Exhibit
10.1


 


EXECUTION
COPY


	
   

  



 


ASSET
AND EQUITY PURCHASE AGREEMENT


BY AND
AMONG


TRONOX
INCORPORATED,


TRONOX
LLC,


TRONOX
PIGMENTS (SAVANNAH) INC.


TRONOX
WORLDWIDE LLC,


TRONOX
PIGMENTS (NETHERLANDS) B.V.,


TRONOX
WESTERN AUSTRALIA PTY LTD,


HUNTSMAN
PIGMENTS LLC,


HUNTSMAN
AUSTRALIA R&D COMPANY PTY LTD


AND


HUNTSMAN
CORPORATION


AUGUST
28, 2009


	
   

  



 

















 


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 


 


2

















 


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.


 


3

















 


“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; 


 


4

















 


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 TiCl4 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.


 


5

















 


“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 


 


6

















 


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.


 


7

















 


“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) 


 


8

















 


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



 


9

















 


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).


 


10

















 


“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).


 


11
















 


“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 


 


12

















 


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 


 


13

















 


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 


 


14

















 


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 


 


15

















 


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.


 


16

















 


“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.


 


17

















 


“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, 


 


18

















 


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.


 


19

















 


“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.


 


20

















 


“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).


 


21
















 


“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 


 


22

















 


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).


 


23

















 


“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 


 


24

















 


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,


 


25

















 


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 


 


26

















 


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, 


 


27

















 


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


 


28

















 


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.


 


29

















 


“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.


 


30
















 


(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:


 


31

















 


(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


 


32

















 


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;


 


33

















 


(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


 


34

















 


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


 


35

















 


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


 


36

















 


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


 


37

















 


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


 


38

















 


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


 


39

















 


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.


 


40
















 


(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,


 


41

















 


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


 


42

















 


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


 


43

















 


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 contemplated by this Agreement or any Related Agreement,
(i) except where the failure to give notice, file or obtain such
authorization, consent or approval would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on the Acquired
Business, (ii) except for applicable requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (the “HSR Act”), and any other law
that is designed or intended to prohibit, restrict or regulate (A) foreign
investment or (B) antitrust, monopolization, restraint of trade or
competition (each, a “Competition/Investment Law”), in the case of each
of the foregoing subclauses (A) and (B), as set forth in Section 3(c) of
the Disclosure Schedule, and (iii) except for reports to be filed
under the Exchange Act.


 


(d)           Capitalization
of Target Companies.


 


(i)            Section 3(d)(i) of
the Disclosure Schedule sets forth for each Target Company and for each
Subsidiary of any such Target Company (other than the Excluded German
Subsidiaries and the Excluded Danish Subsidiaries) (A) its name and
jurisdiction of organization, (B) its form of organization and
(C) the number of shares of capital stock or other equity securities
outstanding.  Tronox Netherlands is the
sole beneficial and record owner of the outstanding shares of capital stock or
other equity securities of Tronox Holland, Tronox Worldwide is the sole
beneficial and record owner of the outstanding shares of capital stock or other
equity securities of Tronox Pigments Bahama Islands, and Tronox Australia is
the beneficial and record owner of fifty percent of the outstanding shares of
capital stock or other equity securities of Tiwest, in each case, free and
clear of all Liens, except for Permitted Liens. 
All of the shares of capital stock or other equity securities of Target
Companies (1) have been validly issued and are fully paid and
nonassessable and (2) were not issued in violation of any preemptive or
similar rights.


 


44

















 


(ii)           Other than pursuant
to the Tiwest Joint Venture Documents, (A) there are no stockholder
agreements, voting trusts, proxies or other Contracts with respect to or
concerning the purchase, sale or voting of the capital stock or stock rights of
any Target Company, any of its Subsidiaries or Tiwest, (B) there is no
existing right or any existing Contract to which any Target Company, any of its
Subsidiaries or Tiwest is a party requiring, and there are no convertible
securities of any Target Company, any of its Subsidiaries or Tiwest outstanding
which upon conversion or exchange would require, the issuance of any shares of
capital stock or other equity securities of any Target Company, any of its
Subsidiaries or Tiwest or other securities convertible into shares of capital
stock or other equity securities of any Target Company, any of its Subsidiaries
or Tiwest, or otherwise provide equity or profits interest in a Target Company,
any of its Subsidiaries or Tiwest or any joint venture asset of such Target
Company, its Subsidiaries or Tiwest, to any Person (including any Governmental
Entity), (C) there is no existing Contract to which any Target Company,
any of its Subsidiaries or Tiwest is a party requiring the repurchase,
redemption or other acquisition of any capital stock or other equity
securities, and (D) there are no restrictions on transfer of any shares of
capital stock or other equity securities of any Target Company  or
Tiwest  (other than pursuant
to this Agreement or the Tiwest Joint Venture Documents).


 


(iii)          Tronox Holland has
not issued any profit certificates (winstbewijzen)
or granted to any Person any right to share in its profits.


 


(e)           Title
to Assets of the Acquired Business. 
As of the Closing, Sellers and the Target Companies have good, valid
and, in the case of Owned Real Property of Asset Sellers, marketable, title to,
or the right to use, the Acquired Assets and the shares of capital stock,
properties and assets of the Target Companies, and one-half of the issued share
capital of Tiwest, free and clear of all Liens (except for Permitted Liens and
Liens that will be released on or prior to the Closing, whether pursuant to the
Sale Order or otherwise).  At the
Closing, Asset Sellers will assign, transfer and convey, subject to the
operation of Section 2(j) and subject to the Sale Order
becoming a Final Order, good, valid and, in the case of Owned Real Property of
Asset Sellers, marketable, title to, or Asset Sellers’ right to use, all of the
Acquired Assets, free and clear of all Liens (except for Permitted Liens) as
set forth in the Sale Order.


 


(f)            SEC
Documents; Financial Statements; Accounts Receivable; Inventory.


 


(i)            Tronox Incorporated
has filed all of the Tronox Filed SEC Documents each of which, as finally
amended prior to the date hereof or supplemented by a subsequently filed Tronox
Filed SEC Document, and subject to, and except as described in, the disclosures
set forth in Item 4.02 of Form 8-K filed by Tronox on May 5, 2009,
has complied as to form in all material respects with the applicable
requirements of the Securities Act and Exchange Act as of the date filed with
the SEC.  Subject to, and except as
described in, the disclosures set forth in Item 4.02 of Form 8-K filed by
Tronox on May 5, 2009, none of the Tronox Filed SEC Documents filed on or
after March 14, 2008 contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.


 


45

















 


(ii)           Section 3(f)(ii) of
the Disclosure Schedule sets forth a true and accurate copy of certain
unaudited preliminary selected financial data of Tronox Incorporated and its
consolidated Subsidiaries as at and for the fiscal year ended December 31,
2008, as filed by Tronox Incorporated with the SEC on Exhibit 99.5 to
Form 8-K dated April 13, 2009 (the “2008 Preliminary Selected
Financial Data”).  Except as set
forth on Section 3(f)(ii) of the Disclosure Schedule,
(A) the 2008 Preliminary Selected Financial Data were derived from the
accounting books and records of Sellers, and (B) each of the line items
set forth in the 2008 Selected Preliminary Financial Data fairly presents in
all material respects the account represented by such line item for Tronox
Incorporated and its consolidated Subsidiaries as at December 31, 2008 or
for the year ended December 31, 2008.


 


(iii)          Section 3(f)(iii) of
the Disclosure Schedule sets forth a true and accurate copy of the
consolidated financial statements of Tronox Incorporated and its consolidated
Subsidiaries as at and for the fiscal year ended December 31, 2007,
including a balance sheet and statements of operations and cash flows (the “2007
Financial Statements”).  To Sellers’
Knowledge, except as set forth on Section 3(f)(iii) of the
Disclosure Schedule and except for any portion of the 2007 Financial
Statements relating to environmental and other contingent liability reserves
and any other financial information relating thereto, including impairments,
tax liabilities and deferred tax liabilities and deferred tax assets, the 2007
Financial Statements (A) were derived from the accounting books and
records of Sellers, (B) were prepared in accordance with GAAP, and
(C) fairly present in all material respects the consolidated financial
position of Tronox Incorporated and its consolidated Subsidiaries as at
December 31, 2007 and the consolidated results of operations and cash
flows of Tronox Incorporated and its consolidated Subsidiaries for the fiscal
year ended December 31, 2007.


 


(iv)          Except as set forth
on Section 3(f)(iv) of the Disclosure Schedule and except for
Liabilities relating to the Excluded Assets, the Excluded Liabilities and the
Retained Intercompany Balances, as of the date hereof, none of the Target
Companies, Tiwest or Tronox Australia has incurred any Liabilities after
September 30, 2008 that would be required to be disclosed under GAAP or
that are material in the aggregate to the Acquired Business.  Subject to, and except as described in, the
disclosures set forth in Item 4.02 of Form 8-K filed by Tronox on
May 5, 2009, reserves are reflected on the Financial Statements against
all Liabilities of Target Companies, other than Liabilities relating to the
Excluded Assets and Excluded Liabilities, in amounts that have been established
on a basis consistent with the past practices of Sellers and Target Companies
and in accordance with GAAP.


 


(v)           Section 3(f)(v) of
the Disclosure Schedule sets forth an aged list of the Accounts Receivable
as of July 31, 2009, showing Accounts Receivable that as of such date had
been outstanding for thirty days or more past the date of the applicable sales
term due date, prepared in the Ordinary Course of Business, showing the periods
for which such Accounts Receivable have been outstanding.  Accounts Receivable as of July 31, 2009
reflected on Section 3(f)(v) of the Disclosure Schedule arose
from bona fide transactions with
unaffiliated third parties, net of applicable reserves for doubtful
accounts.  Reserves for doubtful accounts
are reflected on the Financial Statements in


 


46

















 


amounts that have
been established on a basis consistent with the past practices of Sellers and
the Target Companies and in accordance with GAAP.  No Person has any Lien other than Permitted
Liens or Liens that will be released on or prior to the Closing (whether
pursuant to the Sale Order or otherwise) on the Accounts Receivable.


 


(vi)          Sellers have good
and merchantable title to the Inventory free and clear of all Liens (other than
Permitted Liens or Liens that will be released on or prior to the Closing,
whether pursuant to the Sale Order or otherwise).  Sellers are under no obligation or liability
with respect to accepting returns of Inventory in the possession of their
customers other than in the Ordinary Course of Business.  The Inventory is in good and merchantable
condition in all material respects, is suitable and usable in all material
respects for the purposes for which it is intended and is in a condition in all
material respects such that it can be sold in the Ordinary Course of
Business.  Except for fluctuations and
variations in Inventory due to normal business factors, including production
schedules and market demand (including seasonal factors affecting the same),
the Inventory comprises broadly the same mix of types and grades of products as
are required for the trading requirements of the Acquired Business, and the
Inventory has been maintained at levels which in the Ordinary Course of
Business have been appropriate
to meet the then current level of sales in the Acquired Business.


 


(g)           Contracts.


 


(i)            Section 3(g)(i) of
the Disclosure Schedule sets forth as of the date hereof an accurate and
complete list of the following Contracts (each, a “Material Contract,” and collectively, the “Material
Contracts”) to which a
Seller, a Target Company or Tiwest is a party with respect to the Acquired
Business or the Tiwest Joint Venture:


 


(A)          any Contract for the
lease of personal property to or from any Person providing for lease payments
in excess of $1,000,000 per annum;


 


(B)           any Contract for the
purchase or sale of raw materials, commodities, supplies, products or other
personal property, the performance of which will extend over a period of more
than six months after the Closing Date or involves consideration in excess of
$5,000,000 per annum;


 


(C)           any Contract for
shipping or other transportation services involving consideration in excess of
$1,000,000 per annum;


 


(D)          any Contract that is
a collective bargaining agreement;


 


(E)           any Contract
relating to Intellectual Property that: (1) involves consideration as of
the Closing Date in excess of $250,000; (2) includes a license involving
Acquired Intellectual Property granted by Sellers or the Target Companies to
any third party (other than the implied license in the sale of the Products to
third-party customers); (3) includes the payment of a royalty or fee by
any Seller to any third party for ownership, the use of, or right to use the
Acquired Intellectual Property in the processing or manufacturing of the
Products, or the reservation by such third party of the right to use, license,
or sublicense such


 


47

















 


Acquired
Intellectual Property (except for licenses of commercially available software
or service agreements with respect to such software entered into in the
Ordinary Course of Business; or (4) is otherwise material to the operation
of the Acquired Business;


 


(F)           any Contract that
(1) limits the freedom of any Seller or Target Company, Tiwest or the
Acquired Business to compete in any line of business or with any Person or in
any geographical area or (2) contains exclusivity obligations or
restrictions binding on any Seller or Target Company, Tiwest or the Acquired
Business;


 


(G)           any joint venture,
partnership, limited liability company or other similar Contracts;


 


(H)          any Contract relating
to any outstanding commitment for capital expenditures in excess of $100,000
individually or $750,000 in the aggregate;


 


(I)            any Contract (or
series of related Contracts) relating to any outstanding obligation of an
acquisition, disposition or lease of any Person, business or material real
property or other material assets (whether by merger, sale of stock, sale of
assets or otherwise);


 


(J)            any distribution,
agency and marketing Contract (or series of related Contracts) involving in
excess of $250,000 in any annual period;


 


(K)          any Contract (or
series of related Contracts) relating to the purchase by any Seller, Target
Company or Tiwest of any products or services under which the undelivered
balance of such products or services is in excess of $750,000 in the aggregate
or $250,000 over the next twelve months;


 


(L)           any Contract
(including any “take-or-pay” or keepwell agreement) under which (1) any
Person has directly or indirectly guaranteed any Liabilities or obligations of
any Target Company, Tronox Australia or Tiwest or (2) any Target Company,
Tronox Australia or Tiwest has directly or indirectly guaranteed Liabilities of
any other Person;


 


(M)         any Contract with any
current employee of any Asset Seller, or any current  or former employee of any
Target Company or Tiwest, with aggregate payments of at least $50,000 remaining
under such Contract or providing for severance Liabilities of at least $50,000
remaining under such Contract (other than, in each case, pursuant to the
standard severance policies of any Asset Seller or Target Company or Tiwest);


 


(N)          any Contract that is
a settlement or similar agreement pursuant to which outstanding obligations
will exist for the Acquired Business after the Closing;


 


48

















 


(O)          any Contract related
to the use, development, support or disaster recovery of the IT Systems
involving consideration in excess of $100,000 or otherwise critical to the
operation of the Acquired Business;


 


(P)           any Contract that
provides for a Bonding Requirement (it being understood and agreed that,
notwithstanding any other provision herein to the contrary, Sellers shall have
the right to update Section 3(g)(i) of the Disclosure Schedule
following the date hereof to disclose all Bonding Requirements in effect from
time to time); and


 


(Q)          any other Contract
that is material to the Acquired Business, whether or not entered into in the
Ordinary Course of Business, and the termination of which would reasonably be
expected to have a material and adverse effect on the Acquired Business.


 


(ii)           With respect to
each Contract listed on Section 3(g)(i) of the Disclosure Schedule:  (A) such Contract is in full force and
effect and constitutes the valid and legally binding obligation of Sellers,
Target Company or, to Sellers’ Knowledge, the Tiwest party thereto or the
counterparty thereto, enforceable against such Seller, Target Company or, to
Sellers’ Knowledge, Tiwest and the counterparty thereto in accordance with its
terms and conditions, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws relating to creditors’ rights and general principles of equity;
and (B) subject to the payment of Cure Amounts, none of Sellers, Target
Company or Tiwest party thereto nor, to Sellers’ Knowledge, the counterparty
thereto is in material breach or default that presently would permit or give
rise to a right of termination, modification or acceleration thereunder, and to
Sellers’ Knowledge, no event has occurred, which with or without the giving of
notice or lapse of time or both, would cause any Seller, Target Company or, to
Sellers’ Knowledge, Tiwest party thereto or any counterparty thereto to be in
material breach or default thereunder, and none of Sellers, any Target Company
or, to Sellers’ Knowledge, Tiwest has received any notice of termination,
cancellation, breach or default under any Material Contract.


 


(iii)          Section 3(g)(iii) of
the Disclosure Schedule sets forth an accurate and complete list of each of
the top ten customers, distributors and suppliers of the Acquired Business, on
the basis of revenues generated or expenditures made, as applicable, during the
twelve months ended December 31, 2008. 
From December 31, 2008 to the date of this Agreement, (A) none
of Sellers, any Target Company or, to Sellers’ Knowledge, Tiwest has received
from such customers, distributors or suppliers any notice of termination or
cancellation of its agreement with the Acquired Business, other than in
accordance with such agreement’s terms, or (B) to Sellers’ Knowledge, none
of such customers, distributors or suppliers has threatened in writing to
cancel, terminate or materially and adversely modify its agreement with the
Acquired Business, other than in accordance with such agreement’s terms.


 


49
















 


(h)                                 Intellectual Property.


 


(i)                                     Section 3(h)(i) of the
Disclosure Schedule
sets forth as of the date hereof an accurate and complete list of
(A) patents and pending patent applications, (B) registrations and
applications for registration of copyrights, and (C) registrations and
applications for registration of trademarks and service marks, in each case,
owned by Asset Sellers and that are included in the Acquired Assets or owned by
Target Companies, indicating the owner, jurisdiction, and application or registration
number, as applicable.  All Intellectual
Property set forth on Section 3(h)(i) of the Disclosure Schedule,
(1) has a Seller as the owner of record of such Intellectual Property in
the applicable intellectual property office, (2) has not been canceled,
expired, or abandoned, and, to Sellers’ Knowledge, made the subject of any
opposition, cancellation, reissue, reexamination or interference, and
(3) to Sellers’ Knowledge, is valid and enforceable.  All fees required for the maintenance or
renewal of the Intellectual Property set forth on Section 3(h)(i) of
the Disclosure Schedule have been paid when due.  Sellers own or have a valid license or lease
or other right to use each item of Acquired Intellectual Property and all
Intellectual Property that is owned, used, or held for use by the Target
Companies (collectively, the “Acquired Business IP”) and all components
of the IT Systems.


 


(ii)                                  No Intellectual Property, other than the
Acquired Business IP, is necessary for use, used, or held for use in the
operation of the Acquired Business as currently conducted.  Sellers have not granted any other Person an
exclusive license to any of the Acquired Business IP.


 


(iii)                               To Sellers’ Knowledge, (A) the
conduct of the Acquired Business as currently conducted does not infringe or
misappropriate the Intellectual Property rights of any third party and
(B) no third party is infringing or misappropriating any material Acquired
Business IP owned or exclusively licensed by any Seller or Target Company.  No suit, action or proceeding is currently
pending or, to Sellers’ Knowledge, threatened against any Seller or Target
Company that challenges the validity or ownership of any Acquired Intellectual
Property owned or exclusively licensed by any U.S. Seller or Target Company or
asserts that the conduct of the Acquired Business infringes or misappropriates
any third party’s Intellectual Property rights, or in which any U.S. Seller or
any Target Company asserts that any third party is infringing or
misappropriating any material Intellectual Property included in the Acquired
Assets or owned by any Target Company. 
None of Sellers, Target Companies, or their Affiliates have received any
written notice in the past twelve months alleging infringement or
misappropriation of any third party’s Intellectual Property by any Seller or
Target Company.


 


(iv)                              Sellers and Target Companies have taken
reasonable and customary steps to protect and, where applicable, maintain in
confidence, Intellectual Property that is material to the Acquired Business,
including by implementing employee policies containing confidentiality and
intellectual property assignment provisions.


 


(i)                                     Legal Compliance. 
(i) To Sellers’ Knowledge, Sellers, Target Companies and Tiwest
are, and at all times since January 1, 2006 have been, in material
compliance with all material laws, Decrees and Permits applicable to the
Acquired Business, (ii) none of Sellers,


 


50

















 


Target Companies, or their Affiliates or, to Sellers’ Knowledge, Tiwest
has received any written notice since January 1, 2006 relating to any
material violations or alleged material violations of any material law or
material violations, alleged material violations or material defaults under any
Decree with respect to the Acquired Business or any Permit with respect to the
operation of the Acquired Business, (iii) there are no material Decrees or
Contracts with any Governmental Entity to which any Target Company, any Seller
or Tiwest is a party or by which any Target Company, any Seller or Tiwest is
bound, and (iv) none of Sellers, the Target Companies or Tiwest have
received any written notification or claim and, to Sellers’ Knowledge, there
are no claims threatened in writing (in each case, which is material and outstanding)
that it has manufactured, sold or provided any product in connection with the
Acquired Business which does not in any material respect comply with all
applicable laws, Permits, regulations or standards or which in any material
respect is defective or dangerous or not in material compliance with any
representation or warranty, express or implied, given by Sellers, a Target
Company or Tiwest in respect thereof.


 


(j)                                     Litigation.  There is no
Litigation pending or, to Sellers’ Knowledge, threatened in writing, before any
Governmental Entity brought by or against any Seller or any Affiliate thereof,
relating to the Acquired Business or affecting any of the Acquired Assets or
assets or properties of the Target Companies, Tiwest or the Tiwest Joint Venture
that, if adversely determined, could reasonably be expected to have a Material
Adverse Effect on the Acquired Business or materially impair the ability of
Sellers to consummate the transactions contemplated hereby or by any other
Related Agreement.


 


(k)                                  Environmental, Health and Safety Matters.


 


(i)                                     Solely with respect to the Acquired
Business, the Asset Sellers (A) are and within the past five years have
been in compliance in all material respects with all applicable Environmental,
Health and Safety Requirements, and (B) have obtained all Permits arising
under Environmental, Health and Safety Requirements that are necessary for the
conduct of the Business and the Tiwest Joint Venture in compliance in all
material respects with Environmental, Health and Safety Requirements.


 


(ii)                                  None of the Asset Sellers has received
any unresolved written notice, report or other written communication regarding
any actual or alleged material violation of Environmental, Health and Safety
Requirements or any unresolved actual or alleged material Environmental
Liabilities relating to the Acquired Business, any Acquired Assets or the
Tiwest Joint Venture.


 


(iii)                               No material Release affecting the
Acquired Business, any Acquired Assets or the Tiwest Venture has occurred or is
occurring at or from any Owned Real Property or Leased Real Property by any
Asset Seller that requires notice to any Governmental Entity, further
investigation, any form of response action under applicable Environmental,
Health and Safety Requirements, or that could reasonably be expected to form
the basis of a material claim for damages or compensation by any Person.


 


(iv)                              None of the Asset Sellers has by law or
Contract agreed to, assumed or retained any material Environmental Liability
related to the Acquired Business, any


 


51

















 


Acquired Assets or the Tiwest Venture under any lease,
purchase agreement, sale agreement, joint venture agreement or other binding
corporate or real estate document or agreement, including any Assumed Contract.


 


(v)                                 Sellers have made available to Buyers all
significant environmental reports, data (including in relation to energy
consumption, energy generation and emissions of greenhouse gases), documents,
studies, analyses, investigations, audits and reviews in any Seller’s
possession or control as necessary to reasonably disclose to Buyers any
material Environmental Liabilities in relation to the Acquired Assets or the
Acquired Business.


 


(vi)                              Except to the extent the representations and
warranties in Sections 3(f) (financial statements), 3(j) (litigation),
3(p) (real property liens and encumbrances), 3(q) (solely
with respect to listing of Permits) or 3(v) (solely with respect to
listing of insurance policies) address environmental matters, the
representations and warranties in this Section 3(k) are the
exclusive representations and warranties of Sellers relating to environmental,
health, and safety matters, including any matters arising under Environmental,
Health or Safety Requirements.


 


(vii)                           Notwithstanding anything to the contrary
set forth herein, the representations and warranties set forth in this Section 3(k) shall
not apply to the U.S. Sellers’ Soda Springs, Idaho site, the U.S. Sellers’
Savannah, Georgia site or the Henderson Legacy Contamination.


