Common use of Competing Transaction Clause in Contracts

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.

Competing Transaction. From and after the date the Bidding Procedures Order (i) This Agreement is entered subject to approval by the Bankruptcy CourtCourt and the consideration by Seller of higher or better competing bids in respect of all or any part of the Purchased Assets (whether in combination with other assets of Seller, Sellers Seller’s Affiliates or otherwise). Purchaser and Target Companies Seller acknowledge that Seller must take reasonable steps to demonstrate that it has sought to obtain the highest or otherwise best price for the Purchased Assets, including giving notice thereof to the creditors of Seller and other interested parties, providing information about Seller’s business to prospective bidders, entertaining higher and better offers from such prospective bidders, and, if additional qualified prospective bidders desire to bid for the Purchased Assets, conducting an Auction. (ii) The bid procedures to be employed with respect to this Agreement and any Auction shall be those reflected in the Bid Procedures Order. Purchaser agrees to be bound by and accept the terms and conditions of the Bid Procedures Order as approved by the Bankruptcy Court in substantially the form attached hereto as Exhibit A. Purchaser and Seller agree that this Agreement and the Transactions are permittedsubject to the right of Seller and its Affiliates and Representatives to seek, solicit, invite, encourage, consider, discuss and negotiate higher or better Competing Bids in accordance with the Bid Procedures Order. From the date hereof (and any prior time) and until the Closing, Seller and its Affiliates are permitted to and are permitted to cause their Representatives and AffiliatesAffiliates to, 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 Purchaser and their respective Affiliates, agents its Affiliates and Representatives) in connection with a Competing Bid, including, to (and to cause their Representatives and Affiliates to) respond to any Competing Transaction, provided, however, that inquiries or offers to purchase all or any such solicitation may occur only in accordance with part of the Bidding Procedures Order, and Purchased Assets (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 including supplying information relating to the Business and the Acquired Assets assets of Seller to prospective purchasers purchasers), and to perform any and all other third parties acts related thereto which are required under the Bankruptcy Code or other applicable Law. (iii) If an Auction is conducted, and Purchaser is not the prevailing bidder at the Auction but is the bidder with the next highest bid after the Successful Bidder at the Auction, Purchaser shall serve as a back-up bidder (the “Back-up Bidder”) and keep Purchaser’s bid to consummate the Transactions on the terms and conditions set forth in connection with a Restructuring Transaction; provided that no non-public information this Agreement (as the same may be furnished until Sellers receive an executed confidentiality agreement from any such Person containing improved upon in the Auction) open and irrevocable in accordance with the terms and provisions that conditions in the aggregate are no less favorable Bid Procedures, and Purchaser shall not terminate this Agreement in accordance with Section 7.1(b)(ii) or (iii), notwithstanding any material respect right of Purchaser to Sellers otherwise terminate this Agreement pursuant to Section 7.1 hereof, until the earlier of (other than with respect i) the Outside Date or (ii) the date of the consummation of an Alternative Transaction. Following the Sale Hearing and prior to the effective periods (e.g.Outside Back-up Date, if the term Successful Bidder in the Auction fails to consummate an Alternative Transaction as a result of a breach or failure to perform on the part of such agreement or any other provisions related Successful Bidder, Purchaser (as the Back-Up Bidder) will be deemed to timing limitations therein) have the new prevailing bid, and Seller will be authorized, without further Order of the non-disclosure Bankruptcy Court, to consummate the Transactions with Purchaser on the terms and non-solicitation provisions contained therein, all of which terms shall subject to the conditions set forth in this Agreement (as the same may be commercially reasonable) than those contained improved upon in the Confidentiality Agreement Auction). (each, an “Acceptable Confidentiality Agreement”)iv) Purchaser shall provide adequate assurance as required under the Bankruptcy Code of the future performance by Purchaser of each Assumed Contract. 