ASSET AND EQUITY PURCHASE AGREEMENT

 

TABLE OF CONTENTS

 

1.	DEFINITIONS			2
2.	PURCHASE AND SALE			30
	(a)	Purchase and Sale of Acquired Assets		30
	(b)	Assumption of Assumed Liabilities		31
	(c)	Purchase and Sale of Target Interests		31
	(d)	Treatment of Intercompany Accounts Receivable and Accounts Payable		31
	(e)	Consideration		31
	(f)	Closing		33
	(g)	Deliveries at Closing		33
	(h)	Purchase Price Adjustments		37
	(i)	Allocation		41
	(j)	Non-Assignment of Assumed Contracts		41
3.	SELLERS’ REPRESENTATIONS AND WARRANTIES			41
	(a)	Organization of Sellers and Target Companies; Good Standing		42
	(b)	Authorization of Transaction		43
	(c)	Noncontravention		44
	(d)	Capitalization of Target Companies		44
	(e)	Title to Assets of the Acquired Business		45
	(f)	SEC Documents; Financial Statements; Accounts Receivable; Inventory		45
	(g)	Contracts		47
	(h)	Intellectual Property		50
	(i)	Legal Compliance		50
	(j)	Litigation		51
	(k)	Environmental, Health and Safety Matters		51
	(l)	Sufficiency of Assets of the Acquired Business		52
	(m)	Employees and Employment Matters		52
	(n)	Employee Benefit Plans		53
	(o)	Australian Superannuation		54
	(p)	Real Property		55
	(q)	Permits		57
	(r)	Tiwest Joint Venture Interests		57

 

 

	(s)	Conduct in the Ordinary Course of Business; Absence of Certain Changes, Events and Conditions		58
	(t)	Tax		58
	(u)	Target Companies; Books and Records		59
	(v)	Insurance		59
	(w)	Brokers’ Fees		60
	(x)	Information Technology		60
	(y)	Products Liability		60
	(z)	Foreign Corrupt Practices Act		60
	(aa)	No Other Representations or Warranties; Disclosed Materials		61
4.	BUYERS’ AND GUARANTOR’S REPRESENTATIONS AND WARRANTIES			61
	(a)	Organization of Buyers and Guarantor		61
	(b)	Authorization of Transaction		62
	(c)	Noncontravention		62
	(d)	Litigation		62
	(e)	Brokers’ Fees		63
	(f)	Financial Capacity		63
	(g)	Investment Representation		63
	(h)	Interested Stockholders		63
	(i)	Condition of the Business		63
	(j)	GST Law		64
5.	PRE-CLOSING COVENANTS			64
	(a)	Reasonable Best Efforts; Cooperation		64
	(b)	Notices and Consents		65
	(c)	Bankruptcy Approval		68
	(d)	Conduct of Business		71
	(e)	Information and Consultation		73
	(f)	Notice of Developments		74
	(g)	Access		74
	(h)	Press Releases and Public Announcements		74
	(i)	Bulk Transfer Laws		75
	(j)	Cure Amounts		75
	(k)	Replacement Bonding Requirements		77

 

 

	(l)	Competing Transaction		77
	(m)	Pre-Closing Assistance		78
	(n)	Indebtedness of Target Companies		80
	(o)	Transfer of Excluded Subsidiaries		80
	(p)	Target Companies’ Asset Sales		81
	(q)	Insurance		82
	(r)	PBGC Release		82
	(s)	Election to Purchase Tronox Netherlands		83
	(t)	Covered Employees		83
	(u)	Employee Layoffs		83
	(v)	Seller Retained Employees		83
6.	OTHER COVENANTS			84
	(a)	Cooperation		84
	(b)	Further Assurances		84
	(c)	Litigation Support		84
	(d)	Run-Off		84
	(e)	Prorations		85
	(f)	Availability of Business Records		86
	(g)	Offers of Employment to Covered Employees		86
	(h)	Transfer Taxes		87
	(i)	GST		88
	(j)	Wage Reporting		89
	(k)	Acknowledgements		89
	(l)	Provisions Relating to Excluded Environmental Liabilities		89
	(m)	Assumed Employee Benefit Plans		90
	(n)	Removal of Certain Equipment		91
	(o)	Continuation of Coverage		91
	(p)	Bankruptcy Release		92
	(q)	Confidentiality		93
	(r)	Tronox Netherlands Tax Filing		93
	(s)	WARN Obligations		93
	(t)	Survey for Henderson Real Property		93
	(u)	Assistance with Comfort Letter		94

 

 

7.	CONDITIONS TO OBLIGATION TO CLOSING			94
	(a)	Conditions to Buyers’ Obligations		94
	(b)	Conditions to Sellers’ Obligations		95
	(c)	No Frustration of Closing Conditions		97
8.	TERMINATION			97
	(a)	Termination of Agreement		97
	(b)	Procedure Upon Termination		99
	(c)	Effect of Termination; Break-Up Fee		99
9.	MISCELLANEOUS			101
	(a)	Expenses		101
	(b)	Entire Agreement		102
	(c)	Incorporation of Annexes, Exhibits and Disclosed Materials		102
	(d)	Amendments and Waivers		102
	(e)	Succession and Assignment		102
	(f)	Notices		102
	(g)	Governing Law; Jurisdiction		104
	(h)	Consent to Service of Process		104
	(i)	Waivers of Jury Trial		104
	(j)	Specific Performance		105
	(k)	Severability		105
	(l)	No Third Party Beneficiaries		105
	(m)	No Survival of Representations, Warranties and Agreements		105
	(n)	Construction		105
	(o)	Computation of Time		106
	(p)	Mutual Drafting		106
	(q)	Disclosed Materials		106
	(r)	Headings; Table of Contents		106
	(s)	Counterparts; Facsimile and Email Signatures		107
	(t)	Time of Essence		107
	(u)	Guaranty		107

 

 

EXHIBITS, ANNEXES AND SCHEDULES

 

Exhibit A	-	Form of Bidding Procedures
Exhibit B	-	Form of Sale Order
Exhibit C	-	[Reserved]
Exhibit D	-	Copy of Deposit Escrow Agreement
Exhibit E	-	Forms of Bill of Sale
Exhibit F	-	Forms of Assignment and Assumption Agreement
Exhibit G	-	Form of Patent Assignment Agreement
Exhibit H	-	Form of Trademark Assignment Agreement
Exhibit I	-	Form of Copyright Assignment Agreement
Exhibit J	-	Tiwest Amount
Exhibit K	-	List of Required Third Party Consents
Exhibit L	-	Form of Special Warranty Deed
Exhibit M	-	Form of Net Working Capital Escrow Agreement
Exhibit N	-	Form of COBRA Escrow Agreement
Exhibit O	-	Form of Target Company APA
Exhibit P	-	Henderson Lease Term Sheet
Exhibit Q	-	Western Australia Transfer of Land Form
Exhibit R	-	Western Australia Transfer of Lease Form
Annex A	-	Excluded Intellectual Property
Annex B	-	Assumed Contracts
Annex C	-	Cure Amounts
Annex D	-	Select Excluded Assets
Annex E	-	Owned Real Property
Annex F	-	Products
Annex G	-	Net Working Capital Guidelines
Annex H	-	Assumed Employee Benefit Plans
Annex I	-	Excluded IT Systems
Annex J	-	Retained Intercompany Balances
Annex K	-	Tiwest and Henderson Adjustments to Target Working Capital Amount
Annex L	-	Acquired Henderson Intellectual Property

 

Disclosure Schedule

 

 

ASSET AND EQUITY PURCHASE AGREEMENT

 

This ASSET AND EQUITY PURCHASE AGREEMENT (this “ Agreement ”) is entered into as of August 28, 2009, by and among Tronox Incorporated, a Delaware corporation (“ Tronox Incorporated ”), Tronox LLC, a Delaware limited liability company (“ Tronox LLC ”), Tronox Pigments (Savannah) Inc., a Georgia corporation (“ Tronox Pigments ”), Tronox Worldwide LLC, a Delaware limited liability company (“ Tronox Worldwide ” and together with Tronox Incorporated, Tronox LLC and Tronox Pigments, the “ U.S. Sellers ,” and each individually, a “ U.S. Seller ”), Tronox Western Australia Pty Ltd (ACN 009 331 195), a Western Australia company (“ Tronox Australia ” and, together with U.S. Sellers, the “ Asset Sellers ” and, each individually, an “ Asset Seller ”), Tronox Pigments (Netherlands) B.V., a Dutch limited liability company (“ Tronox Netherlands ” and, together with Tronox Australia, the “ Non-U.S. Sellers ,” and, each individually, a “ Non-U.S. Seller ”; U.S. Sellers and Non-U.S. Sellers are referred to in this Agreement collectively as “ Sellers ,” and, each individually, a “ Seller ”), Huntsman Pigments LLC, a Delaware limited liability company (“ U.S. Buyer ”), and Huntsman Australia R&D Company Pty Ltd (ACN 181 080 113), an Australian company (“ Australia Buyer ”, and, together with U.S. Buyer, “ Buyers ”), and Huntsman Corporation, a Delaware corporation (“ Guarantor ”).  Sellers and Buyers are referred to collectively herein as the “ Parties .”  Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in Section 1 .

 

WHEREAS, Tronox Incorporated indirectly owns all of the outstanding equity interests of each of (i) Tronox Pigments (Holland) B.V., a Dutch private company with limited liability (“ Tronox Holland ”), (ii) Tronox Pigments Ltd., a Bahamian international business company (“ Tronox Pigments Bahama Islands ”), and (iii) Tronox Pigments (Singapore) Pte Ltd., a Singaporean private limited company (“ Tronox Singapore ” and, together with Tronox Holland and Tronox Pigments Bahama Islands,  “ Target Companies ,” and, each individually, a “ Target Company ”);

 

WHEREAS, Tronox Australia directly owns the Tiwest Joint Venture Interests;

 

WHEREAS, Sellers and the Target Companies engage, directly and through their respective Subsidiaries, (i) worldwide, in the business of developing, researching, processing, manufacturing, distributing, marketing and selling the Products (as defined below), and (ii) in Australia, in the business of mining of, and exploration for, raw materials required to produce the Products (such businesses, collectively, the “ Business ”);

 

WHEREAS, U.S. Sellers and certain of their respective Affiliates filed for relief under chapter 11 of title 11 of the United States Code Sections 101-1330 (the “ Bankruptcy Code ”) on January 12, 2009 (the “ Chapter 11 Cases ”), which cases are pending in the United States Bankruptcy Court for the Southern District of New York (the “ Bankruptcy Court ”);

 

WHEREAS, (i) the U.S. Sellers wish to sell to U.S. Buyer, and U.S. Buyer wishes to purchase from the U.S. Sellers, the Acquired Assets (other than the Acquired Australian Assets) as of the Closing, (ii) U.S. Buyer wishes to assume from the U.S. Sellers the Assumed Liabilities (other than the Assumed Tronox Australia Liabilities) as of the Closing, (iii) Tronox Australia wishes to sell to Australia Buyer, and Australia Buyer wishes to purchase from Tronox Australia,

 

 

the Acquired Australian Assets as of the Closing, (iv) Australia Buyer wishes to assume from Tronox Australia the Assumed Tronox Australia Liabilities as of the Closing, and (v) Non-U.S. Sellers, Tronox LLC and Tronox Worldwide, as applicable, wish to sell to U.S. Buyer, and U.S. Buyer wishes to purchase from Non-U.S. Sellers, Tronox LLC and Tronox Worldwide, as applicable, all of the Target Interests owned by Non-U.S. Sellers, Tronox LLC and Tronox Worldwide, as applicable, as of the Closing, in the case of clauses (i) through (v) inclusive, on the terms and subject to the conditions set forth herein and in accordance with sections 105, 363 and 365 of the Bankruptcy Code;

 

WHEREAS, it is the express intention of the Parties that Buyers and Guarantor will not in any way assume or become liable or otherwise responsible for any Excluded Liabilities (including any Excluded Environmental Liabilities), and Sellers acknowledge that Buyers and Guarantor would not enter into this Agreement nor seek to acquire the Acquired Assets but for the clear understanding that Buyers and Guarantor will not assume, or become liable or otherwise responsible for, any Excluded Liabilities; and

 

WHEREAS, each Buyer is an indirect wholly owned Subsidiary of Guarantor, and Guarantor wishes to irrevocably and unconditionally guarantee to Sellers the due and punctual payment of the Purchase Price and certain other payment obligations of Buyers hereunder on the terms and subject to the conditions set forth herein.

 

NOW, THEREFORE, in consideration of the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties and Guarantor, the Parties and Guarantor agree as follows:

 

1.                                        Definitions .  Except as otherwise set forth in this Agreement (or in any Schedule or Exhibit hereto), the following terms shall have the meanings ascribed to such terms in this Section 1 .

 

“ 2007 Financial Statements ” has the meaning set forth in Section 3(f)(iii) .

 

“ 2008 Preliminary Selected Financial Data ” has the meaning set forth in Section 3(f)(ii) .

 

“ Acceptable Confidentiality Agreement ” has the meaning set forth in Section 5(l) .

 

“ Accounts Receivable ” means (a) all trade accounts receivable and other rights to payment from customers of the Asset Sellers, (b) all other accounts receivable or notes receivable of the Asset Sellers, and (c) any security interest, claim, remedy or other right of the Asset Sellers related to any of the foregoing, in each case, arising out of the operation of the Acquired Business prior to the Closing.  For purposes of Section 3(f)(v) , Accounts Receivable shall also include such items set forth in preceding clauses (a) through (c) inclusive with respect to the Target Companies.

 

“ Acquired Assets ” means all of the Asset Sellers’ right, title and interest in, to and under all of Asset Sellers’ properties, assets, claims and rights of every nature, kind and description, tangible and intangible (including goodwill), whether real, personal or mixed, whether accrued, contingent or otherwise, existing as of the Closing, in each case, that are used or held for use in

 

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the operation of the Business, including the following existing as of the Closing:  (a) all Inventory of the Asset Sellers (including the Acquired Savannah Inventory); (b) all Furnishings and Equipment of the Asset Sellers; (c) all Records of the Asset Sellers used or held for use in the operation of the Business, provided that the Asset Sellers shall have the right to make (or, following the Closing, obtain from Buyers) copies of any of such Records that the Asset Sellers are required by applicable law to retain, or that Sellers determine are necessary or reasonably required to retain, including Tax Returns, taxpayer and other identification numbers, financial statements and corporate or other entity filings, in connection with (i) the wind-down of the estates of the U.S. Sellers and certain of their Affiliates and (ii) the Excluded Assets and Excluded Liabilities (but in no case shall any Asset Seller have a right to make copies or retain Records disclosing or embodying proprietary manufacturing or processing know-how or trade secrets included in the Acquired Intellectual Property); (d) all Acquired Intellectual Property; (e) all Owned Real Property and Third Party Leases, in each case, of the Asset Sellers; (f)(i) all Contracts to which Tronox Australia is a party (except for Contracts related to any Excluded Liability) and (ii) those Leases (and the related Leased Real Property) and those other Contracts, in each case, of the other Asset Sellers set forth on Annex B hereto (in the case of this clause (ii), as the same may be modified or supplemented after the date hereof in accordance with Section 5(j) ) (all Contracts contemplated by this clause (f), collectively, the “ Assumed Contracts ”); (g) all assets of the Asset Sellers related to or under an Assumed Employee Benefit Plan; (h) all of the Asset Sellers’ Accounts Receivable (including the Acquired Savannah Accounts Receivable); (i) all Deposits and Similar Amounts; (j) all Permits of the Asset Sellers (i) used or held for use in the ownership or operation of the Business or (ii) relating to any Acquired Asset, in the case of sub-clauses (i) and (ii) above, that are transferable in accordance with their terms or by operation of law, but excluding all Permits exclusively related to any Excluded Asset (all Permits contemplated as included by this clause (j), collectively, the “ Acquired Permits ”); (k) all of the rights of the Asset Sellers to the extent associated with any Assumed Liability; (l) all claims, causes of action, rights of recovery and rights of setoff of any kind (including rights to insurance proceeds and rights under and pursuant to all warranties, representations, indemnities and guarantees made by suppliers of products, materials or equipment, or components thereof, and rights under and pursuant to all indemnity arrangements with third parties) of the Asset Sellers to the extent relating to the Acquired Business or the Acquired Assets (but, for the avoidance of doubt, not to the extent relating exclusively to the Excluded Assets or Excluded Liabilities) pertaining to, arising out of and inuring to the benefit of any Asset Seller; (m) all Avoidance Claims of the Asset Sellers against the Target Companies, the Retained Employees and Tiwest; (n) the Acquired Savannah Equipment and the Acquired Soda Springs Assets; (o) the Acquired Cash; (p) all IT Systems of the Asset Sellers; (q) the Tiwest Joint Venture Interests, to the extent that such assets are not acquired by any Tiwest Joint Venture Participant or any other Person other than Sellers by exercise of such Person’s pre-emptive or other similar rights in accordance with the Tiwest Joint Venture Documents; (r) the Acquired Henderson Assets; (s) any Retained Intercompany Balances; and (t) the Pre-Funded Uncleared Disbursement Amounts.  Notwithstanding the foregoing, in no event shall the Acquired Assets include any Excluded Asset.

