Exhibit 10.3
Execution Copy
TAX SHARING AGREEMENT, dated as of
November 28, 2005 (the “Agreement”), between
Kerr-McGee Corporation, a Delaware corporation
(“Distributing”) and Tronox Incorporated
(“Tronox”), a Delaware corporation. To the extent
not defined herein, all defined terms shall have the same meaning
as in the Master Separation Agreement (as hereinafter
defined).
INTRODUCTION
WHEREAS, as of the date hereof,
Distributing is the common parent of an affiliated group of
domestic corporations, including Tronox, which has elected to file
consolidated federal income tax returns;
WHEREAS, the board of directors of
Distributing has determined that it would be in the best interests
of Distributing and its shareholders to separate the Tronox
Business (as hereinafter defined) from Distributing;
WHEREAS, the boards of directors of
Distributing and Kerr-McGee Worldwide Corporation have determined
to contribute to Tronox Worldwide LLC certain entities engaged in
the Tronox Business and to contribute Tronox Worldwide LLC to
Tronox (the “Contribution”);
WHEREAS, the board of directors of
Distributing expects to distribute (the “Distribution”)
all the outstanding shares of Class B common stock of Tronox
to the shareholders of Distributing;
WHEREAS, prior to the Distribution,
Tronox will issue to the public shares of Class A common stock
of Tronox which, when issued, will constitute all of the
outstanding shares of Tronox’s Class A common stock (the
“IPO”);
WHEREAS, Distributing and Tronox
intend that the Contribution qualify as a tax-free transfer under
Sections 368(a)(1)(D) of the Internal Revenue Code of 1986, as
amended (the “Code”), and the Distribution qualify as a
pro rata or non-pro rata tax-free distribution under Sections 355
and 368(a)(1)(D) of the Code;
WHEREAS, it is appropriate and
desirable to set forth the principles and responsibilities of the
parties to this Agreement regarding (i) future adjustments
with respect to Taxes, Tax Contests and other related Tax matters
and (ii) current Tax liabilities that arise as a result of the
activities of the parties prior to the IPO and restructuring
activities undertaken to implement the separation and
Distribution;
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the
following meanings (such meanings to apply equally to both the
singular and the plural forms of the terms defined). All
section references are to this Agreement unless otherwise
stated.
“ Claims Court
Litigation ” means the litigation that is currently
pending in the United States Court of Federal Claims, docket number
05-5T relating to the question of capitalization versus
deductibility of certain environmental clean-up expenditures with
respect to the contamination of the refining sites in Cushing and
Cleveland, Oklahoma.
“ Claims Court Related Tax
Adjustment ” means, with respect to any
Pre-Deconsolidation Period, and as computed separately for each
Tax, the net increase in each such Tax equal to the sum of all
adjustments made after the Deconsolidation Date with respect to
each such Tax for each such Pre-Deconsolidation Period that are
made pursuant to a Final Determination in a Tax Contest involving
the same or similar factual and legal issues that are at issue in
the Claims Court Litigation.
“ Claims Court Related Tax
Benefit ” means (i) 100% of any Tax refund received
in the Claims Court Litigation or any Tax Contest related to a
Pre-Deconsolidation Period involving the same or similar factual
and legal issues that are at issue in the Claims Court Litigation
and (ii) any deduction, amortization, exclusion from income,
or other allowance (including a loss or reduced gain recognized
upon a sale of an asset) that actually reduces in cash the amount
of Tax that a member of the Tronox Group would have been required
to pay in a Post-Deconsolidation Period (or actually increases in
cash the amount of any Tax refund to which a member of the Tronox
Group would have been entitled in a Post-Deconsolidation Period) in
the absence of any basis increase resulting from a Final
Determination in the Claims Court Litigation or in a Tax Contest
related to a Pre-Deconsolidation Period involving the same or
similar factual and legal issues that are at issue in the Claims
Court Litigation.
“ Code ” means
the Internal Revenue of Code of 1986, as amended.
“ Combined Tax ”
means any income or franchise Tax (whether measured by income or
capital) payable to any state, local or foreign taxing jurisdiction
in which any member of the Tronox Group has filed or will file a
Return with a member of the Distributing Group on an affiliated,
consolidated, combined or unitary basis with respect to such
Tax.
“ Combined Tax Return
” means any Return with respect to a Combined Tax.
