect any Tax liability or any Tax Attribute (including, but not limited to, basis in an asset or the amount of earnings and profits) of any member of the Parent Group or any member of the SpinCo Group, respectively.

(d) Confidentiality and Privileged Information. Any information or documents provided under this Agreement shall be kept confidential by the party receiving the information or documents, except as may otherwise be necessary in connection with the filing of required Tax Returns or in connection with any audit, proceeding, suit or action. Without limiting the foregoing (and notwithstanding any other provision of this Agreement or any other agreement), (i) no member of the Parent Group or SpinCo Group, respectively, shall be required to provide any member of the SpinCo Group or Parent Group, respectively, or any other Person access to or copies of any information or procedures other than information or procedures that relate solely to SpinCo, the business or assets of any member of the SpinCo Group, or matters for which the SpinCo Group or the Parent Group, respectively, has an obligation to indemnify under this Agreement and (ii) in no event shall any member of the Parent Group or the SpinCo Group, respectively, be required to provide any member of the SpinCo Group or Parent Group, respectively, or any other Person access to or copies of any information if such action could reasonably be expected to result in the waiver of any privilege. Notwithstanding the foregoing, in the event that Parent or SpinCo, respectively, determines that the provision of any information to any member of the SpinCo Group or Parent Group, respectively, could be commercially detrimental or violate any law or agreement to which Parent or SpinCo, respectively, is bound, Parent or SpinCo, respectively, shall not be required to comply with the foregoing terms of this Section 14(d) except to the extent that it is able, using commercially reasonable efforts, to do so while avoiding such harm or consequence (and shall promptly provide notice to SpinCo or Parent, respectively, to the extent such access to or copies of any information is provided to a Person other than a member of the Parent Group or SpinCo Group, respectively).

Section 15. Audits and Contest.

(a) Notice. Each of Parent and SpinCo shall promptly notify the other in writing upon the receipt of any notice of Tax Proceeding from the relevant Taxing Authority or upon becoming aware of an actual or potential Tax Proceeding by a Taxing Authority that may affect the liability of any member of the SpinCo Group or the Parent Group, respectively, for Taxes under Applicable Law or this Agreement; provided that a Party’s right to indemnification under this Agreement shall not be limited in any way by a failure to so notify, except to the extent that the indemnifying Party is prejudiced by such failure.

(b) Parent Control. Notwithstanding anything in this Agreement to the contrary but subject to Section 15(d), Parent shall have the right to control all matters relating to any Joint Tax Return, any Parent Separate Tax Return, and any Tax Return or any Tax Proceeding with respect to any Tax matters of a Combined Group or any member of a Combined Group (as such). Parent shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any Tax matter described in the preceding sentence; provided, however, that to the extent that any Tax Proceeding relating to such a Tax matter is reasonably likely to give rise to an indemnity obligation of SpinCo under Section 11 hereof, (i) Parent shall keep SpinCo informed of all material developments and events relating to any such Tax Proceeding described in this proviso and (ii) at its own cost and expense, SpinCo shall have the right to participate in (but not to control) the defense of any such Tax Proceeding.

(c) SpinCo Assumption of Control; Non-Separation Taxes. If Parent determines that the resolution of any matter pursuant to a Tax Proceeding (other than a Tax Proceeding relating to Separation Taxes) is reasonably likely to have an adverse effect on the SpinCo Group with respect to any Post-Separation Period, Parent, in its sole discretion, may permit SpinCo to elect to assume control over disposition of such matter at SpinCo’s sole cost and expense; provided, however, that if SpinCo so elects, it will (i) be responsible for the payment of any liability arising from the disposition of such matter notwithstanding any other provision of this Agreement to the contrary and (ii) indemnify the Parent Group for any increase in a liability and any reduction of a Tax asset of the Parent Group arising from such matter.

(d) Separation Taxes. Parent shall have the right to control any Tax Proceeding relating to Separation Taxes; provided that Parent shall keep SpinCo fully informed of all material developments and shall permit SpinCo a reasonable opportunity to participate in the defense of the matter.

Section 16. Notices. Any notice, instruction, direction or demand under the terms of this Agreement required to be in writing shall be duly given upon delivery, if delivered by hand, email transmission or mail, to the following addresses:

if to Parent or the Parent Group, to:

Bausch Health Companies Inc.

2150 St. Elzéar Blvd. West

Laval, Québec, Canada H7L 4A8

Attention: General Counsel

E-mail: [*****]

with a copy (which shall not constitute notice) to:

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Attention: Michael Mollerus

Email: [*****]

if to SpinCo or the SpinCo Group, to:

Bausch + Lomb Corporation

400 Somerset Corporate Blvd

Bridgewater, NJ 08807, USA

Attention: General Counsel

E-mail: [*****]

with a copy (which shall not constitute notice) to:

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Attention: Michael Mollerus

Email: [*****]

or such other address or email address as such party may hereafter specify for the purpose by notice to the other party hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt.