 


(l)                                     Sufficiency of Assets of the Acquired
Business.  Except for the Excluded Assets, the Acquired
Assets and the assets of the Target Companies constitute all assets, properties
and rights used or held for use by U.S. Sellers and the Target Companies
necessary to conduct and operate the Acquired Business in the manner presently
conducted in all material respects. 
Tronox Holdings does not directly own any right, title or interest in
any assets that are used or held for use in the operation of the Acquired
Business.


 


(m)                               Employees and Employment Matters.


 


(i)                                     None of U.S. Sellers, Target Companies,
Tronox Australia or, to Sellers’ Knowledge, Tiwest is a party to or bound by
any collective bargaining agreement or bargaining relationship covering the
Covered Employees, nor has any of them experienced any strike or material
grievance, material claim of unfair labor practices or other material
collective bargaining dispute with respect to the Acquired Business within the
twelve months prior to the date hereof. 
None of Sellers, Target Companies, Tronox Australia or, to Sellers’
Knowledge, Tiwest has committed any unfair labor practice within the twelve
months prior to the date hereof that has had or would reasonably be expected to
have a Material Adverse Effect on the Acquired Business.  To Sellers’ Knowledge, there is no
organizational effort or representation petition being made or threatened by or
on behalf of any labor union with respect to any Covered Employees.  There is no labor strike or labor dispute,
slowdown, lockout, or stoppage pending or threatened against or affecting,
Sellers or Target Companies and neither Sellers nor Target Companies have
experienced any labor strikes, material labor disputes,


 


52

















 


slowdowns, lockouts or stoppages in the past five
years.  Within the twelve months prior to
the date hereof, none of U.S. Sellers or Target Companies has implemented any
plant closing or layoff of the Covered Employees in violation of the United
States Worker Adjustment and Retraining Notification Act, or any similar
applicable non-United States, state or local law (collectively, the “WARN
Act”).


 


(ii)                                  There are no written employment contracts
or severance, retention or change-in-control agreements with any Covered
Employees, under which either Buyer or a Target Company or Tronox Australia
could become liable for payment thereof.


 


(iii)                               There are no Assumed Contracts or Assumed
Liabilities that will create any Liability on behalf of either Buyer or any
Target Company to (A) pay any benefit, compensation or other payment to
any Covered Employee, or (B) increase or accelerate the level of existing
benefits, compensation or other payments payable or potentially payable to any
Covered Employee, in each case arising from, or in connection with or in part
because of, the sale or purchase of the Acquired Business or the Target
Interests.


 


(iv)                              As of the Closing Date, all Retained
Employees will have been paid in full all wages and salaries for services
performed by them that were accrued by them up to the Closing.


 


(n)                                 Employee Benefit Plans.


 


(i)                                     Section 3(n)(i) of the
Disclosure Schedule
sets forth an accurate and complete list of each material Employee Benefit Plan
and Foreign Plan, including each Assumed Employee Benefit Plan, that Sellers,
Target Companies, Tiwest or any of their respective Subsidiaries maintain or to
which Sellers, Target Companies, Tiwest or any of their respective Subsidiaries
contribute with respect to the Covered Employees or with respect to which any
Seller, Target Company, Tiwest or any of their respective Subsidiaries has or
could have had Liabilities.  With respect
to each such Employee Benefit Plan and Foreign Plan, including each Assumed
Employee Benefit Plan:


 


(A)                              such plan, if intended to meet the
requirements of a “qualified plan” under Section 401(a) of the IRC,
has received a favorable determination letter from the United States Internal
Revenue Service, and, to the Knowledge of Sellers, there are no circumstances
likely to result in revocation of any such favorable determination letter or
the loss of the qualification of any such Employee Benefit Plan under
Section 401(a) of the IRC; and


 


(B)                                Sellers have made available to Buyers
correct and complete copies of: (1) the plan documents; (2) summary
plan descriptions; (3) when applicable, the most recent determination
letter received from the United States Internal Revenue Service; (4) the
three most recent Annual Reports (Form 5500 Series) and accompanying
schedule, if any; (5) the three most recent annual financial reports, if
any; (6) the three latest actuarial valuation reports (including but not
limited to reports prepared for funding, deduction and financial accounting
purposes), if any; and (7) insurance contracts and other funding vehicles.


 


53

















 


(ii)                                  There does not now exist, and there are
no existing circumstances that could reasonably be expected to result in, any
Controlled Group Liability that would be a Liability of either Buyer, any
Target Company or any of their respective Subsidiaries, or to Sellers’
Knowledge, Tiwest, following the Closing.


 


(iii)                               Any change in the terms and conditions of
post-retirement medical or dental coverage, and any increase in the premium or
contribution to be paid for such coverage, as applicable, under any Employee
Benefit Plan providing post-retirement health or dental coverage, that occurred
during the period commencing on the date which is twelve months prior to the
date of the commencement of the Chapter 11 Cases and ending on the date hereof,
were based on decisions implemented prior to the commencement of the Chapter 11
Cases and were not related to or caused by the Chapter 11 Cases.


 


(iv)                              With respect to any Foreign Plan, (A) if
intended to qualify for special tax treatment, each such Foreign Plan meets the
requirements for such treatment in all material respects; (B) if intended
to be book reserved, any such Foreign Plan is fully book reserved in all
material respects based upon reasonable GAAP actuarial assumptions and
methodology and fully reflects the financial effects of all prior transactions
in relation to any such book reserved plan, except where failure to reserve
would not be material; (C) if intended to be funded, any such Foreign Plan
is either fully funded or any shortfall is fully recognized as a book reserve
in all material respects, based upon reasonable GAAP actuarial assumptions and
methodology and fully reflects the financial effects of all prior transactions
in relation to such funded plan, except where failure to reserve would not be
material; such Foreign Plan is in compliance, in all material respects, with
all applicable provisions of applicable laws and regulations and has been
administered in all material respects in accordance with its terms;
(D) all material contributions required to be made to any such Foreign
Plan by applicable laws or regulations for any period through the date hereof
have been timely made or paid in full; (E) there are no currently pending
or, to Sellers’ Knowledge, threatened claims (other than claims in the Ordinary
Course of Business), lawsuits or arbitrations which have been asserted or
instituted against any Foreign Plan, any fiduciaries thereof with respect to
their duties to such Foreign Plan or the assets of any such Foreign Plan which
could reasonably be expected to result in any material Liability of any Seller,
Target Company or Tiwest or any of their respective Subsidiaries; and
(F) no liability which could be material to the either Buyer, Target
Companies, Tiwest or any of their respective Subsidiaries, taken as a whole,
exists or reasonably could be imposed upon the assets of the either Buyer,
Target Companies, Tiwest or their respective Subsidiaries by reason of any such
Foreign Plan, other than to the extent reflected on the financial statements.


 


(v)                                 Notwithstanding anything to the contrary
set forth herein, the representations and warranties set forth in this Section 3(n) are
the exclusive representations and warranties of Sellers regarding employee
benefit matters.


 


(o)                                 Australian Superannuation. 
Tronox Australia has made when due all contributions that they are
obliged to make or have voluntarily committed to make to each Fund


 


54

















 


to which Tronox Australia contributes, or is required to contribute, in
respect of any of its employees employed in Australia.


 


(i)                                     Except to the Funds, Tronox Australia and
Tiwest do not make, nor are required to make, any payment in respect of their
employees employed in Australia, to any fund, scheme or arrangement relating to
retirement, death or disablement, and there is no Contract, agreement,
arrangement or proposal in force or promised under which Tronox Australia or
Tiwest could become so liable at any time.


 


(ii)                                  None of the Funds are defined benefit
superannuation funds in Australia.


 


(iii)                               Both Tronox Australia and, to Sellers’
Knowledge, Tiwest have made the necessary contributions to avoid being liable
to pay the superannuation guarantee charge (A) in respect of any of their
employees employed in Australia, and (B) attributable to any period prior
to the Closing.


 


(p)                                 Real Property.


 


(i)                                     Section 3(p)(i) of the
Disclosure Schedule
sets forth the address and description of each parcel of Owned Real
Property.  With respect to each parcel of
Owned Real Property:


 


(A)                              a Seller or Target Company has good and
marketable fee simple title to such Owned Real Property, free and clear of all
Liens (except for Permitted Liens or Liens that will be released on or prior to
the Closing, whether pursuant to the Sale Order or otherwise) as of the
Closing;


 


(B)                                Other than the Third Party Leases,
(i) none of Sellers or Target Companies has leased, licensed or otherwise
granted to any Person the right to use or occupy all or any part of the Owned
Real Property and there are no Persons other than Sellers or the Target
Companies in possession of any such Owned Real Property;


 


(C)                                other than the rights of Buyers pursuant
to this Agreement and the rights of the Tiwest Joint Venture Participants under
the Tiwest Joint Venture Documents, none of Sellers or Target Companies is a
party to any unrecorded and outstanding options, rights of first offer or
rights of first refusal to purchase, preferential purchase rights or similar
rights, or agreement to sell, mortgage, pledge, hypothecate, lease, sublease,
license, convey, alienate, transfer or otherwise dispose of, any Owned Real
Property or any portion thereof;


 


(D)                               other than the rights of the Tiwest Joint
Venture Participants under the Tiwest Joint Venture Documents, none of Sellers
or Target Companies is party to any agreement or option to purchase any real
property relating to the Acquired Business; and


 


55

















 


(E)                                 Sellers have furnished to Buyers or made
available to Buyers true, correct and complete copies of all deeds, title
opinions, title insurance policies and surveys in their possession that relate
to the Owned Real Property.


 


With respect to the
foregoing subparagraphs (A) through (D) above, the representations
and warranties with respect to the JV Owned Real Property are qualified to
Sellers’ Knowledge.


 


(ii)                                  Section 3(p)(ii) of the
Disclosure Schedule
sets forth (x) the address of each Leased Real Property, and (y) a
true and complete list of all Leases and Third Party Leases.  Sellers have made available to Buyers true,
correct and complete copies of all Leases and Third Party Leases, as amended
through the date hereof.  With respect to
each of the Leases and Third Party Leases, as applicable:


 


(A)                              such Lease or Third Party Lease, as
applicable (1) is legal, valid, binding, enforceable, and in full force
and effect as against a Seller, Tiwest or a Target Company, or to the Knowledge
of Sellers with respect to the JV Leased Real Property only, against Tronox
Australia the Tiwest Joint Venture Participants, as applicable, subject in each
case to the application of any bankruptcy or other creditor’s rights laws; and
(2) to Sellers’ Knowledge, is legal, valid, binding, enforceable, and in
full force and effect as against the counterparty to such Lease or Third Party
Lease (as applicable); provided that in the case of the JV Leased Real
Property only, the representations and warranties contained in this item
(2) of this Section 3(p)(ii)(A) are made and limited to
Sellers’ Knowledge, subject in each case to the application of any bankruptcy
or other creditor’s rights laws;


 


(B)                                as to the Leases, one or more of Seller,
Target Company or Tiwest, or to the Knowledge of Sellers with respect to the JV
Leased Real Property only, the Tiwest Joint Venture Participants, as
applicable, identified as the “lessee” or “tenant” under each such Lease is the
lessee thereunder or has succeeded to the rights of the lessee under such Lease
and owns the leasehold interest created pursuant to such lease free and clear
of all Liens, except for Permitted Liens or Liens that will be released on or
prior to the Closing (whether pursuant to the Sale Order or otherwise);


 


(C)                                none of Sellers, Target Companies or
Tiwest, or to the Knowledge of Sellers with respect to the JV Leased Real
Property only, the Tiwest Joint Venture Participants, as applicable, is in
breach or default under such Lease or Third Party Lease in any material respect
and, to Sellers’ Knowledge, no event has occurred or circumstance exists which,
with the delivery of notice, the passage of time or both, would constitute such
breach or default under any Lease or Third Party Lease; and


 


(D)                               no Seller, nor any Target Company, nor
Tiwest, nor, to Sellers’ Knowledge, with respect to the JV Leased Real Property
only, any Tiwest Joint Venture Participant, has assigned, subleased,
sublicensed, mortgaged, pledged or


 


56

















 


otherwise
encumbered or transferred its interest, if any, under any Lease or Third Party
Lease.


 


(iii)                               To the Knowledge of Sellers, there are no
pending or proposed special assessments or re-assessments of any parcel of land
included in the Owned Real Property that could reasonably be expected to result
in a material increase in the real property Taxes or other similar charges
payable by any Seller, Target Company or Tiwest with respect to any parcel of
Owned Real Property or in the rent, additional rent or other sums and charges
payable by any Seller, Target Company or Tiwest under the Leases.


 


(q)                                 Permits.  Section 3(q) of
the Disclosure Schedule contains a list of all material Permits held by
Sellers, the Target Companies and Tiwest that are necessary to carry on the
Acquired Business as presently conducted under applicable law.  There is no Litigation pending, nor to the
Knowledge of Sellers, threatened, that seeks the revocation, cancellation,
suspension, failure to renew or adverse modification of any material Acquired
Permits.  To the Knowledge of Sellers,
all required filings with respect to the material Acquired Permits have been
made and all required applications for renewal thereof have been filed.


 


(r)                                    Tiwest Joint Venture Interests.


 


(i)                                     The Tiwest Joint Venture Interests,
together with the Exxaro Joint Venture Interest, include all of the assets,
Permits, properties and rights, used or held for use by Tronox Australia and
the Tiwest Joint Venture Participants in their conduct and operation of the
Tiwest Joint Venture as presently conducted, and no Asset Seller (other than
Tronox Australia) or Target Company owns any interest in the Tiwest Joint
Venture Interests.


 


(ii)                                  To Sellers’ Knowledge, the Tiwest Joint
Venture Participants do not have any assets, rights, title or interests in any
assets, Permits, properties or rights necessary or required for, or used or
held for use by the Tiwest Joint Venture which are not held by the Tiwest Joint
Venture Participants as tenants in common for the Tiwest Joint Venture.


 


(iii)                               Tronox Australia has made or intends to
make all capital contributions that are required to be made until the Closing
Date to Tiwest or the Tiwest Joint Venture as required under the Tiwest Joint
Venture Documents.


 


(iv)                              Sellers have made available to Buyers accurate
and complete copies of (A) each of the Tiwest Joint Venture Documents to
which any of Sellers, the Target Companies, their Subsidiaries or Tiwest are,
as at the date hereof, a party, and (B) all 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 the Tiwest
Joint Venture Participants or any of their Subsidiaries may have with respect
to the accounts receivable of Tronox Pigments Bahama Islands) and the Exxaro
Joint Venture Interest.


 


(v)                                 All of the Owned Real Property in which
Tronox Australia has an interest is held by Tronox Australia and the applicable
Tiwest Joint Venture Participants as


 


57

















 


tenants in common and no other party holds any fee
interest in such Owned Real Property.


 


(vi)                              To Sellers’ Knowledge, (A) no Tiwest
Joint Venture Participant has leased, licensed or otherwise granted to any
Person the right to occupy any of the property owned by Tronox Australia and
the applicable Tiwest Joint Venture Participants as tenants in common and
(B) other than the rights of the Tiwest Joint Venture Participants under
the Tiwest Joint Venture Documents, the Tiwest Joint Venture Participants are
not a party to an agreement or option to purchase any real property, or any
interest in real property, relating to the Acquired Business.


 


(vii)                           To Sellers’ Knowledge, Tiwest does not
(A) lease any land, buildings, structures, improvements or other real
property interests other than on behalf of Tronox Australia and the Tiwest
Joint Venture Participants, or (B) own any real property other than on
behalf of Tronox Australia and the Tiwest Joint Venture Participants.


 


(viii)                        To Sellers’ Knowledge, no Tiwest Joint
Venture Participant leases any land, buildings, structures, improvements or
other real property interests used by, or on behalf of, the Tiwest Joint
Venture (other than jointly or as tenants in common with Tronox Australia).


 


(ix)                                Other than pursuant to that certain Share
Sale Agreement, dated May 29, 2009, and the Deed of Termination and
Release, dated May 29, 2009, Tronox Australia has no Liability to any
Person in connection with the sale by it of one-half of the equity interests
held by it in Tiwest Sales.


 


(s)                                  Conduct in the Ordinary Course of
Business; Absence of Certain Changes, Events and Conditions. 
Since September 30, 2008, (i) there has not been a Material
Adverse Effect on the Acquired Business, and (ii) the Acquired Business
has been conducted in the Ordinary Course of Business, except as may have been
authorized by the Bankruptcy Court in connection with or as a result of U.S.
Sellers’ or their Affiliates’ status as debtors under Chapter 11 of the
Bankruptcy Code.


 


(t)                                    Tax.  Each Seller
with respect to its Acquired Assets, each Target Company and Tiwest has timely
filed all Tax Returns with the appropriate Taxing Authority in accordance with
all applicable laws, and all such Tax Returns are correct and complete in all
material respects.  All Taxes due from
each Seller with respect to its Acquired Assets, each Target Company and Tiwest
have been timely paid.  There are no
Liens with respect to any Acquired Assets, any Target Company or Tiwest or
their assets as a result of failure to pay Taxes.  No investigation, audit, proceeding or other
examination by any Taxing Authority is in progress, pending or to Knowledge of
Seller threatened with respect to any Tax Return filed by, or Taxes relating to
any Seller with respect to its Acquired Assets, each Target Company Tiwest or
the Tiwest Joint Venture.  No agreement,
consent, clearance, or other Tax ruling or agreement has been executed or
entered into relating to Taxes by any Seller in connection with any Acquired
Asset, any Target Company or Tiwest, including any IRS private letter rulings
or comparable rulings of any Taxing Authority and closing agreements pursuant
to Section 7121 of the IRC or any similar law.  Each Target Company has withheld 


 


58

















 


and timely remitted all
material Taxes required to have been withheld and remitted in connection with
amounts paid or owing to any employee, independent contractor, creditor,
stockholder, or other third party.  No dispute
or claim concerning any Tax Liability of any Seller with respect to its
Acquired Assets, any Target Company or Tiwest has been proposed, threatened or
claimed by any Taxing Authority.  No
Seller with respect to its Acquired Assets, no Target Company or Tiwest has
waived any statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency.  No Seller with respect to its Acquired
Assets, no Target Company or Tiwest is a party to any Tax allocation, sharing,
or similar arrangement or agreement (whether or not in writing).  No Target Company or Tiwest is required to
include in income any adjustment in its current or in any future taxable period
by reason of a change in accounting method; nor, to the Knowledge of Sellers,
has a Taxing Authority proposed or is considering proposing, any change in
accounting method.  No Target Company or
Tiwest is a party to any agreement, Contract, or arrangement that (individually
or in the aggregate) could reasonably be expected to give rise to the payment
of any compensation (whether in cash or property, including stock or other
equity interests) that would not be deductible in full when paid or
accrued.  Each of Tronox LLC, Tronox
Worldwide, Tronox Netherlands, Tronox Holland and Tronox Pigments Bahama
Islands is currently disregarded for U.S. federal income tax purposes and,
except as set forth in Section 3(t) of the Disclosure Schedule,
has been since the date of its formation. Each of Tronox Incorporated and
Tronox Australia is, and has always been since the date of its formation,
properly treated as a corporation for U.S. federal income tax purposes.  Tronox Holland has not in the current fiscal
year or in any of the preceding five fiscal years claimed, utilized or
requested exemptions of deferrals in relation to Tax, including exemptions or
deferrals of Tax relating to reorganizations or mergers.


 


(u)                                 Target Companies; Books and Records.


 


(i)                                     (A) No administrator, receiver or
administrative receiver or any equivalent officer has been appointed in respect
of any Target Company or in respect of any part of the assets or undertakings
of any Target Company, 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 any Target Company or for an administration order or the
equivalent in the relevant jurisdiction of incorporation of any Target Company.


 


(ii)                                  The statutory books (including registers
and minute books) of each Target Company are accurate and complete in all
material respects.


 


(iii)                               The Products are being, or have been,
pre-registered and registered within the meaning of the Regulation (EC)
No. 1907/2006 concerning the Registration, Evaluation, Authorisation and
Restriction of Chemicals (“REACH”) of the European Union and all
rules and regulations promulgated thereunder, and do and will comply with
all statutory and EC requirements and regulations relating to the Products or
to the sale of the Products in the European Union.


 


(v)                                 Insurance.  Section 3(v) of
the Disclosure Schedule sets forth as of the date hereof a true and
complete list of all insurance policies applicable to the Acquired Business
which are in the name of any of Sellers or Target Companies (the “Insurance
Policies”), together with the


 


59

















 


name of the insurer, policy number, type of coverage, limits, date of
issue and applicable business unit deductible. 
All premiums due and payable with respect to Sellers’ material insurance
policies which provide coverage relating to the Acquired Assets or Assumed
Liabilities and the operations of the Target Companies, the Tiwest Joint
Venture and Tiwest have been paid in full (including with proceeds of any
financing or credit arrangements which may exist), and no Seller nor any Target
Company nor, to Sellers’ Knowledge, Tiwest has received a written claim under
such policies which remains outstanding as of the date hereof.  All such policies are in full force and
effect, and Sellers and Target Companies have complied in all material respects
with the terms thereof.  To the Knowledge
of Sellers, there exists no event, occurrence, condition or act (including the
purchase of the Acquired Assets hereunder) that, with the giving of notice, the
lapse of time or the happening of any other event or condition, would entitle
any insurer to terminate or cancel any Insurance Policy.


 


(w)                               Brokers’ Fees. 
None of Sellers has entered into any Contract to pay any fees or
commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which either Buyer could become liable or
obligated to pay.


 


(x)                                   Information Technology.


 


(i)                                     There are no known defects in the IT
Systems which could reasonably be expected to have a materially detrimental
effect on the conduct of the Acquired Business.


 


(ii)                                  In the last twenty-four months, there
have been no failures, breakdowns, continued substandard performance or other
adverse events affecting the IT Systems that have caused, or reasonably could
have been expected to cause, and, to Sellers’ Knowledge, there are no
circumstances that could reasonably be expected to cause, the substantial
disruption or interruption in or to the use of such IT Systems or the conduct
of the Acquired Business.


 


(y)                                 Products Liability. 
To Sellers’ Knowledge, there are no Liabilities with respect to any
product liability claim that relates to any product manufactured and sold by
Sellers, Target Companies, Tiwest or any of their respective Subsidiaries to
others in the conduct of the Business.


 


(z)                                   Foreign Corrupt Practices Act. 
None of Sellers or the Target Companies or, to the Knowledge of Sellers,
Tiwest, or to the Knowledge of Sellers, any of their respective
Representatives, has made, offered, promised, authorized, requested, received
or accepted, with respect to the Acquired Assets, the Acquired Business, or any
other matter which is the subject of this Agreement, any payment, gift, promise
or other advantage, whether directly or indirectly through any other Person, to
or for the use or benefit of any Person, where such payment, gift, promise or
advantage would violate (i) the FCPA, (ii) the principles set out in
the Organization for Economic Cooperation and Development Convention Combating
Bribery of Foreign Public Officials in International Business Transactions, or
(iii) any other similar or equivalent anti-corruption and/or anti-bribery
law of any jurisdiction applicable to Sellers or the Target Companies.  Sellers further represent and warrant that
none of Sellers nor their respective Affiliates has made any such offer,
payment, gift, promise, or advantage to or for the use or benefit of any Person
if it knew, had a firm belief, or was aware that there was a high probability


 


60

















 


that such Person would use such offer, payment, gift, promise, or
advantage in violation of the preceding sentence.