 

“ Acquired Australian Assets ” means all of the Acquired Assets of Tronox Australia.

 

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“ Acquired Business ” means the Business (including the Acquired Assets, the Target Companies and their respective Subsidiaries), but excluding the Excluded Assets, the Excluded Liabilities, the Excluded German Subsidiaries and the Excluded Danish Subsidiaries.

 

“ Acquired Business IP ” has the meaning set forth in Section 3(h)(i) .

 

“ Acquired Cash ” means, collectively, (a) any checks that relate to the Acquired Business that have been deposited in any bank account or lockboxes of any Asset Seller but have not yet cleared as of the Closing, (b) any checks that have been deposited into any bank account of a Target Company but have not yet cleared as of the Closing, (c) any petty cash located at any Target Company as of the Closing, and (d)(i) any Cash remaining in accounts of the U.S. Asset Sellers located outside of the United States of America and (ii) any Cash remaining in accounts of Tronox Australia, the Target Companies and, only to the extent of Tronox Australia’s interest, Tiwest, in each of subclauses (i) and (ii), as of the Closing.

 

“ Acquired Current Assets ” means the current assets of the Asset Sellers existing as of the Closing used or held for use in, or otherwise to the extent arising out of, the operation of the Acquired Business prior to the Closing, excluding, for the avoidance of doubt, any Excluded Assets, and limited to the sum of line items “Accounts Receivable (net of reserves for bad debt)”, “Inventories (net of reserves)” and “Deposits and Prepaids,” as determined in accordance with the Net Working Capital Guidelines; provided that in determining total Acquired Current Assets hereunder, all Intercompany accounts receivable and current and deferred income Taxes shall be disregarded.

 

“ Acquired Henderson Assets ” means all of the Asset Sellers’ right, title and interest in, to and under all Acquired Henderson Plant and Equipment.

 

“ Acquired Henderson Intellectual Property ” means all Acquired Intellectual Property set forth on Annex L .

 

“ Acquired Henderson Plant and Equipment ” means all of the equipment and machinery of the Asset Sellers that are used or held for use for the operation of the facility located at the U.S. Sellers’ Henderson, Nevada site.

 

“ Acquired Intellectual Property ” means all of the Asset Sellers’ right, title and interest in, to and under all Intellectual Property which is used or held for use in the Business, including all Intellectual Property set forth in Section 3(h)(i)  of the Disclosure Schedule and the Intellectual Property used or held for use in the operation of the U.S. Sellers’ Savannah, Georgia site, including for licensing to third parties by any Asset Seller.  Acquired Intellectual Property shall include: (a) all Intellectual Property relating to or arising from (i) the production of titanium dioxide; (ii) finishing technology used to treat, coat or modify titanium dioxide; (iii) the use of titanium dioxide in applications; (iv) the manufacture of co-products arising from the processing of titanium dioxide; and (v) the manufacture and sale of electrolytic manganese dioxide, sodium chlorate, boron trichloride, or elemental boron; and (b) all causes of action (either in law or equity) for all past, present, and future infringement and misappropriation of the foregoing rights, and the right to collect and retain all damages for such infringement and misappropriation;

 

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provided , however , the Acquired Intellectual Property does not include the Excluded Intellectual Property.

 

“ Acquired Permits ” has the meaning set forth in the definition of Acquired Assets.

 

“ Acquired Savannah Accounts Receivable ” means all Accounts Receivable resulting from all finished goods Inventory previously owned by Tronox Pigments that were produced at a facility of the Asset Sellers (other than Tronox Pigments) or the Target Companies.

 

“ Acquired Savannah Equipment ” means all of the Asset Sellers’ right, title and interest in, to and under all of the Asset Sellers’ installed and spare chlorinators, oxidizers and TiCl 4  condensation equipment and any directly connected equipment in which proprietary Intellectual Property is held or which U.S. Buyer reasonably considers following its access visit referred to in Section 6(n)(ii)  may comprise valuable Intellectual Property, in each case, located at the U.S. Sellers’ Savannah, Georgia site.

 

“ Acquired Savannah Inventory ” means all finished goods Inventory owned by Tronox Pigments that was produced at a facility of the Asset Sellers (other than Tronox Pigments) or the Target Companies.

 

“ Acquired Soda Springs Assets ” means all of the Asset Sellers’ right, title and interest in, to and under all of Asset Sellers’ assets (including the Acquired Soda Springs Plant and Equipment), claims and rights of every nature, kind and description, tangible and intangible (including goodwill), whether personal or mixed, whether accrued, contingent or otherwise, existing as of the Closing, in each case, that are used or held for use in the operation of the Business at the U.S. Sellers’ Soda Springs, Idaho site, other than Excluded Soda Springs Assets.

 

“ Acquired Soda Springs Plant and Equipment ” means all of the equipment and machinery of the Asset Sellers that are used or held for use for the operation of the facility located at the U.S. Sellers’ Soda Springs, Idaho site.

 

“ Acquired Tiwest Joint Venture Interests ” means all Tiwest Joint Venture Interests other than the Excluded Tiwest Joint Venture Interests.

 

“ Acquisition Transaction ” has the meaning set forth in Section 5(c)(v) .

 

“ Adjustment ” has the meaning ascribed to it in the GST Law.

 

“ Adjustment Determination Effective Time ” has the meaning set forth in Section 2(h)(iii) .

 

“ Adjustment Note ” has the meaning ascribed to it in the GST Law.

 

“ Affiliate ” when used with reference to another Person means any Person, directly or indirectly, through one or more intermediaries, Controlling, Controlled by, or under common Control with, such other Person.

 

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

 

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“ Antitrust Division ” has the meaning set forth in Section 5(b)(iv) .

 

“ Applicable Assumption Deadline ” has the meaning set forth in Section 5(j)(ii) .

 

“ Asset Sale Option ” has the meaning set forth in Section 5(p)(i) .

 

“ Asset Sellers ” has the meaning set forth in the preamble.

 

“ Assignment and Assumption Agreements ” has the meaning set forth in Section 2(g)(i)(B) .

 

“ Assumable Contract ” has the meaning set forth in Section 5(j)(i) .

 

“ Assumed Accounts Receivable Rebate Liabilities ” means all Liabilities of the Asset Sellers existing as of the Closing arising out of customer rebate and similar incentive programs of the Asset Sellers in connection with any Accounts Receivable outstanding as of the Closing.

 

“ Assumed Contract ” has the meaning set forth in the definition of Acquired Assets.

 

“ Assumed Current Liabilities ” means, without duplication, (a) accounts payable (other than contra-accounts related to uncleared disbursements recorded as accounts payable) under any Assumed Contract, (b) the Sellers PBGC Amount, if any, (c) the Assumed Accounts Receivable Rebate Liabilities, and (d) all other current Assumed Liabilities of the Asset Sellers, excluding any Buyer Environmental Liability, in each case, existing as of the Closing and as determined in accordance with the Net Working Capital Guidelines; provided that, in determining Assumed Current Liabilities hereunder, (i) all Intercompany accounts payable and current and deferred income Taxes, (ii) all Cure Amounts, (iii) all Transfer Taxes allocated to Buyers pursuant to Section 6(h) , (iv) the Assumed Sales Rebate Liabilities, and (v) the Assumed Vacation Liabilities shall be disregarded.  For the avoidance of doubt, all Assumed Sales Rebate Liabilities (and the components thereof) will be calculated in accordance with the Net Working Capital Guidelines.

 

“ Assumed Employee Benefit Plan ” means each Employee Benefit Plan assumed by a Buyer referenced in Section 6(m) .

 

“ Assumed Liabilities ” means, collectively:

 

(a)           the following Liabilities of the Asset Sellers to the extent arising out of or relating to the Business or the Acquired Assets from and after the Closing and that do not, except as specifically noted, arise out of or relate to the operation of the Business or the Acquired Assets on or prior to the Closing: (i) except with respect to Environmental Liabilities, all Liabilities of the Asset Sellers relating to or arising out of the ownership or operation of the Acquired Business or the Acquired Assets, including all Liabilities under the Assumed Contracts (including, with respect to Assumed Contracts, all executory Liabilities arising prior to the Closing) and the Acquired Permits, and all Liabilities for personal injury of customers and Retained Employees; (ii) all Liabilities for product returns or replacements or relating to or arising under any product warranties, claims of product liability, obligations to indemnify or similar claims, in each case, related to the Acquired Business or the Acquired Assets; and (iii) all Liabilities relating to

 

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payroll, vacation, sick leave, parental leave, workers’ compensation and unemployment benefits of the Retained Employees;

 

(b)           all Buyer Environmental Liabilities;

 

(c)           all Assumed Tronox Australia Liabilities;

 

(d)           (i) all Liabilities for Transfer Taxes that do not arise in the United States of America, and (ii) all other Taxes specifically identified and included in the computation of Tax Amount but only to the extent included in the determination of the Conclusive Net Working Capital Statement;

 

(e)           all Cure Amounts;

 

(f)            all Assumed Accounts Receivable Rebate Liabilities;

 

(g)           all Assumed Sales Rebate Liabilities;

 

(h)           all Liabilities relating to amounts required to be paid by Buyers hereunder;

 

(i)            all Liabilities arising under or in connection with each Assumed Employee Benefit Plan, including all Liabilities accrued prior to the Closing;

 

(j)            all Retained Intercompany Balances;

 

(k)           Assumed Vacation Liabilities;

 

(l)            accounts payable (other than contra-accounts related to uncleared disbursements recorded as accounts payable) under any Assumed Contract; and

 

(m)          the Sellers PBGC Amount, if any.

 

provided , however , that, notwithstanding the foregoing or anything contained in this Agreement to the contrary, the Assumed Liabilities shall not include any Excluded Liabilities.

 

“ Assumed Sales Rebate Liabilities ” means all Liabilities of the Asset Sellers and the Target Companies relating to the Acquired Business existing as of the Closing arising out of customer rebate and similar incentive programs of the Asset Sellers and the Target Companies in connection with sale transactions that have been paid in full as of the Closing.  For purposes of Section 1 and Section 2(h) , the amount of the Assumed Sales Rebate Liabilities shall be determined net of any vendor and other supplier rebates receivable by or otherwise due to the Asset Sellers as of the Closing in connection with purchase transactions under Contracts assumed or conveyed to Buyers that have been paid in full.

 

“ Assumed Tronox Australia Liabilities ” means all Liabilities of Tronox Australia, including Environmental Liabilities, relating to the Tiwest Joint Venture, Tiwest or the Tiwest Joint Venture Interests; provided , however , that the Assumed Tronox Australia Liabilities shall not include any Excluded Tronox Australia Liabilities.

 

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“ Assumed Vacation Liabilities ” has the meaning set forth in Section 6(g) .

 

“ Australia Buyer ” has the meaning set forth in the preamble.

 

“ Avoidance Claims ” shall mean any rights, claims, causes of action, avoiding powers, suits and proceedings to avoid a transfer of property or an obligation incurred by Sellers pursuant to any applicable section of the Bankruptcy Code, including sections 544, 545, 547, 548, 549, 550, 551, 553 and 724(a) of the Bankruptcy Code.

 

“ Bankruptcy Code ” has the meaning set forth in the recitals.

 

“ Bankruptcy Court ” has the meaning set forth in the recitals.

 

“ Bidding Incentives ” means, collectively, the Break-Up Fee and the Reimbursable Expenses.

 

“ Bidding Procedures ” means the bidding procedures approved by the Bankruptcy Court pursuant to the Bidding Procedures Order, substantially in the form of Exhibit A attached hereto.

 

“ Bidding Procedures Motion ” has the meaning set forth in Section 5(c)(i) .

 

“ Bidding Procedures Order ” means an order of the Bankruptcy Court approving the Bidding Procedures and the Bidding Incentives, substantially in the form attached hereto as Exhibit A .

 

“ Bills of Sale ” has the meaning set forth in Section 2(g)(i)(A) .

 

“ Bonding Requirements ” means standby letters of credit, guarantees, indemnity bonds and other credit support instruments issued by third parties on behalf of any Asset Seller or any of their respective Subsidiaries regarding the Acquired Business (other than any letters of credits, guarantees, indemnity bonds or other support instruments issued for workers’ compensation or any other insurance purposes).

 

“ Break-Up Fee ” has the meaning set forth in Section 8(c)(iii) .

 

“ Business ” has the meaning set forth in the recitals.

 

“ Business Day ” means any day other than a Saturday, a Sunday, July 24, or a day on which banks located in New York, New York shall be authorized or required by law to close; provided, however, that the Closing Date shall also not include any day on which banks located in Sydney and Perth, Australia, or Amsterdam, The Netherlands shall be authorized or required by law to close.

 

“ Buyer Environmental Liabilities ” means all Environmental Liabilities (a) to the extent (but only to the extent) relating to or arising out of facts or circumstances, caused or occurring from and after the Closing at the Owned Real Property, the JV Leased Real Property and any Leased Real Property leased pursuant to any Leases that are Assumed Contracts (including the Henderson Lease but excluding any Excluded Assets) or (b) to the extent (but only to the extent)

 

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relating to or arising out of the conduct of the Acquired Business from and after Closing or the acts or omissions of Buyers or their respective Representatives from and after the Closing.

 

“ Buyer Master Data Description ” has the meaning set forth in Section 5(m)(i)(D) .

 

“ Buyers ” has the meaning set forth in the preamble.

 

“ Carve-Out Financial Statements ” has the meaning set forth in Section 5(m)(i)(A) .

 

“ Cash ” means cash and cash equivalents as defined in accordance with GAAP.

 

“ Chapter 11 Cases ” has the meaning set forth in the recitals.

 

“ Closing ” has the meaning set forth in Section 2(f) .

 

“ Closing Date ” has the meaning set forth in Section 2(f) .

 

“ Coal Act ” means the United States Coal Industry Retiree Health Benefit Act of 1992.

 

“ Coal Act Liabilities ” means all Liabilities of the Asset Sellers and their respective Affiliates relating to the Coal Act, including any Liability (a) to provide retiree health benefits to eligible beneficiaries and their dependents pursuant to Section 9711 of the Coal Act, (b) to pay the annual prefunding premium and the monthly per beneficiary premium required pursuant to Sections 9712(d)(1)(A) and (B) of the Coal Act, (c) to provide security to the UMWA 1992 Benefit Plan pursuant to Section 9712(d)(1)(C) of the Coal Act and any other Liability related to the UMWA 1992 Benefit Plan, and (d) related to the UMWA Combined Benefit Fund.

 

“ COBRA ” means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the IRC, and any similar state law.

 

“ COBRA Escrow Agreement ” has the meaning set forth in Section 2(e)(iv) .