“ Controlling Party
” means, except as provided for in Section 4.06 hereof,
Distributing or any other member of the Distributing Group, or
Tronox or any other member of the Tronox Group, as the case may be,
that filed or, if no Return has been filed, was required to file, a
Return that is subject to a Tax Contest, or any successor and/or
assign of any of the foregoing, provided that any Combined
Tax Return filed by Kerr-McGee Worldwide Corporation with a Taxing
Authority in Mississippi shall be deemed to be a Return filed by
Tronox and therefore Tronox shall be the Controlling Party with
respect to any Tax Contest related to any such Return.
For
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the avoidance of doubt, with the exception of
Returns filed in Mississippi and subject to Section 4.06
hereof, the company that actually filed any Federal Tax Return or
Combined Tax Return (or any successor or assign of such company)
shall be the Controlling Party.
“ Credit Facility
” means the Credit Agreement dated as of November 28,
2005 among Tronox, Tronox Worldwide LLC, Lehman Brothers Inc.,
Credit Suisse, ABN AMRO N.V., JPMorgan Chase Bank, N.A., Citicorp
North America Inc. and the lenders that are parties
thereto.
“ Deconsolidation Date
” means, for purposes of this Agreement, the last date on
which Distributing and Tronox are permitted to file Returns on a
consolidated or combined basis, determined on a Tax jurisdiction by
Tax jurisdiction basis.
“ Distributing Business
” means the businesses conducted by Distributing and its
subsidiaries other than the Tronox Business.
“ Distributing Consolidated
Group ” means Distributing and each direct and indirect
subsidiary, including members of the Tronox Group, that is eligible
to join Distributing or any other member of the Distributing Group
in the filing of a consolidated Federal Tax Return or a Combined
Tax Return.
“ Distributing Group
” means, at any time, Distributing and each of its direct and
indirect subsidiaries other than those subsidiaries that are
members of the Tronox Group.
“ Distributing Tax
Adjustment ” means, with respect to any taxable period or
portion thereof, and as computed separately for each Tax, the net
increase in each such Tax equal to the sum of all adjustments made
pursuant to a Final Determination after the Deconsolidation Date
with respect to each such Tax for each such taxable period or
portion thereof that are attributable to the Distributing Business;
provided , however , that any adjustment comprising a
Restructuring Adjustment shall not be considered in determining the
amount of any Distributing Tax Adjustment.
“ Distributing Tax
Benefit ” means, with respect to any taxable period or
portion thereof, and as computed separately for each Federal Tax
and Combined Tax, the net decrease in each Tax equal to the sum of
all adjustments made pursuant to a Final Determination after the
Deconsolidation Date with respect to each such Tax for each such
taxable period or portion thereof that are attributable to the
Distributing Business; provided, however , that the amount
of any Distributing Tax Benefit shall not exceed the amount that
the actual Tax liability for the Tronox Group for the relevant
taxable period is actually reduced by the adjustments made pursuant
to such Final Determination; provided further,
however , that any adjustment comprising a Restructuring
Adjustment shall not be considered in determining the amount of any
Distributing Tax Benefit. For purposes of the foregoing, if
an adjustment that would otherwise constitute a Distributing Tax
Benefit is not considered a Distributing Tax Benefit because the
Tax liability of the Tronox Group is not actually reduced as a
result of such adjustment, such adjustment shall be carried-forward
and shall constitute a Distributing Tax Benefit at the time (and to
the extent) that the Tax liability of the Tronox Group is actually
reduced as a result of such prior adjustment. For purposes of
determining when an adjustment described in the
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preceding sentence actually reduces the Tax
liability of the Tronox Group, the Tronox Group shall be deemed to
use all Tax Assets of the Tronox Group prior to such
adjustment.
“ Distribution Date
” means the date on which the Distribution is
effected.
“ Federal Tax ”
means any Tax imposed under Subtitle A of the Code with respect to
which any member of the Tronox Group has filed or will file a
consolidated Return with a member of the Distributing
Group.
“ Federal Tax Return
” means any Return with respect to a Federal Tax.
“ Final Determination
” means (i) a decision, judgment, decree or other order
by any court of competent jurisdiction, which has become final and
is either no longer subject to appeal or for which a determination
not to appeal has been made, (ii) a closing agreement made
under Section 7121 of the Code or any comparable provision of
state, local or foreign law, (iii) a final disposition by any
Taxing Authority of a claim for refund or (iv) any other
written agreement relating to an adjustment between any Taxing
Authority and any Controlling Party the execution of which is final
and prohibits such Taxing Authority or the Controlling Party from
seeking any further legal or administrative remedies with respect
to such adjustment.