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 Purchaser agrees 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 notit will, and shall not permit any of their respective Subsidiaries will cause its Affiliates to, terminate, amend, modify or waive, and shall seek promptly take all actions reasonably required to enforce to assist in obtaining a Bankruptcy Court finding that there has been an adequate demonstration of adequate assurance of future performance under 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, such as furnishing affidavits, non-confidential financial information and other documents or seek information for filing with the Bankruptcy Court and making Purchaser’s Representatives available to enforcetestify before the Bankruptcy Court. In addition to paying the Cure Costs on or before entry of the Assumption Approval Order, upon Buyers’ request subject to the other terms and at Buyers’ sole cost conditions of this Agreement, Purchaser shall, from and expenseafter the Closing Date, 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 assume all Assumed Liabilities of Seller under the status of any such proposal or offer Assumed Contracts and (ii) satisfy and perform all of the Assumed Liabilities related to each of the Assumed Contracts when the same are due thereunder. Notwithstanding the foregoing, except as provided herein, Purchaser shall not be required to provide Buyers reasonably promptlyany form of additional financial security or other monetary support to satisfy any adequate assurance requirements, including, but not limited to, letters of credit, guaranties, deposits or other similar security. (v) Seller and Purchaser agree, and in any event with forty-eight hoursthe motion to approve the Bid Procedures Order shall reflect the fact, with copies that the provisions of all significant correspondence this Agreement, including this Section 5.4, are reasonable, were a material inducement to Purchaser to enter into this Agreement and other written material sent or received in connection with any such offer or proposalare designed to achieve the highest and best price for the Purchased Assets and Assumed Liabilities.

Competing Transaction. From (a) This Agreement is subject to approval by the Bankruptcy Court and the consideration by Sellers and the Bankruptcy Court of higher or better competing bids. Except as otherwise permitted or required by the Bidding Procedures Order, from and after the date hereof until the date that the auction (the “Auction”) contemplated by the Bidding Procedures Order is entered declared closed by Sellers (the Bankruptcy Court“Auction Date”), Sellers and Target Companies are permitted, and are permitted to cause their Representatives respective representatives and Affiliates, Affiliates to respond to (i) but not initiate contact withcontact, solicit solicit, or encourage submission of 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 Purchaser and their respective Affiliates, agents and Representatives) with respect to any transaction (or series of transactions) involving the direct or indirect sale, transfer or other disposition of all, or substantially all of, the Purchased Assets to a purchaser or purchasers other than Purchaser or effecting any other transaction (including a Chapter 11 plan) the consummation of which would be substantially inconsistent with the transactions herein contemplated (a “Competing Transaction”). Notwithstanding anything contained herein to the contrary, no transaction can be a Competing Transaction unless it provides for indefeasible payment in connection full of the Indebtedness then outstanding under the DIP Credit Agreement and the Pre-Petition Senior Secured Loan. (b) If (i) this Agreement is terminated pursuant to Section 4.4(c) by Purchaser or pursuant to Section 4.4(f), and (ii) a Competing Transaction is consummated, then Sellers will pay to Purchaser in cash (A) an amount (the “Break-Up Fee”) equal to 3% of the Purchase Price and (B) the Expense Reimbursement. The Break-Up Fee and Expense Reimbursement shall be paid in cash concurrently with the consummation and closing (which, in the case of a plan of reorganization or liquidation, shall be the effectiveness) of the first Competing Transaction to occur simultaneously with or following the termination of this Agreement and shall be paid from the first proceeds of such Competing Transaction prior to payment of any other claims including claims secured by the assets that are the subject of the Competing Transaction, until the Break-Up Fee and Expense Reimbursement are paid in full. For the avoidance of doubt, nothing in the preceding sentence shall limit the Purchaser’s recourse with respect to the