 


(aa)                            No Other Representations or Warranties;
Disclosed Materials.  Except for the representations and warranties
contained in this Section 3 (as qualified by the Disclosed
Materials), neither Sellers nor any other Person makes (and neither Buyer is
relying upon) any other express or implied representation or warranty with
respect to Sellers, the Target Companies, the Tiwest Joint Venture, the Tiwest
Joint Venture Participants, the Business, the Acquired Business, the Acquired
Assets (including the value, condition or use of any Acquired Asset or any
asset of any Target Company), the Assumed Liabilities or the transactions contemplated
by this Agreement, and Sellers disclaim any other representations or warranties
not contained in this Section 3, whether made by Sellers, any
Affiliate of Sellers or any of their respective officers, directors, employees,
agents or Representatives.  Except for
the representations and warranties contained in this Section 3 (as
qualified by the Disclosed Materials), each Seller (i) expressly disclaims
and negates any representation or warranty, express or implied, at common law,
by statute or otherwise, relating to the condition of the Acquired Assets or
the assets of the Target Companies (including any implied or expressed warranty
of title, merchantability or fitness for a particular purpose, or of the
probable success or profitability of the ownership, use or operation of the
Target Companies, use or operation of the Tiwest Joint Venture, the Business,
the Acquired Business or the Acquired Assets by Buyers after the Closing), and
(ii) disclaims all liability and responsibility for any representation,
warranty, projection, forecast, statement or information made, communicated or
furnished (orally or in writing) to either Buyer or any of their respective
Affiliates or Representatives (including any opinion, information, projection
or advice that may have been or may be provided to either Buyer by any
director, officer, employee, agent, consultant or Representative of any Seller
or any of their Affiliates).  The
disclosure of any matter or item in the Disclosed Materials shall not be deemed
to constitute an acknowledgment that any such matter is required to be
disclosed or is material or that such matter would or would reasonably be
expected to result in a Material Adverse Effect.


 


4.                                       Buyers’ and Guarantor’s Representations
and Warranties.  Each of Buyers and Guarantor jointly and
severally represents and warrants to Sellers that the statements contained in
this Section 4 are true and correct as of the date of this
Agreement.


 


(a)                                  Organization of Buyers and Guarantor.


 


(i)                                     U.S. Buyer is a limited liability company
duly organized, validly existing and in good standing under the laws 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
now being conducted.


 


(ii)                                  Australia Buyer is a proprietary limited
company duly registered and validly existing under the laws of its place of
incorporation or registration and has all requisite corporate power and
authority to own, lease and operate its assets and to carry on its business as
now being conducted.


 


61
















 


(iii)                               Guarantor is a Delaware corporation duly
organized, validly existing and in good standing under the laws of Delaware and
has all requisite corporate power and authority to own, lease and operate its
assets and to carry on its business as now being conducted.


 


(b)                                 Authorization of Transaction.


 


(i)                                     Each of Buyers and Guarantor has full
limited liability company or corporate, 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 either
Buyer or Guarantor, as applicable, is a party have been duly authorized by such
Person.


 


(iii)                               This Agreement constitutes the valid and
legally binding obligation of each of Buyers and Guarantor, enforceable against
each of Buyers and Guarantor in accordance 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 to which either Buyer or Guarantor is a party, nor the consummation
of the transactions contemplated hereby or thereby (including the assignments
and assumptions referred to in Section 2) will (i) conflict
with or result in a breach of the certificate of incorporation or bylaws, or
other organizational documents, of either Buyer or Guarantor, (ii) violate
any law or Decree to which either Buyer or Guarantor 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, or require any
notice under any Contract to which either Buyer or Guarantor is a party or by
which it is bound, except, in the case of either clause (ii) or (iii), for
such conflicts, breaches, defaults, accelerations, rights or failures to give
notice as could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect on either Buyer or Guarantor.  None of Buyers or Guarantor is required to
give any notice to, make any filing with, or obtain any authorization, consent
or approval of any Governmental Entity in order for the Parties to consummate
the transactions contemplated by this Agreement or any of the other Related
Agreement, (A) except where the failure to give notice, file or obtain
such authorization, consent or approval could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on either
Buyer or Guarantor, (B) except for applicable requirements of the HSR Act
or any other Competition/Investment Law, and (C) except for reports to be
filed under the Exchange Act or non United States securities laws.


 


(d)                                 Litigation.  There is no
instance in which either Buyer or Guarantor (i) is subject to any
outstanding Decree or (ii) is a party or, to either Buyer’s Knowledge, is
threatened to be made a party to any Litigation, in either case, which would be
reasonably likely to materially 


 


62

















 


prevent, restrict or
delay the consummation of the transactions contemplated hereby or any other
Related Agreement.


 


(e)                                  Brokers’ Fees. 
None of Buyers or Guarantor has entered into any Contract to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which any Seller could become
liable or obligated to pay.


 


(f)                                    Financial Capacity. 
Buyers or Guarantor (i) have, and at the Closing will have,
sufficient internal funds (without giving effect to any unfunded financing
regardless of whether any such financing is committed) available to pay the
Sales Proceeds and any expenses incurred by either Buyer and Guarantor in
connection with the transactions contemplated by this Agreement, (ii) have,
and at the Closing will have, the resources and capabilities (financial or
otherwise) to perform their respective obligations hereunder, and (iii) have
not, and at the Closing will not have, incurred any obligation, commitment,
restriction or Liability of any kind, that would impair or adversely affect
such resources and capabilities.


 


(g)                                 Investment Representation. 
Buyers are purchasing the Target Interests and the Acquired Tiwest Joint
Venture Interests for their own account for investment purposes and not with a
view to or for sale in connection with any public distribution of such
securities in violation of any United States federal or state or non-United
States securities laws.  Each Buyer is an
“accredited investor” as defined in Regulation D promulgated by the SEC under
the Securities Act.  Each Buyer
acknowledges that it is informed as to the risks of the transactions
contemplated hereby and of ownership of the Target Interests and the Acquired
Tiwest Joint Venture Interests.  Each
Buyer acknowledges that the Target Interests and the Acquired Tiwest Joint
Venture Interests have not been registered under the Securities Act or any
United States state or non-United States securities laws and that the Target
Interests and the Acquired Tiwest Joint Venture Interests may not be sold,
transferred, offered for sale, pledged, hypothecated or otherwise disposed of
unless such transfer, sale, assignment, pledge, hypothecation or other
disposition is pursuant to the terms of an effective registration statement
under the Securities Act and are registered under any applicable United States
state or non-United States securities laws or pursuant to an exemption from
registration under the Securities Act and any applicable United States state or
non-United States securities laws.


 


(h)                                 Interested Stockholders. 
None of Buyers, Guarantor or any of their respective “affiliates” or “associates”
has been an “interested stockholder” of any Seller or Target Company at any
time within three years of the date of this Agreement, as those terms are used
in Section 203 of the Delaware General Corporation Law.


 


(i)                                     Condition of the Business. 
Notwithstanding anything contained in this Agreement to the contrary,
each of Buyers and Guarantor acknowledges and agrees that Sellers are not
making any representations or warranties whatsoever, express or implied, beyond
those expressly given by Sellers in Section 3 (as amended,
supplemented and modified by the Disclosed Materials), and each of Buyers and
Guarantor acknowledges and agrees that, except for the representations and
warranties contained therein, the Acquired Assets and the Acquired Business are
being transferred on a “where is” and, as to condition, “as is” basis.  Each Buyer and Guarantor further represents
that neither Sellers nor any of their Affiliates nor any other Person has made,
and neither Buyer nor Guarantor is relying upon, any representation or 


 


63

















 


warranty, express or
implied, as to the accuracy or completeness of any information regarding
Sellers, the Target Companies, Tiwest, the Tiwest Joint Venture, the Acquired
Business, the Business or the transactions contemplated by this Agreement not
expressly set forth in this Agreement, and none of Sellers, any of their Affiliates
or any other Person will have or be subject to any liability to either Buyer,
Guarantor or any other Person resulting from the distribution to either Buyer,
Guarantor or any of their respective Representatives or either Buyer’s or
Guarantor’s use of, any such information, including any confidential memoranda
distributed on behalf of Sellers relating to the Business, the Target
Companies, Tiwest, the Tiwest Joint Venture, the information made available to
either Buyer in the Data Room or any other publications or data room
information provided to either Buyer, Guarantor or any of their respective
Representatives, or any other document or information in any form provided to
either Buyer, Guarantor or any of their respective Representatives in connection
with the sale of the Acquired Business and the Target Interests and the other
transactions contemplated hereby.  Each
of Buyers and Guarantor represents that it is a sophisticated entity that was
advised by knowledgeable counsel and financial and other advisors and hereby
acknowledges that it has conducted to its satisfaction, its own independent
investigation and analysis of the Business (including its financial condition),
the Target Companies, Tiwest or the Tiwest Joint Venture, the Acquired Assets and
the Assumed Liabilities and, in making the determination to proceed with the
transactions contemplated by this Agreement, each of Buyers and Guarantor has
relied solely on the results of its own independent investigation and the
express representations and warranties set forth in this Agreement.


 


(j)                                     GST Law.  Australia
Buyer will be registered under the GST Law as of the Closing.


 


5.                                       Pre-Closing Covenants. 
The Parties and, where specified, Guarantor agree as follows with
respect to the period between the execution of this Agreement and the Closing
(except as otherwise expressly stated to apply to a different period):


 


(a)                                  Reasonable Best Efforts; Cooperation. 
Subject to Sellers’ right prior to entry of the Sale Order to solicit
and consummate a Competing Transaction or a Restructuring Transaction to the
extent permitted by Section 5(l) and except as otherwise
provided in Section 5(b), each of the Parties and Guarantor will
use its reasonable best efforts to take all action and to do all things
necessary in order to consummate and make effective the transactions
contemplated by this Agreement promptly (but in any case on or prior to the End
Date) (including satisfaction, but not waiver, of the conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
set forth in Section 7 and, in the case of Sellers and the Target
Companies, by providing commercially reasonable assistance and cooperation in
connection with Buyers’ efforts to seek debt financing for a portion of the Initial
Purchase Price (the “Debt Financing”)). 
Without limiting the generality of the foregoing and subject to the
provisions of Section 5(b), (i) Sellers shall not take any
action, or permit any of their Subsidiaries to take any action, to materially
diminish the ability of Buyers or of Guarantor to consummate, or to materially
delay Buyers’ or Guarantor’s ability to consummate, the transactions
contemplated hereby, including taking any action that is intended or would
reasonably be expected to result in any of the conditions to Buyers’ or
Guarantor’s obligations to consummate the transactions contemplated hereby set
forth in Section 7(a) to not be satisfied, and (ii) Buyers
and Guarantor shall not take any action, or permit any of their Subsidiaries to
take any action, to materially diminish the 


 


64

















 


ability of Sellers to
consummate, or to materially delay Sellers’ ability to consummate, the
transactions contemplated hereby, including taking any action that is intended
or would reasonably be expected to result in any of the conditions to Sellers’
obligations to consummate the transactions contemplated hereby set forth in Section 7(b) to
not be satisfied.


 


(b)                                 Notices and Consents.


 


(i)                                     Each Seller will give, and use reasonable
best efforts to cause Tiwest to give, any notices to third parties, and each
Seller will use its reasonable best efforts to obtain, and use reasonably best
efforts to cause Tiwest to obtain, any third party consents or sublicenses, in
connection with the matters referred to in Section 5(b)(i) of the
Disclosure Schedule.


 


(ii)                                  In accordance with the terms and
conditions of the Tiwest Joint Venture Documents, promptly following the entry
of the Sale Order (or at such earlier time as Tronox Australia reasonably
believes that it is required to do so), Tronox Australia shall deliver to the
Tiwest Joint Venture Participants a notice of an offer to purchase the Tiwest
Joint Venture Interests at the Tiwest Amount and otherwise in accordance with
the Tiwest Joint Venture Documents. 
Tronox Australia shall give Australia Buyer a reasonable opportunity to
review and comment on such notice and offer in advance of such delivery to the
Tiwest Joint Venture Participants and incorporate Australia Buyer’s reasonable
comments thereto.


 


(iii)                               Subject to, in the case of Sellers, the
Bankruptcy Code and the orders of the Bankruptcy Court, each of Sellers and
Australia Buyer will give, and Sellers shall use reasonable best efforts to
cause Tiwest to give, any notices to, make any filings with, and use its
reasonable best efforts to obtain, and Sellers shall use reasonable best
efforts to cause Tiwest to obtain, any authorizations, consents, and approvals
of Governmental Entities (A) referred to in Section 5(b)(iii) of
the Disclosure Schedule or (B) as are otherwise necessary to
consummate the transactions contemplated hereby (other than matters related to
the HSR Act or any other Competition/Investment Laws or filings with the
Bankruptcy Court which, in each case, are exclusively governed by Sections
5(b)(iv) through (vi) and Section 5(c)).  With respect to Sellers’ and Buyer’s
obligations in clause (B) of the preceding sentence, the Parties will
reasonably cooperate with one another (1) in promptly determining whether
any filings are required to be or should be made or consents, approvals,
permits or authorizations are required to be or should be obtained under any
other federal, state or foreign law in addition to those contemplated by Section 5(b)(iv) of
this Agreement and (2) in promptly making any such filings, furnishing
information required in connection therewith and seeking to obtain timely any
such consents, permits, authorizations, approvals or waivers.


 


(iv)                              The Parties and Guarantor shall (A) make
or cause to be made all filings required of each of them or any of their
respective Subsidiaries or Affiliates under the HSR Act with respect to this
Agreement and the transactions contemplated hereby within ten Business Days
following the entry of the Bidding Procedures Order and make other required
filings pursuant to the Competition/Investment Laws listed on Section 5(b)(iv) of
the Disclosure Schedule with respect to this Agreement and the transactions



 


65





















 


contemplated
hereby as promptly as practicable after entry of the Bidding Procedures Order
and (B) supply any additional information and documentary materials that
may be requested from the United States Federal Trade Commission (the “FTC”),
the Antitrust Division of the United States Department of Justice (the “Antitrust
Division”) or any other Governmental Entity pursuant to the HSR Act or
other Competition/Investment Laws, and to use its reasonable best efforts to
take or cause to be taken all actions necessary, proper or advisable to cause
the expiration or termination of the applicable waiting periods under the HSR
Act or obtain the relevant approvals under such Competition/Investment Laws as
soon as practicable after the entry of the Sale Order (and in any event prior
to the End Date). Buyers shall pay the filing fees required under the HSR Act
and any applicable Competition/Investment Law in connection with such filings.


 


(v)                                 Buyers and Guarantor, on the one hand,
and Sellers, on the other hand, shall (A) promptly notify the other party
of any communication to that party from any Governmental Entity in respect of
any filing, investigation or inquiry concerning this Agreement or the
transactions contemplated by this Agreement, (B) if practicable, permit
the other party the opportunity to review in advance all the information (to
exclude voluminous document production in response to a request from a
Governmental Entity pursuant to the HSR Act or other Competition/Investment
Laws, although select documents of interest will be exchanged) relating to Sellers and their respective
Subsidiaries, on the one hand, or Buyers and their respective Affiliates, on
the other hand, as the case may be, that appears in any filing made with, or
written materials submitted to, any Governmental Entity in connection with this
Agreement and the transactions contemplated by this Agreement and incorporate
the other party’s reasonable comments; (C) not participate in any
substantive meeting or discussion with any Governmental Entity in respect of
any filing, investigation, or inquiry concerning this Agreement and the
transactions contemplated by this Agreement unless it consults with the other
party in advance, and to the extent permitted by such Governmental Entity,
gives the other party the opportunity to attend; and (D) furnish the other
party with copies of all correspondences, filings, and written communications (to
exclude voluminous document production in response to a request from a
Governmental Entity pursuant to the HSR Act or other Competition/Investment
Laws, although select documents of interest will be exchanged) between them and their Subsidiaries and
Representatives, on the one hand, and any Governmental Entity or its respective
staff, on the other hand, with respect to this Agreement and the transactions
contemplated by this Agreement; provided, however, that any
materials may be redacted before being provided to the other party (1) to
remove references concerning the valuation of Buyers, Sellers or any of their
respective Affiliates, (2) to exclude financing arrangements, (3) as
necessary to comply with contractual arrangements, and (4) as necessary to
address reasonable privilege or confidentiality issues.  Sellers, on the one hand, and Buyers and
Guarantor, on the other hand, may, as each deems advisable and necessary,
reasonably designate any competitively sensitive material provided to the other
under this Section 5(b)(v) as “outside counsel only” or
otherwise in conformance with the joint defense agreement entered into by the
Parties and Guarantor.  Such designated
materials and the information contained therein shall be given only to the
outside legal counsel and any retained consultants or experts of the recipient
and will not be disclosed by such outside counsel 


 


66

















 


to employees,
officers or directors of the recipient, unless express written permission is
obtained in advance from the source of the materials (Sellers, on the one hand,
or Buyers and Guarantor, on the other hand, as the case may be).  Each of the Parties and Guarantor shall
promptly notify the other parties if such party becomes aware that any third
party has any objection or intends to object to this Agreement on antitrust or
anti-competitive grounds.


 


(vi)                              Each of the
Parties and Guarantor shall use its reasonable best efforts to resolve
objections, if any, as may be asserted by any Governmental Entity with respect
to the transactions contemplated by this Agreement under any applicable
Competition/Investment Law in order to enable the transactions contemplated by
this Agreement to be consummated as soon as practicable following the entry of
the Sale Order (and in any case prior to the End Date).  If any Litigation is instituted or objection
made (or threatened in writing to be instituted or made) challenging that any
transaction contemplated by this Agreement is in violation of any applicable
Competition/Investment Law, then each of the Parties and Guarantor shall
reasonably cooperate and use its  reasonable best efforts to contest and resist
such Litigation or resolve any such objections, and to have vacated, lifted,
reversed or overturned any Decree, whether temporary, preliminary or permanent,
that is in effect and that prohibits, prevents or restricts consummation of the
transactions contemplated by this Agreement, including by pursuing all
reasonably available avenues of administrative and judicial appeal and all
reasonably available legislative action, unless, by mutual agreement, the
Parties and Guarantor decide that litigation is not in their respective best
interests.  For purposes of this Section 5(b)(vi) and Section 5(b)(iv), reasonable
best efforts shall require that Guarantor, Buyers or their respective
Affiliates shall, to the extent required to resolve objections as may be
asserted by any Governmental Entity with respect to the transactions
contemplated by this Agreement under any applicable Competition/Investment Law,
divest their interest in Louisiana Pigment Company, L.P. (“LPC”) to its
partner or another Person at a discount to fair value and shall further agree
that, with respect to LPC, Buyers, Guarantor or their respective Affiliates
will enter into reasonable long-term supply agreements or tolling agreements
for its portion of the titanium dioxide produced by LPC to or with an
independent third party; establish protections to ensure that Buyers, Guarantor
or their respective Affiliates obtain no competitively sensitive information of
the other owner of LPC; and/or extend on current terms or cancel existing
customer contracts for Buyers’, Guarantor’s or their respective Affiliates’
portion of titanium dioxide produced by LPC. 
In furtherance of the preceding sentence, (A) Buyers shall engage,
within fourteen days of the date hereto, a nationally recognized investment
bank with experience in asset sales to market the sale of Buyers’, Guarantor’s
or their respective Affiliates’ interest in LPC, and (B) Buyers and
Guarantor shall use reasonable best efforts, prior to the entry of the Sale
Order, to enter into a letter of intent with its partner in LPC or a bona fide
third party purchaser (each, a “Potential Purchaser”), to sell the LPC
interests to such Potential Purchaser, conditioned upon the consummation of the
transactions contemplated by this Agreement, entry into definitive
documentation with such Potential Purchaser and other customary conditions,
unless based on (1) the Parties’ and Guarantor’s discussions with
Governmental Entities, (2) the arguments of the Parties and Guarantor in
favor of expiration of the waiting period under the HSR Act, and (3) facts
then available to the Parties, it is reasonably likely that the 


 


67

















 


waiting period under the HSR Act will expire on or prior to the End
Date; provided that nothing in this Agreement shall be
construed to require Guarantor, Buyers or their respective Affiliates to agree
to or to make any other divestiture or any agreement to hold separate with
respect to any other asset of Guarantor, Buyers or Sellers in order to cause
the expiration or termination of the applicable waiting periods under the HSR
Act or to obtain the relevant approvals under any other Competition/Investment
Laws or to resolve or settle any objection or Litigation of any Governmental
Entity or to have lifted, vacated, reversed or overturned any Decree.


 


(c)                                  Bankruptcy Approval.


 


(i)                                     No later than three Business Days
following the execution of this Agreement, Sellers shall file a motion seeking
the issuance and entry by the Bankruptcy Court of the Bidding Procedures Order
(the “Bidding Procedures Motion”) and the Sale Order (the “Sale
Motion”), including all supporting pages, each in form and substance
reasonably satisfactory to Buyers, and shall use their reasonable best efforts
to have the Bankruptcy Court issue and enter the Bidding Procedures Order (with
only such changes thereto as Buyers shall approve or request) within fifteen
days from the filing date of the Bidding Procedures Motion.  For the avoidance of doubt, the Sale Motion and
the Bidding Procedures Motion may be consolidated into a single motion.  Each of Sellers and Buyers agree to take any
action reasonably necessary or appropriate to obtain the issuance and entry of
the Bidding Procedures Order and the Sale Order, including furnishing
affidavits, declarations or other documents or information for filing with the
Bankruptcy Court; provided, however, in no event shall Buyer or
Sellers be required to agree to any amendment of this Agreement or changes to
the Bidding Procedures Order or Sale Order that are materially adverse to such
Party.


 


(ii)                                  The Sale Order will provide, among other
things, that pursuant to sections 105, 363 and 365 of the Bankruptcy Code:  (A) the Acquired Assets shall be sold to
Buyers free and clear of all liens, claims, interests, and encumbrances
(whether known or unknown, secured or unsecured or in the nature of setoff or
recoupment, choate or inchoate, filed or unfiled, scheduled or unscheduled,
noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed
or disallowed, contingent or non-contingent, liquidated or unliquidated,
matured or unmatured, material or nonmaterial, disputed or undisputed, whether
arising prior to or subsequent to the commencement of the Chapter 11 Cases, and
whether imposed by agreement, understanding, law, equity, or otherwise,
including claims otherwise arising under doctrines of successor liability),
including Liens, (except for Permitted Liens), and the Assumed Liabilities
shall be assumed by Buyers, in each case, pursuant to this Agreement and the
other Related Agreements; (B) Sellers shall assume and assign to Buyers
all of the Assumed Contracts as of the Closing Date pursuant to such order; (C) Buyers
shall, on or before the Closing Date, pay the Cure Amounts to the appropriate
parties as ordered by the Bankruptcy Court so as to permit the assumption and
assignment of the applicable Assumed Contract; (D) Buyers shall be found
to have demonstrated and established any adequate assurance of future
performance before the Bankruptcy Court with respect to the Assumed Contracts; (E) Buyers
shall be found to be a “good faith” purchaser within the meaning of section 363(m) of
the Bankruptcy Code; 


 


68

















 


(F) Buyers
shall have no liability or responsibility for any liability or other obligation
of Sellers arising under or related to the Acquired Assets other than as
expressly set forth in this Agreement, including successor or vicarious
liabilities of any kind or character, including any theory of antitrust,
environmental, successor or transferee liability, labor law, de facto merger or
substantial continuity; (G) Buyers shall have no liability for any
Excluded Liability; and (H) the releases in Section 6(p) are
valid, binding and enforceable against Debtors, their estates and successors
and assigns.