“ Group ” means
the Distributing Group or the Tronox Group, as the context
requires.
“ Independent Third
Party ” means a nationally recognized law firm or any of
the following firms or their successors: Ernst & Young,
KPMG, Deloitte & Touche and
PricewaterhouseCoopers.
“ Interested Party
” means, except as provided in Section 4.06 hereof,
Distributing or Tronox (including any successor and/or assign of
any of the foregoing), as the case may be, to the extent
(i) such person or a member of such person’s Group is
not a Controlling Party with respect to a Tax Contest and
(ii) such person or a member of such person’s Group
(A) may be liable for, or required to make, any indemnity
payment, reimbursement, tax sharing payment or other payment
pursuant to this Agreement with respect to such Tax Contest or
(B) may be entitled to receive any indemnity payment,
reimbursement, tax sharing payment or other payment pursuant to
this Agreement with respect to such Tax Contest.
“ Master Separation
Agreement ” means the Master Separation Agreement, dated
as of November 28, 2005, among Distributing, Kerr-McGee
Worldwide Corporation and Tronox.
“ Post-Deconsolidation
Period ” shall mean (i) a taxable period that begins
after the Deconsolidation Date and (ii) the portion beginning
after the Deconsolidation Date of any taxable period that includes
(but does not end on) the Deconsolidation Date.
“ Pre-Deconsolidation
Period ” means (i) any taxable period that ends on
or before the close of the Deconsolidation Date and (ii) the
portion ending on the close of the Deconsolidation Date of any
taxable period that includes (but does not end on) the
Deconsolidation Date.
“ Restructuring
Adjustment ” means, with respect to any taxable period or
portion thereof, and as computed separately for each Tax, the net
increase in each such Tax equal to the sum of
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all adjustments made pursuant to a Final
Determination with respect to each such Tax for each such taxable
period or portion thereof that are attributable to any
Restructuring Transaction.
“ Restructuring
Transaction ” means any transaction undertaken to
effectuate the separation of Distributing’s existing
businesses into two independent businesses other than (i) the
Distribution, (ii) the IPO and (iii) the entering into of
the Credit Facility, including any pledges of collateral
thereunder.
“ Restructuring Tax
” means any Tax incurred as a result of any Restructuring
Transaction which in the judgment of the parties is currently
required to be taken into account in determining the tax liability
of any member of the Distributing Group or Tronox Group for any
Pre-Deconsolidation Period.
“ Return ” means
any report of Taxes due, any claims for refund of Taxes paid, any
information return with respect to Taxes, or any other similar
report, statement, declaration, or document required to be filed
under the Code or other Tax Law, including any attachments,
exhibits, or other materials submitted with any of the foregoing,
and including any amendments or supplements to any of the
foregoing.
“ Tax ” means any
income, gross income, gross receipts, profits, capital, capital
stock, franchise, withholding, payroll, social security, workers
compensation, unemployment, disability, real property, property, ad
valorem, stamp, excise, severance, occupation, service, sales, use,
license, lease, transfer, import, export, value added, alternative
minimum, estimated or other similar tax (including any fee,
assessment, or other charge in the nature of or in lieu of any tax)
imposed by any governmental entity or political subdivision
thereof, and any interest, penalties, additions to tax, or
additional amounts in respect of the foregoing.
“ Tax Asset ”
means any net operating loss, net capital loss, investment tax
credit, foreign tax credit, charitable deduction or any other loss,
credit or tax attribute that could be carried forward or back to
reduce any Tax liability (including, without limitation, deductions
and credits relating to alternative minimum taxes).
“ Taxing Authority
” means, with respect to any Tax, the governmental entity or
political subdivision thereof that imposes such Tax, and the agency
(if any) charged with the collection of such Tax for such entity or
subdivision.
“ Tax Contest ”
means an audit, review, examination, assessment, deficiency or any
other administrative or judicial proceeding with the purpose or
effect of redetermining any Taxes (including any administrative or
judicial review of any claim for refund).