 

“ COBRA Escrow Amount ” has the meaning set forth in Section 2(e)(iv) .

 

“ Code ” means the Internal Revenue Code of 1986.

 

“ Colorado River Commission Contracts ” means the following six contracts:

 

(a)           that certain Contract No. P05-70 between Colorado River Commission and Tronox LLC f/k/a Kerr-McGee Chemical LLC (successor to Kerr-McGee Chemical Corporation) for the Sale of Electric Power from the Parker Davis Project, dated March 1, 1988, as amended by Amendment No. 1 to Contract P-05-70, dated June 8, 1994 and Renewal Contract No. P05-70R between the Colorado River Commission of Nevada and Tronox LLC for the Sale of Electric Power from the Parker-Davis Project effective as of May 1, 2006 (the “ Parker-Davis PPA ”);

 

(b)           Contract No. P05-50 between the Colorado River Commission of Nevada and Kerr-McGee Chemical Corporation for the Sale of Electric Power from the Boulder Canyon Project effective as of January 1, 1987, as amended by Contract No. P05-50A1

 

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between the Colorado River Commission of Nevada and Tronox LLC for the sale of Electric Power from the Boulder Canyon Project effective as of June 23, 1994 (the “ Boulder Canyon PPA ”);

 

(c)           Contract No. P05-65 between the Colorado River Commission of Nevada and Kerr-McGee Chemical, LLC for Transmission Service effective as of August 14, 2001 (the “ Transmission Service Contract ”);

 

(d)           Operational Agreement No. P20-55R3 by and among the Colorado River Commission of Nevada, American Pacific Corporation, Basic Water Company, Chemical Lime Company of America, Southern Nevada Water Authority, Titanium Metals Corporation and Tronox LLC effective as of October 1, 2006 (the “ Operational Agreement ”);

 

(e)           Agreement to Advance Funds for Parker-Davis Project Generation Facilities, Contract No. P20-77 among the Colorado River Commission and Certain Electric Service Contractors, including Kerr-McGee Chemical, LLC, effective as of October 1, 1998 (the “ P-D Generation Funding Agreement ”); and

 

(f)            Agreement to Share Costs of Implementation of Lower Colorado River Multi-Species Conservation Program, Contract No. P20-49 among the Colorado River Commission and Certain Electric Service Contractors, including Kerr-McGee Chemical, LLC, effective as of an unspecified CRC approval date (the “ Conservation Program Funding Agreement ”).

 

“ Competing Transaction ” means any transaction or series of related transactions involving: (a) any merger, amalgamation, share exchange, recapitalization, consolidation, liquidation or dissolution of Sellers, Target Companies and Tiwest; (b) any direct or indirect acquisition (by asset purchase, stock purchase, merger, or otherwise) by any Person or “group” (as defined under Section 13(d) of the Exchange Act) of all or substantially all of the Acquired Business or the Acquired Assets (including any capital stock of or ownership interest in any Target Companies), or any license, lease or long-term supply agreement having a similar economic effect; or (c) any direct or indirect acquisition of beneficial ownership (as defined under Section 13(d) of the Exchange Act) by any Person or “group” of all or substantially all of the voting stock of Sellers or any tender or exchange offer that if consummated would result in any Person or group beneficially owning all or substantially all of the voting stock of Sellers.  For the avoidance of doubt, the exercise of any rights to purchase the Tiwest Joint Venture Interests by the Tiwest Joint Venture Participants arising out of the Tiwest Joint Venture Documents do not and shall not constitute a Competing Transaction.

 

“ Competition/Investment Law ” has the meaning set forth in Section 3(c) .

 

“ Conclusive Net Working Capital Statement ” has the meaning set forth in Section 2(h)(v) .

 

“ Conclusive Rebate Amount ” has the meaning set forth in Section 2(h)(v) .

 

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“ Confidentiality Agreement ” means that certain letter agreement, dated as of February 26, 2009, by and between Tronox Incorporated and Huntsman International, LLC, an Affiliate of each Buyer, as supplemented by that certain Clean Team Confidentiality Agreement Addendum, dated as of July 13, 2009, and as amended by the certain Amendment dated as of the date hereof (as the same from time to time may be amended, supplemented or replaced), regarding the terms and conditions on which Tronox Incorporated would make available certain information.

 

“ Contract ” means any written or oral agreement, contract, lease (including the Leases), sublease, indenture, mortgage, instrument, guaranty, loan or credit agreement, note, bond, customer order, purchase order, sales order, franchise, dealer and distributorship agreement, supply agreement, development agreement, joint venture agreement, promotion agreement, license agreement, contribution agreement, partnership agreement or other arrangement, understanding, permission or commitment that, in each case, is legally binding.

 

“ Contract Indemnitees ” has the meaning set forth in Section 5(q)(ii) .

 

“ Control ” means, when used with reference to any Person, the power to direct the management or policies of such Person, directly or indirectly, by or through stock or other equity ownership, agency or otherwise, or pursuant to or in connection with any Contract; and the terms “ Controlling ” and “ Controlled ” shall have meanings correlative to the foregoing.

 

“ Controlled Group Liability ” means any and all Liabilities (a) under Title IV of ERISA, (b) under Section 302 of ERISA, (c) under Sections 412 and 4971 of the IRC, (d) resulting from a violation of the continuation coverage requirements of Section 601 et seq . of ERISA and Section 4980B of the IRC or the group health plan requirements of Sections 9801 et seq . of the IRC and Sections 701 et seq . of ERISA, and (e) under the Coal Act.

 

“ Cooljarloo JVA ” has the meaning set forth in the definition of Tiwest Joint Venture.

 

“ Covered Employee ” means any officer or employee of any Asset Seller or Target Company or Tiwest whose duties relate exclusively or primarily to the operation or management of the Business and who is employed by (a) a U.S. Seller at the Asset Sellers’ Hamilton, Mississippi site, Oklahoma City, Oklahoma sites, Henderson, Nevada site or Soda Springs, Idaho site, (b) Tronox Holland, (c) Tronox Australia, (d) Tronox Pigments Bahama Islands, (e) Tronox Singapore or (f) Tiwest, in each case, immediately prior to the Closing.

 

“ Cure Amount ” with respect to any Contract shall be the cash amounts required to cure any monetary defaults on the part of U.S. Sellers pursuant to section 365 of the Bankruptcy Code, as ultimately determined by the Bankruptcy Court.

 

“ Data Room ” means that certain “TRXTriton” virtual data room operated by Merrill Corporation and made available to Buyers and their Representatives.

 

“ Debt Financing ” has the meaning set forth in Section 5(a) .

 

“ Debtors ” has the meaning set forth in Section 5(r) .

 

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“ Decree ” means any judgment, decree, ruling, injunction, assessment, attachment, undertaking, award, charge, writ, code, regulation, rule, executive order, administrative order or any other restriction or any other order of any Governmental Entity.

 

“ Deposit ” has the meaning set forth in Section 2(e)(ii) .

 

“ Deposit Escrow Agreement ” has the meaning set forth in Section 2(e)(ii) .

 

“ Deposits and Similar Amounts ” means marketable securities, prepaid expenses, advance payments, surety accounts, deposits and other similar prepaid items, checks in transit and undeposited checks, in each case, to the extent exclusively or primarily related to any Assumed Contract.

 

“ Development Agreement ” has the meaning set forth in the definition of Tiwest Joint Venture.

 

“ Disclosed Materials ” has the meaning set forth in Section 3 .

 

“ Disclosure Schedule ” has the meaning set forth in Section 3 .

 

“ Disputed Item ” has the meaning set forth in Section 2(h)(v) .

 

“ Easements ” means those easements, servitudes, surface use rights and rights-of-way appurtenant to the Land and used in connection with the Acquired Business as it is currently being conducted, together with all pipelines, utility assets and other facilities situated thereon.

 

“ Employee Benefit Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) and any other benefit or compensation plan, program, agreement, arrangement or understanding of any kind in each case, maintained or contributed to by any Seller or Target Company, Tiwest or any of their respective Subsidiaries or in which any Seller or Target Company, Tiwest or any of their respective Subsidiaries participates or participated and that provides benefits to Covered Employees or with respect to which any Seller or Target Company, Tiwest or any of their respective Subsidiaries has or could have any Liabilities.

 

“ End Date ” has the meaning set forth in Section 8(a)(vii) .

 

“ Enterprise ” has the meaning ascribed to it in the GST Law.

 

“ Environmental, Health and Safety Requirements ” means all applicable domestic, foreign federal, provincial, state, supranational and local administrative, civil and criminal laws, Permits, rules having the force and effect of law, statutes, regulations, ordinances, codes, decrees, directives, legally binding judicial and administrative orders, and all common law (at law or in equity), in each case, concerning or relating to workplace health and safety or to pollution, preservation, remediation or the protection of the environment or natural resources, or the emission of greenhouse gases.

 

“ Environmental Liabilities ” means any direct, indirect, pending or threatened liability, claim, loss, damage, fine, penalty, cost, expense, deficiency, obligation or responsibility, whether

 

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known or unknown, arising under or relating to any Environmental, Health and Safety Requirements or any Release of Hazardous Materials, whether based on negligence, strict liability or otherwise, including costs and liabilities for investigation, removal, remediation, restoration, abatement, monitoring, personal injury, property damage, natural resource damages, court costs, and reasonable attorneys’ fees.

 

“ ERISA ” means the United States Employee Retirement Income Security Act of 1974.

 

“ Escrow Agent ” has the meaning set forth in Section 2(e)(ii) .

 

“ Estimated Net Working Capital Amount ” has the meaning set forth in Section 2(h)(iii) .

 

“ Estimated Net Working Capital Statement ” has the meaning set forth in Section 2(h)(iii) .

 

“ Estimated Rebate Amount ” has the meaning set forth in Section 2(h)(iii) .

 

“ Estimated Rebate Statement ” has the meaning set forth in Section 2(h)(iii) .

 

“ Exchange Act ” means the United States Securities Exchange Act of 1934.

 

“ Excluded Assets ” means, collectively, all of the Asset Sellers’ or any of their respective Affiliates’ right, title and interest in, to and under the following:  (a) all properties, assets and rights of every nature, kind and description, tangible and intangible (including goodwill), whether real, personal or mixed, whether accrued, contingent or otherwise, in each case, that are not used or held for use in the operation of the Business, (i) other than the Retained Intercompany Balances and (ii) except for such assets of the Target Companies, Tiwest or Tronox Australia; (b) all certificates of incorporation and other organizational documents, qualifications to conduct business as a foreign entity, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, stock certificates and other documents relating to the organization, maintenance and existence of any Asset Seller or any of its Affiliates (other than the Target Companies’ or Tiwest’s) as a corporation, limited liability company or other entity, other than those of the Target Companies or Tiwest; (c) all Records related to Taxes paid or payable by any Asset Seller or any of its Affiliates (other than the Target Companies or Tiwest) not used or held for use in the operation of the Business or the Acquired Assets, except for such Records of the Target Companies or Tiwest; (d) all Records related to any Asset Seller or any of their respective Subsidiaries, in each case, to the extent such Records are not used or held for use in the operation of the Acquired Business or the Acquired Assets, except for such Records of the Target Companies or Tiwest; (e) all assets with respect to any Taxes (other than the Transfer Taxes allocated to Buyers pursuant to Section 6(h) ) due and payable or accrued prior to the Closing Date and paid by any Asset Seller or any of its Affiliates (other than the Target Companies or Tiwest), whether or not relating to the Business; (f) all equity securities of any Asset Seller or any of its Subsidiaries, other than the equity interests of the Target Companies, equity interests held by the Target Companies or Tronox Australia (including the Tiwest Shares) or the Tiwest Joint Venture Interests; (g) all of the Asset Sellers’ and their respective Affiliates’ Cash (including, for the avoidance of doubt, the Purchase Price) other than the Deposits and Similar Amounts, the Acquired Cash and the Pre-Funded Uncleared Disbursement Amounts; (h) all

 

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Excluded Contracts; (i) all of the Asset Sellers’ and their respective Affiliates’ (other than the Target Companies’, Tiwest’s or Tronox Australia’s) insurance policies and binders and all claims, refunds and credits from insurance policies or binders due or to become due with respect to such policies or binders, except to the extent of any coverage under the policies that relates to any Acquired Assets or Assumed Liabilities; (j) all of the Asset Sellers’ and their respective Affiliates’ bank accounts and lock-boxes (other than collection accounts and lockboxes of the Asset Sellers relating to the Acquired Business and any and all bank accounts and lockboxes of the Target Companies or Tiwest); (k) all current assets of the Asset Sellers and any of their respective Affiliates, other than the Target Companies, Tiwest, Tronox Australia or their respective Subsidiaries, and all other instruments, prepaid assets and deposits, letters of credit proceeds, unbilled costs and fees, tax assets and accounts, in each case, to the extent not relating to the Acquired Business; (l) all rights (including rights of set-off and rights of recoupment), refunds, claims, counterclaims, demands, causes of action and rights to collect damages on behalf of the Asset Sellers or any of their respective Affiliates, other than the Target Companies, Tiwest, Tronox Australia or their respective Subsidiaries, against third parties, including all such claims relating to the creation and formation of Sellers as a spin-off from Kerr-McGee Corporation, including all claims against Anadarko Petroleum Corporation, Kerr-McGee Corporation and their respective past or present parents, Subsidiaries, Affiliates, predecessors, successors, directors, officers or representatives, including all such claims that have been, could have been or could be asserted in civil action Tronox Worldwide LLC & Tronox LLC v. Anadarko Petroleum Corporation, et al. (Case No. 09-01198), including all such items relating to Taxes, including all Avoidance Claims or causes of action arising under the Bankruptcy Code or applicable state law, including all rights and Avoidance Claims of U.S. Sellers arising under Chapter 5 of the Bankruptcy Code other than, in each case, those Avoidance Claims, rights (including rights of set-off and rights of recoupment), refunds, claims, counterclaims, demands, causes of action and rights to collect damages included in the Acquired Assets; (m) any loans or notes payable to any Asset Seller or any of its Affiliates (other than the Target Companies, Tiwest or Tronox Australia) from any employee of any Asset Seller or any of its Affiliates other than any Retained Employee, other than employee advances in the Ordinary Course of Business; (n) any (i) confidential personnel and medical Records pertaining to any Covered Employee to the extent the disclosure of such information is prohibited by applicable law and (ii) other Records that the Asset Sellers are required by law to retain, taxpayer and other identification numbers, financial statements and corporate or other entity filings; provided that Buyers shall have the right to make copies of any portions of such retained Records to the extent that such portions relate to the Business or any Acquired Asset; (o) any documents and agreements relating to the Chapter 11 Cases or to the sale or disposition of the Business, the Acquired Assets or any other asset of any Asset Seller or any of its Affiliates (other than the Target Companies or Tiwest); (p) the Intellectual Property set forth on Annex A hereto or any other Intellectual Property exclusively owned by the Excluded German Subsidiaries (such Intellectual Property, the “ Excluded Intellectual Property ”); (q) all Permits other than the Acquired Permits; (r) all insurance policies, indemnification or reimbursement rights and all other rights or remedies (including any such item relating to the United States Department of Energy), whether arising under contract, statute or common law, relating to the Henderson Legacy Contamination or any other Excluded Environmental Liabilities; (s) the sponsorship of and all assets maintained pursuant to or in connection with any Employee Benefit Plan that is not an Assumed Employee

 

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Benefit Plan; (t) the Excluded Savannah Assets; (u) the Excluded Soda Springs Assets; (v) the Excluded Henderson Assets; and (w) all assets set forth on Annex D attached hereto.

 

“ Excluded Contract ” means any Contract other than an Assumed Contract.

 

“ Excluded Cure Amount ” has the meaning set forth in Section 5(j)(v) .

 

“ Excluded Danish Subsidiaries ” means, collectively, Tronox Denmark International ApS (Denmark) and its Subsidiaries.