Break-Up Fee and Expense Reimbursement to the proceeds described therein, and the Break-Up Fee and Expense Reimbursement will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates and in any successor bankruptcy estate of any chapter 7 proceeding following conversion of any of Sellers’ chapter 11 proceedings with priority over any and all administrative expense claims. Any Break-Up Fee and Expense Reimbursement payable pursuant to this Agreement will be allowed and paid, without any further Bankruptcy Court approval or order. Sellers will not qualify any bid to participate in the auction contemplated by the Bidding Procedures Order that does not include at a minimum a cash consideration sufficient to pay the Indebtedness then outstanding under the DIP Credit Agreement and the Pre-Petition Senior Secured Loan, the Break-Up Fee and the Expense Reimbursement; provided, however, that any Sellers may qualify a bid which does not include cash consideration in excess of such solicitation may occur only amount if (i) such bid is otherwise a Qualified Bid (as defined in accordance with the Bidding Procedures Order, ) and (ii) engage such bid is for less than all of the Purchased Assets and the cash consideration provided in discussions such bid, when combined with the official committees appointed in consideration provided by other bids for the Chapter 11 Cases or third parties in consultation with such official committees with respect to a Restructuring Transaction to remaining Purchased Assets is determined by the extent that Tronox Incorporated determines, Sellers in good faith, that such action is required faith to include aggregate cash consideration sufficient to pay all obligations secured 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.Purchased Assets, the term of such agreement Break-up Fee and Expense Reimbursement and all existing tax liens, mechanics’ liens 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 (similar statutory liens to the extent such agreements relate liens are secured permitted liens. (c) Notwithstanding anything to the Acquired Business or the Acquired Assets), in which case such agreements (or portions thereof) shall constitute Assumed Contracts, or seek to enforcecontrary contained herein, upon Buyers’ request timely payment of the Break-Up Fee and at Buyers’ sole cost Expense Reimbursement to Purchaser in accordance with this Section 7.1, Sellers and expensetheir respective representatives and Affiliates, on the one hand, and Purchaser and its respective representatives and Affiliates, on the other hand, will be deemed to have fully released and discharged each other from any Acceptable Confidentiality Agreement. Liability resulting from the termination of this Agreement and neither Sellers shall notify Buyers within twenty-four hours after receipt and their respective representatives and Affiliates, on the one hand, and Purchaser and its respective representatives and Affiliates, on the other hand, nor any other Person will have any other remedy or cause of action under or relating to this Agreement or 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. applicable Law. (d) The Sellers shall acknowledge that (i) keep Buyers informed on a reasonably prompt basis the agreements contained in this Section 7.1 are an integral part of the status transactions contemplated by this Agreement, (ii) the damages resulting from termination of any this Agreement under circumstances where the Break-Up Fee is payable are uncertain and incapable of accurate calculation and therefore, the amount payable pursuant to this Section 7.1 is not a penalty but rather constitutes liquidated damages in a reasonable amount that will compensate the Purchaser for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby and (iii) without the agreements contained in this Section 7.1 the parties would not have entered into this Agreement. (e) Notwithstanding anything to the contrary contained herein, the rights of Purchaser under this Section 7.1 are independent of and in addition to such proposal or offer rights and remedies of the Purchaser under Section 11.3; provided, that the Purchaser may simultaneously pursue (i) a grant of specific performance pursuant to Section 11.3 and (ii) provide Buyers reasonably promptly, payment of the Break-Up Fee and Expense Reimbursement pursuant this Section 7.1; but may not receive both a grant of specific performance pursuant to Section 11.3 that results in any event with fortya Closing and payment of the Break-eight hours, with copies of all significant correspondence Up Fee and other written material sent or received in connection with any such offer or proposalExpense Reimbursement pursuant to this Section 7.1.

