Full Press Release Details
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.
ARRANGEMENT AGREEMENT
BAUSCH + LOMB CORPORATION
12279967 CANADA LTD.
12283778 CANADA LTD.
Made as of April 28, 2022
ARRANGEMENT AGREEMENT
This Arrangement Agreement made as of April 28, 2022,
BAUSCH HEALTH COMPANIES
INC., a corporation continued under the laws of the Province of British Columbia (the BHC )
BAUSCH + LOMB CORPORATION, a corporation incorporated under the laws of Canada ( B+L )
Ltd., corporation incorporated under the laws of the Province of British Columbia ( Numberco )
12279967 Canada Ltd., corporation incorporated under the laws of Canada ( TC )
Ltd., a corporation incorporated under the laws of Canada ( TC Sub )
NOW THEREFORE, the Parties agree as follows:
Each of the Parties agrees that the Arrangement will be implemented in accordance with and subject to the terms and conditions contained in
this Agreement and on the terms set forth in the Plan of Arrangement.
Following the execution of this Agreement and the completion of the IPO, BHC and B+L will make and diligently pursue a joint application to the
Court for the Interim Order, pursuant to the CBCA and the BCBCA, as applicable, which will provide, among other things:
Subject to the terms of this Agreement and the receipt of the Interim Order:
If the Interim Order and the approval of the BHC Shareholders and the B+L Shareholders as set out in the Interim Order are obtained, at the BHC
Meeting and the B+L Meeting, respectively, the Parties will, subject to the terms of this Agreement, thereafter take all commercially reasonable steps necessary or desirable to submit the Arrangement to the Court and jointly apply for the Final
Order pursuant to Section 192 of the CBCA and Section 291 of the BCBCA, as applicable, as soon as reasonably practicable, but in any event within three Business Days after the BHC Arrangement Resolution and the B+L Arrangement Resolution
are passed at the BHC Meeting and the B+L Meeting, respectively, as provided in the Interim Order.
Subject to the terms and conditions of this Agreement, BHC and B+L will cooperate with, assist and consent to the other seeking the Interim
Order and the Final Order, including by providing to the other on a timely basis any information required to be supplied by such other Party in connection therewith. The Parties will each be provided with reasonable opportunity to review and comment
upon drafts of all material to be filed with the Court in connection with the Arrangement and each Party will give reasonable consideration to all such comments received form the other Party. In the event that either BHC or B+L is notified or
otherwise becomes aware that an objection to the Arrangement will or is anticipated to be raised at the Final Order hearing, the Parties will be consult each other on the strategy for responding to the objector and addressing the objection and each
Party will be entitled to participate and cooperate in the preparation of submissions and court materials, as contemplated hereby. Each of BHC and B+L will also provide the other Party on a timely basis with copies of any notice of appearance,
proceedings and evidence served on such Party, in respect of the joint application for the Interim Order or the Final Order or any appeal therefrom. Neither Party will file any material with the Court in connection with the Arrangement nor serve any
such material, nor agree to modify or amend materials so filed or served, except as contemplated hereby. In particular, no material shall be served, filed with the Court, or modified or amended by B+L, without the prior written consent of BHC,
The Parties agree that the Arrangement will be carried out with the intention that the BHC Class A Shares, the BHC Special Shares, the TC
Shares, the Amalco 2 Shares and the Specified Exchanged Awards will be issued in reliance on the Section 3(a)(10) Exemption. In order to ensure the availability of the Section 3(a)(10) Exemption, the Parties agree that the Arrangement will
be carried out on the following basis:
Each of BHC, B+L, TC, Amalco or Amalco 2 and any depositary or other agent appointed in connection with the Arrangement, as applicable:
(a) shall be entitled to deduct and withhold from the amounts or property payable or otherwise deliverable to any Person under the Plan of Arrangement, such amounts as it is directed to deduct and withhold or is required to deduct and withhold
with respect to such payment under the Tax Act or any provision of any Applicable Law and remit such deduction and withholding amount to the appropriate Governmental Authority and, to the extent that amounts are so properly deducted, withheld and
remitted, such deducted, withheld and remitted amounts shall be
treated for all purposes of this Agreement and the Arrangement as having been paid to such Person in respect of which such deduction and withholding and remittance was made; and (b) is
hereby authorized to take such reasonable actions as BHC, B+L, TC, Amalco or Amalco 2, as the case may be, determines are necessary or appropriate, including the netting or setting-off such amounts as may
otherwise be owing to the applicable Person by BHC, B+L, TC, Amalco or Amalco 2, as the case may be, as may be necessary to provide sufficient funds to BHC, B+L, TC, Amalco or Amalco 2 or such depositary or other agent, as applicable, to enable it
to implement such deduction or withholding, and BHC, B+L or such depositary or other agent, as applicable, will notify the holder thereof.