 

“ Excluded Environmental Liabilities ” means all Environmental Liabilities with respect to the past or current operations (including through the Closing), properties or facilities of the Business other than the Buyer Environmental Liabilities, including (a) any Environmental Liabilities relating to or arising from the Business or the Acquired Assets with respect to (i) any real property owned or operated by the Asset Sellers or any of their respective Affiliates or their respective predecessors in connection with the Business prior to the Closing other than the Owned Real Property or Leased Real Property; (ii) the offsite disposal or arrangement for offsite disposal of Hazardous Materials or wastes by the Asset Sellers or any of their respective Affiliates or their respective predecessors in connection with the Business (including any such materials, substances or wastes produced or generated for offsite disposal prior to the Closing in connection with operations upon the Owned Real Property or Leased Real Property); (iii) any fines, penalties or other sanctions imposed by a Governmental Entity in connection with any actual or alleged violation of or failure to comply with Environmental, Health and Safety Requirements by the Asset Sellers or their Affiliates, or otherwise with respect to the Acquired Assets prior to the Closing; or (b) any Liabilities (including Environmental Liabilities) arising from or relating to the Henderson Legacy Contamination; except, in each of the foregoing cases, to the extent, and only to the extent, that the facts or circumstances underlying such Environmental Liabilities are materially exacerbated by the conduct of the Acquired Business or the acts or omissions of Buyers or their respective Representatives after the Closing.

 

“ Excluded Henderson Assets ” means all of U.S. Sellers’ right, title and interest in and to all real property, and buildings located on such real property, owned or leased by the U.S. Sellers at the U.S. Sellers’ Henderson, Nevada site.

 

“ Excluded Henderson Liabilities ” means all Liabilities (including Environmental Liabilities other than the Buyer Environmental Liabilities) of the Asset Sellers which arise out of or relate to the Excluded Henderson Assets.

 

“ Excluded Liabilities ” means, subject to Section 6(g) , all Liabilities of the Asset Sellers and any of their respective Affiliates (other than the Target Companies and Tiwest) other than the Assumed Liabilities.  The Excluded Liabilities include the following:  (a) all Liabilities of the Asset Sellers for indebtedness for borrowed money (which, for avoidance of doubt, includes net finance leases and capital leases, except to the extent of any Cure Amounts under any Assumed Contracts) other than any Retained Intercompany Balances; (b) all Liabilities of the Asset Sellers under this Agreement or any other Related Agreement and the transactions contemplated hereby or thereby; (c) all Excluded Environmental Liabilities; (d) all Liabilities for Taxes arising from or related to periods (or portions thereof) on or prior to the Closing Date, other than the Transfer

 

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Taxes that do not arise out of the United States of America; (e) all Liabilities of the Asset Sellers arising out of or relating to the Excluded Assets; (f) all Liabilities of the Asset Sellers for tort claims arising from the operation of the Business prior to the Closing; (g) all Liabilities of the Asset Sellers in connection with the Covered Employees who do not become Retained Employees; (h) the Excluded Savannah Liabilities; (i) the Excluded Soda Springs Liabilities; (j) the Excluded Henderson Liabilities; (k) the Coal Act Liabilities; and (l) all Liabilities of the U.S. Sellers (and, if Buyers do not elect to purchase the equity interests of Tronox Netherlands pursuant to Section 5(s) , then also of Tronox Netherlands) for uncleared checks as of the Closing.

 

“ Excluded German Subsidiaries ” means, collectively, Tronox GmbH (Germany) and its Subsidiaries.

 

“ Excluded Intellectual Property ” has the meaning set forth in the definition of Excluded Assets.

 

“ Excluded IT Systems ” means the IT Systems as set forth on Annex I hereto.

 

“ Excluded Savannah Assets ” means all of U.S. Sellers’ right, title and interest in and to all properties, assets and rights of every nature, kind and description, tangible and intangible (including goodwill but not including Intellectual Property), whether real, personal or mixed, whether accrued, contingent or otherwise, including all Inventory produced at the U.S. Sellers’ Savannah, Georgia site, in each case, existing as of the Closing and that are used or held for use exclusively in the operation of the Business at the U.S. Sellers’ Savannah, Georgia site, other than the Acquired Savannah Accounts Receivable, the Acquired Savannah Equipment and the Acquired Savannah Inventory.

 

“ Excluded Savannah Liabilities ” means all Liabilities (including Environmental Liabilities) of U.S. Sellers which arise out of or relate to the operation of the Business at the Asset Sellers’ Savannah, Georgia site.

 

“ Excluded Soda Springs Assets ” means all of U.S. Sellers’ right, title and interest in and to all real property, and the buildings located on such real property, owned or leased by the U.S. Sellers at the U.S. Sellers’ Soda Springs, Idaho site.

 

“ Excluded Soda Springs Liabilities ” means all Liabilities (including Environmental Liabilities) of U.S. Sellers which arise out of or relate to the operation of the Business at the U.S. Sellers’ Soda Springs, Idaho site.

 

“ Excluded Tiwest Joint Venture Interests ” has the meaning set forth in Section 2(h)(i) .

 

“ Excluded Tronox Australia Liabilities ” means all Liabilities of Tronox Australia (a) for Transfer Taxes arising out of the transfer of Tronox Australia from Kerr-McGee Corporation in March 2006; (b) for Transfer Taxes arising out of any other corporate restructuring of Tronox Australia consummated prior to the Closing; (c) owed to any employee or contractor for any event arising on or prior to the Closing Date; (d) that are not related to the Tiwest Joint Venture, including Environmental Liabilities; and (e) for any income Taxes of Tronox Australia which accrued prior to the Closing.

 

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“ Exxaro ” means Exxaro Resources Limited, a public company incorporated under the laws of the Republic of South Africa.

 

“ Exxaro Joint Venture Interest ” means all of the Tiwest Joint Venture Participants’ rights, title and undivided interest in and under the joint venture arrangements referred to in the definition of Tiwest Joint Venture, being a fifty percent undivided interest.

 

“ Exxaro Sands ” has the meaning set forth in the definition of Tiwest Joint Venture.

 

“ FCPA ” means the United States Foreign Corrupt Practices Act of 1977.

 

“ Final Order ” means any order of the Bankruptcy Court or any other court of competent jurisdiction after all opportunities for rehearing, reargument, petition for certiorari and appeal are exhausted or expired and any requests for rehearing have been denied, and that has not been stayed, enjoined, set aside, annulled, reversed, remanded or superseded, with respect to which any required waiting period has expired, and to which all conditions to effectiveness prescribed therein or otherwise by law or order have been satisfied.

 

“ Financial Statements ” means the consolidated balance sheets, statements of operations and statements of cash flows of Tronox Incorporated and consolidated Subsidiaries included in the Tronox Filed SEC Documents.

 

“ Foreign Plan ” means an employee benefit plan, program or arrangement maintained by Tronox Australia, the Target Companies or Tiwest primarily for the benefit of employees located outside the United States of America; provided that Foreign Plan shall not include any employee benefit plan or arrangement required to be maintained or contributed to pursuant to applicable law.

 

“ FTC ” has the meaning set forth in Section 5(b)(iv) .

 

“ Fund ” means any complying superannuation fund in Australia to which Tronox Australia or Tiwest makes superannuation contributions for the benefit of their respective employees.

 

“ Furnishings and Equipment ” means tangible personal property of any kind (other than Inventory and Intellectual Property) and wherever located, including machinery, equipment, computers, furniture, automobiles, trucks, railcars, tractors and trailers, in each case, that is used or held for use in the operation of the Business.

 

“ GAAP ” means generally accepted accounting principles in the United States of America.

 

“ Governmental Entity ” means any United States or non-United States federal, state, national, supranational, regional or local governmental or regulatory authority, agency, commission, court, body or other governmental entity.

 

“ GST ” has the meaning ascribed to it in the GST Law.

 

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“ GST Group ” has the meaning ascribed to it in the GST Law.

 

“ GST Law ” means the Australian A New Tax System (Goods and Services Tax) Act of 1999.

 

“ Guarantied Obligations ” has the meaning set forth in Section 9(u) .

 

“ Guarantor ” has the meaning set forth in the preamble.

 

“ Hazardous Materials ” means any pollutant, contaminant, solid waste, petroleum or petroleum product, dangerous or toxic substance, hazardous or extremely hazardous substance or chemical, or otherwise hazardous material or waste regulated under applicable Environmental, Health and Safety Requirements.

 

“ Henderson Amount ” means an amount equal to $32,500,000.

 

“ Henderson Lease Agreement ” means a lease agreement reflecting the terms and conditions set forth in Exhibit P and otherwise reasonably acceptable to U.S. Sellers and U.S. Buyer.

 

“ Henderson Legacy Contamination ” means the presence or Release of Hazardous Materials at or emanating from the Owned Real Property, Leased Real Property or other real property currently or previously owned or operated by any Seller or their respective corporate predecessors located in Henderson, Nevada, and in existence as of the Closing Date, including all soil and groundwater contamination (a) as documented in the documents set forth on the Henderson Environmental Documentation Schedule, (b) resulting from any leaching, seeping, migration or other expansion of any such contamination after the Closing except for such leaching, seeping, or migration arising from the gross negligence or willful misconduct of the U.S. Buyer or its Representatives after the Closing, and (c) discovered after the Closing but attributable to or resulting from operations conducted at the Henderson site prior to the Closing; except that, for avoidance of doubt, Henderson Legacy Contamination shall not include any conditions of soil or groundwater contamination to the extent caused by, materially exacerbated by or directly arising from the actions of the Acquired Business or either Buyer or any of their respective Representatives after the Closing.

 

“ HSR Act ” has the meaning set forth in Section 3(c) .

 

“ Initial Purchase Price ” has the meaning set forth in Section 2(e)(i) .

 

“ Input Tax Credits ” has the meaning ascribed to it in the GST Law.

 

“ Insurance Policies ” has the meaning set forth in Section 3(v) .

 

“ Intellectual Property ” means any and all of the following in any jurisdiction throughout the world: (a) patents and patent applications, together with all reissues, continuations, continuations-in-part, divisionals, extensions and reexaminations in connection therewith and utility models; (b) trademarks, service marks, trade dress, logos, slogans, trade names and Internet domain names and all applications, registrations and renewals in connection therewith,

 

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and all goodwill associated with any of the foregoing; (c) copyrights, database rights and all applications, registrations and renewals in connection therewith; (d) all moral or similar rights, (e) trade secrets and confidential or proprietary information, including confidential or proprietary processes, compositions, formulas, customer information, operational data, processing quality control procedures, research and development studies, engineering information, pricing information,  and other know-how, whether or not patentable or capable of being registered; and (f) all computer software (including object code and source code) and databases.

 

“ Intellectual Property Assignments ” has the meaning set forth in Section 2(g)(i)(C) .

 

“ Intercompany ” means, with respect to accounts receivable and accounts payable of any Seller or Target Company, any accounts receivable or accounts payable, as applicable, reflecting the result of transactions between any Seller or Target Company or any Affiliate of any Seller or Target Company (other than Tiwest and the Tiwest Joint Venture), on the one hand, and any other Seller or Target Company or any other Affiliate of any Seller or Target Company, on the other hand.

 

“ Interim Financial Statements ” has the meaning set forth in Section 3(f)(iv) .

 

“ Inventory ” means all inventories of any kind or nature, whether or not prepaid, and wherever located, held or owned (including inventory to be sold on consignment or in transit), including fuels, raw materials and supplies, consumables manufactured, spare and purchased parts, goods and work in process, semi-finished and finished goods, goods for release, stores, loose tools, spare parts and fittings and packaging materials, catalysts (whether in service, in storage or spent) and other similar items, in each case, that are used or held for use in the operation of the Acquired Business.

 

“ IRC ” means the United States Internal Revenue Code of 1986.

 

“ IT Clean Team ” means the IT Clean Team as defined in the Confidentiality Agreement.

 

“ IT Systems ” means (a) hardware, (b) software, (c) networks infrastructure, and (d) all other information technology (including any such technology embedded, contained, or used in connection with any plant, machinery and equipment), in each of clauses (a) through (d), used or held for use in the operation of the Acquired Business, other than the Excluded IT Systems.

 

“ Jurien Exploration JVA ” has the meaning set forth in the definition of Tiwest Joint Venture.

 

“ JV Leased Real Property ” means any Lease or Third Party Lease relating to the Tiwest Joint Venture to which only Tronox Australia and the Tiwest Joint Venture Participant and no other Seller or Target Company is party.

 

“ JV Owned Real Property ” means any of the Owned Real Property relating to the Tiwest Joint Venture which is owned only by Tronox Australia and the Tiwest Joint Venture Participant and no other Seller or Target Company.

 

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“ JV Real Property ” means, collectively, the JV Owned Real Property and the JV Leased Real Property.

 

“ Knowledge ” of a Person (and other words of similar import) means the actual knowledge after reasonable inquiry of, (a)(i) with respect to Sellers, Dennis Wanlass, Michael Foster, John Hatmaker, Nik Pottala, John Romano, David Marshall or Gary Barton, (ii) with respect to each site operated by any Seller or Target Company, the plant or operations manager of such site if such Person is an employee of any Seller or Target Company, provided that, in the case of this clause (ii), such Person’s knowledge after reasonable inquiry shall be limited to the conduct of business and operations at such site, (iii) with respect solely to Sellers’ and the Target Companies’ IT Systems, Nik Pottala, and (iv) with respect to Tiwest, the Tiwest Joint Venture, the Tiwest Joint Venture Participants and Tronox Australia, each of the individuals listed in subclause (i) above, Robert Kirton or William Snider, and (b) with respect to Buyers, Peter Huntsman, Kimo Esplin, Sam Scruggs, Simon Turner or Sean Douglas.

 

“ Land ” means all of the real property owned (including owned jointly or as tenants in common) by any Seller or Target Company which is used or held for use in connection with the operation of the Business, including the real property described on Annex E hereto, but excluding the Excluded Henderson Assets, the Excluded Savannah Assets and the Excluded Soda Springs Assets.

 

“ Leased Real Property ” means all of the land, buildings, structures, improvements, fixtures or other real property interests in which any Seller, Target Company or Tiwest holds an interest (including held jointly) pursuant to the Leases.

 

“ Leases ” means all of the leases, subleases, licenses, sublicenses, concessions and other Contracts, including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, pursuant to which any Seller, Target Company or Tiwest holds any interest in real property that is used or held for use in connection with the operation of the Business.

 

“ Liability ” means any liability, indebtedness, guaranty, claim, loss, damage, deficiency, assessment, responsibility or obligation of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, whether due or to become due, whether determined or determinable, whether choate or inchoate, whether secured or unsecured, whether matured or not yet matured).

 

“ Lien ” means any mortgage, deed of trust, hypothecation, contractual restriction, pledge, lien, encumbrance, interest, charge, security interest, put, call, other option, right of first refusal, right of first offer, servitude, right of way, easement, lease, license, tenancy, occupancy, covenant, condition, restriction, royalty, conditional sale or installment contract, finance lease involve substantially the same effect, security agreement or other encumbrance or restriction on the use, transfer or ownership of any property of any type (including real property, tangible property and intangible property, including Intellectual Property).  For the avoidance of doubt, the definition of Lien shall not be deemed to include the grant of any license by any Seller or Target Company of Intellectual Property.

 

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“ Litigation ” means any dispute, action, cause of action, suit, claim, investigation, mediation, audit, demand, hearing or proceeding, whether civil, criminal, administrative or arbitral, whether at law or in equity and whether before any Governmental Entity or arbitrator.

 

“ LPC ” has the meaning set forth in Section 5(b)(vi) .

 

“ LPC JV Agreement ” means that certain Joint Venture Agreement, dated as of October 18, 1993, by and between Tioxide Americas Inc. and Kronos Louisiana, Inc.