Section 17. Costs and Expenses. The Party that prepares any Tax Return shall bear the costs and expenses incurred in the preparation of such Tax Return. Except as expressly set forth in this Agreement or the Separation Agreement, (i) each Party shall bear the costs and expenses incurred pursuant to this Agreement to the extent the costs and expenses are directly allocable to a liability or obligation allocated to such Party and (ii) to the extent a cost or expense is not directly allocable to a liability or obligation, it shall be borne by the Party incurring such cost or expense. For purposes of this Agreement, costs and expenses shall include, but not be limited to, reasonable attorneys’ fees, accountants’ fees and other related professional fees and disbursements.

Section 18. Effectiveness; Termination and Survival. Except as expressly set forth in this Agreement, as between Parent and SpinCo, this Agreement shall become effective on the Separation Date. All rights and obligations arising hereunder shall survive until they are fully effectuated or performed; provided that, notwithstanding anything in this Agreement to the contrary, this Agreement shall remain in effect and its provisions shall survive for one year after the full period of all applicable statutes of limitation (giving effect to any extension, waiver or mitigation thereof) and, with respect to any claim hereunder initiated prior to the end of such period, until such claim has been satisfied or otherwise resolved. This agreement shall terminate without any further action at any time before the Separation Date upon termination of the Separation Agreement.

Section 19. Specific Performance. Each Party to this Agreement acknowledges and agrees that damages for a breach or threatened breach of any of the provisions of this Agreement would be inadequate and irreparable harm would occur. In recognition of this fact, each Party agrees that, if there is a breach or threatened breach, in addition to any damages, the other nonbreaching Party to this Agreement, without posting any bond, shall be entitled to seek and obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction, attachment, or any other equitable remedy which may then be available to obligate the breaching Party (i) to perform its obligations under this Agreement or (ii) if the breaching Party is unable, for whatever reason, to perform those obligations, to take any other actions as are necessary, advisable or appropriate to give the other Party to this Agreement the economic effect which comes as close as possible to the performance of those obligations (including transferring, or granting liens on, the assets of the breaching party to secure the performance by the breaching party of those obligations).

Section 20. Construction. In this Agreement, unless the context clearly indicates otherwise:

(a) words used in the singular include the plural and words used in the plural include the singular;

(b) references to any Person include such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement;

(d) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”;

(e) reference to any Article, Section, Exhibit or Schedule means such Article or Section of, or such Exhibit or Schedule to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition;

(f) the words “herein,” “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof;

(g) reference to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and by this Agreement;

(h) reference to any law (including statutes and ordinances) means such law (including all rules and regulations promulgated thereunder) as amended, modified, codified or reenacted, in whole or in part, and in effect at the time of determining compliance or applicability;

(i) relative to the determination of any period of time, “from” means “from and including,” “to” means “to and including” and “through” means “through and including”;

(j) the titles to Articles and headings of Sections contained in this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of or to affect the meaning or interpretation of this Agreement;

(k) unless otherwise specified in this Agreement, all references to dollar amounts herein shall be in respect of lawful currency of the United States, and, unless otherwise specified herein or agreed between the parties, all payments required under this Agreement shall be made in U.S. dollars; and

(l) any capitalized term used in an Exhibit or Schedule but not otherwise defined therein shall have the meaning set forth in this Agreement.

Section 21. Entire Agreement; Amendments and Waivers.

(a) Entire Agreement.

(i) This Agreement, the Separation Agreement and the Ancillary Agreements constitute the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and negotiations, both written and oral, between the parties with respect to the subject matter hereof and thereof. No representation, inducement, promise, understanding, condition or warranty not set forth herein or in the Separation Agreement or any Ancillary Agreement has been made or relied upon by any Party hereto or any member of their Group with respect to the transactions contemplated by this Agreement, the Separation Agreement or any Ancillary Agreement. This Agreement is an “Ancillary Agreement” as such term is defined in the Separation Agreementand shall be interpreted in accordance with the terms of the Separation Agreement in all respects; provided that in the event of any conflict or inconsistency between the terms of this Agreement and the terms of the Separation Agreement, the terms of this Agreement shall control in all respects.

(ii) THE PARTIES ACKNOWLEDGE AND AGREE THAT NO REPRESENTATION, WARRANTY, PROMISE, INDUCEMENT, UNDERSTANDING, COVENANT OR AGREEMENT HAS BEEN MADE OR RELIED UPON BY ANY PARTY OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SEPARATION AGREEMENT AND THE ANCILLARY AGREEMENTS. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMER SET FORTH IN THE PRECEDING SENTENCE, NEITHER PARENT NOR ANY OF ITS AFFILIATES HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES IN ANY PRESENTATION OR WRITTEN INFORMATION RELATING TO THE SPINCO BUSINESS GIVEN OR TO BE GIVEN IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS OR IN ANY FILING MADE OR TO BE MADE BY OR ON BEHALF OF PARENT OR ANY OF ITS AFFILIATES WITH ANY GOVERNMENTAL AUTHORITY, AND NO STATEMENT MADE IN ANY SUCH PRESENTATION OR WRITTEN MATERIALS, MADE IN ANY SUCH FILING OR CONTAINED IN ANY SUCH OTHER INFORMATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE. SPINCO ACKNOWLEDGES THAT PARENT HAS INFORMED IT THAT NO PERSON HAS BEEN AUTHORIZED BY PARENT OR ANY OF ITS AFFILIATES TO MAKE ANY REPRESENTATION OR WARRANTY IN RESPECT OF THE SPINCO BUSINESS OR IN CONNECTION WITH THE CONTEMPLATED TRANSACTIONS, UNLESS IN WRITING AND CONTAINED IN THIS AGREEMENT, THE SEPARATION AGREEMENT OR IN ANY OF THE OTHER ANCILLARY AGREEMENTS TO WHICH THEY ARE A PARTY.