 


(iii)                               Sellers shall provide timely written
notice of this Agreement, the proposed sale of the Acquired Assets, the Sale
Motion and the Bidding Procedures Motion to (A) the Office of the United
States Trustee for the Southern District of New York; (B) counsel for all
official committees appointed in the Chapter 11 Cases; (C) counsel for the
agent acting on behalf of Sellers’ post-petition lenders; (D) counsel for
the agents or other Representatives acting on behalf of Sellers’ primary
pre-petition secured creditors; (E) the thirty largest creditors of the
Business by dollar value as of the commencement of the Chapter 11 Cases, as
determined based on the applicable Records of Sellers; (F) all Persons
actually known to Sellers to have asserted any Liens (other than Permitted
Liens) in or upon the interests of Sellers specifically in the Acquired Assets,
including all applicable Taxing Authorities; (G) all other parties that
have filed a notice of appearance and demand for service of papers in the
Chapter 11 Cases under Rule 2002 of the Federal Rules of Bankruptcy
Procedure promulgated under the Bankruptcy Code; and (H) any other Persons
required by the Bankruptcy Court or the Guidelines of the Southern District of
New York, including as required by General Order M-331 of the Bankruptcy Court,
or as reasonably requested by Buyers.


 


(iv)                              Sellers acknowledge and agree that Buyers
have expended considerable time and expense in connection with this Agreement
and the negotiation thereof and the identification and quantification of assets
to be included in the Acquired Assets. 
In consideration therefor, the Bidding Procedures Motion shall include a
request from Sellers for approval of the Bidding Incentives as administrative
priority expenses under sections 503(b) and 507(a)(1) of the
Bankruptcy Code.


 


(v)                                 Non-Solicitation. 
From the time of execution and delivery by each Seller and Buyer of this
Agreement until the Bidding Procedures Order is entered by the Bankruptcy Court
and following entry of the Sale Order (both periods being referred to as the “Non-Solicitation
Period”), Sellers shall not, and shall cause each of the Target Companies
and, to the extent permitted in the Tiwest Joint Venture Documents, Tiwest not
to, nor shall they authorize or permit any of their respective Representatives
or Affiliates to directly or indirectly, solicit, facilitate or encourage
submission of any inquiries, proposals or offers by, respond to any unsolicited
inquiries, proposals or offers submitted by, or enter into any discussions or
negotiations regarding a Competing Transaction with any Person (other than
Buyers or any of their respective Affiliates, agents or Representatives) with
respect to (A) any sale or other disposition of all or any portion of the
Acquired Business, the equity securities of Sellers, Target Companies, Tiwest
(including for purposes of this Section 5(c)(v), the Tiwest Joint
Venture), the Acquired Assets or any similar transaction with respect to the
Acquired Business, Sellers, the Target Companies, Tiwest or the Acquired Assets
or (B) any Restructuring 


 


69

















 


Transaction (such
transactions described in clause (A) or (B) but excluding any transactions
with Buyers being referred to as an “Acquisition Transaction”); or
provide any information or data to, or have any discussions with any Person
relating to, or that could reasonably be expected to lead to or result in, any
Acquisition Transaction; or otherwise facilitate any effort or attempt to make
or implement any Acquisition Transaction; or approve, recommend, propose
publicly to approve or recommend or enter into any agreement or understanding
with any other Person that contemplates or relates to any Acquisition
Transaction.  Sellers shall not, and
shall not authorize any Target Company to, execute any definitive documents
relating to any Acquisition Transaction during the Non-Solicitation Period; provided,
however, that nothing in this Section 5(c)(v) shall
prohibit Sellers during the portion of the Non-Solicitation Period preceding
the entry of the Sale Order from responding to any unsolicited inquiries from
or engaging in discussions with the official committees appointed in the
Chapter 11 Cases or engaging in discussions with any third parties in
consultation with such official committees, with respect to such Restructuring
Transaction to the extent Tronox Incorporated determines, in good faith, that
such action is required by the Tronox Incorporated board of directors’
fiduciary duties to Tronox Incorporated’s stakeholders.  Sellers shall notify Buyers promptly, but in
any event within twenty-four hours after receipt, of the receipt of any
inquiries, proposals or offers related to any Acquisition Transaction together
with true and complete copies of all documents related thereto.


 


(vi)                              Bankruptcy Court Approval.


 


(A)                              Sellers shall use their reasonable best
efforts to obtain entry by the Bankruptcy Court of the Sale Order no later than
one-hundred and five days after the date of this Agreement.


 


(B)                                Sellers shall consult with Buyers and
their respective Representatives concerning the Bidding Procedures Order, the
Sale Order and any other orders of the Bankruptcy Court and bankruptcy
proceedings in connection with the transactions contemplated by this Agreement
and provide Buyers with copies of applications, pleadings, notices, proposed
orders and other documents relating to such proceedings as soon as reasonably
practicable prior to any submission thereof to the Bankruptcy Court.  Sellers further covenant and agree that,
after the entry of the Sale Order the terms of any reorganization or
liquidation plan they submit to the Bankruptcy Court or any other court for
confirmation or sanction shall not conflict with, supersede, abrogate, nullify
or restrict the terms of this Agreement, or in any way prevent or interfere
with the consummation or performance of the transactions contemplated by this
Agreement, including any transaction contemplated by or approved pursuant to
the Bidding Procedures Order and the Sale Order.  In the event any other party in interest
proposes in any filing with the Bankruptcy Court any such plan, Sellers shall
take all reasonable action to oppose the plan and any related relief and to
enforce the Sale Order.


 


70

















 


(d)                                 Conduct of Business.


 


(i)                                     Except (A) as otherwise expressly
contemplated by this Agreement or the Related Agreements, (B) as consented
to in writing by Buyers (such consent not to be unreasonably withheld, delayed
or conditioned) or (C) as set forth in Section 5(d)(ii) of
the Disclosure Schedule, from the date hereof until the Closing, Sellers
shall, and shall cause Target Companies and their respective Subsidiaries, and
Tiwest (to the extent permitted in the Tiwest Joint Venture Documents) to, use
their reasonable best efforts to operate Sellers’, Target Companies’, Tiwest’s
and their respective Subsidiaries’ facilities and to conduct the Acquired
Business and the Tiwest Joint Venture in substantially the same manner as
conducted by Sellers, Target Companies, Tiwest and their respective
Subsidiaries in the Ordinary Course of Business prior to the date hereof,
including by using their reasonable best efforts to (1) meet all material
postpetition obligations relating to the Business as they become due, (2) make,
in all material respects, the budgeted capital expenditures set forth in Section 5(d)(i) of
the Disclosure Schedule within the time periods and in the amounts indicated
thereon and (3) preserve intact its present business organization,
material Acquired Permits, and its relationships with its key customers and
suppliers.


 


(ii)                                  Without limiting the generality of the
foregoing, except (x) as otherwise expressly contemplated by this
Agreement or the Related Agreements, (y) with the prior written consent of
Buyers, (such consent not to be unreasonably withheld, delayed or conditioned)
or (z) as set forth in Section 5(d)(ii) of the Disclosure
Schedule, during the period from and after the date hereof until the
Closing, each of Sellers shall not, and shall cause each of Target Company and
their respective Subsidiaries not to, do, and shall not approve or authorize
Tiwest or the Tiwest Joint Venture to do any of the following:


 


(A)                              offer, issue, deliver, sell, pledge or
otherwise encumber or subject to any Lien (other than a Permitted Lien) the
capital stock, other equity interests of Tronox Australia, or any Target
Company or Tiwest or securities convertible into or exchangeable for, or any
rights, warrants, options to acquire, any such shares of Capital Stock or other
equity interest in Tronox Australia, or any Target Company or Tiwest;


 


(B)                                acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other manner, any business of
another Person;


 


(C)                                sell, assign, license, transfer, convey,
lease, encumber or subject to any Lien (other than a Permitted Lien or any Lien
that will be released at or prior to the Closing) or otherwise dispose of
Acquired Assets (including the Tiwest Joint Venture Interests) or the Target
Companies’ Assets having a fair market value in excess of $50,000 individually
or $250,000 in the aggregate, other than sales of Inventory in the Ordinary
Course of Business;


 


(D)                               other than in accordance with Section 5(j) hereof
and related solely to the Acquired Business, (1) enter into, assume or
reject or amend, restate, 


 


71

















 


supplement,
modify, waive or terminate any Material Contract, material Permit or unexpired
Lease, (2) enter into any settlement of any demand, dispute, suit, cause
of action, claim or proceeding relating to a Material Contract or (3) enter
into any Contract that would not be a Material Contract that (a) is
outside the Ordinary Course of Business, (b) delays or is reasonably
expected to delay the Closing, or (c) subjects any Seller or any Target
Company, including, in the case of Tronox Australia, the Tiwest Joint Venture
Interests, to any material non-compete or other similar material restriction on
the conduct of the Acquired Business that would be binding following the
Closing;


 


(E)                                 with respect to Covered Employees, except
as may be required by applicable laws or any Employee Benefit Plan, (1) grant
any increase or acceleration in compensation or benefits, except in the
Ordinary Course of Business; (2) grant any increase in severance or
termination pay (including the acceleration in the exercisability of any
options or in the vesting of shares of common stock (or other property)),
except in the Ordinary Course of Business; (3) enter into any employment,
deferred compensation, severance or termination agreement with or for the
benefit of any such Covered Employee who is a management-level employee or
anyone who upon hire, would become any such Covered Employee; or (4) terminate
the employment of any Covered Employee except due to cause, death, disability
or as otherwise determined in the reasonable discretion of Sellers exercising
their business judgment, as consistent with the Ordinary Course of Business; provided
that Sellers shall inform Buyers of any proposed termination of
management-level employees in writing at least two Business Days before the
termination becomes effective and shall promptly inform Buyers of any
termination of any other Covered Employee promptly after the termination
becomes effective;


 


(F)                                 engage in any activity with the express
purpose of accelerating the collection of accounts receivable or delaying the
payment of accounts payable relating to the Acquired Business that, in each
case, is outside the Ordinary Course of Business;


 


(G)                                (1) authorize or agree to any
changes in or to the current approved budget or business plan of the Tiwest
Joint Venture, (2) encourage or recommend any changes to the current
approved budget or business plan of the Tiwest Joint Venture to the Tiwest
Joint Venture Participants, and (3) act other than in accordance with the
current approved budget or business plan of the Tiwest Joint Venture, in each
case, as in effect from time to time;


 


(H)                               (1) adopt or change any method of
accounting (except as required by changes in GAAP), or (2) make, change or
revoke any Tax election, change any annual Tax accounting period, file any
amended Tax Return, enter into any closing agreement, settle any Tax claim or
assessment, surrender any right to claim a Tax refund, consent to the extension
or waiver of the limitations period applicable to any Tax claim or assessment,
or take or omit to take any other action 


 


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if such action or
omission would have a material and adverse effect on either Buyer or any Target
Company after the Closing;


 


(I)                                    permit any Target Company or Tiwest or
their respective Subsidiaries to commit to make any capital expenditures,
which, in the aggregate, exceeds the budgeted capital expenditures set forth in Section 5(d)(i) of
the Disclosure Schedule) by more than $100,000, unless the associated
payment obligation is accounted for as an Assumed Current Liability or is due
under its terms in full prior to the Closing;


 


(J)                                   adopt or propose any amendments to any of
Tronox Australia’s or the Target Companies’ or their respective Subsidiaries’
certificate of incorporation, bylaws or other organizational or governing
document or adopt or propose any amendment or modification to or agree to any
material amendment or modification to the Tiwest Joint Venture Documents;


 


(K)                               (1) transfer, assign, pledge, convey
or grant any ownership interest or exclusive license or right to Acquired Intellectual Property, except in the
Ordinary Course of Business; (2) grant any material nonexclusive license to
any Acquired Intellectual Property,
except those in the Ordinary Course of Business; (3) take any action that
would, or fail to take any action the failure of which would, directly or
indirectly cause any of the Acquired Intellectual Property to enter the public
domain or result in the abandonment, unenforceability or invalidity of any such
Acquired Intellectual Property; or (4) extend, amend or modify any Person’s
license rights to any Acquired Intellectual Property, other than in the
Ordinary Course of Business;


 


(L)                                 with respect
to the Target Companies and their respective Subsidiaries, incur, create,
assume, guarantee or otherwise become liable for any obligation for borrowed
money, purchase money indebtedness or any obligation of any other Person,
whether or not evidenced by a note, bond, debenture, guarantee, indemnity,
letter of credit or similar instrument, except for trade payables incurred in
the Ordinary Course of Business;


 


(M)                            discharge or settle any Liabilities owed
to the Target Companies or Tronox Australia (absolute, accrued, asserted or
unasserted, contingent or otherwise) in excess of $1,000,000 individually or
$2,500,000 in the aggregate except in accordance with Section 5(m);
or


 


(N)                               agree to take any of the foregoing
actions.


 


(e)                                  Information and Consultation. 
The Parties shall, and Sellers shall cause Target Companies to, in a
timely fashion and in any event prior to any public announcement or press
release, engage in all information and consultation processes, as required
under domestic regulations, with their appropriate bodies of worker representation,
if any, in connection with the sale transaction contemplated herein.


 


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(f)                                    Notice of Developments. 
From the date hereof until the Closing Date, (i) Sellers shall
disclose to Buyers in writing any material breach or variances from Sellers’
representations and warranties contained in Section 3 promptly upon
discovery thereof and any failure to comply with or satisfy in any material
respect any covenant or agreement to be performed, complied or satisfied by
them and (ii) Buyers shall disclose to Sellers in writing any material
breach or variance from Buyers’ and Guarantor’s representations and warranties
contained in Section 4 promptly upon discovery thereof and any
failure to comply with or satisfy in any material respect any covenant or
agreement to be performed, complied or satisfied by them.  No notification under this Section 5(f) shall
affect in any way the representations, warranties, covenants or agreements of
the parties hereto or the conditions to the obligations of the parties under
this Agreement nor shall such notification alter the effect of such breach (to
the extent not cured) with respect to the provisions of Section 7.


 


(g)                                 Access.


 


(i)                                     Upon reasonable advance written request
by Buyers, Sellers will, and will permit and cause the Target Companies (and
will use reasonable best efforts to cause Tiwest and the Tiwest Joint Venture
Participants), (A) to permit, Buyers and their respective Representatives
to have reasonable access during normal business hours, and in a manner so as
not to interfere unreasonably with the normal business operations of Sellers,
Target Companies, Tiwest or the Tiwest Joint Venture Participants to all
premises, properties, personnel, Records, IT Systems and Contracts used or held
for use in the operation of the Business and the Tiwest Joint Venture, in each
case, for the purpose of evaluating, and reviewing the Business, the Tiwest
Joint Venture and each Target Company’s and Tronox Australia’s business,
properties, the Acquired Assets and the Assumed Liabilities and (B) to
furnish reasonably promptly to Buyers such information concerning Sellers’, the
Target Companies’ and the Tiwest Joint Venture’s business, properties,
contracts, records and personnel as may be reasonably requested, from time to
time, by or on behalf of Buyers; provided, however, that, for
avoidance of doubt, the foregoing shall not require any Party to waive, or take
any action with the affect of waiving, its attorney client privilege or any
confidentiality obligation to which it is bound with respect thereto or take
any action in violation of applicable law. 
During the period from the date hereof and ending upon the Closing,
Buyers shall not, and shall cause their respective Representatives not to,
contact any customers, suppliers or licensors of the Business in connection
with or pertaining to the acquisition of the Acquired Assets under this
Agreement except with the prior written consent of Tronox Incorporated (which
consent shall not be unreasonably withheld, conditioned or delayed).


 


(ii)                                  All information obtained pursuant to this
Section 5(g) shall be subject to the terms and conditions of
the Confidentiality Agreement.


 


(h)                                 Press Releases and Public Announcements. 
Prior to the Closing, the parties hereto will consult with each other
and in relation to the Tiwest Joint Venture, with the Tiwest Joint Venture
Participants, before issuing, and will provide each other reasonable
opportunity to review and comment upon, any press release or, to the extent
practicable, other written public statements with respect to the existence or
subject matter of this Agreement; provided, however, that any
party may make (and permit the making of) any public disclosure that is
required by the 


 


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Bankruptcy Court or that
it believes in good faith is required by applicable law or any listing or
trading agreement concerning its or any of its respective Affiliates’ publicly
traded securities (in which case the disclosing party will use its reasonable
best efforts to advise the other parties prior to making the disclosure).


 


(i)                                     Bulk Transfer Laws. 
Buyers acknowledge that the Asset Sellers will not comply with the
provisions of any bulk transfer laws of any jurisdiction in connection with the
transactions contemplated by this Agreement, and hereby waive all claims
related to the non-compliance therewith.


 


(j)                                     Cure Amounts.


 


(i)                                     U.S. Sellers have delivered, or will
deliver as soon as practicable after the date hereof, to U.S. Buyer a schedule
containing Sellers’ reasonable estimate of the Cure Amounts for each Contract
that is listed on Annex B as of the date hereof.  U.S. Sellers have set forth in Annex C,
a list of each Contract that U.S. Sellers reasonably believe in good faith
require Cure Amounts in excess of $50,000 along with U.S. Sellers’ reasonable
good faith estimate of the Cure Amount for each such Contract.  U.S. Sellers shall reasonably cooperate with
and provide such additional information to U.S. Buyer so to identify and
provide to U.S. Buyer as promptly as practicable all Contracts relating to the
Business (and the related Cure Amounts) and subject to assumption or rejection
(each, an “Assumable Contract”).


 


(ii)                                  On or before the hearing on the Bidding
Procedures, U.S. Buyer will provide U.S. Sellers with a list of Assumable
Contracts on Annex B that represents U.S. Buyer’s reasonable best
efforts to identify the Assumable Contracts that U.S. Buyer desires to assume
from U.S. Sellers at such time.  From and
after the date hereof, (A) U.S. Buyer may add any Assumable Contract to Annex
B from and after the date hereof until the earlier to occur of (1) March 31,
2010 or (2) the Closing, subject to Section 2(j) and 6(b),
and (B) U.S. Buyer may delete any Assumable Contract from Annex B
from and after the date hereof until the later to occur of (1) the Closing
or (2) three Business Days following entry of a Final Order determining
all Cure Amounts and adequate assurance (if any) required for such Assumable
Contract (with respect to each Assumable Contract, the “Applicable
Assumption Deadline”).  In the event
that U.S. Buyer shall determine to reject or refuse assignment of any Assumable
Contract, U.S. Buyer shall have no obligations with respect to such Assumable
Contract, including any obligation to cure any defaults thereunder.  Any Assumable Contract listed on Annex B
at the close of business on the Applicable Assumption Deadline shall be an
Assumed Contract designated to be assumed and assigned to U.S. Buyer, with U.S.
Buyer being responsible for all Cure Amounts associated therewith.  U.S. Buyers shall not be required to make any
payment for Cure Amounts for any Assumable Contracts removed from Annex B.


 


(iii)                               With respect to each Assumable Contract
listed on Annex B, at the Applicable Assumption Deadline, subject to the
approval of the Bankruptcy Court pursuant to the Sale Order, or such other
order of the Bankruptcy Court and/or the consent of the applicable
counterparties to the extent necessary to effect the assignment for such
Assumable Contract in any case, U.S. Sellers shall assume and assign to U.S. 


 


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Buyer and U.S.
Buyer shall assume from U.S. Sellers all such Assumable Contracts, unless
previously removed from Annex B pursuant to this Section 5(j).


 


(iv)                              U.S. Sellers shall use their reasonable
best efforts, including the filing and prosecution of any and all appropriate
proceedings in the Bankruptcy Court, to establish the Cure Amount, if any, for
each Assumable Contract that Buyer adds to Annex B from and after the
date hereof.  Any motions filed with, and
any proposed orders submitted to, the Bankruptcy Court seeking authorization
after the date hereof to assume or reject any Contracts shall be in form and
substance satisfactory to U.S. Buyer.  To
the extent that any counterparty objects to a proposed Cure Amount or to the
assumption and assignment on any other grounds (each, an “Objecting
Counterparty”), U.S. Sellers shall reasonably cooperate with U.S. Buyer to
negotiate with such Objecting Counterparty, including attending meetings and
conferences with such Objecting Counterparty and its representatives as U.S.
Buyer reasonably requests, and providing U.S. Buyer with reasonable access to
the books and records of U.S. Sellers to defend the proposed assignment and
assumption and Cure Amount.  Under no
circumstances shall U.S. Sellers, without the written consent of U.S. Buyer, (A) compromise
or commence any action with respect to a negotiated Cure Amount required to be
made under the Bankruptcy Code to effectuate the assumption of any Assumable
Contract, (B) agree to any other amendments, supplements or modifications
of, or waivers with respect to, any Assumable Contract as part of a negotiated
Cure Amount, or (C) reject or take any action (or fail to take any action
that would result in rejection, repudiation or disclaimer by operation of law)
to reject, repudiate or disclaim any Assumable Contract.


 


(v)                                 At the Applicable Assumption Deadline, to
the extent not previously paid, U.S. Buyer shall cure any monetary defaults
under each Assumed Contract by payment of any Cure Amounts related to Assumed
Contracts as ordered by the Bankruptcy Court, and U.S. Sellers shall have no
Liability for any Cure Amounts related to Assumed Contracts; provided, however,
that notwithstanding anything to the contrary in this Agreement, if the Cure
Amount with respect to any Assumable Contract with a vendor of U.S. Sellers
that is not listed on Annex C as of the date hereof exceeds $50,000 (an “Excluded
Cure Amount”) and U.S. Buyer agrees to assume such Assumable Contract, then
U.S. Sellers shall be responsible for the payment of such Excluded Cure Amount;
provided, further, that the immediately preceding proviso shall
not apply if Sellers could not have reasonably known as of the date hereof that
the Cure Amount of such Assumable Contract would exceed $50,000 unless, in each
case, such Assumable Contract is a Contract (A) containing pricing terms
that are below market pricing terms for the same goods, materials or services
or (B) that Buyers would be unable to replace on substantially similar
terms and conditions.


 


(vi)                              Notwithstanding any other provision of
this Agreement, each Contract to which Tronox Australia is party (other than
Contracts with other Sellers) shall be an Acquired Asset and shall be assumed
by and assigned to Australia Buyer and shall be an Assumed Contract.


 


(vii)                           Any Contract of the Asset Sellers that is
not assumed by U.S. Buyer as provided in this Section 5(j) shall
be an Excluded Asset.


 


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(k)                                  Replacement Bonding Requirements. 
On or prior to the Closing Date, Buyers agree to provide replacement
guarantees, standby letters of credit or other assurances of payment with
respect to all Bonding Requirements, in form and substance satisfactory to the
respective banks or other counterparties, and, both prior to and following the
Closing Date, Buyers and Sellers shall reasonably cooperate to obtain a release
of Sellers in form and substance reasonably satisfactory to Buyers and Sellers
with respect to all Bonding Requirements.


 


(l)                                     Competing
Transaction. 
From and after the date the Bidding Procedures Order is entered by the
Bankruptcy Court, Sellers and Target Companies are permitted, and are permitted
to cause their Representatives and Affiliates, to (i) initiate contact
with, solicit or encourage submission of any inquiries, proposals or offers by,
respond to any unsolicited inquiries, proposals or offers submitted by, and
enter into any discussions or negotiations regarding any of the foregoing  with, any Person (in addition to Buyers and
their respective Affiliates, agents and Representatives) in connection with any
Competing Transaction, provided, however, that any such
solicitation may occur only in accordance with the Bidding Procedures Order,
and (ii) engage
in discussions with the official committees appointed in the Chapter 11 Cases
or third parties in consultation with such official committees with respect to
a Restructuring Transaction to the extent that Tronox
Incorporated determines, in good faith, that such action is required by the Tronox
Incorporated board of directors’ fiduciary duties to Tronox Incorporated’s
stakeholders.  In addition, Sellers may
supply information relating to the Business and the Acquired Assets to
prospective purchasers and other third parties in connection with a
Restructuring Transaction; provided that no non-public information may
be furnished until Sellers receive an executed confidentiality agreement from
any such Person containing terms and provisions that in the aggregate are no
less favorable in any material respect to Sellers (other than with respect to
the effective periods (e.g.,
the term of such agreement or any other provisions related to timing
limitations therein) and the non-disclosure and non-solicitation provisions
contained therein, all of which terms shall be commercially reasonable) than
those contained in the Confidentiality Agreement (each, an “Acceptable
Confidentiality Agreement”). Subject to any restrictions under applicable
Competition/Investment Law, any non-public information provided to such third
Persons after entry into an Acceptable Confidentiality Agreement that has not
previously been provided to Buyers shall be delivered to Buyers promptly after
delivery of such information to a third Person. 
Sellers and
the Target Companies shall not, and shall not permit any of their respective
Subsidiaries to, terminate, amend, modify or waive, and shall seek to enforce
to the fullest extent permitted under applicable law, such Acceptable
Confidentiality Agreements.  At the
Closing, Sellers shall either assign the Acceptable Confidentiality Agreements
to Buyer (to the extent such agreements relate to the Acquired Business or the
Acquired Assets), in which case such agreements (or portions thereof) shall
constitute Assumed Contracts, or seek to enforce, upon Buyers’ request and at
Buyers’ sole cost and expense, any Acceptable Confidentiality Agreement.  Sellers shall
notify Buyers within twenty-four hours after receipt of any proposal with
respect to any Competing Transaction or Restructuring Transaction and shall
deliver to Buyers by email transmission or same day courier service true and
complete copies of all documents related to any such offer.  Sellers shall (i) keep Buyers informed
on a reasonably prompt basis of the status of any such proposal or offer and (ii) provide
Buyers reasonably promptly, and in any event with forty-eight hours, with
copies of all significant correspondence and other written material sent or
received in connection with any such offer or proposal.