“ Tax Packages ”
mean one or more packages of information that are
(i) reasonably necessary for the purpose of preparing Returns
of the Distributing Consolidated Group with respect to any tax
period in which the information is relevant, and
(ii) completed in all material respects in accordance with the
standards that Distributing has established for its
subsidiaries.
“ Tiwest JV Entities
” means the Tiwest Joint Venture, Tiwest Sales Pty. Ltd. and
Tiwest Pty. Ltd.
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“ Transition Services
Agreement ” means the Transition Services Agreement,
dated as of November 28, 2005, among Distributing, Kerr-McGee
Worldwide Corporation and Tronox.
“ Tronox Business
” means the business of producing and marketing inorganic
industrial chemicals (including titanium dioxide pigment) and heavy
minerals conducted by the Tronox Group, together with the
businesses previously conducted by members of the Tronox
Group.
“ Tronox Combined Tax
Liability ” means, with respect to any taxable year,
except with respect to any Combined Tax Return filed in a Combined
Add-Up State (as defined below) an amount determined, on a Combined
Tax Return by Combined Tax Return basis, by dividing the total
Combined Tax liability reflected on such Return into two segments
in proportion to the Distributing Group’s and the Tronox
Group’s relative contribution, if any, to the apportionment
factor relevant to such Combined Tax liability. For purposes
of the foregoing, the Distributing Group’s and the Tronox
Group’s relative contribution, if any, to an apportionment
factor shall be determined by Distributing in good faith and in a
manner consistent with the past practices of Distributing and
Tronox that have been used in determining apportionment
factors. In the case of any jurisdiction in which Combined
Taxes are calculated by first determining the taxable income (or
loss) of each member of the combined group and then adding each
separate company calculation to determine the group’s total
Combined Tax liability (a “Combined Add-Up State”), the
amount of the Tronox Combined Tax Liability with respect to such
jurisdiction shall be calculated based on the product of the Tronox
Group’s income or loss and the separate apportionment factors
(property, payroll and sales) for each member of the Tronox Group,
unless such amount is determined pursuant to another allocation
method mandated by a specific jurisdiction. For purposes of
the preceding sentence, the apportionment factors shall be
determined for each taxable period.
“ Tronox Federal Tax
Liability ” means, with respect to any taxable year, the
sum of the Tronox Group’s Federal Tax liability and any
interest, penalties and other additions to Tax for such taxable
year, computed as if the Tronox Group were not and never were part
of the Distributing Consolidated Group, but rather were a separate
affiliated group of corporations filing a consolidated United
States federal income tax return pursuant to Section 1501 of
the Code; provided , however , that transactions
between members of the Tronox Group and members of the Distributing
Group shall, so long as Tronox is a member of the Distributing
Consolidated Group, be reflected in accordance with the
consolidated return regulations governing intercompany
transactions. Such computation shall be made (i) without
regard to the income, deductions (including net operating loss and
capital loss deductions) and credits in any year of any member of
the Distributing Group, (ii) by taking into account any Tax
Asset of the Tronox Group, (iii) with regard to net operating
loss and capital loss carryforwards and carrybacks and minimum tax
credits from earlier years of the Tronox Group, but without regard
to any such carryforwards from a Tax period (or portion thereof)
ending on or before the date hereof and arising solely due to
treating the Tronox Group as if it were never part of the
Distributing Consolidated Group, (iv) as though the highest
rate of tax specified in Section 11(b) of the Code were
the only rate set forth in that section of the Code,
(v) reflecting positions, elections and accounting methods
used by Distributing in preparing the relevant Federal Tax Return
for the Distributing Consolidated Group and (vi) as though
Tronox Worldwide LLC were a corporation rather than a disregarded
entity for all taxable periods. For purposes of the
foregoing, the Tronox Federal Tax Liability shall not include any
Restructuring Taxes.
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“ Tronox Group ”
means (i) prior to the Contribution, (A) Tronox Worldwide
LLC and each of its direct and indirect subsidiaries, (B) KM
(Luxembourg) Holdings Sarl and its direct and indirect
subsidiaries, (C) Kerr-McGee B.V. and its subsidiary,
(D) Kerr-McGee Finance (Curacao) N.V., (E) KM Denmark
International ApS and its direct and indirect subsidiaries and
(F) the Tiwest JV Entities and (ii) after the
Contribution, Tronox and each of its direct and indirect
subsidiaries and the Tiwest JV Entities.