 

“ Material Adverse Effect ” means, when used with respect to a Person or the Business, any state of facts, change, event, effect or occurrence (when taken together with all other states of fact, changes, events, effects or occurrences), that is or could reasonably be expected to be (a) materially adverse to the financial condition, results of operations, properties, assets or liabilities of the Person and its Subsidiaries (taken as a whole) or the Business or the Acquired Assets, as appropriate; provided , however , that no state of facts, change, event, effect or occurrence arising or related to any of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been a “Material Adverse Effect” (unless in the case of the following clauses (i), (ii), (iii) and (iv), such state of facts, change, event, effect or occurrence disproportionately affects in any material respect such Person or the Acquired Business as compared to other Persons or businesses in the industry in which the Acquired Business operates): (i) national or international business, economic or political conditions, including the engagement by the United States of America, The Netherlands or Australia in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States of America, The Netherlands or Australia or any of their respective territories, possessions or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States of America, The Netherlands or Australia; (ii) financial, banking or securities markets (including any disruption thereof or any decline in the price of securities generally or any market or index); (iii) increases in energy, electricity, natural gas, oil, steel, aluminum or other raw materials or operating costs; (iv) changes in GAAP or law; (v) the taking of any action required by this Agreement or any other Related Agreement; (vi) changes as a result of the negotiation, announcement, pendency or performance of this Agreement or any other Related Agreement, including by reason of the identity of either Buyer or Guarantor or any communication by either Buyer, Guarantor or any of their respective Affiliates of their plans or intentions regarding the operation of the Acquired Business; or (vii) in the case of Sellers, the Target Companies or the Acquired Business, (A) the failure to meet or exceed any projection or forecast (it being understood, however, that the underlying circumstances giving rise to such failure may be taken into account unless otherwise excluded in this definition) or (B) changes in the business or operations of Sellers or any of their respective Affiliates (including any Target Company) authorized by the Bankruptcy Court prior to the date hereof arising as a result of or in connection with U.S. Sellers’ and certain of their respective Affiliates’ status as debtors under Chapter 11 of the Bankruptcy Code, or (b) materially adverse to the ability of such Person to consummate the transactions contemplated by this Agreement or other Related Agreements on a timely basis.

 

“ Material Contract ” or “ Material Contracts ” has the meaning set forth in Section 3(g)(i) .

 

“ NDEP ” has the meaning set forth in Section 6(u) .

 

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“ Net Working Capital ” means (i) the Acquired Current Assets minus the Assumed Current Liabilities, each calculated in accordance with the Net Working Capital Guidelines, plus (ii) the Target Companies’ Net Working Capital minus the Tax Amount; provided , however , that if (A) a Tiwest Joint Venture Participant or any other Person acquires any or all of the Excluded Tiwest Joint Venture Interests and/or (B) Buyers exercise their right to not purchase the Acquired Henderson Assets and the Acquired Henderson Intellectual Property pursuant to Section 2(h)(ii) , then Net Working Capital shall be adjusted pursuant to the guidelines set forth on Annex K .

 

“ Net Working Capital Escrow Agreement ” has the meaning set forth in Section 2(e)(iii) .

 

“ Net Working Capital Escrow Amount ” has the meaning set forth in Section 2(e)(iii) .

 

“ Net Working Capital Guidelines ” means the guidelines attached hereto as Annex G .

 

“ Neutral Arbitrator ” has the meaning set forth in Section 2(h)(v) .

 

“ Non-Retiree Amount ” has the meaning set forth in Section 2(e)(iv) .

 

“ Non-Solicitation Period ” has the meaning set forth in Section 5(c)(v) .

 

“ Non-U.S. Seller ” or “ Non-U.S. Sellers ” has the meaning set forth in the preamble.

 

“ Objecting Counterparty ” has the meaning set forth in Section 5(j)(iv) .

 

“ Ordinary Course of Business ” means the ordinary course of business consistent with past custom and practice of Sellers, the Target Companies or the Tiwest Joint Venture, including, for the avoidance of doubt, the custom and practice of Sellers, the Target Companies and the Tiwest Joint Venture prior to and following the commencement of the Chapter 11 Cases.

 

“ Owned Real Property ” means the Land, together with all buildings, structures, improvements and fixtures located thereon, and all Easements and other rights and interests appurtenant thereto.

 

“ Party ” has the meaning set forth in the preamble.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation.

 

“ PBGC Release ” has the meaning set forth in Section 5(r).

 

“ Pension Plans ” has the meaning set forth in Section 5(r) .

 

“ Permit ” means any franchise, approval, permit, license, order, registration, certificate, variance, consent, authorization, exemption, emission allowance or similar right issued, granted, given or otherwise obtained from or by any Governmental Entity, under the authority thereof or pursuant to any applicable law.

 

“ Permitted Liens ” means (a) Liens for Taxes not yet delinquent or which are being contested in good faith by appropriate proceedings for which adequate reserves specifically

 

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identified with respect to such contested Taxes have been established in accordance with GAAP; (b) with respect to any Acquired Asset, the terms and conditions of the lease or license applicable thereto to the extent constituting an Assumed Contract except for any such terms or conditions that purport to limit, restrict or condition the ability to assign any such Assumed Contract to either Buyer or that purport to give rise to any default, acceleration, termination or other rights to any Person that is a party to such Assumed Contract as a result of the Closing and the consummation of the transactions contemplated by this Agreement; (c) with respect to the Target Interests and the Acquired Tiwest Joint Venture Interests, (i) mechanics’, materialmen’s, workmen’s, laborers’, repairmen’s, warehousemen’s, carrier’s, contractors’ or other similar Liens in the Ordinary Course of Business, and (ii) purchase money security interests arising in the Ordinary Course of Business; (d) with respect to the Target Interests and the Acquired Tiwest Joint Venture Interests, (i) Liens as may be created pursuant to this Agreement, (ii) Liens created by either Buyer or any of their respective Affiliates, (iii) Liens as may be set forth in or granted pursuant to, (A) in the case of any Target Company, the certificate of incorporation, by laws or other similar governing documents of such Target Company, or (B) in the case of any Tiwest Joint Venture Interest, Liens created under the Tiwest Joint Venture Documents (including, for the avoidance of doubt, any cross charges over the Tiwest Joint Venture Interests and any Liens that Exxaro Sands or any of its Subsidiaries or that Tronox Australia may have, in each case, with respect to the accounts receivable of Tronox Pigments Bahama Islands) and the Exxaro Joint Venture Interest, and (iv) any restrictions on sales of securities under applicable securities laws; (e) with respect to real property, zoning, building codes and other land use laws regulating the use or occupancy of such real property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such real property which are not violated by (i) the current use or occupancy of such real property or (ii) the operation of the Acquired Business, except where any such violation would not reasonably be expected to individually or in the aggregate materially impair the use, occupancy or operation of the affected property or the conduct of the Acquired Business thereon as it is currently being conducted; (f) easements, covenants, conditions, restrictions and other similar matters of record affecting title to real property that do not or would not materially impair the use or occupancy of such real property in the operation of the Acquired Business taken as a whole, and other encroachments and title and survey defects that do not or would not materially impair the use or occupancy of such real property in the operation of the Business taken as a whole; and (g) matters that are disclosed on an accurate survey of the real property provided by Sellers to Buyer before the date hereof.

 

“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or any other entity, including any Governmental Entity or any group of any of the foregoing.

 

“ Post-Closing Net Working Capital Statement ” has the meaning set forth in Section 2(h)(iv) .

 

“ Post-Closing Rebate Statement ” has the meaning set forth in Section 2(h)(iv) .

 

“ Potential Purchaser ” has the meaning set forth in Section 5(b)(vi) .

 

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“ Pre-Funded Uncleared Disbursement Amounts ” means Cash sufficient to cover all uncleared disbursements of the Target Companies and Tronox Australia outstanding as of the Closing.

 

“ Processing JVA ” has the meaning set forth in the definition of Tiwest Joint Venture.

 

“ Products ” means the products developed, researched, manufactured (including mining and exploring for raw materials for manufacture), distributed, marketed or sold by the Business, including those set forth on Annex F hereto.

 

“ Purchase Price ” has the meaning set forth in Section 2(e)(i) .

 

“ REACH ” has the meaning set forth in Section 3(u)(iii) .

 

“ Real Property ” means, collectively, the Owned Real Property, the Easements and the Leased Real Property.

 

“ Rebate Amount ” has the meaning set forth in Section 2(h)(iv) .

 

“ Recipient ” has the meaning set forth in Section 6(i)(v) .

 

“ Records ” means, collectively, the books, records, ledgers, files, invoices, documents, work papers, correspondence, lists (including customer lists and supplier lists), all tangible and digital or electronic copies of technology, designs, formulae, software, copies of software, data bases, algorithms, procedures, schedules, methods, discoveries, processes, techniques, ideas, know-how, research and development, technical data, tools, materials, specifications, information technology infrastructure, inventions (whether patentable or unpatentable and whether or not reduced to practice) apparatuses, creations, improvements, works of authorship in any media, confidential, proprietary or non-public information, and other similar materials, and all recordings, graphs, drawings, reports, analyses and other writings, and other tangible embodiments of the foregoing in any form whether or not listed herein, and all related technology, plans, drawings, designs, specifications, product plans, creative materials, advertising and promotional materials, marketing plans, studies, reports, data and other printed materials, including all engineering reports and studies, environmental reports and studies, surveys, engineering, construction and design schematics, plans and drawings, site plans, maps, blueprints, title reports, title abstracts, title commitments and title policies (including copies of documents relating to exceptions contained therein), zoning/use restriction rulings or certifications, appraisals, bills, invoices or receipts relating to any Taxes, all accounting, Tax records, Tax Returns and vesting deeds relating to the Real Property in Sellers’ possession or under Sellers’ reasonable control.

 

“ Reimbursable Expenses ” means the reasonable, documented out-of-pocket fees and expenses incurred by Buyers and any their respective Affiliates (including, with respect to Buyers, the fees and expenses incurred by MatlinPatterson Global Opportunities Partners III L.P. and its Affiliates up to and including July 2009) prior to termination of this Agreement in connection with this Agreement, the Related Agreements, the Bidding Procedures, the Sale Order and the transactions contemplated hereby and thereby, including the reasonable fees and expenses of legal counsel, financial advisors, consultants and any other advisors that either

 

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Buyer engages in such Buyer’s reasonable discretion; provided that the Reimbursable Expenses shall not exceed $3,000,000 in the aggregate.

 

“ Related Agreements ” means this Agreement, the Bills of Sale, the Assignment and Assumption Agreements, the Deposit Escrow Agreement, the Net Working Capital Escrow Agreement, the COBRA Escrow Agreement, the Patent Assignment Agreement, the Trademark Assignment Agreement, the Copyright Assignment Agreement, the Services Agreement, the Target Company APA, the Henderson Lease Agreement, and all other Contracts, schedules, certificates or other documents being delivered pursuant to or in connection with this Agreement.

 

“ Release ” means any discharge, emission, spilling, leaking, pumping, pouring, injecting, dumping, burying, leaching, migrating, abandoning, discarding or disposing into or through the environment of any Hazardous Materials including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Materials.

 

“ Released Claims ” has the meaning set forth in Section 6(p) .

 

“ Released Matters ” has the meaning set forth in Section 5(r) .

 

“ Released Parties ” has the meaning set forth in Section 6(p) .

 

“ Releasing Parties ” has the meaning set forth in Section 6(p) .

 

“ Remedial Action ” has the meaning set forth in Section 6(l)(ii) .

 

“ Representative ” of a Person means such Person’s Controlled Affiliates and the officers, directors, managers, employees, advisors, representatives (including legal counsel, financial advisors and accountants) and agents of such Person or its Controlled Affiliates.

 

“ Representative Member ” has the meaning ascribed to it in the GST Law.

 

“ Resolution Period ” has the meaning set forth in Section 2(h)(v) .

 

“ Restructuring Transaction ” means (a) a recapitalization transaction involving, in whole or in part, Sellers and their existing security holders or creditors, or (b) a transaction or series of transactions, including by way of a plan of reorganization or plan of arrangement or compromise, in connection with a liquidation or reorganization or other continuation of the Business relating to all or any material portion of the Acquired Assets.

 

“ Retained Employees ” has the meaning set forth in Section 6(g) .

 

“ Retained Intercompany Balances ” means (i) accounts receivable and accounts payable of any Target Company’s Intercompany transactions related to post-petition sale of pigment or allocated services, to the extent such amounts are not in excess of customary month-end balances, (ii) accounts receivable and accounts payable of any of Sellers’ Intercompany transactions arising to or from Sellers’ Hamilton, Mississippi site related to the post-petition sale of pigment to Tronox Pigments, to the extent such amounts are not in excess of customary month-end balances, and (iii) pre-petition Intercompany advances or notes as set forth on Annex J ,

 

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as such Annex may be updated jointly by the Parties, each acting reasonably and in good faith, from and after the date hereof until twenty days prior to the Closing Date.

 

“ Retiree COBRA Amount ” has the meaning set forth in Section 2(e)(iv) .

 

“ Sale Motion ” has the meaning set forth in Section 5(c)(i) .

 

“ Sale Order ” means an order of the Bankruptcy Court entered in the Chapter 11 Cases in substantially the form of Exhibit B attached hereto.

 

“ Sales Proceeds ” means an amount equal to $415,000,000.

 

“ SEC ” means the United States Securities and Exchange Commission.

 

“ SEC Disclosures ” has the meaning set forth in Section 3 .

 

“ Securities Act ” means the United States Securities Act of 1933.

 

“ Seller ” or “ Sellers ” has the meaning set forth in the preamble.

 

“ Seller Master Data ” means relevant and required information, data and documentation used in Sellers’ order-to-cash process and systems and that exists in Sellers’ information technology systems or is otherwise within Sellers’ reasonable control.

 

“ Seller Retained Employees ” has the meaning set forth in Section 5(v) .

 

“ Sellers PBGC Amount ” has the meaning set forth in Section 5(r) .

 

“ Sellers’ Accounts ” has the meaning set forth in Section 2(g)(ii)(J) .

 

“ Services Agreement ” means a Services Agreement to be entered into by and between Tronox Incorporated and U.S. Buyer, to be dated as of the Closing Date, pursuant to which U.S. Buyer will provide certain post-Closing services to U.S. Sellers’ and certain of their respective Affiliates’ estates as more particularly described therein, in form and substance reasonably acceptable to each of Tronox Incorporated and U.S. Buyer.

 

“ Straddle Period ” has the meaning set forth in Section 6(e)(i) .

 

“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof and for this purpose, a Person or Persons owns a majority ownership interest in such a business

 

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entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be or control any managing director or general partner of such business entity (other than a corporation).  The term “Subsidiary” shall include all Subsidiaries of such Subsidiary.

 

“ Supplier ” has the meaning set forth in Section 6(i)(v) .

 

“ Target Companies ” has the meaning set forth in the recitals.

 

“ Target Companies’ Assets ” has the meaning set forth in Section 5(p)(i) .

 

“ Target Companies’ Net Working Capital ” means, as of a particular date, (a) the aggregate amount of the current assets of the Target Companies minus (b) the aggregate amount of the current liabilities of the Target Companies, in each case, as determined in accordance with the Net Working Capital Guidelines.

 

“ Target Company APA ” has the meaning set forth in Section 5(p)(i).

 

“ Target Interests ” means all of the issued and outstanding equity interests of the Target Companies.

 

“ Target Working Capital Amount ” means an amount equal to $304,565,000, as such amount may be adjusted pursuant to Footnote 7 of the Target Working Capital Schedule attached to the Net Working Capital Guidelines; provided , however , that if (i) a Tiwest Joint Venture Participant or any other Person acquires any or all of the Excluded Tiwest Joint Venture Interests and/or (ii) Buyers exercise their right to not purchase the Acquired Henderson Assets and the Acquired Henderson Intellectual Property pursuant to Section 2(h)(ii) , then the Target Working Capital Amount shall be reduced pursuant to Annex K .

 

“ Tax ” or “ Taxes ” means (a) all United States federal, state or local or non-United States income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Section 59A of the IRC), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, ad valorem, escheat, sales, use, transfer, registration, value added, GST, alternative or add-on minimum, estimated or other tax of any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, including any interest, penalty or addition thereto, whether or not disputed, and (b) Liability for items within clause (a) of any other Person by Contract, operation of law (including Treasury Regulations Section 1.1502-6) or otherwise.