REPRESENTATIONS AND WARRANTIES
BHC represents and warrants to each of the other Parties as follows and acknowledges that the other Parties are relying on such representations
and warranties in connection with entering into this Agreement and consummating the Arrangement:
B+L represents and warrants to each of the other Parties as follows and acknowledges that the other Parties are relying on such representations
and warranties in connection with entering into this Agreement and consummating the Arrangement:
The representations and warranties of each Party contained in this Agreement will not survive the completion of the Arrangement and will expire
and be terminated on the earlier of the Effective Time and the date on which this Agreement is terminated in accordance with its terms.
Subject to the terms of this Agreement, each Party severally covenants and agrees to use its commercially reasonable efforts to take or cause
to be taken all actions and to do or cause to be done all things necessary, proper or advisable under Applicable Law to consummate the Arrangement on such date as they mutually agree in writing, each acting reasonably (for clarity, without
derogating in any way from such Party s obligations under any of the Separation Agreements), including:
Following completion of the IPO, each Party shall: (i) not issue any news release or make any other public statement or disclosure with
respect to this Agreement or the transactions contemplated by this Agreement without the prior consent of BHC (in the case of any member of the B+L Group) or B+L (in the case of any member of the BHC Group, TC, TC Sub and/or Numberco), which consent
shall not be unreasonably withheld, conditioned or delayed and (ii) use commercially reasonable efforts to give BHC or B+L, as the case may be, prior oral or written notice and a reasonable opportunity to review and comment on all such news
releases and other disclosure; provided, however, that the foregoing shall be subject to each Party s overriding obligation to make disclosure in accordance with Applicable Laws and, if such disclosure is required and the other Party has not
reviewed or commented on the disclosure, the Party making such disclosure shall use commercially reasonable efforts to give prior oral or written notice to the other Party and, if such prior notice is not permitted by Applicable Law, shall give such
notice immediately following the making of such disclosure. The Party making such disclosure shall give reasonable consideration to any comments made by the other Party. For the avoidance of doubt, the foregoing shall not prevent either Party from
making internal announcements to employees and having discussions with shareholders and financial analysts and other stakeholders so long as such statements and announcements are consistent in all material respects with the most recent news releases
and other disclosure made by the Parties.
Subject to the terms of this Agreement, BHC covenants and agrees to (and will cause each of its subsidiaries, as applicable, to):
B+L covenants and agrees to (and will cause any subsidiaries to):
Subject to the other terms of this Agreement, the respective obligations of BHC and B+L to complete the transactions contemplated by this
Agreement are subject to the satisfaction, at or prior to the Effective Time, of each of the following conditions precedent, each of which may only be waived, in whole or in part, with the mutual written consent of the BHC and B+L, each acting
Subject to the other terms of this Agreement, the obligation of BHC to complete the transactions contemplated by this Agreement are subject to
the satisfaction, at or prior to the Effective Time, of each of the following conditions precedent, each of which may only be waived, in whole or in part, with the written consent of BHC in its sole and absolute discretion:
The obligation of B+L to complete the transactions contemplated by this Agreement are subject to the satisfaction, at or prior to the Effective
Time, of each of the following conditions precedent, each of which may only be waived, in whole or in part, with the written consent of B+L, acting reasonably:
The conditions set out in Section 4.1 and Section 4.2 will be conclusively deemed to have been satisfied or waived, as applicable, on
the filing by BHC of Articles of Arrangement under the CBCA to give effect to the Plan of Arrangement.