Competing Transaction. This Agreement is subject to approval by the Bankruptcy Court and, following the expiration of the Exclusivity Period, the consideration by Seller and the Bankruptcy Court of Qualified Bids (as defined in the Bidding Procedures Order) in accordance with the Bidding Procedures Order. From and after the date hereof until the earlier of (i) the conclusion of the Bidding Procedures Order is entered by Hearing and (ii) the Bankruptcy Courttermination of this Agreement (the “Exclusivity Period”), Sellers and Target Companies are permittedwill not, and are permitted to will cause their Representatives respective representatives, agents and Affiliates, Affiliates not to (ia) discuss or negotiate with, initiate contact with, or 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 other than Purchaser and their respective its Affiliates, agents and Representativesrepresentatives) with respect to any transaction (or series of transactions), whether direct or indirect, concerning a sale, merger, acquisition, issuance, financing, refinancing, recapitalization, reorganization, liquidation or disposition of any Seller (including its equity interests) or any portion thereof (in connection any form of transaction, whether by merger, sale of assets or stock, or otherwise), other than the sale of assets in the ordinary course of business and the going out of business sale at the GOB Stores pursuant to the Agency Agreement (a “Competing Transaction”), or (b) provide any confidential information regarding any Seller or its business to any person or entity other than the Purchaser, except to the extent expressly permitted herein. During the Exclusivity Period, Sellers will promptly inform and provide a detailed summary to Purchaser of any other offer, proposal or expression of interest for any Seller or any portion thereof that it or any of its affiliates or representatives may receive. Each Seller and its employees and agents shall be permitted to continue to provide any Person that had access as of September 11, 2008 to the Seller’s on-line data room for project “Boss” hosted at xxxx://xxx.xxxxxxxxxx.xxx with continued access to the documents and information included in such data room as of such date so long as such Person is subject to a customary confidentiality agreement in favor of Sellers with respect to such documents and information (with it being understood that, if the Closing occurs, all such confidentiality agreements, to the extent assignable without consent, shall be and constitute Purchased Contracts). Nothing contained in this Section 7.1 shall be construed to prohibit any Seller or its representatives from soliciting, considering, negotiating, agreeing to or otherwise taking action in furtherance of, any Competing TransactionTransaction after the entry of the Bidding Procedures Order, provided, however, that any but only so long as such solicitation may occur only actions are taken in accordance with the Bidding Procedures Order, and (ii) engage in discussions . Sellers will comply with the official committees appointed Bidding Procedures Order 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 proposalrespects.

Competing Transaction. This Agreement is subject to approval by the Bankruptcy Court and the consideration by Sellers of higher or better competing bids (each, a “Competing Bid”) in accordance with the terms of the Bidding Procedures Order entered by the Bankruptcy Court. From and after the date of this Agreement until 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 entry 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, Parent shall not, and shall cause each of its Subsidiaries and each of their respective directors, officers, employees, financial advisors, representatives and agents not to, directly or indirectly, (i) solicit, initiate, engage or participate in or encourage discussion or negotiations with any Person or entity (other than Purchaser) concerning any Alternative Transaction; or (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 provide any non-public information may be furnished until Sellers receive an executed confidentiality agreement from concerning the business, properties or assets of Parent or any such of its Subsidiaries to any Person containing terms and provisions that in the aggregate are no less favorable in any material respect to Sellers or entity (other than to Purchaser or its representatives). Parent shall, and shall cause each of its Subsidiaries to, immediately cease any and all existing activities, discussions and negotiations with any Person other than Purchaser with respect to any Alternative Transaction. Parent shall immediately notify Purchaser of, and shall disclose to Purchaser the effective periods terms of any Alternative Transaction proposal received by Sellers. The provisions of this Section 7.8 are referred to in this Agreement as the “Exclusivity Provisions.” Following entry of the Bidding Procedures Order, Parent and its Subsidiaries shall be free to respond to and solicit prospective bidders in order to provide information to such prospective bidders and to negotiate an Alternative Transaction with such prospective bidders who have executed a confidentiality agreement with Parent. Parent will promptly notify Purchaser in reasonable detail as Purchaser may request of the existence of any negotiation, or proposal received by Sellers, and prior to furnishing information to prospective bidders, with respect to any Alternative Transaction (e.g., the term and will promptly provide to Purchaser copies of any written materials received by Sellers or their respective representatives in connection with such agreement proposal or any other provisions related to timing limitations thereinnegotiation) and the non-disclosure and non-solicitation provisions contained therein, all identity of which terms shall be commercially reasonable) than those contained in the Confidentiality Agreement (each, an “Acceptable Confidentiality Agreement”)party making such proposal. Subject Parent will promptly provide to any restrictions under applicable Competition/Investment Law, Purchaser any non-public information provided to such third Persons after entry into an Acceptable Confidentiality Agreement that has any other party which was not previously been provided to Buyers shall be delivered to Buyers promptly after delivery of such information to a third PersonPurchaser. Sellers and the Target Companies shall notParent shall, and shall not permit any of their respective cause its Subsidiaries to, terminate, amend, modify or waive, and shall seek to enforce to comply in all respects with its obligations under 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 proposalBidding Procedures Order.