 

“ Tax Amount ” means all Taxes (a) allocated to Sellers under Section 6(h)  of this Agreement, (b) properly accrued and unpaid with respect to any Tax period or portion thereof ending prior to the Closing Date for any Target Company, and (c) prorated to Sellers under Section 6(e)(i)  of this Agreement.

 

“ Taxing Authority ” means, with respect to any Tax, a Governmental Entity that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such entity,

 

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including, without limitation, any Governmental Entity that imposes, or is charged with collecting, Social Security or similar charges or premiums.

 

“ Tax Invoice ” has the meaning ascribed to it in the GST Law.

 

“ Tax Return ” means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

“ Taxable Supply ” has the meaning ascribed to it in the GST Law, excluding section 84-5 of the GST Law.

 

“ Third Party Beneficiaries ” has the meaning set forth in Section 5(r) .

 

“ Third Party Leases ” means all of the leases, subleases, licenses, sublicenses, concessions and other Contracts, including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, pursuant to which any Seller, Target Company or Tiwest grants a third party the right to use or occupy all or any portion of any Owned Real Property.

 

“ Tiwest ” means Tiwest Pty Ltd, ACN 009 343 364, a Western Australia company.

 

“ Tiwest Amount ” means the amounts with respect to the Tiwest Joint Venture Interests under each Tiwest Joint Venture Document, as set forth on Exhibit J .

 

“ Tiwest Joint Venture ” means the joint venture arrangement governed by (a) that certain Cooljarloo Mining Joint Venture Agreement, dated as of November 3, 1988, by and among Yalgoo Minerals Pty. Ltd. (“ Yalgoo ”), Tronox Australia and the other parties thereto, as amended by that certain Amending Deed to the Cooljarloo Mining Joint Venture Agreement, dated as of March 26, 1991, by and among Yalgoo, Tronox Australia and the other parties thereto (the “ Cooljarloo JVA ”); (b) that certain Processing Joint Venture Agreement, dated as of November 3, 1988, by and among Yalgoo, Tronox Australia and the other parties thereto, as amended by that certain Amending Deed to the Processing Joint Venture Agreement, dated as of March 26, 1991, by and among Yalgoo, Tronox Australia and the other parties thereto as further amended by the Supplemental Deed to Processing Joint Venture Agreement, dated June 30, 2008, by and among Yalgoo, Tronox Australia, Exxaro Australia Sands Pty Ltd (“ Exxaro Sands ”) and the other parties (the “ Processing JVA ”); (c) that certain Jurien Exploration Joint Venture Agreement, dated as of March 9, 1989, by and among Exxaro Sands, Tific Pty Ltd (“ Tific ”), Tronox Australia and the other parties thereto (the “Jurien Exploration JVA”); (d) that certain Co operation Deed, dated as of November 3, 1988, by and among Exxaro Sands, Tronox Australia and the other parties thereto; (e) that certain Operations Management Agreement, dated as of December 16, 1988, by and among Yalgoo, Tronox Australia and the other parties thereto, as amended by that certain Supplemental Deed to the Operations Management Agreement dated as of July 23, 2008 by and among Yalgoo, Tronox Australia and the other parties thereto; (f) that certain Development Agreement, dated March 25, 2008, by and among Tronox LLC, Tronox Australia, Yalgoo, Exxaro Sands and other parties thereto (the “ Development Agreement ”); (g) that certain Mineral Sands (Cooljarloo) Mining and Processing Agreement, dated November 8, 1988 by and among the State of Western Australia Yalgoo Tronox Australia and other parties

 

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thereto; (h) those certain other documents, agreements and amendments entered into from time and time in connection with any of the foregoing agreements; pursuant to which agreements the parties operate a chloride process titanium dioxide plant located in Kwinana, Western Australia, a mining venture in Cooljarloo, Western Australia, and a mineral separation plant and a synthetic rutile processing facility in Muchea, Western Australia; (i) those certain other documents relating to or concerning exploration ventures at Jurien, Dongara and elsewhere in Western Australia; (j) those certain other documents relating to or concerning an office building in Bentley, Western Australia for the purpose of providing certain corporate services; (k) that certain Bunbury Port Authority Lease of Port Facilities Bunbury, dated October 1, 2004, by and between Bunbury Port Authority and Tiwest; and (l) that certain Russell Park, Henderson Warehouse Lease, dated November 3, 2007, by and between ISPT Pty Ltd and Tiwest.

 

“ Tiwest Joint Venture Interests ” means all of Tronox Australia’s rights, title and interest in, to and under the Tiwest Joint Venture, including the Tiwest Shares.  For the avoidance of doubt, the Tiwest Joint Venture Interests are a fifty percent undivided interest as a tenant in common in the joint venture arrangements referred to in the definition of Tiwest Joint Venture (which fifty percent interest may be adjusted in accordance with the Development Agreement).

 

“ Tiwest Joint Venture Documents ” means the documents and agreements referred to in the definition “Tiwest Joint Venture,” together with all documents and agreements entered into from time to time in connection with the Tiwest Joint Venture and either referred to in any of those agreements or otherwise relating or ancillary to the Tiwest Joint Venture.

 

“ Tiwest Joint Venture Participants ” means Yalgoo, Senbar Holdings Pty Limited (“ Senbar ”), a Western Australian corporation, Synthetic Rutile Holdings Pty Limited (“ SRH ”), a Western Australian corporation, Pigment Holdings Pty Limited (“ PH ”), a Western Australian corporation and Tific, a Western Australian corporation.  For the avoidance of doubt, Yalgoo and Senbar are collectively the Tiwest Joint Venture Participant under the Cooljarloo JVA; Yalgoo, SRH and PH are collectively the Tiwest Joint Venture Participant under the Processing JVA; and Tific is the Tiwest Joint Venture Participant under the Jurien Exploration JVA.

 

“ Tiwest Shares ” means 50 B and 50 D ordinary fully paid shares in the capital of Tiwest, representing fifty percent of all of the ordinary fully paid issued shares in the capital of Tiwest.

 

“ Transfer Tax ” has the meaning set forth in Section 6(h)(i) .

 

“ Tronox Australia ” has the meaning set forth in the recitals.

 

“ Tronox Filed SEC Documents ” means all documents required to be filed by Tronox Incorporated with or to, as applicable, the SEC pursuant to the Exchange Act that were filed prior to the date of this Agreement and are publicly available.

 

“ Tronox Holdings ” means Tronox Holdings, Inc., a Delaware corporation.

 

“ Tronox Holland ” has the meaning set forth in the recitals.

 

“ Tronox Incorporated ” has the meaning set forth in the preamble.

 

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“ Tronox LLC ” has the meaning set forth in the preamble.

 

“ Tronox Netherlands ” has the meaning set forth in the preamble.

 

“ Tronox Pigments ” has the meaning set forth in the preamble.

 

“ Tronox Pigments Bahama Islands ” has the meaning set forth in the recitals.

 

“ Tronox Singapore ” has the meaning set forth in the recitals.

 

“ Tronox Worldwide ” has the meaning set forth in the preamble.

 

“ U.S. Buyer ” has the meaning set forth in the preamble.

 

“ U.S. Seller ” or “ U.S. Sellers ” has the meaning set forth in the preamble.

 

“ Yalgoo ” has the meaning set forth in the definition of Tiwest Joint Venture.

 

“ WARN Act ” has the meaning set forth in Section 3(m)(i) .

 

“ Wet op de vennootschapsbelasting 1969 ” has the meaning set forth in Section 6(r) .

 

2.             Purchase and Sale .

 

(a)           Purchase and Sale of Acquired Assets .

 

(i)            On the terms and subject to the conditions of this Agreement and pursuant to the Sale Order, at the Closing, (A) U.S. Buyer will purchase, acquire and accept from the Asset Sellers, and the Asset Sellers will sell, transfer, assign, convey and deliver to U.S. Buyer or its designee or assignee, free and clear of all Liens (other than Permitted Liens), all of the Acquired Assets (other than the Acquired Australian Assets), and (B) Australia Buyer will purchase, acquire and accept from Tronox Australia, and Tronox Australia will sell, transfer, assign, convey and deliver to Australia Buyer or its designee or assignee, free and clear of all Liens (other than Permitted Liens), all of the Acquired Australian Assets, in each case, for the consideration specified in Section 2(e)(i) .  Nothing contained herein shall be deemed to sell, transfer, assign or convey the Excluded Assets to Buyers, and the Asset Sellers shall retain all right, title and interest to, in and under the Excluded Assets.

 

(ii)           Buyers hereby acknowledge and agree that the Tiwest Joint Venture Interests may be subject to certain pre-emptive, first refusal or similar rights pursuant to the Tiwest Joint Venture Documents and that each of Yalgoo, Exxaro Sands and any other Person holding such pre-emptive right, first refusal or similar rights in relation to Tiwest Joint Venture Interests may have the right to exercise such rights in accordance with the provisions of the Tiwest Joint Venture Documents, and that, in the event of such exercise, neither Buyer shall have any right, title or interest in any (i) Tiwest Joint Venture Interest other than an Acquired Tiwest Joint Venture Interest and (ii) consideration payable upon the exercise of such rights.

 

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(b)                                  Assumption of Assumed Liabilities .  On the terms and subject to the conditions of this Agreement and pursuant to the Sale Order, at the Closing, (i) U.S. Buyer will assume and become responsible for the payment, performance or discharge of the Assumed Liabilities (other than the Assumed Tronox Australia Liabilities), and (ii) Australia Buyer will assume and become responsible for the payment, performance or discharge of the Assumed Tronox Australia Liabilities.  Nothing herein shall be deemed to cause either Buyer to assume, or in any way be liable or responsible for any of the Excluded Liabilities, and Sellers shall remain solely and exclusively liable with respect to all such Excluded Liabilities.

 

(c)                                   Purchase and Sale of Target Interests .  On the terms and subject to the conditions of this Agreement, at the Closing, U.S. Buyer (or its designee or permitted assignee) will purchase from Tronox Netherlands and Tronox Worldwide, as applicable, and Tronox Netherlands and Tronox Worldwide, as applicable, will sell to U.S. Buyer, the Target Interests, free and clear of all Liens (other than Permitted Liens).

 

(d)                                  Treatment of Intercompany Accounts Receivable and Accounts Payable .  Other than the Retained Intercompany Balances, all Intercompany accounts receivable, Intercompany accounts payable and other obligations due and owing between any Seller or Target Company or any Affiliate (as of the date hereof and as of the Closing) of any Seller or Target Company, on the one hand, and any other Seller or Target Company or any of their Affiliates, on the other hand, shall be disregarded for purposes of the transactions contemplated hereby and shall not be treated as Assumed Liabilities, Acquired Assets, Excluded Assets or Excluded Liabilities.

 

(e)                                   Consideration .

 

(i)                                      The aggregate consideration for the sale and transfer of the Acquired Assets, the Target Interests and the Acquired Tiwest Joint Venture Interests shall be (A) the Sales Proceeds, as adjusted prior to the Closing pursuant to Section 2(h)(i) , Section 2(h)(ii)  and Section 2(h)(iii)  (such adjusted amount, the “ Initial Purchase Price ,” and, if and as further adjusted by the payments contemplated by Section 2(h)(vi) , the “ Purchase Price ”), which Initial Purchase Price less each of the (1) Net Working Capital Escrow Amount, (2) the COBRA Escrow Amount, (3) the amount of liquidated damages payable pursuant to Section 6(o)(iii) , if any, and (4) the amount of any adjustments pursuant to Section 5(m)(iii)  is payable and deliverable to Sellers at the Closing in accordance with Section 2(g)(ii)(J) , and (B) the assumption by U.S. Buyer of the Assumed Liabilities (other than the Assumed Tronox Australia Liabilities), and by Australia Buyer of the Assumed Tronox Australia Liabilities.

 

(ii)                                   Pursuant to the terms of that certain Escrow Agreement, dated as of the date hereof (the “ Deposit Escrow Agreement ”), by and among U.S. Buyer, Tronox Incorporated and Wells Fargo Bank, National Association, in its capacity as escrow agent (the “ Escrow Agent ”), a copy of which is attached hereto as Exhibit D , U.S. Buyer has deposited an amount in cash equal to $12,450,000 by wire transfer of immediately available funds (the “ Deposit ”), which Deposit shall be released by the Escrow Agent and delivered to either U.S. Buyer or Sellers in accordance with the provisions of the Deposit Escrow Agreement.  Pursuant to the Deposit Escrow Agreement, the Deposit and any accrued investment income or interest thereon shall be distributed as follows:

 

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(A)                               if the Closing shall occur, then (1) the Deposit shall be delivered at the Closing to Sellers under Section 2(g)(ii)(I) , and (2) all accrued investment income or interest on the Deposit shall be delivered to U.S. Buyer at the Closing;

 

(B)                                 if this Agreement is terminated by Sellers pursuant to Section 8(a)(iii)  (for failure by Buyers to satisfy conditions set forth in Section 7(b)(i)  or 7(b)(ii) ) or  8(a)(v) , then (1) the Deposit shall be delivered to Sellers, and (2) all accrued investment income or interest on the Deposit shall be delivered to U.S. Buyer, in each case, within five Business Days of such termination; or

 

(C)                                 if this Agreement is terminated by Sellers or Buyers or both, as applicable, pursuant to Section 8(a)(i) , 8(a)(ii) , 8(a)(iii)  (other than for failure by Buyers to satisfy conditions set forth in Section 7(b)(i)  or 7(b)(ii) ), 8(a)(iv) , 8(a)(vi) , 8(a)(vii) , 8(a)(viii) , 8(a)(ix) , 8(a)(x) , 8(a)(xi) , 8(a)(xii) or 8(a)(xiii) , then the Deposit, together with all accrued investment income or interest thereon, shall be returned to U.S. Buyer within five Business Days of such termination.

 

(iii)                                At the Closing, U.S. Buyer shall deposit, pursuant to the terms of an escrow agreement, to be dated the Closing Date (the “ Net Working Capital Escrow Agreement ”), by and among U.S. Buyer, Tronox Incorporated and the Escrow Agent, in substantially the form of Exhibit M , an amount equal to $15,000,000 (as such amount may be increased pursuant to Section 2(h)(iii) , the “ Net Working Capital Escrow Amount ”), which amount shall continue to be held by the Escrow Agent in accordance with the Net Working Capital Escrow Agreement and be disbursed in accordance with the terms of the Net Working Capital Escrow Agreement, to Sellers and/or U.S. Buyer, as applicable, following the determination of the Conclusive Net Working Capital Statement and the Conclusive Rebate Statement.

 

(iv)                               At the Closing, U.S. Buyer shall deposit, pursuant to the terms of an escrow agreement, to be dated as of the Closing Date (the “ COBRA Escrow Agreement ”), by and among U.S. Buyer, Tronox Incorporated and the Escrow Agent, in substantially the form of Exhibit N, an amount equal to the sum of (A) the product of $6,667 times the number of days between the Closing Date and January 25, 2010 (the “ Retiree COBRA Amount ”), and (B) $1,500,000 (the “ Non-Retiree Amount ” and, together with the Retiree COBRA Amount, the “ COBRA Escrow Amount ”), which amount shall continue to be held by the Escrow Agent in accordance with the COBRA Escrow Agreement and be used to fulfill the obligations set forth in Section 6(o) .  For the avoidance of doubt, if the Closing Date is on or after January 13, 2010, then the Retiree COBRA Amount shall be zero.  As soon as administratively practicable after January 13, 2010, the Retiree COBRA Amount, together with all accrued investment income or interest thereon, shall be delivered to Sellers upon satisfaction of the obligations of Sellers set forth in Section 6(o)(i) .  If Sellers fail to satisfy their obligations pursuant to Section 6(o)(ii) , then the Non-Retiree Amount, together with all accrued investment income or interest thereon, shall be paid to U.S. Buyer, as soon as administratively practicable, as Buyers’ sole remedy and liquidated damages.  If Sellers fulfill their obligations under Section 6(o)(ii) , then, as soon as administratively practicable after the earlier of (1) the date that all applicable COBRA obligations are satisfied, or (2) the date

 

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U.S. Sellers, and any member of the controlled group of corporations or the group of trades and businesses under common control that includes U.S. Sellers, cease to sponsor or maintain any group health plan, the Non-Retiree Amount, together with all accrued investment income or interest thereon and less any amounts paid or eligible for payment out of the Non-Retiree Amount pursuant to the COBRA Escrow Agreement, shall be paid to U.S. Buyer; provided that the amount that shall be paid to U.S. Buyer shall be limited to an amount equal to U.S. Buyer’s good faith estimate of the amount necessary to satisfy any remaining COBRA obligations with respect to individuals intended to be covered by the Non-Retiree Amount, and the balance of the Non-Retiree Amount remaining after such payment to U.S. Buyer, if any, shall be delivered to U.S. Sellers as soon as administratively practicable thereafter.