 


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(m)                               Pre-Closing Assistance.


 


(i)                                     If
requested by Buyers from and after the date hereof, Sellers shall:


 


(A)                              engage Ernst & Young LLP,
Sellers’ auditor, to provide U.S. Buyer with audited historical financial
statements for the Acquired Business for the fiscal years 2006, 2007 and 2008
on or prior to ninety days after the entry of the Bidding Procedures Order and
to provide unaudited financial statements for the Acquired Business for the
nine-month periods ended September 30, 2009 and September 30, 2008 on
or prior to ninety days after the entry of the Bidding Procedures Order (the “Carve-Out
Financial Statements”). Sellers shall also provide such direction and
assistance as is required to support their auditor’s reasonable needs under the
above-referenced engagement and meeting the above-referenced deadline,
including (1) executing and delivering management representation letters
as reasonably agreed upon by Sellers and Sellers’ auditor (provided that
nothing herein shall require a representation as to the amount of or need for
an accrual for environmental Liabilities or any other contingent reserves for
liabilities not to be assumed by Buyers), (2) providing prepared relevant
financial statements to be the subject of the audit, (3) providing all
reasonably required supporting accounting records and (4) providing
reasonable access to relevant systems, files and persons.  Nothing in this
Section 5(m)(i)(A) shall require any Seller to pay or incur
Liability for any fee or other expense of Sellers’ auditor that is not advanced
or simultaneously reimbursed by U.S. Buyer.  In the event Sellers’ auditor
declines to be engaged or the audited portion of the Carve-Out Financial
Statements is not delivered by the above-mentioned deadline or it becomes
reasonably apparent that such deadline will not be met, Sellers shall (a) engage
and provide such assistance as is required to support Buyers’ auditor’s
reasonable needs in order to provide an audit within a reasonably prompt
timeframe, including (i) executing and delivering management
representation letters as reasonably agreed upon by Sellers and U.S. Buyer’s
auditor (provided that nothing herein shall require a representation as
to the amount of or need for an accrual for environmental Liabilities or other
contingent reserves for Liabilities not to be assumed by Buyers), (ii) providing
prepared relevant financial statements to be the subject of the audit, (iii) providing
all reasonably required supporting accounting records and (iv) providing
reasonable access to relevant systems, files and persons and (b) pay U.S.
Buyer promptly after receiving an invoice $1,000,000 towards the audit fees of
Buyers’ auditor, except in the case that U.S. Buyer’s auditor is Ernst &
Young LLP or one of its Affiliates;


 


(B)                                following the entry of the Sale Order,
communicating to those employees listed on Section 5(m)(ii)(B) of
the Disclosure Schedule a commitment to pay retention bonuses at such times
and in such amounts and subject to such conditions as may be determined by U.S.
Buyer; provided that in no event shall Sellers be required to obligate
themselves to make payments that are not advanced or simultaneously reimbursed
by U.S. Buyer.  U.S. Buyer hereby agrees to assume such obligations at
Closing;


 


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(C)                                as soon as reasonably possible following
the date of this Agreement, but in no event later than thirty days following
the date hereof, provide U.S. Buyer with a reasonably comprehensive description
of the processes used in Sellers’ order to cash activities;


 


(D)                               subject to U.S. Buyer providing Sellers
with a reasonably comprehensive description of its order to cash process
descriptions, required field definitions, formats, system interface table
formats, and examples of data and documentation used in U.S. Buyer’s order to
cash process and systems (the “Buyer Master Data Description”) (such
deliverable to be due as soon as reasonably possible following the date of this
Agreement, but in no event later than thirty days following the date hereof),
Sellers will provide to U.S. Buyer the Seller Master Data with respect to the
Acquired Business (in a format that reasonably matches the Buyer Master Data
Description or other format reasonably requested by U.S. Buyer) to U.S. Buyer
by the later to occur of (1) December 15, 2009 or (2) five days
after the date of the entry of the Sale Order. 
If, subsequent to U.S. Buyer providing the Buyer Master Data
Description, Sellers believe U.S. Buyer has not fully complied with its
obligations in this Section 5(m)(i)(D), then Sellers shall promptly
notify U.S. Buyer of the specific deficiencies with respect to the U.S. Buyer’s
provision of the Buyer Master Data Description. 
Notwithstanding the above, prior to the Closing Date, U.S. Buyer shall
only permit U.S. Buyer’s IT Clean Team to have access to, view or use such
Seller Master Data or any portion thereof. 
If this Agreement is terminated for any reason prior to the Closing,
then U.S. Buyer shall, and shall cause the IT Clean Team to, promptly destroy
or return to Sellers, at U.S. Buyer’s election, all such Seller Master Data
(and all copies and derivative products thereof) and, in the case of
destruction, U.S. Buyer shall certify such destruction to Sellers in writing;


 


(E)                                 assign to such Buyer (or to an Affiliate
of such Buyer as such Buyer may direct) as of the Closing, to the extent
assignable, any lockboxes and accounts used by any Target Company, Tronox
Australia or Tiwest in the Acquired Business, and execute and deliver such
documentation reasonably required by such Buyer to establish the collection
accounts as collateralized accounts for such Buyer’s proposed participation in
a securitization or asset-backed lending program; and


 


(F)                                 within
ten Business Days prior to the Closing, execute and deliver customary
instructions to those customers of the Acquired Business identified by such
Buyer to make payments to bank accounts designated by such Buyer from and after
the Closing.


 


(ii)                                  Nothing
in Section 5(m)(i) shall require such cooperation to the
extent it would unreasonably interfere with the ongoing operations of any
Seller, Target Company or Tiwest and nothing in this Section 5(m) shall
require any Seller, any Affiliate of any Seller, any Target Company or Tiwest
to pay or incur Liability for any fee or other expense that is not advanced or
simultaneously reimbursed by Buyers. 
Sellers and the Target Companies hereby consent to the use of any such
Person’s logo, subject to the 


 


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prior written approval of its use (such approval not to be
unreasonably withheld, conditioned or delayed), in connection with the Debt
Financing.


 


(iii)                               Notwithstanding
the foregoing, neither any breach of this Section 5(m) nor the
unavailability or terms of any Debt Financing shall affect Buyers’ obligation
to close the transactions contemplated by this Agreement or be deemed to be a
breach of a covenant of any Seller for purposes of Section 7(a) and
Section 8(a).  Failure by Sellers to comply with Sections
5(m)(i)(A) and/or (B) above shall result in a reduction to
the Initial Purchase Price of $3,000,000, which reduction shall be Buyers’ sole
remedy for such breach or breaches; provided that no such reduction
shall be made if the Carve-Out Financial Statements are available to Buyers at
the time of the Closing.  Failure by Sellers to comply with Sections
5(m)(i)(C), (D), (E) and/or (F) shall result in a
reduction to the Initial Purchase Price of $5,000,000, which reduction shall be
Buyers’ sole remedy for such breach or breaches; provided that no such
reduction shall be made if financing of receivables of the Acquired Business
through the securitization or asset-backed lending program of Buyers’
Affiliates is consummated or could reasonably have been consummated by Buyer at
or prior to the Closing.


 


(n)                                 Indebtedness
of Target Companies.  Immediately prior to the Closing, all
outstanding indebtedness for borrowed money, together with any interest accrued
thereon and any other amounts that may come due and payable as of the Closing
Date owed by any Target Company to any Seller (other than any Retained
Intercompany Balances) will be contributed to the equity capital of such Target
Company. Prior to the Closing, Sellers shall cause the Target Companies and their
Subsidiaries to pay off in full all of the outstanding indebtedness for
borrowed money, together with any interest accrued thereon and any other
amounts that may come due and payable as of the Closing Date owed by any Target
Company or any of its Subsidiaries to any Person (other than a Target Company
or a Seller) other than any Retained Intercompany Balances.  As of the Closing Date, the Target Companies
and their Subsidiaries shall have no outstanding indebtedness for borrowed
money, other than any Retained Intercompany Balances, and all Liens related to
such indebtedness, other than any Retained Intercompany Balances, shall be
fully terminated, cancelled and extinguished. 
For the avoidance of doubt, the only Intercompany indebtedness owed
between Tronox Australia and any Seller that will be assumed by Australia Buyer
will be any such indebtedness scheduled on Annex J.  Sellers, Target Companies and their
Subsidiaries shall use commercially reasonable efforts to preserve the tax
attributes of the Target Companies in connection with taking all actions
required by this Section 5(n).


 


(o)                                 Transfer
of Excluded Subsidiaries. 
Prior to the Closing, Sellers shall, and shall cause Tronox Holland to,
transfer, sell, convey, assign or otherwise dispose of all of the equity
interests directly or indirectly held by Tronox Holland in the Excluded German
Subsidiaries and, in the case that the election to purchase Tronox Netherlands
is exercised pursuant to Section 5(s), the Excluded Danish
Subsidiaries.  As of the Closing Date, no
Seller, Target Company or any of their respective Subsidiaries or the Acquired
Business shall have any obligation or Liability arising out of or relating to
Tronox Holland’s ownership of equity interests in the Excluded German
Subsidiaries or, in the case that the election to purchase Tronox Netherlands
is exercised pursuant to Section 5(s), Tronox Netherlands’
ownership of equity interests in the Excluded Danish Subsidiaries.


 


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(p)                                 Target
Companies’ Asset Sales.


 


(i)                                     If
Sellers are unable to obtain the PBGC Release at least thirty days prior to the
Closing, then U.S. Buyer may elect (the “Asset Sale Option”), by
delivering a written notice to Sellers at least twenty days prior to the
Closing Date, at its sole discretion, to restructure the acquisition of any of
the Target Companies by acquiring all of the properties and assets (the “Target
Companies’ Assets”) and Liabilities of such Target Companies in an asset
acquisition rather than the acquisition of the Target Interests as contemplated
by this Agreement, in which case U.S. Buyer and Sellers shall, and Sellers
shall cause the Target Companies to, enter into one or more separate asset
purchase agreements in the form set forth as Exhibit O with each of
the Target Companies (each, a “Target Company APA”) with respect to the
Target Companies’ Assets and all of Target Companies’ Liabilities, and any
reasonably required transfer documents, pursuant to which, among other things,
each Target Company shall assign, to the extent permitted under applicable Law,
all Permits required by the applicable Governmental Entities to operate the
business of such Target Company and assign all Contracts to which such Target
Company is a party.


 


(ii)                                  If a
consent of any third party or Governmental Entity with respect to the transfer
or assignment to and operation by U.S. Buyer of any of the Target Companies’
Assets (including any Contracts) is required but cannot, in the opinion of
Sellers or the relevant Target Companies, be obtained as promptly as reasonably practicable
following the entry of the Sale Order (but in any case on or prior to the End
Date), so long as all other conditions in Section 7 are
satisfied or anticipated to be satisfied at the Closing, the provisions set
forth in Section 2(j) shall apply to such Target Companies’
Assets mutatis mutandis.


 


(iii)                               The
U.S. Buyer and Sellers agree that it is the intent of the Parties that the
transactions contemplated under this Section 5(p) will not in
any way expand the Liabilities of Sellers and their Affiliates under this
Agreement or any other Related Agreement, and that the transactions
contemplated under this Section 5(p) shall (A) not be
conditioned upon any consents, approvals or notices to or from any third party
or Governmental Entity (provided that Sellers shall comply with Section 5(b)(i) and Section 5(b)(iii)), (B) require
the U.S. Buyer to offer employment to all employees who are employed by such
Target Company (or Target Companies, as the case may be) at Closing, and (C) require
U.S. Buyer to indemnify the Target Company (or Target Companies, as the case
may be) for any Liabilities of such Target Company that arise prior to the
Closing.  For the avoidance of doubt, and
notwithstanding any other provision in this Agreement, U.S. Buyer shall be
responsible for all Transfer Taxes pursuant to Section 6(h)(i) arising
out of the transactions contemplated under this Section 5(p).


 


(iv)                              Notwithstanding
the foregoing, unless U.S. Buyer has exercised the Asset Sale Option within the
time period set forth in Section 5(p)(i), at the Closing, Sellers
shall transfer to U.S. Buyer the Target Interests pursuant to this Agreement.


 


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(q)                                 Insurance.


 


(i)                                     Prior
to the Closing, Sellers shall use reasonable best efforts (A) to amend all
casualty and property insurance policies in the name of any of Tronox Australia
or Tiwest so as to name Australia Buyer or its designee as an additional
insured on each such Insurance Policy where Tronox Australia or Tiwest is a
named party, and (B) to enter into a tail directors’ and officers’
insurance policy with a reputable insurance company on customary terms, which
insurance policy shall be in effect for a period of at least six years following
the Closing Date.


 


(ii)                                  From
and after the Closing, Sellers shall reasonably assist Buyers with claims for
recovery of damages for breaches of representations, warranties or covenants
contained in Contracts related to the Acquired Business that have not been
assigned to Buyers (the “Contract Indemnities”) with respect to claims
arising out of pre-Closing events or occurrences in the Acquired Business.  Seller will pay such Contract Indemnities
proceeds to Buyers net of deduction and reasonable expense of recovery.


 


(iii)                               As
necessary to enable Buyers to exercise their respective rights under Section 5(q)(ii),
Sellers shall (A) provide information in its possession regarding any such
claim under applicable Contract or reasonably required under the applicable
Contract and (B) at Buyers’ cost and expense, provide any further
reasonable assistance in connection with prosecution of claims.  Buyers shall provide Sellers prompt written
notice of any claims that it desires to submit pursuant to Section 5(q)(ii) and
shall provide to Sellers all information as may be required by the applicable
Contract or reasonably required under the applicable Contract in connection
with such claim.


 


(r)                                    PBGC
Release.  Sellers shall, and shall cause the Target
Companies and their Subsidiaries to, reasonably cooperate in good faith to
assist Buyers in obtaining an agreement, waiver and release from PBGC (the “PBGC
Release”), pursuant to which PBGC shall (i) waive its rights, covenant
not to sue, release and discharge the Target Companies, Tiwest and each of
their respective Representatives of and from any and all actions, suits, causes
of action, contracts, debts, sums of money, controversies, claims, demands,
Liabilities, losses, judgments, costs, attorneys fees, damages and expenses of
any kind whatsoever, whether in law, equity or otherwise, known or unknown,
actual or contingent, including any claims, actions or Liabilities with respect
to or arising from any Employee Benefit Plan subject to Title IV of ERISA (“Pension
Plans”), including any Liabilities imposed or that could be imposed under
ERISA or the Code, which the PBGC may now have, ever has had or ever will have,
from the beginning of the world relating to or arising from the Pension Plans
(collectively, the “Released Matters”); provided, however,
that this subsection excludes any of the U.S. Sellers and certain of their
Affiliates who (A) seek relief in the Chapter 11 Cases (“Debtors”);
(B) agree not to pursue or perfect any Lien or claim with respect to the
Pension Plans, whether arising before or after the date of this Agreement,
against the Target Companies or any of their assets or equity or any of the
proceeds from the sale thereof; and (C) forever waive its rights,
covenants not to sue, releases, and discharges Buyers, Guarantor and each of
their respective Representatives or against any other party who is selected as
the winning bidder pursuant to the bidding procedures approved by the
Bankruptcy Court or otherwise with respect to the sale of (1) substantially
all of the assets of the Debtors and (2) the stock or assets of the Target
Companies (collectively, the 


 


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“Third Party Beneficiaries”), of and from any
and all Released Matters, which the PBGC may now have, ever has had or ever
will have, from the beginning of the world relating to or arising from the
Pension Plans, any Released Matter or Buyers, Guarantor or their respective
Affiliates (or any Third Party Beneficiaries) purchase of the Debtors’ assets,
including the stock and assets of the Target Companies.  Notwithstanding any other provision herein,
if the PBGC Release is conditional upon the payment of any monies, then U.S.
Buyer, in its discretion, may make any necessary payment to PBGC; it being
understood and agreed that Sellers shall be responsible for the first
$2,000,000 of any such payment to PBGC, which amount shall be included in the
calculation of the Assumed Current Liabilities with respect to the
determination of the Estimated Net Working Capital Amount and the Net Working
Capital on the Conclusive Net Working Capital Statement hereunder (such amount,
the “Sellers PBGC Amount”).


 


(s)                                  Election
to Purchase Tronox Netherlands.  U.S. Buyer may elect at least thirty Business
Days prior to the Closing Date to purchase all of the issued and outstanding
equity interests of Tronox Netherlands instead of all of the issued and
outstanding equity interests, or assets, of Tronox Holland.  In the event of such election, Tronox
Netherlands shall be treated as a Target Company for all purposes of this
Agreement, including, for the avoidance of doubt, Section 5(p); it
being understood and agreed, however, that Sellers make no representations or
warranties with respect to Tronox Netherlands and that Tronox Netherlands shall
not be required to perform any covenants or other agreements hereunder.


 


(t)                                    Covered
Employees.  Section 5(t) of the Disclosure Schedule sets forth a list of each of the Covered
Employees, other than Covered Employees employed by Tiwest, along with the
following information as to each, as of July 31, 2009:  employing entity, site of employment,
position held, hire date, annualized base salary or hourly wages, aggregate
annual compensation, accrued but unused paid time off, accrued long-service
leave, reason for leave of absence (if applicable) and duration of leave of
absence (if applicable).  Section 5(t) of
the Disclosure Schedule will be updated with current information as to each
Covered Employee, other than a Covered Employee employed by Tiwest, as of a
date within three days prior to the Closing Date.


 


(u)                                 Employee
Layoffs.  Section 5(u) of
the Disclosure Schedule sets forth as of the date hereof a list of employee
layoffs, by date and site of employment (as contemplated by the WARN Act),
implemented by Sellers with respect to the Covered Employees during the past
ninety days.  Section 5(u) of
the Disclosure Schedule will be updated with current information as to each
site of employment (as contemplated by the WARN Act) as of a date within three
days prior to the Closing Date and again on the Closing Date.


 


(v)                                 Seller
Retained Employees. No later than thirty days before the
Closing Date, U.S. Sellers shall deliver to U.S. Buyer a list of Covered
Employees who are primarily involved in legacy environmental remediation and
who U.S. Sellers intend to continue to employ after the Closing (such
employees, the “Seller Retained Employees”) to aid in environmental
issues and the wind-down of the estate and to whom Buyers will not offer
employment pursuant to Section 6(g) without the prior written
consent of U.S. Sellers.


 


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6.                                       Other Covenants.


 


(a)                                  Cooperation. 
From and after the Closing, the Parties shall reasonably cooperate with
each other, and shall use their reasonable best efforts to cause their
respective controlled Affiliates and Representatives to reasonably cooperate
with each other, to provide an orderly transition of the Acquired Business from
Sellers and the Target Companies to Buyers and to minimize the disruption to
the Business resulting from the transactions contemplated hereby.


 


(b)                                 Further Assurances. 
In case at any time from and after the Closing any further action is
necessary or reasonably required to carry out the purposes of this Agreement,
subject to the terms and conditions of this Agreement and the terms and
conditions of the Sale Order, at any Party’s request and sole cost and expense,
each other Party shall take, and shall cause to be taken, such further action
(including the execution and delivery to any other Party of such other
reasonable instruments of sale, transfer, conveyance, assignment, assumption
and confirmation and providing materials and information) as another Party may
reasonably request as shall be necessary to transfer, convey and assign to
Buyers all of the Acquired Assets and Target Interests, to confirm Buyers’
assumptions of the Assumed Liabilities and to confirm Sellers’ retention of the
Excluded Assets and Excluded Liabilities. 
Without limiting the generality of this Section 6(b), to the
extent that any Buyer or Seller discovers any additional assets or properties
which should have been transferred or assigned to Buyers as Acquired Assets but
were not so transferred or assigned, Buyers and Sellers shall reasonably
cooperate and execute and deliver any instruments of transfer or assignment
necessary to transfer and assign such asset or property to the applicable
Buyer.  Without limiting the generality
of this Section 6(b), to the extent that any Buyer or Seller discovers
any assets or properties which is an Excluded Asset which was inadvertently or
otherwise mistakenly transferred or assigned to the applicable Buyer, Buyers
and Sellers shall reasonably cooperate and execute and deliver any instruments
of transfer or assignment necessary to transfer and assign such asset or
property back to Sellers.


 


(c)                                  Litigation Support. 
From and after the Closing, in the event and for so long as any Party
actively is contesting or defending against any Litigation commenced by any Person
that is not a Party (or a party to any other Related Agreement) with respect to
(i) any transaction contemplated by this Agreement or any other Related
Agreement or (ii) any fact, situation, circumstance, status, condition,
activity, practice, plan, occurrence, event, incident, action, failure to act
or transaction on or prior to the Closing Date involving the Business, each
other Party will reasonably cooperate with the contesting or defending Party
and its counsel in the contest or defense, make available its personnel on a
reasonable basis and provide such testimony and access to its books and records
as shall be reasonably necessary in connection with the contest or defense, all
at the sole cost and expense of the contesting or defending Party; provided,
however, that, for avoidance of doubt, the foregoing shall not require
any Party to waive, or take any action with the affect of waiving, its
attorney-client privilege with respect thereto. 
As a condition to providing the cooperation required pursuant to this Section 6(c),
the Party to provide such cooperation or assistance may require the Party
receiving such cooperation or assistance to enter into a non-disclosure
agreement reasonably satisfactory in form and substance to the providing Party.


 


(d)                                 Run-Off.  From and
after the Closing and until the first anniversary thereof:


 


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(i)                                     if U.S. Sellers receive any payment
relating to any Accounts Receivable outstanding on or after the Closing Date
related to the Acquired Business reflected on the Conclusive Net Working
Capital Statement (or if not yet determined, the Estimated Net Working Capital
Statement), such payment shall be the property of Buyers and shall be held in
trust by U.S. Sellers, and U.S. Sellers shall promptly forward and remit such
payment to Buyers by wire transfer of immediately available funds to an account
designated by Buyers (which account Buyers may change from time to time by
delivering notice to Sellers).  U.S.
Sellers shall promptly endorse and deliver to Buyers any cash, checks or other
documents received by U.S. Sellers on account of any such Accounts Receivable;
and


 


(ii)                                  each U.S. Seller shall use its reasonable
best efforts to refer all customer or supplier inquiries received by such U.S.
Seller relating to the Acquired Business to Buyers.