To the fullest extent permitted by Applicable Law, B+L shall, and shall the cause the other members of the B+L Group (collectively, the
BHC Indemnifying Parties ) to, indemnify, defend and hold harmless BHC, each member of the BHC Group and each of their respective past, present and future directors, officers, employees and agents, in each
case in their respective capacities as such, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the BHC Indemnitees ), from and
against any and all Liabilities of the BHC Indemnitees relating to, arising out of or resulting from, directly or indirectly, any of the following items (without duplication):
To the fullest extent permitted by Applicable Law, BHC shall, and shall the cause the other members of the BHC Group (collectively, the
B+L Indemnifying Parties ) to, indemnify, defend and hold harmless B+L, each member of the B+L Group and each of their respective past, present and future directors, officers, employees and agents, in each case in their respective
capacities as such, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the B+L Indemnitees ), from and against any and all Liabilities of the B+L Indemnitees relating to, arising out of
or resulting from, directly or indirectly, any of the following items (without duplication):
If any right of indemnification contained in Section 5.1 or Section 5.2 is held unenforceable or is unavailable for any reason, or is
insufficient to hold harmless an Indemnitee in respect of any Liability for which such Indemnitee is entitled to indemnification in this Agreement, then the Indemnifying Party shall contribute to the amounts paid or payable by the Indemnitees as a
result of such Liability (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the members of its Group (being the B+L Group or the BHC Group, as the case may be) on the one
hand, and the Indemnitees entitled to contribution, on the other hand, as well as any other relevant equitable consideration.
If any Indemnity Payment received by an Indemnitee would constitute income for tax purposes to such Indemnitee, the Indemnifying Party shall
pay a Tax Gross-Up to the Indemnitee at the same time and on the same terms, as to interest and otherwise, as the Indemnity Payment. The amount of any Liability for which indemnification is provided shall be
adjusted to take into account any tax benefit realized by the Indemnitee or any of its affiliates by reason of the Liability for which indemnification is so provided or the
circumstances giving rise to such Liability. For purposes of this section, any tax benefit shall be taken into account at such time as it is received by the Indemnitee or its affiliate.
Notwithstanding the foregoing provisions of this section, if an Indemnity Payment would otherwise be included in the Indemnitee s income, the Indemnitee covenants and agrees to make all such elections and take such actions as are available,
acting reasonably, to minimize or eliminate Taxes with respect to the applicable Indemnity Payment.
AMENDMENT AND TERMINATION
Upon the termination of this Agreement pursuant to Section 6.2 hereof, no Party will have any liability or further obligation to the other
Parties hereto or any other Person except as provided in Section 7.1.
The Parties hereto acknowledge and agree that an award of money damages would be inadequate for any breach of this Agreement by any Party or
its Representatives and any such breach would cause the non-breaching Party irreparable harm. Accordingly, the Parties hereto agree that, in the event of any breach or threatened breach of this Agreement by
one of the Parties, a non-breaching Party will also be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Such
remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or equity to each of the Parties.
The Parties agree that each Party will bear its own
out-of-pocket expenses relating to the Arrangement and the transactions contemplated hereby, including legal fees, accounting fees, financial advisory fees, regulatory
filing fees, stock exchange fees, all disbursements of advisors and printing and mailing costs, provided that BHC shall pay all third-party costs, fees and expenses relating to obtaining the Interim Order and the Final Order.
The Parties each acknowledge and agree that none of the representations, warranties, covenants given by or conditions precedent in favour of
such Party contained in this Agreement are intended to derogate from or limit in any way the representations, warranties, covenants or conditions precedent given by or in favour of such Party contained in any of the Separation Agreements.