“ Tronox Tax Adjustment
” means, with respect to any taxable period or portion
thereof, and as computed separately for each Tax, the net increase
in each such Tax equal to the sum of all adjustments made pursuant
to a Final Determination after the Deconsolidation Date with
respect to each such Tax for each such taxable period or portion
thereof that are attributable to the Tronox Business;
provided , however , that any adjustment comprising a
Restructuring Adjustment shall not be considered in determining the
amount of any Tronox Tax Adjustment.
“ Tronox Tax Benefit
” means, with respect to any taxable period or portion
thereof, and as computed separately for each Federal Tax and
Combined Tax, the net decrease in each such Tax equal to the sum of
all adjustments made pursuant to a Final Determination after the
Deconsolidation Date with respect to each such Tax for each such
taxable period or portion thereof that are attributable to the
Tronox Business; provided, however , that the amount of any
Tronox Tax Benefit shall not exceed the amount that the actual Tax
liability for the Distributing Consolidated Group for the relevant
taxable period is actually reduced by the adjustments made pursuant
to such Final Determination; provided further,
however , that any adjustment comprising a Restructuring
Adjustment shall not be considered in determining the amount of any
Tronox Tax Benefit. For purposes of the foregoing, if an
adjustment that would otherwise constitute a Tronox Tax Benefit is
not considered a Tronox Tax Benefit because the Tax liability of
the Distributing Consolidated Group is not actually reduced as a
result of such adjustment, such adjustment shall be carried-forward
and shall constitute a Tronox Tax Benefit at the time (and to the
extent) that the Tax liability of the Distributing Consolidated
Group is actually reduced as a result of such prior
adjustment. For purposes of determining when an adjustment
described in the preceding sentence actually reduces the Tax
liability of the Distributing Consolidated Group, the Distributing
Consolidated Group shall be deemed to use all Tax Assets of the
Distributing Group prior to such adjustment.
ARTICLE II
ADMINISTRATIVE AND COMPLIANCE
MATTERS
SECTION 2.01
Sole Tax
Sharing Agreement . Any and all existing
tax sharing agreements or arrangements, written or unwritten,
between any member of the Distributing Group and any member of the
Tronox Group shall be terminated as of the date of this
Agreement. As of the date of this Agreement, neither the
members of the Distributing Group nor the members of the Tronox
Group shall have any further rights or liabilities under any such
pre-existing tax sharing agreement or arrangement, and this
Agreement shall be the sole tax sharing agreement or arrangement
between the members of the Distributing Group and the members of
the Tronox Group.
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SECTION 2.02
Designation as
Agent . Each member of the
Tronox Group hereby irrevocably authorizes and designates
Distributing as its agent, coordinator and administrator for the
purpose of taking any and all actions (including the execution of
waivers of applicable statutes of limitations) necessary or
incidental to (i) the filing of any Federal Tax or Combined
Tax Return (including any amended Return), (ii) the claiming
of any refund, credit or offset of Federal Tax or Combined Tax
(even where an item or Tax Asset giving rise to any such refund,
credit or offset arises in a Post-Deconsolidation Period),
(iii) the control of any proceeding and (iv) the making
of any payments to, or collecting refunds from, any Taxing
Authority, in each case relating only to Federal Taxes or Combined
Tax for any Pre-Deconsolidation Period. Distributing
covenants to Tronox that it shall be responsible to see that all
such administrative matters relating thereto shall be handled
promptly and appropriately.
SECTION 2.03
Pre-Deconsolidation Period
Returns
a)
Preparation of
Returns . Distributing shall
prepare, in accordance with applicable law, the Federal Tax Return
and Combined Tax Returns of the Distributing Consolidated Group for
all Pre-Deconsolidation Periods. Distributing shall have the
right with respect to such Returns to determine (i) the manner
in which such Returns shall be prepared and filed, including,
without limitation, the manner in which any item of income, gain,
loss, deduction or credit shall be reported, (ii) whether any
extensions should be requested and (iii) the elections that
will be made by any member of the Distributing Group or the Tronox
Group. Distributing shall consult with representatives of
Tronox in exercising its rights set forth in the preceding
sentence. Any Return with respect to a Pre-Deconsolidation
Period, other than the Federal Tax Return and Combined Tax Returns,
shall be prepared by the party required to file such Return under
applicable law.
b)
Delivery of
Tax Packages . No later than
July 15, 2006, Tronox shall prepare and deliver to
Distributing Tax Packages that include information of the Tronox
Group for any taxable period in which a member of the Tronox Group
files Federal Tax Returns or Combined Tax Returns with a member of
the Distributing Group, provided that if any Combined Tax
Return is required to be filed (taking into account available
extensions) on or prior to September 15, 2006, Tronox shall
prepare and deliver Tax Packages to Distributing no later than 60
days prior to the due date for filing such Return.
c)
Allocation
.