 


(e)                                  Prorations.  As promptly
as reasonably practicable after the Closing:


 


(i)                                     Buyers and Sellers shall prorate all
installments of real property Taxes and personal property taxes, special
assessments, water and sewer rentals, vault charges and other real property
related charges incurred in the Ordinary Course of Business with respect to the
Owned Real Property and, to the extent constituting an obligation under the
applicable Leases, the Leased Real Property leased pursuant to such
Leases.  The Parties shall calculate such
proration using current year real estate Tax information, if available.  If current year Tax information is not
available, then the Parties shall calculate such proration using the amount due
and payable in the year immediately preceding the year of Closing, subject to
subsequent adjustment when the current Tax bills become available.  Sellers’ prorated portion of such Taxes shall
be included in the calculation of the Tax Amount.  At such time as Tax bills for such property
Taxes are received, the Parties shall calculate any necessary adjustments to
such prorations in order to reflect differences between such estimated Taxes
and the actual Taxes as reflected in such Tax bills, and the Parties shall make
the necessary payments to each other to account for such differences, which
payments shall be treated as a supplemental Purchase Price Adjustment. All
property and similar Taxes (but not including any Transfer Taxes covered by Section 6(h), and for the sake of clarity, not
including any income Taxes) shall be prorated between Sellers and Buyers as of
the Closing Date.  For this purpose, the
amount of property and similar Taxes for any Tax year or period with respect to
Sellers, the Target Companies and Tiwest that begins on or before and ends
after the Closing Date (a “Straddle Period”) allocated to the period prior to the end of the Closing Date
shall be the product of (A) the amount of such property and similar Taxes
due for the entire Straddle Period and (B) a fraction with the numerator
equal to the number of days in the Straddle Period up to and including the
Closing Date and the denominator equal to the number of days in the entire
Straddle Period.  Buyers shall be responsible
for and control the conduct of any audit, litigation or other Tax proceeding
with respect to property Taxes for any Straddle Period.


 


(ii)                                  For purposes of this Section 6(e),
the amount of any expense credited by one Party to the other shall be deemed an
expense paid by that Party.


 


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(f)                                    Availability of Business Records. 
From and after the Closing, each Party shall promptly provide to the
other Parties and their respective Representatives (after reasonable notice and
during normal business hours and without charge to the other Parties) access to
all Records, to the extent permissible under Competition/Investment Law,
included in the Acquired Assets, and Records of the Target Companies and Tiwest
used or held for use in the Business, in each case, for periods prior to the
Closing and shall preserve such Records until the latest of (i) seven
years after the Closing Date, (ii) the required retention period for all
government contact information, records or documents, (iii) the conclusion
of all bankruptcy proceedings relating to the Chapter 11 Cases or (iv) in
the case of Records related to Taxes, the expiration of the statute of
limitation applicable to such Taxes. 
Such access shall include access to any information in electronic form
to the extent reasonably available. 
Buyers acknowledge that Sellers have the right to retain originals or
copies of all of Records related exclusively to the Excluded Assets and
Excluded Liabilities for periods prior to the Closing.  Prior to destroying any Records included in
the Acquired Assets for periods prior to the Closing, each Party shall notify
the other Parties thirty days in advance of any such proposed destruction of
its intent to destroy such Records, and each Party will permit the other
Parties to retain such Records.  With
respect to any litigation and claims that are Excluded Liabilities, Buyers
shall render, at Sellers’ expense, all reasonable assistance that Sellers may
request in defending such litigation or claim and shall make available to
Sellers’ personnel most knowledgeable about the matter in question.


 


(g)                                 Offers of Employment to Covered Employees. 
Buyers shall offer employment, effective as of the Closing Date, to
substantially all of the Covered Employees (other than the Seller Retained
Employees, which neither Buyer shall employ without the prior written consent
of Sellers) as of the Closing Date in sufficient numbers and at sufficient
terms and conditions of employment so as to give rise to no Seller obligation
or liability under the WARN Act with respect to any Covered Employee.  Offers of employment will be at substantially
the same base salaries or hourly wages and with bonus opportunities and
employee benefit plan coverage that is substantially similar, in the aggregate,
to the opportunities and coverage as in effect immediately prior to the
Closing; provided, however, that Buyers, the Target Companies, Tiwest and any of their Subsidiaries shall be under no obligation to assume, adopt,
create, provide or make payments with respect to any defined benefit pension
plan, defined superannuation fund or any post-retirement welfare benefits
unless required by law; provided, further, that the
foregoing provisions do not apply to (i) any Covered Employees employed by
any Target Company, which Covered Employees will continue to be employed such
Target Company after the Closing Date on terms and conditions acceptable under
applicable law or (ii) Covered Employees employed by Tiwest, which Covered
Employees will continue to be employed by Tiwest, after the Closing Date on
terms and conditions acceptable under applicable law.  Each Covered Employee (other than the
Retained Seller Employees) who accepts employment with Buyers and thereafter
satisfies Buyers’ pre-employment requirements, and each Covered Employee that
remains in employment at any Target Company or Tiwest shall hereafter be
referred to as a “Retained Employee.” 
Nothing expressed or implied in this Agreement shall obligate Buyers to
provide continued employment to any Retained Employees for any period of time
following the Closing Date.  Buyers shall
indemnify and hold Sellers harmless from all Liabilities under the WARN Act
arising against Sellers as a result, in whole or in part, of Buyers’ actions
after the Closing Date with respect to any Retained Employees.  Buyers shall grant all Retained Employees
credit after the Closing for all service with any of Sellers or any of their
Affiliates and their respective predecessors (to the extent such service was
recognized by Sellers and their Affiliates) for 


 


86

















 


purposes of
(A) participation and vesting under any employee benefit or compensation
plans, programs, agreements or arrangements maintained by Buyers or any of
their respective Affiliates for the benefit of such Retained Employees and
(B) the Long Service Leave Act 1958 (WA). 
For each Retained Employee previously employed by a U.S. Seller, to the
extent applicable, Buyers shall recognize up to twenty-five days’ worth of such
Retained Employee’s unused vacation time that existed as of the Closing Date
with such Sellers (“Assumed Vacation Liabilities”) and shall credit such
vacation time as unused vacation time under Buyers’ applicable vacation policy,
program or arrangement. Buyers will cause to be waived any waiting period and
preexisting condition limitations applicable to such Retained Employees under
any group health plan maintained by Buyers or any of their respective
Affiliates in which such Retained Employees are otherwise permitted to
participate, but only to the extent that a waiting period or preexisting
condition exclusion requirement under an analogous employee welfare benefit
plan sponsored by any Seller, Target Company, Tiwest or any of their
Subsidiaries did not exclude a Retained Employee from participation in such plan
of Sellers, Target Companies, Tiwest or any of their Subsidiaries.  Buyers will take all action necessary to
ensure that such Retained Employees are given full credit for all expenses and
deductibles incurred under any group health plan sponsored by any of Sellers or
any of their Affiliates for the plan year that includes the Closing Date for
purposes of satisfying any maximum out-of-pocket expense limitations and
deductibles under any group health plan sponsored by Buyers or any of their
respective Affiliates in which such Retained Employees participate after the
Closing.  Buyers shall be solely
responsible for satisfying the continuation coverage requirements of COBRA for
all Retained Employees.  Tronox Australia
shall on the Closing make all necessary superannuation contributions to avoid
being liable to pay the superannuation guarantee charge in respect of the
employees employed by it in Australia and attributable to any period prior to
the Closing.  The
provisions of this Section 6(g) are solely for the benefit of
the Parties, and no current or former employee, director, independent
contractor or consultant of any of Sellers, Buyers, Target Companies, Tiwest or
any of their Subsidiaries or any other Person associated therewith shall be
regarded as a third party beneficiary of this Section 6(g).  No provision of this Agreement shall be
construed as amending any Assumed Employee Benefit Plan.


 


(h)                                 Transfer Taxes.


 


(i)                                     Buyers shall pay (and shall indemnify and
hold harmless Sellers and their directors, officers, employees, Affiliates,
agents, successors, permitted assigns and Representatives against) any stamp,
documentary, duty, registration, transfer, added-value or similar Tax (but, for
the avoidance of doubt, not to include GST) (each, a “Transfer Tax”)
imposed under any applicable law in connection with the conveyance of the
Acquired Business to Buyers contemplated by this Agreement that are not
eliminated through the application of section 1146(a) of the Bankruptcy
Code, other than any Transfer Taxes that arise out of the United States of
America.


 


(ii)                                  Sellers shall pay (and shall indemnify
and hold harmless Buyers and their directors, officers, employees, Affiliates,
agents, successors, permitted assigns and Representatives against) any Transfer
Taxes that arise out of the United States of America imposed under any
applicable law in connection with the conveyance of the Acquired Business to
Buyers contemplated by this Agreement that are not eliminated through the
application of section 1146(a) of the Bankruptcy Code.


 


87

















 


(iii)                               Sellers and Buyers shall cooperate to
minimize such Taxes and to prepare and timely file any Tax Returns required to
be filed in connection with Transfer Taxes described in the immediately
preceding sentence.  Buyers shall be
responsible for filing such Tax Returns and remitting the Tax to the applicable
Taxing Authority.


 


(i)                                     GST.


 


(i)                                     Tronox Australia shall continue to carry
on the Enterprise until the Closing.


 


(ii)                                  Sellers and Buyers agree that the supply
of all things by Sellers under or in connection with this Agreement so far as
it relates to the Tiwest Joint Venture Interest constitutes a GST-free supply
of a going concern for the purposes of Section 38-325 of the GST Law.


 


(iii)                               Australia Buyer shall use reasonable best
efforts to remain registered under the GST Law until the Closing.  Australia Buyer shall promptly notify Sellers
if it ceases to be so registered at any time prior to the Closing.


 


(iv)                              If GST is or will be imposed on a supply
made under or in connection with this Agreement, then Sellers may, to the
extent that the consideration otherwise provided for that supply under this
Agreement is not stated to include an amount in respect of GST on the supply,
increase the consideration otherwise provided for that supply under this
Agreement by the amount of GST or otherwise recover from Australia Buyer the
amount of GST; provided, first, that any such increase in
consideration shall not be paid by Australia Buyer until (i) Tronox
Australia shall have provided Australia Buyer with a copy of its proposed GST
Tax Return for review and comment at least ten Business Days prior to the due
date for such GST Tax Return, which Tronox Australia shall not file without
Australia Buyer’s consent (which consent shall not be unreasonably withheld,
conditioned or delayed) unless Australia Buyer fails to deliver its comments
prior to due date of such GST Tax Return, and (ii) Sellers shall used
their reasonable efforts to permit Australia Buyer to claim an Input Tax Credit
to recover any GST imposed on Sellers in connection with this Agreement (except
for paying any GST); provided, second, that Sellers shall
reasonably cooperate with Australia Buyer with respect to all filings necessary
to claim an Input Tax Credit, and Australia Buyer shall control all
administrative proceedings and contests with respect to whether Sellers are
subject to GST as a result of this Agreement and whether Australia Buyer is
entitled to an Input Tax Credit with respect to any such GST; provided, third,
that Australia Buyer will not take any such action that is adverse or otherwise
prejudicial to any Seller without such Seller’s prior written consent.


 


(v)                                 If the amount paid by the recipient of a
Taxable Supply (the “Recipient”) to the party making the Taxable Supply
(the “Supplier”) in respect of GST (whether because of an Adjustment or
otherwise) (A) is more than the GST on the Taxable Supply, then the
Supplier shall refund the excess to the Recipient, or  (B) is less than the GST on the Taxable
Supply, then the Recipient shall pay the deficiency to the Supplier.


 


88

















 


(vi)                              The Recipient shall not be obligated to
pay any amount in respect of GST to the Supplier unless and until the Supplier
issues a Tax Invoice to the Recipient in respect of the Taxable Supply. If an
Adjustment has occurred, then the Supplier shall issue an Adjustment Note to
the Recipient.


 


(vii)                           The amount of a Party’s entitlement under
this Agreement to recovery or compensation for any of its costs, expenses or
liabilities is reduced by the Input Tax Credits to which such Party (or the
Representative Member of a GST Group of which such Party is a member) is
entitled in respect of such costs, expenses or liabilities.


 


(j)                                     Wage
Reporting. 
Buyers and Sellers agree to utilize, or cause their respective
Affiliates to utilize, the alternate procedure set forth in Internal Revenue
Service Revenue Procedure 2004-53 with respect to wage reporting.


 


(k)                                  Acknowledgements. 
Each Buyer acknowledges that it has received from Sellers certain
projections, forecasts and prospective or third party information relating to
Sellers, the Target Companies, the Business, the Acquired Business, the
Acquired Assets, the Assumed Liabilities or any related topics.  Each Buyer acknowledges that (i) there
are uncertainties inherent in attempting to make such projections and forecasts
and in such information, (ii) such Buyer is familiar with such
uncertainties and is taking full responsibility for making its own evaluation
of the adequacy and accuracy of all projections, forecasts and information so
furnished, and (iii) neither Buyer nor any other Person shall have any
claim against any Seller or any of their respective directors, officers,
Affiliates, agents or Representatives with respect thereto.  Accordingly, without limiting the generality
of Section 3(aa), Sellers make no representations or warranties
with respect to such projections, forecasts or information.


 


(l)                                     Provisions Relating to Excluded
Environmental Liabilities.


 


(i)                                     Each Buyer shall provide written notice
to Sellers promptly (and in no event later than twenty-one days) upon becoming
aware of any facts, events or conditions allegedly constituting an Excluded
Environmental Liability.


 


(ii)                                  Upon receipt of timely written notice
from either Buyer regarding an Excluded Environmental Liability affecting any
of the Acquired Assets, Sellers shall promptly undertake and perform diligently
until completion of all actions required under Environmental Health and Safety
Requirements to address and resolve the Excluded Environmental Liability,
including the conduct of any environmental investigatory, corrective or
remedial action (collectively, “Remedial Action”) with respect
thereto.  To the extent necessary to
address and resolve the Excluded Environmental Liability, Sellers shall: select
technical experts and counsel; evaluate, select and implement remedial
measures; defend and resolve third party claims, and negotiate and reach agreements
with Governmental Entities and third parties; provided, however,
that when or if any of the foregoing may in any way affect either Buyer’s
operation of the Acquired Assets or the Business, Sellers shall consult with
Buyers and keep Buyers reasonably apprised of major developments with respect
to such Excluded Environmental Liability and Sellers shall not take any action
that would adversely impair either Buyer’s use of the Acquired Assets for
industrial purposes without such Buyer’s express written consent, not to be 


 


89

















 


unreasonably
withheld or delayed.  Each Buyer agrees
that it shall not independently disclose, negotiate, or otherwise communicate
with Government Entities or other third parties as to such Excluded
Environmental Liability, unless Sellers have agreed, in writing, to such
Buyer’s participation or involvement in such communications or such
communications are required under Environmental Health and Safety Requirements.  For avoidance of doubt, the Parties agree
that Sellers have received timely notice of, and have undertaken principal
management with respect to, the Henderson Legacy Contamination.


 


(iii)                               In connection with any Remedial Action
relating to any Excluded Environmental Liability affecting any of the Acquired
Assets: (A) each Buyer agrees to provide Sellers with reasonable access to
all relevant properties, personnel, documents and other information, and
Sellers agree to use reasonable best efforts to minimize material interference with
such Buyer’s ongoing operation of any Acquired Assets or the Acquired Business
to the extent practicable; (B) each Buyer shall reasonably cooperate with
Sellers’ efforts in conducting the Remedial Action, and Sellers shall comply
with such Buyer’s reasonable requirements relating to the protection of any
Acquired Assets or the Business; (C) each Buyer agrees to facilitate any
institutional controls, deed notices or other risk-based remediation approaches
permitted by Environmental Health and Safety Requirements, provided that such
approaches reasonably seek to minimize any material limitations on the such
Buyer’s ability to use any Acquired Assets in connection with continued
operation of the Acquired Business; (D) each of Buyers and Sellers shall
use their reasonable best efforts to prevent any unreasonable interference with
business operations on the relevant property; and (E) the Parties agree to
reasonably cooperate with one another and keep one another reasonably informed
of material developments.


 


(iv)                              Sellers shall not have any obligation to
Buyers to take or perform Remedial Action with respect to an Excluded
Environmental Liability affecting any of the Acquired Assets after Closing
unless (A) a third party claim has been asserted, or (B) Remedial
Action is required pursuant to Environmental Health and Safety Requirements.
Any obligation of Sellers to conduct or fund any Remedial Action affecting any
of the Acquired Assets shall be deemed satisfied upon completion of such action
in a manner which is acceptable to the relevant Governmental Entity or
otherwise attains compliance with Environmental Health and Safety Requirements.


 


(v)                                 Nothing in this Section 6(l),
nor any other provision of this Agreement, shall be construed to indicate that
either Buyer is in any way liable or otherwise responsible for any Excluded
Environmental Liabilities, as it is the specific intention of the Parties that
Buyers shall not assume, or become liable or otherwise responsible for, any
Excluded Environmental Liabilities.


 


(m)                               Assumed Employee Benefit Plans. 
Sellers have delivered to Buyers Annex H, which includes a
list of all Employee Benefit Plans (or portions thereof) currently anticipated
to be assumed by and assigned to Buyers on the Closing Date.  Buyers shall have the right to add or remove
any Employee Benefit Plans from Annex H, until twenty Business Days
prior to the Closing Date, with the exception of any Employee Benefit Plans
maintained or contributed to by Tronox Australia, which Buyers will assume at
the Closing.  Those Employee Benefit
Plans set forth in Annex H on such date shall be assumed by and
assigned to Buyers at the Closing (the 


 


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“Assumed Employee
Benefit Plans”).  The foregoing provisions do not apply to any
Employee Benefit Plans sponsored or maintained by any Target Company, which Employee Benefit
Plans will continue to be sponsored and/or maintained by such Target Company
pursuant to their terms.


 


(n)                                 Removal of Certain Equipment.


 


(i)                                     Prior to the Closing, reasonably promptly
following Buyers’ request, Sellers shall engage a reputable third party
reasonably acceptable to Sellers and Buyers to disassemble, package, prepare
for shipment and ship prior to the Closing the Acquired Soda Springs Plant and
Equipment, along with all applicable records, to U.S. Sellers’ Henderson,
Nevada site (or, in the event that Buyers exercise their right to not acquire
the Acquired Henderson Assets and to enter into the Henderson Lease Agreement,
as described in Section 2(h)(ii), such other delivery location as
Buyers may reasonably request) and shall use reasonable best efforts to cause
such third party to exercise the standard of care of a reasonably prudent
commercial shipper (including insuring such Acquired Soda Springs Plant and
Equipment in commercially reasonable amounts), in each case, at Buyers’ sole
cost, risk and expense, and in no event shall Buyers be reimbursed by Sellers
for any such cost or expense.


 


(ii)                                  After the entry of the Sale Order and
prior to the Closing, Sellers shall allow U.S. Buyer reasonable access to the
U.S. Sellers’ Savannah, Georgia site to enable U.S. Buyer to verify the
Acquired Savannah Equipment which will be delivered to it pursuant to this Section 6(n)(ii).  As soon as reasonably practicable after the
Closing and at such time that Sellers reasonably deem it to be safe to take
such actions, Sellers shall engage a third party reasonably acceptable to
Sellers and U.S. Buyer to disassemble, package, prepare for shipment and ship
the Acquired Savannah Equipment to a location designated by U.S. Buyer, in each
case, at Buyers’ sole cost, risk and expense.


 


(o)                                 Continuation of Coverage.


 


(i)                                     U.S. Sellers, Target Companies and any of
their Subsidiaries shall continue to provide post-retirement health and dental
coverage under each Employee Benefit Plan providing such coverage until
January 13, 2010, and neither U.S. Sellers or Target Companies nor any of
their Subsidiaries will cause any of their former employees to “lose coverage”
(as described in Treasury Regulation § 54.4980B-4, A-1(c)) under any
Employee Benefit Plan providing post-retirement health and dental coverage at
any time after the date of this Agreement while such coverage is to be provided
by Sellers, Target Companies or any of their Subsidiaries as set forth in this Section 6(o).


 


(ii)                                  In addition, from and after the Closing
Date, U.S. Sellers shall provide coverage under a group health plan sponsored
by U.S. Sellers to any “qualified beneficiary” (as defined in COBRA) with respect
to any former employee of U.S. Sellers, Target Companies or any of their
respective Subsidiaries who experienced a “qualifying event” (as defined in
COBRA) on or prior to the Closing Date and who is not a Retained Employee,
until the earlier of (A) the date U.S. Sellers, and any member of the
controlled group of corporations or the group of trade or businesses under
common control that includes any U.S. Seller, cease to sponsor or maintain any
group health plan or (B) the end of the applicable coverage continuation
period prescribed by COBRA.  At least
five Business Days prior to the date U.S. Sellers, and any member of the
controlled group of corporations or the group of trades or businesses under
common control that 


 


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includes any U.S.
Seller, cease to sponsor or maintain any group health plan, U.S. Sellers will
provide U.S. Buyer with (1) a list of all “qualified beneficiaries” who
were eligible for or were receiving COBRA as of the Closing Date, such list to
include the name of each such qualified beneficiary and the date he or she
experienced a “qualifying event” and (2) an updated list of such qualified
beneficiaries as of the plan cessation date.


 


(iii)                               If, following the Closing, any U.S.
Seller or Target Company or any of their respective Subsidiaries fails to
satisfy its obligations pursuant to Section 6(o)(i), then U.S.
Sellers shall pay to U.S. Buyer as Buyers’ sole remedy and as liquidated
damages an aggregate amount equal to $5,000,000, which amount shall then be
paid by U.S. Sellers to U.S. Buyer as an administrative priority expense under
sections 503(b) and 507(a)(1) of the Code.


 


(p)                                 Bankruptcy Release. 
Except for rights granted under and claims pursuant to this Agreement
and all documents executed in connection herewith or related hereto, the
Confidentiality Agreement or any other agreement between either Buyer or
Guarantor, on the one hand, and Sellers or their respective Subsidiaries (other
than the Target Companies), on the other hand, Sellers, on their own behalf and
on the behalf of each of their Affiliates (collectively, the “Releasing
Parties”), effective as of Closing, hereby release, acquit and forever
discharge Buyers, Guarantor, the Target Companies and each of their respective
Subsidiaries and each of their respective present directors, officers and
employees (collectively, the “Released Parties”), from any and all
claims, causes of action, demands, costs, debts, damages, obligations and
liabilities, whether known or unknown, including all Avoidance Actions, which
the Releasing Parties have or may come to have against the Released Parties, in
each case, solely in connection to the ownership or operation of the Business
prior to the Closing, whether directly, indirectly or derivatively, including,
but not limited to, negligence or gross negligence, provided that this release
shall not release any officers, directors or employees for any gross
negligence, willful misconduct, violation of state of federal securities laws,
theft, fraud, conversion, or other criminal acts to which Sellers had no
Knowledge as of Closing; provided, however, this release shall
not release (i) any claim, known or unknown, by any Seller against the
Tiwest Joint Venture Participants or Tiwest and (ii) any 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) against any parties other than the Target Companies
and their Subsidiaries (the “Released Claims”).  The Releasing Parties covenant not to sue the
Released Parties on account of any Released Claim.  The Sale Order shall provide that
(A) the release of the Released Claims shall be final upon entry of the
Sale Order and such release shall forever release, discharge and expunge such
Released Claims, (B) no order shall be entered in the Chapter 11 Cases
that in any way waives, limits or modifies the release or any rights of the
Released Parties under the release or this Agreement and (C) the release
shall survive any dismissal of the Chapter 11 Cases.


 


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(q)                                 Confidentiality.


 


(i)                                     The terms of the
Confidentiality Agreement shall continue in full force and effect until the
Closing, at which time such Confidentiality Agreement and the obligations of
the Parties thereunder shall terminate. 
If this Agreement is, for any reason, terminated prior to the Closing,
the Confidentiality Agreement shall continue in full force and effect.  Nothing in this Section 6(q) shall
be deemed to limit Sellers’ right to comply with the Bidding Procedures Order
or any other order entered into in the Chapter 11 Cases or otherwise to discharge
their duties as debtors in the Chapter 11 Cases.