(b) Amendments and Waivers.

(i) Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each of Parent and SpinCo, or in the case of a waiver, by the Party against whom the waiver is to be effective.

(ii) No failure or delay by any Party (or the applicable member of such Party’s Group) in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Applicable Law.

Section 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of such state.

Section 23. Jurisdiction. The Parties agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the Chancery Court of the State of Delaware and any state appellate court therefrom within the State of Delaware (or if the Chancery Court of the State of Delaware declines to accept jurisdiction over a particular matter, any federal or state court sitting in the State of Delaware and any federal or state appellate court therefrom), and each of the Parties hereto hereby irrevocably consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that service of process on such Party as provided in Section 16 shall be deemed effective service of process on such Party.

Section 24. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 25. Dispute Resolution. In the event of any dispute relating to this Agreement, the Parties shall work together in good faith to resolve such dispute within thirty (30) days. In the event that such dispute is not resolved, upon written notice by a Party after such thirty (30)-day period, the matter shall be referred to, as applicable, a Canadian or U.S. Tax counsel or other Canadian or U.S. Tax advisor of recognized national standing (the “Tax Arbiter”) that will be jointly chosen by Parent and SpinCo; provided, however, that, if Parent and SpinCo do not agree on the selection of the Tax Arbiter after five (5) days of good faith negotiation, the Tax Arbiter shall consist of a panel of, as applicable, three Canadian or U.S. Tax counsel or other Canadian or U.S. Tax advisors of recognized national standing with one member chosen by Parent, one member chosen by SpinCo, and a third member chosen by mutual agreement of the other members within the following ten (10)-day period. Each decision of a panel Tax Arbiter shall be made by majority vote of the members. The Tax Arbiter may, in its discretion, obtain the services of any third party necessary to assist it in resolving the dispute. The Tax Arbiter shall furnish written notice to the Parties to the dispute of its resolution of the dispute as soon as practicable, but in any event no later than ninety (90) days after acceptance of the matter for resolution. Any such resolution by the Tax Arbiter shall be binding on the Parties, and the Parties shall take, or cause to be taken, any action necessary to implement such resolution. All fees and expenses of the Tax Arbiter shall be shared equally by the Parties to the dispute. In the case of any dispute involving the Tax laws of a jurisdiction other than Canada or the United States, the provisions of this Section 25 shall apply to such dispute mutatis mutandis.

Section 26. Counterparts; Effectiveness; Third-Party Beneficiaries. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party hereto shall have received a counterpart hereof signed by the other Party hereto. Until and unless each Party has received a counterpart hereof signed by the other Party hereto, this Agreement shall have no effect and no Party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Except for Section 14(d) and the indemnification and release provisions of Section 11, neither this Agreement nor any provision hereof is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the Parties hereto and their respective successors and permitted assigns.

Section 27. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns; provided that neither Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other Party hereto. If any Party or any of its successors or permitted assigns (i) shall consolidate with or merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of such Party shall assume all of the obligations of such Party under the Separation Agreement and any Ancillary Agreements.

Section 28. Authorization. Each of Parent and SpinCo hereby represents and warrants that it has the power and authority to execute, deliver and perform this Agreement, on its behalf and on behalf of each member of its Group, that this Agreement has been duly authorized by all necessary corporate action on the part of such Party and each member of its Group, that this Agreement constitutes a legal, valid and binding obligation of each such Party and each member of its Group, and that the execution, delivery and performance of this Agreement by such Party and each member of its Group does not contravene or conflict with any provision or law or of its charter or bylaws or any agreement, instrument or order binding on such Party or member of its Group.

Section 29. Change in Tax Law. Any reference to a provision of the Code, Treasury Regulations or any other Applicable Tax Law shall include a reference to any applicable successor provision of the Code, Treasury Regulations or other Applicable Tax Law.

Section 30. Performance. Each Party shall cause to be performed all actions, agreements and obligations set forth herein to be performed by any member of such Party’s Group.

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the day and year first written above.


Bausch Health Companies Inc., on its own behalf and on behalf of the members of the Parent Group

By:		/s/ Thomas J. Appio
		Name: Thomas J. Appio
		Title: Chief Executive Officer, Pharma Business

Bausch + Lomb Corporation, on its own behalf and on behalf of the members of the SpinCo Group

By:		/s/ Joseph C. Papa
		Name: Joseph C. Papa
		Title: Chief Executive Officer

Bausch + Lomb (BLCO) S-1/AIPO registration (amended)