Distributing may, at its option, elect and Tronox shall join
Distributing (if necessary) in electing to ratably allocate items
(other than extraordinary items) of the Tronox Group in accordance
with the relevant provisions of Treasury Regulation
Section 1.1502-76 and any comparable provision of state, local
or foreign law. If Distributing exercises its option to make
such an election, each member of the Tronox Group shall provide a
statement stating its consent to such election as required under
applicable regulations.
d)
Post-Deconsolidation Period
Returns of the Tronox Group . Subject to the
provisions of the Transition Services Agreement, Tronox shall be
solely responsible for the preparation and filing of the Returns of
the Tronox Group for all Post-Deconsolidation Periods that begin
after the Deconsolidation Date.
SECTION 2.04
Cooperation
and exchange of information . In addition to
Tronox’s obligation pursuant to
Section 2.03(b) hereof, Distributing, on the one hand,
and Tronox, on the
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other, will provide each
other with such cooperation and information as either of them
reasonably may request of the other in (i) filing any Return,
amended return or claim for refund, (ii) determining a
liability for Taxes or a right to a refund of Taxes or
(iii) participating in or conducting any audit or other
proceeding in respect of Taxes. Such cooperation and
information shall include providing copies of relevant Returns or
portions thereof, together with accompanying schedules and related
work papers and documents relating to rulings or other
determinations by Tax Authorities. Each party shall make its
employees available on a mutually convenient basis to provide
explanations of any documents or information provided hereunder.
Any information obtained under this Section 2.04 shall
be kept confidential, except as may be otherwise necessary in
connection with the filing of returns or claims for refund or in
conducting an audit or other proceeding. Distributing shall
retain (or cause to be retained) all books and records with respect
to Tax matters pertinent to any member of the Tronox Group relating
to any Pre-Deconsolidation Period until the expiration of the
relevant statutory period of limitations for the assessment of Tax,
provided that Distributing shall consult with Tronox prior to
destroying any such books and records and shall offer Tronox the
opportunity to retain any such books and records after such
date.
ARTICLE III
TAX SHARING
SECTION 3.01
Intentionally
Omitted.
SECTION 3.02
Tax
Sharing .
a)
Deconsolidation
Payment . On or prior to the
Deconsolidation Date, an intercompany payable shall be owed by
Tronox to Distributing (the “Intercompany Estimated Tax
Payable”) in an amount equal to the sum of the Tronox Federal
Tax Liability and the Tronox Combined Tax Liability for the portion
of any taxable period that includes but does not, with respect to
Distributing or any other member of the Distributing Group, end on
the Deconsolidation Date, in both cases as estimated by
Distributing in its sole, good-faith discretion. The
Intercompany Estimated Tax Payable shall be subject to the
treatment of intercompany obligations provided for pursuant to
Section 2.4(b) of the Master Separation
Agreement.
b)
Pro Forma
Returns . On the date that is
five (5) business days prior to the due date for the
Distributing Consolidated Group’s 2005 consolidated federal
income tax return, including extensions, Distributing shall deliver
to Tronox a pro forma federal income tax return (the “2005
Pro Forma Federal Tax Return”) of the Tronox Group reflecting
the Tronox Federal Tax Liability for the portion of such taxable
year in which members of the Tronox Group were included in the
Distributing Consolidated Group. On the date that is five
(5) business days prior to the due date for each Combined Tax
Return, including extensions, for any taxable period that includes,
but does not, with respect to Distributing or any member of the
Distributing Group, end on the Deconsolidation Date, Distributing
shall deliver to Tronox the relevant pro forma Combined Tax Return
(each a “Pro Forma Combined Tax Return” and together
with the 2005 Pro Forma Federal Tax Return, the “Pro Forma
Returns”) of the Tronox Group reflecting the relevant Tronox
Combined Tax Liability for the portion of such taxable period in
which members of the Tronox Group were included in the Distributing
Consolidated Group with
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respect to such Combined
Tax.&