 


(ii)                                  On or after the
Closing, Sellers will, and will cause each of their respective Subsidiaries
(other than the Target Companies and Tiwest) to hold, and will use reasonable
best efforts to cause their Affiliates and Representatives to hold, in
confidence (to the extent not prohibited by applicable law, regulation or court
or other governmental order) all confidential information concerning Buyers,
the Target Companies, the Tiwest Joint Venture, Tiwest, any of their respective
Subsidiaries, the Acquired Assets or the Acquired Business, (including any
confidential information or documents provided pursuant to Section 6(f)),
except to the extent that such information is (A) in the public domain
through no fault of Sellers or any of their respective Affiliates or
Representatives, (B) later lawfully acquired by Sellers on a
non-confidential basis from sources other than Buyers or their respective
Affiliates or Representatives, but only to the extent that any such source is
not bound, to Sellers’ Knowledge, by a confidentiality agreement with Buyers or
any of their respective Affiliates or Representatives or  (C) produced under a protective order in
response to a valid discovery request in civil action Tronox Worldwide LLC & Tronox LLC v.
Anadarko Petroleum Corporation, et al. (Case No. 09 01198); provided,
however; that Sellers shall exercise reasonable best efforts to obtain
assurance that confidential treatment shall be accorded to any such
confidential information that is being disclosed.


 


(r)                                    Tronox Netherlands Tax Filing. 
Tronox Netherlands shall allocate and will procure, to the extent
possible, the attribution of tax loss carry forwards of the fiscal unity for
corporate income tax purposes to Tronox Holland. In connection therewith,
Tronox Netherlands and Tronox Holland shall jointly file a request in the
fiscal unity Tax Return for the year including the Closing to attribute loss
carry forwards of the fiscal unity, to the extent possible, to Tronox Holland
in accordance with article 15af of the corporate income tax act 1969 (“Wet
op de vennootschapsbelasting 1969”).


 


(s)                                  WARN Obligations. 
With respect to all employees at the U.S. Sellers’ Savannah, Georgia
site, Sellers shall assume sole responsibility for sending all notices required
under the WARN Act as a result of the transactions contemplated by this
Agreement and all actions taken prior to or after the Closing, regardless of
whether such notices are required to be sent prior to or after the Closing.


 


(t)                                    Survey for Henderson Real Property. 
Sellers shall cause to be delivered to Buyer, within one hundred twenty
days after the date hereof, at U.S. Buyer’s sole cost and expense, an ALTA land
title survey of the Henderson, Nevada site, in form and substance reasonably
acceptable to U.S. Buyer, which survey shall include surveyed legal
descriptions of both the 


 


93

















 


entire Henderson, Nevada site and that portion of the Henderson, Nevada
site to be leased by Buyer pursuant to the Henderson Lease Agreement. U.S.
Buyer shall bear, or promptly reimburse U.S. Seller for, all fees and expenses
incurred in connection with such survey.


 


(u)                                 Assistance with Comfort Letter. 
Sellers shall use reasonable best efforts to assist U.S. Buyer in
obtaining a “comfort letter” from the Nevada Department of Environmental
Protection (the “NDEP”) that provides reasonable assurances to U.S.
Buyer that the NDEP will not seek to hold U.S. Buyer liable or otherwise
responsible for the Henderson Legacy Contamination unless the Henderson Legacy
Contamination is materially exacerbated by the actions of Buyer or its
Representatives after the Closing.   Sellers shall reasonably assist U.S.
Buyer in arranging such meetings and shall attend such meetings with the NDEP
as may be reasonably necessary to persuade the NDEP to issue a comfort letter
to U.S. Buyer, shall provide any and all information and assurances reasonably
requested by the NDEP in connection with the comfort letter request, and shall
use reasonable best efforts to assist U.S. Buyer in obtaining a comfort letter
reasonably acceptable to U.S. Buyer prior to the Closing Date.  Each Party
shall be responsible for its own expenses incurred in obtaining the comfort
letter from the NDEP.


 


7.                                       Conditions to Obligation to Closing.


 


(a)                                  Conditions to Buyers’ Obligations. 
Buyers’ obligation to consummate the transactions contemplated hereby in
connection with the Closing is subject to satisfaction or waiver of the
following conditions:


 


(i)                                     the representations and warranties set
forth in Section 3 qualified as to materiality or Material Adverse
Effect shall be true and correct in all respects, and those not so qualified
shall be true and correct in all material respects, in each case, as of the
date of this Agreement and at and as of the Closing as though made at and as of
the Closing (in either case, except to the extent expressly made as of an
earlier date, in which case as of such date as if made at and as of such date);


 


(ii)                                  Sellers and the Target Companies shall
have performed and complied with their covenants and agreements hereunder
through the Closing in all material respects;


 


(iii)                               all applicable waiting periods (and any
extensions thereof) under the HSR Act or any other Competition/Investment Law
listed on Section 5(b)(iv) of the Disclosure Schedule shall
have expired or otherwise been terminated, and Sellers shall have received all
other authorizations, consents and approvals of Governmental Entities
contemplated by Section 7(a)(iii) of the Disclosure Schedule
to have been received on or prior to the Closing, and Buyers shall have
received evidence of each of the foregoing reasonably satisfactory to it;


 


(iv)                              no Decree or Litigation shall be pending
which would be reasonably likely to (A) prevent consummation of any of the
transactions contemplated by this Agreement, or (B) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation thereof;


 


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(v)                                 Sellers and Target Companies (as
applicable) shall have received the consent (or waiver, as applicable) of each
of the parties set forth on Exhibit K attached hereto to the
consummation of the transactions contemplated by this Agreement;


 


(vi)                              the Bankruptcy Court shall have entered
the Bidding Procedures Order and such order shall be a Final Order and
reasonably satisfactory to Buyers and Sellers, and no order staying, reversing,
modifying or amending the Bidding Procedures Order shall be in effect on the
Closing Date;


 


(vii)                           the Bankruptcy Court shall have entered the Sale Order
and such order shall be a Final Order and reasonably satisfactory to Buyers and
Sellers, and no order staying, reversing, modifying or amending the Sale Order
shall be in effect on the Closing Date;


 


(viii)                        the Dutch Works Council of Tronox Holland shall have
rendered an advice in accordance with the Dutch Works Council Act (Wet op de Ondernemingsraden) in respect of the transactions
contemplated by this Agreement and, to the extent Tronox Holland will be a
party thereto, the financing thereto, which advice is either an unconditional
positive advice or an advice which is reasonably acceptable to Buyers;


 


(ix)                                Tronox Netherlands and Tronox Holland
shall have informed the Dutch trade unions in accordance with the Dutch Rules relating
to Mergers of the Social and Economic Council (SER
Fusiegedragsregels);


 


(x)                                   following the Parties’ execution of this
Agreement, there shall have been no Material Adverse Effect on the Acquired
Business;


 


(xi)                                each delivery contemplated by Section 2(g)(i) to
be delivered to Buyers shall have been delivered; and


 


(xii)                             (A) Yalgoo, Exxaro Sands and/or their Affiliates
shall have waived their rights pursuant to such Person’s preemptive, first
refusal or similar rights under the Tiwest Joint Venture Documents to acquire
all or any Tiwest Joint Venture Interests, (B) Yalgoo, Exxaro Sands and/or
their Affiliates shall have exercised such rights to acquire, and shall have
consummated the acquisition of all or any Tiwest Joint Venture Interests by
Yalgoo, Exxaro Sands and/or their Affiliates or (C) Yalgoo, Exxaro Sands
and/or their Affiliates shall have failed to exercise such rights to acquire
all or any Tiwest Joint Venture Interests within the time period set forth in
the Tiwest Joint Venture Documents, and Buyer may acquire such Tiwest Joint
Venture Interests.


 


(b)                                 Conditions to Sellers’ Obligations. 
Sellers’ obligation to consummate the transactions contemplated hereby
in connection with the Closing are subject to satisfaction or waiver of the
following conditions:


 


(i)                                     the representations and warranties set
forth in Section 4  qualified as to materiality
or Material Adverse Effect shall be true and correct in all respects, and those
not so qualified shall be true and correct in all material respects, in each case, as of the date of this
Agreement and at and as of the 


 


95

















 


Closing as though made at and as of the Closing (in either case, except to the extent expressly
made as of an earlier date, in which case as of such date as if made at and as
of such date);


 


(ii)                                  Buyers shall have performed and complied
with its covenants and agreements hereunder through the Closing in all material
respects;


 


(iii)                               all applicable waiting periods (and any extensions
thereof) under the HSR Act or any other Competition/Investment Law listed on Section 5(b)(iv) of
the Disclosure Schedule shall have expired or otherwise been terminated and
Buyers shall have received all other authorizations, consents and approvals (or
waivers, as applicable) of third parties and of Governmental Entities
contemplated by Section 7(a)(iii) of the Disclosure Schedule
to have been received on or prior to the Closing, and Sellers shall have
received evidence of each of the foregoing reasonably satisfactory to them;


 


(iv)                              no Decree or Litigation shall be pending
which would be reasonably likely to (A) prevent consummation of any of the
transactions contemplated by this Agreement, or (B) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation thereof;


 


(v)                                 the Bankruptcy Court shall have entered
the Bidding Procedures Order and such order shall be a Final Order and
reasonably satisfactory to Buyers and Sellers;


 


(vi)                              the Bankruptcy Court shall have entered
the Sale Order and such order shall be a Final Order and reasonably
satisfactory to Buyers and Sellers;


 


(vii)                           Sellers shall have received a deed of release,
providing for the release of Tronox LLC as guarantor for any guarantee,
indemnity, assurance, security or other undertaking given by Tronox LLC
pursuant to the Tiwest Joint Venture Documents, in form and substance
reasonably acceptable to Sellers; provided, however, that if
requested by Exxaro as a condition to the delivery of such deed of release,
Tronox LLC shall execute a written deed of release providing for the release of
Exxaro and its Affiliates for any liabilities, covenants,
contracts, losses, claims, counterclaims, demands that have arisen or occurred
prior to the Closing Date under any guarantee, indemnity, assurance, security
or other undertaken given by Exxaro or any of its Affiliates in respect of the applicable
Tiwest Joint Venture Documents, in form and substance reasonably acceptable to
Tronox LLC and to Exxaro;


 


(viii)                        no later than fifteen Business Days prior to the
Closing Date, Buyers shall have provided to Sellers a list of Covered Employees
to whom one of Buyers has made (or intends to make) offers of employment, and
on or prior to the Closing Date Buyers shall have offered employment to
substantially all of the Covered Employees in accordance with Section 5(t);


 


(ix)                                each delivery contemplated by Section 2(g)(ii) to
be delivered to Sellers shall have been delivered; and


 


(x)                                   (A) Yalgoo, Exxaro Sands and/or
their Affiliates shall have waived their rights pursuant to such Person’s
preemptive, first refusal or similar rights under the 


 


96

















 


Tiwest Joint
Venture Documents to acquire all or any Tiwest Joint Venture Interests, (B) Yalgoo,
Exxaro Sands and/or their Affiliates shall have exercised such rights to
acquire, and shall have consummated the acquisition of all or any Tiwest Joint
Venture Interests by Yalgoo, Exxaro Sands and/or their Affiliates or (C) Yalgoo,
Exxaro Sands and/or their Affiliates shall have failed to exercise such rights
to acquire all or any Tiwest Joint Venture Interests within the time period set
forth in the Tiwest Joint Venture Documents, and Buyer may acquire such Tiwest
Joint Venture Interests.


 


(c)                                  No Frustration of Closing Conditions. 
None of Buyers or Sellers may rely on the failure of any condition to
its obligation to consummate the transactions contemplated hereby set forth in Section 7(a) (other
than Sections 7(a)(iii) and 7(a)(iv)) or Section 7(b) (other
than Sections 7(b)(iii) and 7(b)(iv)), as the case may be,
to be satisfied if such failure was caused by such Party’s failure to use its
reasonable best efforts to satisfy the conditions to the consummation of the transactions
contemplated hereby.


 


8.                                       Termination.


 


(a)                                  Termination of Agreement. 
This Agreement may be terminated and the transactions contemplated
hereby abandoned at any time prior to the Closing:


 


(i)                                     by the mutual written consent of Buyers,
on the one hand, and Sellers, on the other hand;


 


(ii)                                  by Buyers in the event that any condition
set forth in Section 7(a) (other than Section 7(a)(i) or
(ii)) shall become impossible of fulfillment on or before Closing,
unless such impossibility shall be due to the failure of either Buyer to
perform or comply with any of the covenants or agreements herein to be
performed or complied with by it prior to the Closing, and such impossibility
is not waived by such Buyer; provided that if such failure is curable,
then Buyers shall have ten Business Days after receipt of written notice of
such failure by Sellers to Buyers in which to cure such failure;


 


(iii)                               by Sellers in the event that any condition set forth
in Section 7(b) (other than Section 7(b)(i) or
(ii)) shall become impossible of fulfillment on or before Closing,
unless such impossibility shall be due to the failure of any Seller to perform
or comply with any of the covenants, agreements or conditions herein to be
performed or complied with by it prior to the Closing, and such condition is
not waived by Sellers; provided that if such failure is curable, then
Sellers shall have ten Business Days after receipt of written notice of such
failure by Buyers to Sellers in which to cure such failure;


 


(iv)                              by Buyers, if there shall be a breach by
any Seller of any representation or warranty, or any covenant or agreement
contained in this Agreement, which would result in a failure of a condition set
forth in Section 7(a)(i) or (ii), provided that
if such breach is curable, then Sellers shall have ten Business Days after
receipt of written notice of such breach by Buyers to Sellers in which to cure
such breach; provided  further that Buyers shall not then be in
material breach of any provision of this Agreement;


 


(v)                                 by Sellers, if there shall be a breach by
Buyers of any representation or warranty, or any covenant or agreement
contained in this Agreement, which would result 


 


97

















 


in a failure of a
condition set forth in Section 7(b)(i) or (ii), provided
that if such breach is curable, then Buyers shall have ten Business Days after
receipt of written notice of such breach by Sellers to Buyers in which to cure
such breach; provided  further that no Seller shall then be in
material breach of any provision of this Agreement;


 


(vi)                              by Buyers or Sellers, upon the Bankruptcy
Court’s entry of an order approving a Competing Transaction or Restructuring
Transaction, or by Buyers, upon Sellers’ entry into a definitive agreement
governing a Competing Transaction or Restructuring Transaction or upon the
failure of Sellers to identify Buyer as the successful bidder at the end of the
Auction (as defined in the Bidding Procedure Order); provided, however,
that, in the case of a Competing Transaction, Buyers may not terminate this
Agreement pursuant to this Section 8(a)(vi) until the earlier
of (a) two days after the consummation of a Competing Transaction or (b) thirty
days after the Bankruptcy Court’s entry of an order authorizing and approving a
Competing Transaction if Sellers determine at the conclusion of the Auction
that Buyers are the Back-Up Bidder (as defined in the Bidding Procedures
Order);


 


(vii)                           by Buyers, on the one hand, or Sellers, on the other
hand, on any date that is after March 31, 2010 (the “End Date”) if
the Closing shall not have occurred on or before such date; provided, however,
that a Party shall not have the right to terminate this Agreement under this Section 8(a)(vii) if
the Closing has not occurred on or before such date because of such Party’s
material breach of any of the provisions of this Agreement;


 


(viii)                        by Buyers, if the Chapter 11 Cases of the Debtor whose
estate includes any portion of the Acquired Assets are dismissed or converted
to cases under chapter 7 of the Bankruptcy Code, an examiner with expanded
powers or a trustee is appointed pursuant to the Bankruptcy Code or the
Bankruptcy Court enters an order pursuant to section 362 of the Bankruptcy Code
lifting the automatic stay with respect to any material portion of the Acquired
Assets;


 


(ix)                                by Buyers, if the Bidding Procedures
Order has not been entered by the Bankruptcy Court and become a Final Order
within thirty-five days after the date hereof; provided, however,
that Buyers may not terminate the Agreement pursuant to this Section 8(a)(ix) after
the Bidding Procedures Order has been entered and become a Final Order;


 


(x)                                   by Buyers, if the Sale Order has not been
entered by the Bankruptcy Court and become a Final Order within one hundred
twenty-five days after the date hereof; provided, however, that
Buyers may not terminate the Agreement pursuant to this Section 8(a)(x) after
the Sale Order has been entered and become a Final Order;


 


(xi)                                by Buyers, if the Bidding Procedures
Order (including the Bidding Procedures and Bidding Incentives) is denied or
modified in any respect without the consent of Buyers;


 


(xii)                             by Buyers, if the Sale Order is modified in any
adverse respect without the consent of Buyers; or


 


98

















 


(xiii)                          (A) by Sellers, until the entry of the Sale
Order, to pursue a Restructuring Transaction, or (B) by Buyers, if any
Person files with the Bankruptcy Court a plan or disclosure statement which
contemplates a Competing Transaction or Restructuring Transaction and Sellers
do not object to or oppose such plan or disclosure statement.


 


(b)                                 Procedure Upon Termination. 
In the event of termination and abandonment by Buyers or Sellers, or
each of them, pursuant to Section 8(a), written notice thereof
shall forthwith be given to the other Party or Parties, and this Agreement
shall terminate and the purchase of the Acquired Assets hereunder shall be
abandoned, without further action by Buyers or Sellers.  If this Agreement is terminated as provided
herein, then each Party shall redeliver all documents, work papers and other
materials of any other Party relating to the transactions contemplated hereby,
whether so obtained before or after the execution hereof, to the Party
furnishing the same.


 


(c)                                  Effect of Termination; Break-Up Fee.


 


(i)                                     If any Party terminates this Agreement
pursuant to Section 8(a), then all rights and obligations of the
Parties hereunder shall terminate upon such termination and shall become null
and void and no Party shall have any Liability or obligation to any other Party
in connection with the transactions contemplated by this Agreement except (A) that
Section 1 (Definitions), Section 2(e)(ii) (Consideration),
Section 3(aa) (No Other Representations or Warranties; Disclosed
Materials), Section 4(i) (Condition of the Business), Section 9
(Miscellaneous), and this Section 8 (Termination) shall survive any
such termination in accordance with their terms hereunder and (B) as
expressly set forth in this Section 8(c).  Any Liability for breach of the
representations and warranties, or any covenant to be performed prior to the
Closing, contained in this Agreement occurring prior to the Closing shall
terminate absolutely and be deemed fully waived released and forever discharged
as of the Closing, if the Closing occurs.


 


(ii)                                  If this Agreement is terminated pursuant
to Section 8(a)(ii) (other than for failure of a condition set
forth in Section 7(a)(iii) or 7(a)(iv) (other than
with respect to a Decree of the Bankruptcy Court)), 8(a)(iv), 8(a)(vi),
8(a)(vii), 8(a)(viii), 8(a)(x), 8(a)(xii) or 8(a)(xiii),
then Sellers shall pay to Buyers in immediately available funds the
Reimbursable Expenses within five Business Days after the delivery by Buyers to
Sellers of notice of demand for payment setting forth a reasonable description
of the Reimbursable Expenses.


 


(iii)                               If Buyers terminate this Agreement pursuant to Section 8(a)(ii) (other
than for failure of a condition set forth in Section 7(a)(iii) or
7(a)(iv) (other than with respect to a Decree of the Bankruptcy
Court)), or 8(a)(x), and a definitive agreement with respect to a
Competing Transaction or Restructuring Transaction is executed on or prior to
twelve months following the date of termination of this Agreement, then, in
addition to the Reimbursable Expenses, Buyers shall also be entitled to a cash
fee equal to three percent (3%) of the Sales Proceeds (the “Break-Up Fee”),
such fee to be paid promptly by Sellers (and in any event within five Business
Days) following the consummation of such Competing Transaction or Restructuring
Transaction, as applicable.


 


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(iv)                              If Buyers terminate this Agreement
pursuant to Section 8(a)(iv), 8(a)(vii) (unless all
conditions to the Closing have occurred except for a condition set forth in Section 7(a)(iii))
or Section 8(a)(xii), and a Competing Transaction or Restructuring
Transaction is executed on or prior to twelve months following the date of
termination of this Agreement, then, in addition to the Reimbursable Expenses,
Buyers shall also be entitled to the Break-Up Fee, such fee to be paid promptly
by Sellers and in any event within five Business Days following the
consummation of a Competing Transaction or Restructuring Transaction, as
applicable.


 


(v)                                 If Buyers or Sellers terminate this
Agreement pursuant to Section 8(a)(vi) or 8(a)(xiii),
then, in addition to the Reimbursable Expenses, Buyers shall also be entitled
the Break-Up Fee, such fee to be paid promptly by Sellers and in any event
within five Business Days following such termination.


 


(vi)                              Except as otherwise provided in Section 9(j),
the payment of the Break Up Fee payable pursuant to Sections 8(c)(iii) through
8(c)(v), together with Reimbursable Expenses to the extent payable under
Section 8(c)(ii), shall be the exclusive remedy of Buyers and their
respective Affiliates in the event that this Agreement is terminated pursuant
to the terms hereof, and any claim, right or cause of action by either Buyer or
any other Person against Sellers or their respective Affiliates in excess of
any Break-Up Fee and Reimbursable Expenses is hereby fully waived, released and
forever discharged; provided, however, that no termination or
payment shall relieve Sellers from Liability for any losses or damages (but
subject to the limitation in Section 8(c)(x)) suffered as a result
of the transactions contemplated hereby not being consummated in the event of (x) any
willful termination of this Agreement by Sellers to pursue (1) a Competing
Transaction, (2) a Restructuring Transaction or (3) any other sale of
the Tiwest Joint Venture Interests, Target Companies or the assets of the U.S.
Sellers or Tronox Australia that would not constitute a Competing Transaction, (y) any
willful, grossly negligent or fraudulent breach of any representations and
warranties or (z) any willful breach of any covenants which breach could
reasonably be expected to result in a termination of this Agreement, in each
case of clause (x), (y) and (z), occurring after entry of the Sale Order; provided,
however, that in no event shall Sellers and their respective Affiliates
be liable, at equity or at law, for any losses or damages of in any kind in
excess of $62,250,000 in the aggregate.


 


(vii)                           Any obligation to pay the Break-Up Fee and/or
Reimbursable Expenses hereunder shall be absolute and unconditional; such
payment shall constitute an administrative expense of U.S. Sellers’ and their
debtor Affiliates’ estates under sections 503(b)(1)(A) and 507(a)(2) of
the Bankruptcy Code and shall be payable as specified herein, and not subject
to any defense, claim, counterclaim, offset, recoupment, or reduction of any
kind whatsoever.  Sellers and Buyers
agree that the Bidding Incentives were a material inducement to Buyers to enter
into this Agreement and to consummate the transactions contemplated hereby and
shall be payable as specified herein and not subject to any defense, claim,
counterclaim, offset, recoupment, or reduction of any kind whatsoever.


 


100

















 


(viii)                        Except as otherwise provided in Section 9(j),
the payment of the Deposit to Sellers pursuant to Section 2(e)(ii)(B) shall
be the exclusive remedy of Sellers and their Affiliates in the event that this
Agreement is terminated pursuant to the terms hereof; provided, however,
that no termination or payment shall relieve either Buyer or Guarantor from
Liability for any losses or damages (but subject to the limitation in Section 8(c)(x))
suffered as a result of the transactions contemplated hereby not being
consummated in the event of (x) any willful, grossly negligent or
fraudulent breach of any representations and warranties but solely to the
extent such breach would result in a failure of the condition set forth in Section 7(b)(i))
or (y) any intentional breach of any covenants which breach could
reasonably be expected to result in a failure of the condition set forth in Section 7(b)(ii))
set forth in this Agreement; provided, however, that in no event
shall either Buyer, Guarantor and their respective Affiliates be liable, at
equity or at law, for any losses or damages of any kind in excess of
$62,250,000 in the aggregate.