 

(f)                                     Closing .  The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at the offices of Kirkland & Ellis LLP, located at 601 Lexington Avenue, New York, New York 10022 (or such other location as shall be mutually agreed upon by Sellers and Buyers) commencing at 11:00 a.m. local time on the date that is the third Business Day after the date on which all conditions to the obligations of Sellers and Buyers to consummate the transactions contemplated hereby set forth in Section 7 (other than conditions with respect to actions Sellers and/or Buyers will take at the Closing itself, but subject to the satisfaction or waiver of those conditions) have been satisfied or waived, or at such other time or on such other date as shall be mutually agreed upon by Sellers and Buyers prior thereto (such date, the “ Closing Date ”).  The Closing shall be deemed to have occurred at 11:59 p.m. (Eastern Time) on the Business Day prior to the Closing Date.

 

(g)                                  Deliveries at Closing .

 

(i)                                      At the Closing, Sellers will deliver to U.S. Buyer or Australia Buyer, as applicable, the following documents and other items, duly executed by Sellers, the Tiwest Joint Venture Participants, and in the case of Section 2(g)(i)(N)  and 2(g)(i)(T) , any other Person, in each case as applicable and in form and substance reasonably acceptable to U.S. Buyer or Australia Buyer, as applicable:

 

(A)                               bills of sale substantially in the form of Exhibits E-1 and E-2 attached hereto (the “ Bills of Sale ”);

 

(B)                                 assignment and assumption agreements substantially in the form of Exhibits F-1 and F-2 attached hereto (the “ Assignment and Assumption Agreements ”);

 

(C)                                 instruments of assignment substantially in the forms of Exhibit G , Exhibit H and Exhibit I attached hereto for each patent, registered trademark and registered copyright, respectively, transferred or assigned hereby and for each pending application therefor (collectively, the “ Intellectual Property Assignments ”);

 

(D)                                the Services Agreement;

 

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(E)                                  the Deposits and Similar Amounts, the Acquired Cash and the Pre-Funded Uncleared Disbursement Amounts in a manner reasonably acceptable to Buyers;

 

(F)                                  a certified copy of the Bidding Procedures Order and the Sale Order;

 

(G)                                 with respect to each parcel of Owned Real Property (other than the Owned Real Property located in Western Australia), a special warranty or trustee’s deed in substantially the form attached hereto as Exhibit L , with such changes thereto as may be necessary to conform such deed to the requirements of the relevant jurisdiction;

 

(H)                                with respect to each parcel of Owned Real Property located in Western Australia a transfer of land form in favor of Australia Buyer substantially in the form attached hereto as Exhibit Q ;

 

(I)                                     with respect to each Lease of real property registered in Western Australia, a transfer of registered lease form in favor of Australia Buyer substantially in the form attached hereto as Exhibit R ;

 

(J)                                    transfers in registrable form in accordance with the Western Australian Mining Act 1978 (WA), transferring the interests in the mining tenements comprising the Acquired Tiwest Joint Venture Interests in favor of Australia Buyer;

 

(K)                                a certificate signed by an authorized officer of Tronox Incorporated to the effect that each of the conditions specified in Section 7(a)(i)  and Section 7(a)(ii)  is satisfied in all respects;

 

(L)                                  with respect to each U.S. Seller, a non-foreign affidavit dated as of the Closing Date, sworn under penalty of perjury and in form and substance required under Treasury Regulations issued pursuant to Section 1445 of the IRC stating that no U.S. Seller is a “foreign person” as defined in Section 1445 of the IRC, and with respect to each Non-U.S. Seller, a statement dated as of the Closing Date, sworn under penalty of perjury, and in form and substance required under Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h) stating that such Seller is not conveying a United States real property interest as defined in Section 897(c)(1) of the IRC;

 

(M)                             certificates (to the extent applicable) representing the Target Interests and all necessary transfer documents with respect thereto;

 

(N)                                certificates (to the extent applicable) representing the Acquired Tiwest Joint Venture Interests, if any, and all documents (A) reasonably requested by Australia Buyer to transfer the Acquired Tiwest Joint Venture Interests to Australia Buyer, or (B) reasonably required or contemplated by the Tiwest Joint

 

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Venture Documents in connection with the transfer of the Acquired Tiwest Joint Venture Interests in accordance with this Agreement;

 

(O)                                a copy of each Seller’s, Target Company’s and Tiwest’s certificate of incorporation or other organizational document, certified as of a date on or soon before the Closing Date by the Secretary of State (or comparable governmental officer) of the relevant jurisdiction of such Seller’s incorporation or organization;

 

(P)                                  to the extent applicable, a copy of a certificate of good standing of each Seller, Target Company and Tiwest issued as of a date on or soon before the Closing Date by the Secretary of State (or comparable governmental officer) of the relevant jurisdiction of such Seller’s or Target Company’s or Tiwest’s incorporation or organization;

 

(Q)                                the Net Working Capital Escrow Agreement;

 

(R)                                 the COBRA Escrow Agreement;

 

(S)                                  subject to Section 2(h)(ii) , the Henderson Lease Agreement (together with any other deliverables identified on Exhibit P ); and

 

(T)                                 all other documents, instruments and certificates, in form and substance reasonably acceptable to Buyers, as may be reasonably requested by Buyers or as otherwise may be necessary to give effect to the transactions contemplated by this Agreement, including the conveyance of the Acquired Assets and the Target Company Interests to Buyers.

 

(ii)                                   At the Closing, U.S. Buyer or Australia Buyer, as applicable, will deliver and, in the case of Section 2(g)(ii)(I) , will cause the Escrow Agent to deliver, to Sellers or the Escrow Agent, as the case may be, the following documents, cash amounts and other items, duly executed by U.S. Buyer or Australia Buyer, as applicable, and in form and substance reasonably acceptable to Sellers:

 

(A)                               the Bills of Sale;

 

(B)                                 the Assignment and Assumption Agreements;

 

(C)                                 the Intellectual Property Assignments;

 

(D)                                the Services Agreement;

 

(E)                                  a certificate signed by an authorized officer of each Buyer to the effect that each of the conditions specified in Section 7(b)(i)  and Section 7(b)(ii)  is satisfied in all respects;

 

(F)                                  a copy of U.S. Buyer’s, Australia Buyer’s and Guarantor’s certificate of incorporation or other organizational document certified as of a date

 

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on or soon before the Closing Date by the Secretary of State (or comparable governmental officer) of the respective jurisdictions of U.S. Buyer’s, Australia Buyer’s and Guarantor’s incorporation or organization;

 

(G)                                 evidence reasonably acceptable to Sellers of the approval of U.S. Buyer’s and Australia Buyer’s board of directors (or comparable governing body) with respect to the consummation of the transactions contemplated by this Agreement and the other Related Agreements;

 

(H)                                to the extent applicable, a copy of a certificate of good standing of each Buyer and Guarantor issued as of a date on or soon before the Closing Date by the Secretary of State (or comparable officer) of the respective jurisdictions of U.S. Buyer’s, Australia Buyer’s and Guarantor’s incorporation or organization;

 

(I)                                     the Deposit in accordance with the terms of the Escrow Agreement, by wire transfer of immediately available funds to one or more bank accounts set forth in the Escrow Agreement;

 

(J)                                    the Initial Purchase Price, less each of (1) the Deposit, (2) the Net Working Capital Escrow Amount, (3) the COBRA Escrow Amount, (4) the amount of liquidated damages payable pursuant to Section 6(o)(iii) , if any, and (5) the amount of any adjustments pursuant to Section 5(m)(iii) , by wire transfer of immediately available funds to one or more bank accounts designated by Sellers in writing to Buyers no less than two Business Days prior to the Closing (the “ Sellers’ Accounts ”);

 

(K)                                the Net Working Capital Escrow Amount by wire transfer of immediately available funds to the bank account designated by the Escrow Agent in writing to Buyers;

 

(L)                                  the COBRA Escrow Amount by wire transfer of immediately available funds to the bank account designated by the Escrow Agent in writing to Buyers;

 

(M)                             the Net Working Capital Escrow Agreement;

 

(N)                                the COBRA Escrow Agreement;

 

(O)                                subject to Section 2(h)(ii) , the Henderson Lease Agreement (together with any other deliverables identified on Exhibit P );

 

(P)                                  evidence reasonably acceptable to Sellers of U.S. Buyer’s payment of all Cure Amounts under the Assumed Contracts as ordered by the Bankruptcy Court; and

 

(Q)                                all other documents, instruments and certificates, in form and substance reasonably acceptable to Sellers, as may be reasonably requested by

 

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any Seller or as otherwise may be necessary to give effect to the transactions contemplated by this Agreement.

 

(iii)                                At the Closing, unless U.S. Buyer exercises its rights to convert to an asset sale in The Netherlands pursuant to Section 5(p) , the shares in the capital of Tronox Holland shall be transferred to U.S. Buyer, at U.S. Buyer’s sole cost and expense, through the execution by Tronox Netherlands and U.S. Buyer of a deed of transfer before a Dutch civil law notary.

 

(h)                                  Purchase Price Adjustments .

 

(i)                                      Pre-Closing Adjustment for Excluded Tiwest Joint Venture Interests .  If a Tiwest Joint Venture Participant or any other Person acquires any or all Tiwest Joint Venture Interests pursuant to the exercise by such Person of its pre-emptive, first refusal or similar rights in accordance with the Tiwest Joint Venture Documents prior to the Closing (such acquired Tiwest Joint Venture Interests, the “ Excluded Tiwest Joint Venture Interests ”), then the Initial Purchase Price payable by Buyers at the Closing shall be reduced by an amount in cash equal to the Tiwest Amount with respect to the Excluded Tiwest Joint Venture Interests.

 

(ii)                                   Pre-Closing Adjustment for Acquired Henderson Assets and Acquired Henderson Intellectual Property .  If U.S. Sellers fail to obtain those certain consents from the Colorado River Commission with respect to the assignments to U.S. Buyer of the Colorado River Commission Contracts at least ten Business Days prior to the Closing Date, then U.S. Sellers shall provide written notice of such failure to U.S. Buyers.  U.S. Buyer shall have the right, by delivering a written notice to U.S. Sellers not later than five Business Days after receipt of the notice referred to in the previous sentence, (A) to not acquire the Acquired Henderson Assets, (B) to not acquire the Acquired Henderson Intellectual Property, and (C) to not enter into the Henderson Lease Agreement, in each case, at the Closing.  If U.S. Buyer delivers such election notice to U.S. Sellers within the time period set forth in the preceding sentence, then (1) the Acquired Henderson Assets and the Acquired Henderson Intellectual Property shall constitute Excluded Assets for all purposes of this Agreement, (2) neither U.S. Buyer nor U.S. Sellers shall enter into (or be required to enter into) the Henderson Lease Agreement, and (3) the Initial Purchase Price shall be reduced by the Henderson Amount, as contemplated by Section 2(e)(i)  and Section 2(g)(ii)(J) .  For the avoidance of doubt, if U.S. Buyer fails to deliver such election notice to U.S. Sellers within the time period set forth above or U.S. Buyer waives its right to make such election, then the Initial Purchase Price otherwise payable shall not be reduced by the Henderson Amount.

 

(iii)                                Pre-Closing Net Working Capital and Rebate Adjustment .  For the purpose of determining the Initial Purchase Price, no less than fifteen Business Days prior to the Closing Date, Sellers shall prepare and deliver to U.S. Buyer (A) a statement (such statement, the “ Estimated Net Working Capital Statement ”) setting forth Sellers’ good faith estimate of the Net Working Capital as of 12:01 a.m. (Eastern Standard Time) on the Closing Date (such effective date and time, the “ Adjustment Determination Effective Time ,” and such estimated amount, the “ Estimated Net Working Capital Amount ”), and a

 

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worksheet showing the components and calculation thereof as of the Adjustment Determination Effective Time as well as supporting documentation for such Estimated Net Working Capital Amount, including  a reasonably detailed reconciliation of the Assumed Current Liabilities with respect to the Assumed Contracts, and (B) a statement (such statement, the “ Estimated Rebate Statement ”) setting forth Sellers’ good faith estimate of the dollar amount of the Assumed Sales Rebate Liabilities as of the Adjustment Determination Effective Time determined in accordance with GAAP and the Net Working Capital Guidelines (the “ Estimated Rebate Amount ”).  In connection with the delivery of the Estimated Net Working Capital Statement, Sellers shall deliver to U.S. Buyer a certificate executed by the Chief Financial Officer, Chief Accounting Officer or Controller of Tronox Incorporated certifying that the Estimated Net Working Capital Statement was prepared and calculated in conformance with the Net Working Capital Guidelines. The Estimated Net Working Capital Statement and the Estimated Rebate Statement shall be subject to the review of U.S. Buyer and, during the period of such review prior to the Closing Date, (1) Sellers shall give U.S. Buyer and its Representatives reasonable access to all Records, facilities and personnel of the Business as reasonably necessary to undertake such review and (2) U.S. Buyer may in good faith dispute any items set forth on the Estimated Net Working Capital Statement (or specific calculations or methods contemplated thereby) or the Estimated Rebate Statement.  If U.S. Buyer in good faith disputes the Estimated Net Working Capital Amount or the Estimated Rebate Amount, as applicable, then U.S. Buyer and Sellers shall reasonably cooperate and negotiate in good faith to resolve any dispute regarding the Estimated Net Working Amount or the Estimated Rebate Amount, as applicable, prior to the Closing (the results of any such resolution to be reflected on a new Estimated Net Working Capital Statement or Estimated Rebate Statement, as applicable, which shall be considered the Estimated Net Working Capital Statement or Estimated Rebate Statement, as applicable, for all further purposes); provided that if any item of dispute regarding the Estimated Net Working Capital Statement or Estimated Rebate Statement, as applicable, is not resolved by agreement in writing between U.S. Buyer and Sellers on the date that is at least two Business Days prior to the Closing, then Sellers’ estimate of such disputed item shall be deemed final for purposes of Closing absent manifest error; provided that the Net Working Capital Escrow Amount shall be increased by the amount of any aggregate unresolved difference between Sellers’ estimate and U.S. Buyer’s estimate of the Estimated Net Working Capital Amount and/or the Estimated Rebate Amount.  To the extent that the Estimated Net Working Capital Amount exceeds the Target Net Working Capital Amount, the Initial Purchase Price payable at the Closing shall be increased by the amount of the excess, and to the extent that the Estimated Net Working Capital Amount is less than the Target Net Working Capital Amount, the Initial Purchase Price shall be reduced by the amount of such deficiency.  To the extent the Estimated Rebate Amount is greater than $0, the Initial Purchase Price shall be reduced by the amount of the Estimated Rebate Amount.

 

(iv)                               Post-Closing Net Working Capital Statement .  Within thirty Business Days after the Closing Date, U.S. Buyer shall cause to be prepared and delivered to Sellers (A) a statement (the “ Post-Closing Net Working Capital Statement ”) setting forth the Net Working Capital as of the Adjustment Determination Effective Time, and a worksheet showing the components and calculation thereof as of the Adjustment

 

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Determination Effective Time as well as supporting documentation for such Post-Closing Net Working Capital Statement and (B) a statement (the “ Post-Closing Rebate Statement ”) setting forth the dollar amount of the Assumed Sales Rebate Liabilities as of the Adjustment Determination Effective Time determined in accordance with GAAP (the “ Rebate Amount ”).  In connection with the delivery of the Post-Closing Net Working Capital Statement, U.S. Buyer shall deliver to Sellers a certificate executed by the Chief Financial Officer of Guarantor certifying that the Post-Closing Net Working Capital Statement was prepared and calculated in conformance with the Net Working Capital Guidelines.

 

(v)                                  Determination of Conclusive Net Working Capital Statement .  Sellers will have fifteen Business Days following the receipt of the Post-Closing Net Working Capital Statement and the Post-Closing Rebate Statement to review the Post-Closing Net Working Capital Statement and the Post-Closing Rebate Statement and, during such time, (A) U.S. Buyer shall give Sellers and their Representatives reasonable access to all Records, facilities and personnel of U.S. Buyer (including the Business) as is reasonably necessary to undertake such review and (B) Sellers may dispute any items set forth on the Post-Closing Net Working Capital Statement or the Post-Closing Rebate Statement, as applicable (including the specific calculations and methods contemplated thereby).  Unless Sellers deliver written notice(s) to U.S. Buyer of dispute thereof on or prior to the fifteenth Business Day after Sellers’ receipt of the Post-Closing Net Working Capital Statement, Sellers will be deemed to have accepted and agreed to the Post-Closing Net Working Capital Statement and such statement (or specific calculations or methods contemplated thereby) will be final, binding and conclusive.  Unless Sellers deliver written notice(s) to U.S. Buyer of a dispute of the Rebate Amount prior to the fifteenth Business Day after Sellers’ receipt of the Post-Closing Rebate Statement, Sellers will be deemed to have accepted and agreed to the Rebate Amount and such Rebate Amount will be final, binding and conclusive.  If Sellers notify U.S. Buyer in writing of disputed items contained in the Post-Closing Net Working Capital Statement (or specific calculations or methods contemplated thereby) or that Sellers dispute the Rebate Amount within such fifteen Business Day-period, then for ten Business Days following delivery of such notice by Sellers to U.S. Buyer (the “ Resolution Period ”), U.S. Buyer and Sellers shall attempt in good faith to resolve their differences with respect to the disputed items (the “ Disputed Items ”).  Any resolution by U.S. Buyer and Sellers during the Resolution Period as to any Disputed Items shall be set forth in writing and will be final, binding and conclusive.  If U.S. Buyer and Sellers do not resolve all Disputed Items by the end of the Resolution Period, then all Disputed Items remaining in dispute shall be submitted within ten calendar days after the expiration of the Resolution Period to an international independent accounting firm mutually acceptable to U.S. Buyer and Sellers (the “ Neutral Arbitrator ”).  The Neutral Arbitrator shall act as an arbitrator to determine only those Disputed Items remaining in dispute as of the end of the Resolution Period.  In resolving such Disputed Items, the Neutral Arbitrator may not assign a value to any Disputed Item greater than the greatest value for such Disputed Item claimed by any Party or less than the lowest value for such Disputed Item claimed by any Party upon presentment to the Neutral Arbitrator.  All fees and expenses relating to the work, if any, to be performed by the Neutral Arbitrator will be allocated between U.S. Buyer and Sellers in the same proportion that the aggregate amount of the Disputed Items so submitted to the Neutral Arbitrator that is

 

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unsuccessfully disputed by each such Party (as finally determined by the Neutral Arbitrator) bears to the total amount of such Disputed Items so submitted.  In addition, U.S. Buyer and Sellers shall submit to the Neutral Arbitrator any supporting materials and calculations relating to the Disputed Items.  In the event U.S. Buyer or Sellers shall participate in teleconferences or meetings with or make presentations to the Neutral Arbitrator, the other Party shall be entitled to participate in such teleconferences, meetings or presentations except as otherwise required by the Neutral Arbitrator.  U.S. Buyer and Sellers shall use their reasonable best efforts to cause the Neutral Arbitrator to deliver to U.S. Buyer and Sellers a written determination (such determination to include a work sheet setting forth all material calculations and methods used in arriving at such determination) of the Disputed Items submitted to the Neutral Arbitrator within ten calendar days of receipt of such Disputed Items, which determination will be final, binding and conclusive and upon which judgment may be entered.  The final, binding and conclusive Post-Closing Net Working Capital Statement based either upon agreement or deemed agreement by U.S. Buyer and Sellers or the written determination delivered by the Neutral Arbitrator in accordance with this Section 2(h)(v)  will be the “ Conclusive Net Working Capital Statement .”  The final, binding and conclusive Rebate Amount based either upon agreement or deemed agreement by U.S. Buyer and Sellers or the written determination delivered by the Neutral Arbitrator in accordance with this Section 2(h)(v)  will be the “ Conclusive Rebate Amount .”

 

(vi)                               Post-Closing Adjustment .  If (a) the Net Working Capital on the Conclusive Net Working Capital Statement plus the Estimated Rebate Amount exceeds (b) the Estimated Net Working Capital Amount plus the Conclusive Rebate Amount, then U.S. Buyer shall pay Sellers the amount of such excess by wire transfer of immediately available funds to Sellers’ Accounts.  If (a) the Estimated Net Working Capital Amount plus the Conclusive Rebate Amount exceeds (b) the Net Working Capital on the Conclusive Net Working Capital Statement plus the Estimated Rebate Amount, then Sellers shall, and Sellers and U.S. Buyer shall provide written instructions to the Escrow Agent to, remit to U.S. Buyer the amount of such excess out of the Net Working Capital Escrow Amount and, in the event such excess, if any, exceeds the Net Working Capital Escrow Amount held in the Escrow Account, then Sellers shall pay U.S. Buyer the amount of such excess by wire transfer of immediately available funds to a bank account designated by U.S. Buyer in writing at least three Business Days prior to the date of such payment.  All payments to be made pursuant to this Section 2(h)(vi)  shall be made no later than the second Business Day following the date on which U.S. Buyer and Sellers agree, or are deemed to have agreed to, or the Neutral Arbitrator delivers, the Conclusive Net Working Capital Statement and the Conclusive Rebate Amount.  Following the determination of the Conclusive Net Working Capital Statement and the Conclusive Rebate Amount and the payment of any amount required pursuant to this Section 2(h)(vi) , the Parties shall cause the Escrow Agent to remit to Sellers the remaining balance, if any, of the Net Working Capital Escrow Amount remaining under the Net Working Capital Escrow Agreement ( i.e. , the remaining Net Working Capital Escrow Amount, if any, together with all accrued investment income or interest on the Net Working Capital Escrow Amount), all in accordance with the provisions of the Net Working Capital Escrow Agreement.

 

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(i)            Allocation .  Within thirty calendar days after the Closing Date, Buyers shall prepare an allocation of the Purchase Price as determined for applicable Tax purposes among the Acquired Assets, the Target Interests, the Henderson Lease Agreement and the Acquired Tiwest Joint Venture Interests in accordance with Section 1060 of the IRC and the Treasury regulations thereunder (and any similar provision of United States state or local or non-United States law, as appropriate).  Sellers shall have thirty calendar days to review and consent to such allocation which consent will not be unreasonably withheld, conditioned or delayed.  Buyers and Sellers shall report, act and file Tax Returns (including Internal Revenue Service Form 8594 and any other applicable non-United States Tax Returns required to be filed in connection with any asset or equity sale) in all respects and for all purposes consistent with any agreed upon allocation.  None of Buyers or Sellers shall take any position (whether in audits, Tax Returns or otherwise) which is inconsistent with such allocation unless required to do so by applicable law.

 

(j)            Non-Assignment of Assumed Contracts .  Notwithstanding anything contained herein to the contrary, (i) this Agreement shall not constitute an agreement to assign any Contract if, after giving effect to the provisions of sections 363 and 365 of the Bankruptcy Code, an attempted assignment thereof, without obtaining a required consent, waiver, confirmation, novation or approval of any third party, would constitute a breach thereof or in any way negatively affect the rights of Sellers or either Buyer, as the assignee of such Contract, and (ii) no breach of this Agreement shall have occurred by virtue of such non-assignment unless the failure to assign any Contracts would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Acquired Business.  If, after giving effect to the provisions of sections 363 and 365 of the Bankruptcy Code, such consent, waiver, confirmation, novation or approval is required but not obtained prior to the Closing, Sellers shall use their reasonable best efforts to obtain as expeditiously as possible the written consent, waiver, confirmation, novation or approval, as applicable, of the other party or parties to such Contract necessary for the assignment thereof to either Buyer post-Closing.  Unless and until any such consent, waiver, confirmation, novation or approval is obtained, Seller shall reasonably cooperate with Buyers in any reasonable arrangement satisfactory to Buyers designed to provide to Buyers the claims, rights, benefits and obligations of or under any such Contract, including by means of any subcontracting, sublicensing or subleasing arrangement and enforcement for the benefit of Buyers, with Buyers assuming and agreeing to pay Sellers’ obligations, of any and all rights of Sellers against a third party thereto.  In such event, (i) Sellers will hold in trust for and promptly pay to the applicable Buyer, when received, all moneys received by them under any such Contract or any claim, right or benefit arising thereunder and (ii) Buyers will promptly pay, perform or discharge, when due, any and all obligations and Liabilities arising thereunder.  Notwithstanding any other provision in this Section 2(j) , nothing in this Section 2(j)  shall (A) require any Seller to make any more than immaterial expenditure or incur any more than immaterial obligation on its own or on either Buyer’s behalf unless one of Buyers agrees to fully reimburse such Seller promptly or (B) prohibit any Seller from ceasing operations or winding up its affairs following the Closing.  Contracts covered by this Section 2(j)  shall not be deemed to constitute Excluded Assets solely by virtue of this Section 2(j) .

 

3.             Sellers’ Representations and Warranties .  Subject to Bankruptcy Court approval of this Agreement, evidenced by entry of the Sale Order, Sellers severally but not jointly represent and warrant to Buyers that the statements contained in this Section 3 are true and correct, except (x) as disclosed in the Tronox Filed SEC Documents filed on or after March 14,

 

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2008 (other than the risk factors and forward looking information disclosed therein or the exhibits thereto) to the extent that a Person reading the Tronox Filed SEC Documents would reasonably conclude that a disclosure in the Tronox Filed SEC Documents is relevant to one or more representations in this Section 3 (the “ SEC Disclosures ”), and (y) as set forth in the disclosure schedule accompanying this Agreement (the “ Disclosure Schedule ” and, together with the SEC Disclosures, the “ Disclosed Materials ”).

 

(a)           Organization of Sellers and Target Companies; Good Standing .

 

(i)            Tronox Incorporated is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its business as presently conducted and, following its filing for relief pursuant to sections 1107 and 1108 of the Bankruptcy Code and the orders of the Bankruptcy Court, has all requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its business as a debtor-in-possession.

 

(ii)           Tronox Pigments is a corporation duly organized, validly existing and in good standing under the laws of the State of Georgia and has all requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its business as presently conducted and, following its filing for relief pursuant to sections 1107 and 1108 of the Bankruptcy Code and the orders of the Bankruptcy Court, has all requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its business as a debtor-in-possession.

 

(iii)          Each of Tronox LLC and Tronox Worldwide is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company or similar power and authority to own, lease and operate its assets and to carry on its business as presently conducted and, following its filing for relief pursuant to sections 1107 and 1108 of the Bankruptcy Code and the orders of the Bankruptcy Court, has all requisite limited liability company or similar power and authority to own, lease and operate its assets and to carry on its business as a debtor-in-possession.

 

(iv)          Tronox Australia is a proprietary limited company duly organized and validly existing under the laws of Western Australia and the Commonwealth of Australia and has all requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its business as presently conducted.  (A) No administrator, receiver or administrative receiver or any equivalent officer has been appointed in respect of Tronox Australia or in respect of any part of the assets or undertakings of Tronox Australia; and (B) no petition has been presented, no order has been made, no resolution has been passed and no meeting has been convened for the winding up of Tronox Australia or for an administration order or the equivalent in the relevant jurisdiction of incorporation of Tronox Australia.

 

(v)           Tiwest is a proprietary limited company duly organized and validly existing under the laws of Western Australia and the Commonwealth of Australia and has

 

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all requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its business as presently conducted.  (A) No administrator, receiver or administrative receiver or any equivalent officer has been appointed in respect of Tiwest or in respect of any part of the assets or undertakings of Tiwest; and (B) to Sellers’ Knowledge, no petition has been presented, no order has been made, no resolution has been passed and no meeting has been convened for the winding up of Tiwest or for an administration order or the equivalent in the relevant jurisdiction of incorporation of Tiwest.

 

(vi)          Each of Tronox Netherlands and Tronox Holland is a Besloten Vennootschap , a private company with limited liability, duly organized and validly existing under the laws of The Netherlands and has all requisite limited liability company or similar power and authority to own, lease and operate its assets and to carry on its business as presently conducted.  Neither Tronox Netherlands nor Tronox Holland has been (A) declared bankrupt ( failliet verklaard ), (B) granted a temporary or definitive moratorium of payments ( surseance van betaling ), (C) made subject to any insolvency or reorganization proceedings or (D) involved in negotiations with any one or more of its creditors or taken any other step with a view to the readjustment or rescheduling of all or part of its debts, nor has, to the Knowledge of Sellers, any third party applied for a declaration of bankruptcy or any such similar arrangement for either Tronox Netherlands or Tronox Holland under the laws of any applicable jurisdiction.

 

(vii)         Tronox Pigments Bahama Islands is an international business company duly organized and validly existing under the laws of the Bahama Islands and has all requisite limited liability company or similar power and authority to own, lease and operate its assets and to carry on its business as presently conducted.

 

(viii)        Tronox Singapore is a private limited company duly organized and validly existing under the laws of Singapore and has all requisite limited liability company or similar power and authority to own, lease and operate its assets and to carry on its business as presently conducted.

 

(b)           Authorization of Transaction .  Subject to the Sale Order becoming a Final Order:

 

(i)            each Seller has full corporate or limited liability company, as applicable, power and authority to execute and deliver this Agreement and all other agreements contemplated hereby to which it is a party and to perform its obligations hereunder and thereunder;

 

(ii)           the execution, delivery and performance of this Agreement and all other agreements contemplated hereby to which a Seller is a party have been duly authorized by such Seller; and

 

(iii)          this Agreement constitutes, and all other agreements contemplated hereby to which any Seller is a party will constitute, at or prior to the Closing, the valid and legally binding obligation of each Seller, enforceable against such Seller in accordance

 

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with its terms and conditions, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights and general principles of equity.

 

(c)           Noncontravention .  Neither the execution and delivery of this Agreement or any Related Agreement, nor the consummation of the transactions contemplated hereby or thereby (including the assignments and assumptions referred to in Section 2 ), will, subject to the Sale Order becoming a Final Order, (i) conflict with or result in a breach of the certificate of incorporation, certificate of formation, by-laws, limited liability company operating agreement or other organizational documents of any Seller or Target Company, (ii) violate any law or Decree to which any Seller or Target Company is, or its respective assets or properties are, subject, or (iii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, result in the loss of a material benefit under, or require any notice under any Contract or Permit to which any Seller or Target Company is a party or by which it is bound or to which any of the Acquired Assets is subject, except, in the case of either clause (ii) or (iii), for such conflicts, breaches, defaults, accelerations, rights or failures to give notice as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Acquired Business.  Subject to the Sale Order becoming a Final Order, none of Sellers or Target Companies is required to give any notice to, make any filing with, or obtain any authorization, consent or approval of any Governmental Entity or other Person in order for the Parties to consummate the transactions contemp