 


(ix)                                The Confidentiality Agreement shall
survive any termination of this Agreement and nothing in this Section 8(c) shall
relieve Buyers or Sellers of their respective obligations under the
Confidentiality Agreement.  If this
Agreement is terminated in accordance with Section 8(a), then
Buyers agree that the prohibition in the Confidentiality Agreement restricting
Buyers’ ability to solicit any employee of any Seller to join the employ of
either Buyer or any of their respective Affiliates or to hire any such employee
shall be extended to a period of two years from the date of this Agreement.


 


(x)                                   In no event shall a Party or an Affiliate
of such Party have any Liability to the other Party or any other Person for any
special, incidental, exemplary or punitive damages, and any such claim, right
or cause of action for any damages that are special, incidental, exemplary or
punitive is hereby fully waived, released and forever discharged.


 


9.                                       Miscellaneous.


 


(a)                                  Expenses.  Except as
otherwise expressly provided in this Agreement, Sellers, Guarantor and Buyers
shall bear their own expenses, including attorneys’ fees, incurred in
connection with the negotiation and execution of this Agreement, the other
Related Agreements and each other agreement, document and instrument
contemplated by this Agreement and the consummation of the transactions
contemplated hereby and thereby whether or not the Closing occurs; it being
understood that Buyers as acquiring parties shall solely be responsible for
paying the HSR Act filing fees and all other filing and similar fees (but not
legal or other advisor fees) incurred in connection with filings under any
other Competition/Investment Law. 
Notwithstanding the foregoing, in the event of any action or proceeding
to interpret or enforce this Agreement, the prevailing party in such action or
proceeding (i.e., the party who,
in light of the issues contested or determined in the action or proceeding, was
more successful) shall be entitled to have and recover from the non-prevailing
party such costs and expenses (including all court costs and reasonable
attorneys’ fees) as the prevailing party may incur in the pursuit or defense
thereof.


 


101

















 


(b)                                 Entire Agreement. 
This Agreement, the other Related Agreements and the Confidentiality
Agreement together in each case any schedules, exhibits or annexes hereto or
thereto, constitute the entire agreement between the parties hereto and
supersede any prior understandings, agreements or representations (whether
written or oral) by or among the parties hereto, written or oral, to the extent
they relate in any way to the subject matter hereof.


 


(c)                                  Incorporation of Annexes, Exhibits and
Disclosed Materials.  The Annexes and Exhibits to this Agreement,
the documents and other information in the Disclosed Materials are incorporated
herein by reference and made a part hereof.


 


(d)                                 Amendments and Waivers.  No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by each party hereto except as expressly
provided herein.  No waiver of any breach
of this Agreement shall be construed as an implied amendment or agreement to
amend or modify any provision of this Agreement.  No waiver by any party hereto of any default,
misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, shall be valid unless the same shall be in writing and signed
by the party hereto making such waiver, nor shall such waiver be deemed to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent default, misrepresentation or breach of
warranty or covenant.  No conditions,
course of dealing or performance, understanding or agreement purporting to
modify, vary, explain or supplement the terms or conditions of this Agreement
shall be binding unless this Agreement is amended or modified in writing
pursuant to the first sentence of this Section 9(d) except as
expressly provided herein.  Except where
a specific period for action or inaction is provided herein, no delay on the
part of any party hereto in exercising any right, power or privilege hereunder
shall operate as a waiver thereof.


 


(e)                                  Succession and Assignment. 
This Agreement shall be binding upon and inure to the benefit of the
parties hereto named herein and their respective successors and permitted
assigns.  No party hereto may assign
either this Agreement or any of its rights, interests or obligations hereunder
without the prior written approval of the other parties hereto; provided
that either Buyer may, without the prior written approval of the other parties
hereto, (i) assign this Agreement and the other Related Agreements and any
of its rights, interests or obligations hereunder or thereunder to any
Affiliate of such Buyer or (ii) assign, transfer, encumber, create a Lien
in or pledge this Agreement and the other Related Agreements and any of its
rights, interests or obligations hereunder or thereunder as collateral to any
potential lender to such Buyer or any Affiliate thereof (in any or all of which
cases such Buyer nonetheless shall remain responsible for the performance of
all of its obligations hereunder or thereunder).  Buyers shall give prompt written notice to
Sellers of any assignment by either Buyer.


 


(f)                                    Notices.  All notices,
requests, demands, claims and other communications hereunder will be in
writing.  Any notice, request, demand,
claim or other communication hereunder shall be deemed duly given (i) when
delivered personally to the recipient; (ii) one Business Day after being
sent to the recipient by reputable overnight courier service (charges prepaid);
(iii) when sent by facsimile on a Business Day (with written confirmation
of transmission) on such Business Day (otherwise on the first Business Day
after being sent); or (iv) three Business Days after the postmark date when
mailed to the recipient by certified or 


 


102

















 


registered mail, return
receipt requested and postage prepaid, and addressed to the intended recipient
as set forth below:


 


If to any Seller or Target Company (in the case of any
Target Company, prior to the Closing), then to:


 


	
   

  	
  c/o Tronox Incorporated

  
	
   

  	
  3301 NW 150th Street

  
	
   

  	
  Oklahoma City, Oklahoma
  73134-2009

  
	
   

  	
  Attention:

  	
  Dennis Wanlass, Interim
  Chairman and

  
	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
  Michael J. Foster, Vice
  President, General

  
	
   

  	
   

  	
  Counsel and Secretary

  
	
   

  	
  Facsimile:

  	
  +1 (405) 775-5151

  
	
   

  	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
  Kirkland & Ellis LLP

  
	
   

  	
  601 Lexington Avenue

  
	
   

  	
  New York, New York 10022

  
	
   

  	
  Attention:

  	
  Jonathan S. Henes

  
	
   

  	
   

  	
  Andrew E. Nagel

  
	
   

  	
  Facsimile:

  	
  +1 (212) 446-6460

  
	
   

  	
   

  	
   

  
	
  If to U.S. Buyer or any Target Company (in the case
  of any Target Company, following the Closing), then to:

  
	
   

  
	
   

  	
  Huntsman Pigments LLC

  
	
   

  	
  500 Huntsman Way

  
	
   

  	
  Salt Lake City, Utah 84108

  
	
   

  	
  Attention:  Samuel D. Scruggs, Executive Vice 

  
	
   

  	
  President, General Counsel and Secretary

  
	
   

  	
  Facsimile:

  	
  +1 (801) 584-5782

  
	
   

  	
   

  	
   

  
	
  If to Australia Buyer,
  then to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Huntsman Australia
  R&D Company Pty Ltd

  
	
   

  	
  c/o Huntsman Pigments LLC

  
	
   

  	
  500 Huntsman Way

  
	
   

  	
  Salt Lake City, Utah 84108

  
	
   

  	
  Attention:

  	
  Samuel D. Scruggs,
  Executive Vice 

  
	
   

  	
  President, General
  Counsel and Secretary

  
	
   

  	
  Facsimile: +1 (801) 584-5782

  



 


103

















 


	
  If to Guarantor, then
  to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Huntsman Corporation

  
	
   

  	
  500 Huntsman Way

  
	
   

  	
  Salt Lake City, Utah 84108

  
	
   

  	
  Attention: Samuel D. Scruggs, Executive Vice 

  
	
   

  	
  President, General Counsel and Secretary

  
	
   

  	
  Facsimile:

  	
  +1 (801) 584-5782

  



 


Any party hereto may change the address or facsimile
number to which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other party hereto notice in the
manner set forth in this Section 9(f).


 


(g)                                 Governing Law; Jurisdiction. 
This Agreement shall in all aspects be governed by and construed in
accordance with the internal laws of the State of New York without giving
effect to any choice or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of New York (other than Section 5-1401
of the New York general obligations law), except to the extent that the laws
are superseded by the Bankruptcy Code, and the obligations, rights and remedies
of the parties hereto shall be determined in accordance with such laws; provided
that, the validity and enforceability of all conveyance or assignment documents
or instruments executed and delivered pursuant to this Agreement insofar as
they affect title to real property or any interests in any contracts or agreements
shall be governed by and construed in accordance with the laws of the
jurisdiction in which such property is located or which is the governing law of
the relevant contract or agreement.  For
so long as Sellers are subject to the jurisdiction of the Bankruptcy Court, the
parties hereto irrevocably elect as the sole judicial forum for the
adjudication of any matters arising under or in connection with the this
Agreement, the other Related Agreements or the transactions contemplated hereby
or thereby, and consent to the exclusive jurisdiction of, the Bankruptcy
Court.  After Sellers are no longer
subject to the jurisdiction of the Bankruptcy Court, any legal action or
proceeding with respect to this Agreement or the transactions contemplated
hereby shall be brought in the courts of the State of New York sitting in
Manhattan or of the United States for the Southern District of New York, and by
execution and delivery of this Agreement, each of the parties hereto consents
to the exclusive jurisdiction of those courts. 
Each of the parties hereto irrevocably waives any objection, including
any objection to the laying of venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any action or proceeding in such jurisdiction
in respect of this Agreement or the transactions contemplated hereby.


 


(h)                                 Consent to Service of Process. 
Each of the parties hereto hereby consents to process being served by
any party hereto in any suit, action or proceeding by delivery of a copy
thereof in accordance with the provisions of Section 9(f).


 


(i)                                     Waivers of Jury Trial. 
Each party hereto irrevocably and unconditionally waives any right it
may have to a trial by jury in respect of any Litigation directly or indirectly
arising out of, under or in connection with this Agreement, the other Related
Agreements or the transactions contemplated hereby or thereby.


 


104
















 


(j)                                     Specific Performance.


 


(i)                                     Buyers and Guarantor acknowledge and
agree that Sellers would be damaged irreparably in the event that Section 5(b)(iv) or
5(b)(vi) or Buyers’ obligations to consummate the transactions
contemplated hereby is not performed by Buyers and Guarantor in accordance with
its specific terms or otherwise is breached, and that in addition to remedies,
other than injunctive relief and specific performance, that Sellers may have
under law or equity, (A) Sellers shall be entitled to injunctive relief to
prevent breaches of Sections 5(b)(iv) and 5(b)(vi) of
this Agreement and to enforce specifically the terms and provisions thereof and
(B) in circumstances in which all of conditions to the obligations of
Buyers to consummate the transactions contemplated by this Agreement as set
forth in Section 7(a) (other than conditions with respect to
actions that Sellers and/or Buyers will take at Closing, but subject to the
satisfaction or waiver of those conditions) have been satisfied or waived, Sellers
shall be entitled to enforce specifically Buyers’ obligations to consummate the
transactions contemplated hereby.


 


(ii)                                  Sellers acknowledge that Buyers would be
damaged irreparably in the event that the terms of this Agreement are not
performed by Sellers in accordance with its specific terms or otherwise
breached or Sellers fail to consummate the Closing, in each case, following the
entry of the Sale Order, and that, in addition to any other remedy that Buyers
may have under law or equity, Buyers shall be entitled to injunctive relief to
prevent breaches of the terms of this Agreement and to enforce specifically the
terms and provisions thereof that are required to be performed by Sellers, in
each case, following the entry of the Sale Order.


 


(k)                                  Severability. 
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provisions of this
Agreement.  In the event that any of the
provisions of this Agreement shall be held by a court or other tribunal of
competent jurisdiction to be illegal, invalid or unenforceable, such provisions
shall be limited or eliminated only to the minimum extent necessary so that
this Agreement shall otherwise remain in full force and effect.


 


(l)                                     No Third Party Beneficiaries. 
This Agreement shall not confer any rights or remedies upon any Person
other than the parties hereto and their respective successors and permitted
assigns.


 


(m)                               No Survival of Representations,
Warranties and Agreements.  None of Sellers’, Buyers’ or
Guarantor’s representations and warranties contained in Section 3
and Section 4, respectively, and none of the covenants contained in
Section 5 to the extent they are to be performed on or prior to the
Closing shall survive the Closing.


 


(n)                                 Construction. 
The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms.  Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.  The words “including”
and “include” and other words of similar import will be deemed to be
followed by the phrase “without limitation.” 
The words “herein,” “hereof,” “hereto” and “hereby,”
and other


 


105

















 


words of similar import
refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision of this Agreement.  Unless expressly stated in connection
therewith or the context otherwise requires, the phrase “relating to the
Business” and other words of similar import will be deemed to mean
“relating to the operation of the Business as conducted as of the date
hereof.”  References to Articles,
Sections, clauses, subclauses, subparagraphs, Annexes, Exhibits and the
Disclosure Schedule herein are references to Articles, Sections, clauses,
subclauses, subparagraphs, Annexes, Exhibits and the Disclosure Schedule of
this Agreement.  The word “if” and
other words of similar import will be deemed to be followed by the phrase “and
only if.”  Any reference herein to any
law, statute, rule or regulation of any Governmental Entity (or any
provision thereof) shall include all laws, statutes, rules or regulations
promulgated thereunder (or provision thereof), including any successor thereto,
as it may be amended, modified or supplemented from time to time.  Any reference herein to “dollars” or “$”
means United States dollars.


 


(o)                                 Computation of Time. 
In computing any period of time prescribed by or allowed with respect to
any provision of this Agreement that relates to Sellers or the Chapter 11
Cases, the provisions of Rule 9006(a) of the Federal Rules of
Bankruptcy Procedure shall apply.


 


(p)                                 Mutual Drafting. 
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement.  In the event
an ambiguity or question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party
hereto by virtue of the authorship of any of the provisions of this Agreement.


 


(q)                                 Disclosed Materials. 
All capitalized terms not defined in the Disclosure Schedule shall have
the meanings ascribed to them in this Agreement.  The representations and warranties of Sellers
in this Agreement are made and given subject to the disclosures and exceptions
set forth in the Disclosed Materials. 
The disclosure of any matter in any section of the Disclosure Schedule
shall only be deemed to be a disclosure for all other sections and schedules of
the Disclosure Schedule so long as the relevance of such matter to such other
section or schedule of the Disclosed Materials is reasonably apparent on the
face of such matter.  The listing of any
matter shall expressly not be deemed to constitute an admission by Sellers, or
to otherwise imply, that any such matter is material, is required to be disclosed
under this Agreement or falls within relevant minimum thresholds or materiality
standards set forth in this Agreement. 
No disclosure in the Disclosed Materials relating to any possible breach
or violation of any Contract or law shall be construed as an admission or
indication that any such breach or violation exists or has actually
occurred.  In no event shall the
disclosure of any matter in the Disclosed Materials be deemed or interpreted to
expand the scope of Sellers’ representations and/or warranties set forth in
this Agreement.  All attachments to the
Disclosure Schedule are incorporated by reference into the Disclosure Schedule
in which they are directly referenced. 
The information contained in the Disclosed Materials is in all events
subject to the terms of the Confidentiality Agreement.


 


(r)                                    Headings; Table of Contents. 
The section headings and the table of contents contained in this
Agreement and the Disclosure Schedule are inserted for convenience only and
shall not affect in any way the meaning or interpretation of this Agreement.


 


106

















 


(s)                                  Counterparts; Facsimile and Email
Signatures.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.  This Agreement or any counterpart may be
executed and delivered by facsimile or email with scan attachment copies, each
of which shall be deemed an original.


 


(t)                                    Time of Essence. 
Time is of the essence of this Agreement.


 


(u)                                 Guaranty.


 


(i)                                     Subject to the conditions and limitations
as set forth below, Guarantor hereby absolutely, irrevocably and
unconditionally guarantees, as principal and not as surety, to Sellers and
their successors, (i) the due and punctual payment of all payment
obligations of Buyers under this Agreement and the Related Agreements (other
than the Henderson Lease Agreement), including the payment obligations
contemplated under Sections 5(j), 5(k), 6(h) and 8(c)(viii) (the
guaranteed payment obligations under this Section 9(u),
collectively, the “Guarantied Obligations”).


 


(ii)                                  Guarantor guarantees that the Guarantied
Obligations will be duly and punctually paid in accordance with the terms of
this Agreement.  If for any reason either
Buyer shall fail or be unable duly and punctually to pay any Guarantied
Obligation as and when the same shall become due or otherwise required, then
Guarantor shall, subject to the terms and conditions of this Agreement,
forthwith duly and punctually pay such Guarantied Obligation.  Guarantor further agrees that this Agreement,
to the extent it requires the payment of money, constitutes a guaranty of
payment when due and not of collection and is in no way conditioned or
contingent upon any attempt to collect from either Buyer.  Guarantor’s liability under this Agreement
shall be absolute, unconditional, irrevocable and continuing irrespective,
without limitation, of:


 


(A)                              any lack of validity or enforceability of
this Agreement as a result of the application of any bankruptcy, insolvency,
moratorium or other similar laws relating to creditors’ rights and general
principles of equity to either Buyer;


 


(B)                                any modification, amendment, consent,
extension, forbearance or waiver of or any consent to departure from this
Agreement that may be agreed to by either Buyer;


 


(C)                                any action or inaction by Sellers under
or in respect of this Agreement, any failure, lack of diligence, omission or
delay on the part of any Seller to enforce, assert or exercise any right, power
or remedy conferred on any Seller in this Agreement;


 


(D)                               any merger or consolidation of either
Buyer, Guarantor or any of their respective Affiliates into or with any Person,
or any sale, lease or transfer of any of the assets of the Parties or any other
Person to any other Person;


 


(E)                                 any change in the ownership of any of the
Parties or any Person; or


 


107

















 


(F)                                 any other occurrence, circumstance,
happening or event, whether similar or dissimilar to the foregoing and whether
foreseen or unforeseen, which otherwise might constitute a legal or equitable
defense or discharge of the liabilities of a guarantor or surety or which
otherwise might limit recourse against Guarantor or any other Person.


 


(iii)                               Guarantor hereby unconditionally waives
(A) any and all notices, including promptness, diligence, notice of
acceptance of this Agreement and any other notice with respect to any of the
Guarantied Obligations and this Agreement, (B) any presentment, demand,
performance, protest, notice of non-payment as the same pertains to either
Buyer, suit or the taking of other action by any Seller against, and any other
notice to, Guarantor with respect to any of the Guarantied Obligations,
(C) any right to require any Seller to proceed against either Buyer or to
exhaust any security held by any Seller or to pursue any other remedy with
respect to any of the Guarantied Obligations, (D) any defense based upon
an election of remedies by Sellers, unless the same would excuse performance by
either Buyer under this Agreement with respect to any of the Guarantied
Obligations and (E) any duty of Sellers to advise Guarantor of any
information known to Sellers regarding either Buyer or its ability to perform
under this Agreement with respect to any of the Guarantied Obligations.  Each Seller may at any time and from time to
time without notice to or consent of Guarantor and without impairing or
releasing the obligations of Guarantor hereunder, with respect to any of the
Guarantied Obligations, (1) agree with either Buyer to make any change in
the terms of the Guarantied Obligations, (2) take or fail to take any
action of any kind in respect of any security for the Guarantied Obligations,
(3) exercise or refrain from exercising any rights against either Buyer or
others, or (4) compromise or subordinate the Guarantied Obligations,
including any security therefor.  Any
other suretyship defenses are hereby waived by Guarantor with respect to any of
the Guarantied Obligations.


 


(iv)                              The provisions of this Section 9(u) shall
continue to be effective or be reinstated, as the case may be, if (A) at
any time and to the extent that any payment of any of the Guarantied
Obligations is rescinded or must otherwise be returned by the payee thereof to
either Buyer or Guarantor upon the insolvency, bankruptcy, reorganization or
similar event of either Buyer or Guarantor, all as though such payment had not
been made or (B) the obligations of Guarantor under this Section 9(u),
with respect to any of the Guarantied Obligations, are released in
consideration of a payment of money or transfer of property by either Buyer or
any other Person and to the extent that such payment, transfer or grant is
rescinded or must otherwise be returned by the recipient thereof to either
Buyer or Guarantor upon the insolvency, bankruptcy, reorganization or similar
event of either Buyer or Guarantor, all as though such payment, transfer or
grant had not been made.


 


[END
OF PAGE]


[SIGNATURE
PAGES FOLLOW]


 


108

















 


SIGNATURE PAGES TO

ASSET AND EQUITY PURCHASE AGREEMENT


 


IN WITNESS WHEREOF, the
Parties hereto have executed this Agreement as of the date first above written.


 


	
   

  	
  SELLERS:

  
	
   

  	
   

  
	
   

  	
  TRONOX
  INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dennis Wanlass

  
	
   

  	
   

  	
  Name: Dennis
  Wanlass

  
	
   

  	
   

  	
  Title: Interim
  Chairman of the Board & Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRONOX
  LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C. Gibney

  
	
   

  	
   

  	
  Name: Robert C.
  Gibney

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRONOX PIGMENTS (SAVANNAH) INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C. Gibney

  
	
   

  	
   

  	
  Name: Robert C.
  Gibney

  
	
   

  	
   

  	
  Title: President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRONOX
  WORLDWIDE LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C. Gibney

  
	
   

  	
   

  	
  Name: Robert C. Gibney

  
	
   

  	
   

  	
  Title: President

  



 

















 


SIGNATURE PAGES TO


ASSET AND EQUITY PURCHASE AGREEMENT


(continued)


 


 


	
   

  	
  TRONOX
  PIGMENTS (NETHERLANDS) B.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C. Gibney

  
	
   

  	
   

  	
  Name: Robert C. Gibney

  
	
   

  	
   

  	
  Title: Managing Director

  



 


 


	
  State of Oklahoma

  	
  )

  
	
   

  	
   

  
	
   

  	
  )          ss:

  
	
  County of Oklahoma

  	
  )

  



 


Be it remembered that on this 28th day of August, 2009
personally came before me, the undersigned, a Notary Public in and for said
State duly commissioned and sworn, Robert C. Gibney, the Managing Director of Tronox
Pigments Netherland, party to the within and foregoing instrument, known to me
personally to be such and the person who executed such instrument on behalf of
such entity, and acknowledged to me that such instrument was his/her own act
and deed and the act and deed of such entity, that the signature therein is
his/her own proper handwriting, that his/her act of executing and delivering
such instrument was duly authorized and that the facts stated therein are
true.  Given under my hand and seal of
office the day and year aforesaid.


 


	
   

  	
  /s/ Irla Brady

  
	
  [Seal]

  	
  Signature of Notary Public

  



 

















 


SIGNATURE PAGES TO


ASSET AND EQUITY PURCHASE AGREEMENT


(continued)


 


 


Executed by Tronox Western Australia Pty. Ltd, ACN 009 331 195, in
accordance with section 127 of the Corporations Act by or in the presence
of:


 


 


	
  /s/ Robert C. Gibnes

  	
   

  	
  /s/ John D. Romano

  
	
  Signature of Secretary/other Director

  	
   

  	
  Signature of Director or sole Director and sole
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Robert C. Gibnes

  	
   

  	
  John D. Romano

  
	
  Name of Secretary/other Director in full

  	
   

  	
  Name of Director or sole Director and sole Secretary
  in full

  



 


 


	
   

  	
  U.S. BUYER:

  
	
   

  	
   

  
	
   

  	
  HUNTSMAN
  PIGMENTS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter R. Huntsman

  
	
   

  	
   

  	
  Name:  Peter R. Huntsman

  
	
   

  	
   

  	
  Title:   President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AUSTRALIA BUYER:

  
	
   

  	
   

  
	
   

  	
  HUNTSMAN AUSTRALIA R&D COMPANY PTY LTD

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter R. Huntsman

  
	
   

  	
   

  	
  Name:  Peter R. Huntsman

  
	
   

  	
   

  	
  Title:   Authorized
  Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HUNTSMAN CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter R. Huntsman

  
	
   

  	
   

  	
  Name:  Peter
  R. Huntsman

  
	
   

  	
   

  	
  Title:   President and Chief Executive
  Officer