Competing Transaction. From and after (a) Until the date determination of the Bidding Procedures Order is entered by winning bidder at the Bankruptcy CourtAuction, each of Sellers and Target Companies are shall be permitted, and are shall be permitted to cause their Representatives and Affiliatesits Representatives, 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 Buyer and their respective Affiliates, agents its Affiliates and Representatives) in connection with any Competing Transaction, provided, however, that any such solicitation may occur Transaction only pursuant to the Auction conducted in accordance with the Bidding Procedures Order, and . (iib) engage in discussions In connection with the official committees appointed in the Chapter 11 Cases or third parties in consultation with such official committees with respect actions permitted pursuant 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 additionSection 5.4(a), Sellers may supply information relating to the Business and the Acquired Assets to such prospective purchasers and other third parties in connection with a Restructuring Transactionpurchasers; provided provided, however, that no non-public information may be furnished by any of Sellers, its Affiliates or its Representatives to any such Person until Sellers receive an executed confidentiality agreement (in form and substance substantially similar to, and no less restrictive than, Section 10.2 below) from any such Person containing Person; provided further, that any such confidentiality agreement shall not contain any terms and or provisions that in prohibit any of Sellers from complying with the aggregate are no less favorable provisions of this Agreement in any material respect to respect. In the event that 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 their Affiliates or Representatives provide or make available to any restrictions under applicable Competition/Investment Law, prospective purchasers any non-public information provided to such third Persons after entry into an Acceptable Confidentiality Agreement that has not previously been provided or made available to Buyers shall be delivered Buyer and its Representatives, or non-public information in a form not previously provided or made available to Buyers promptly after delivery of Buyer and its Representatives, Sellers shall, in each case, immediately provide such non-public 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, Buyer in writing. (c) Sellers shall either assign provide Buyer and its Representatives (1) as promptly as practicable (and in no event later than 24 hours) after the Acceptable Confidentiality Agreements to Buyer expiration of the Bid Deadline (to as defined in the extent such agreements relate to the Acquired Business or the Acquired AssetsBidding Procedures), 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 asset purchase agreements or similar agreements received as part of any such offer. Sellers shall Qualified Bids (ias defined in the Bidding Procedures) keep Buyers informed on a reasonably prompt basis (the “Qualified Agreements”), and (2) as promptly as practicable (and in no event later than 48 hours) after the expiration of the status of any such proposal or offer and (ii) provide Buyers reasonably promptlyBid Deadline, and in any event with forty-eight hours, with copies of all significant correspondence agreements, schedules, exhibits and annexes related to the Qualified Agreements, other written material sent than (x) agreements, schedules, exhibits and annexes which contain confidential or received financial information of the Person submitting such Qualified Agreement and (y) financing letters delivered in connection with any such offer or proposalQualified Agreement.

Competing Transaction. This Agreement is subject to approval by the Bankruptcy Court and the consideration by Sellers and the Bankruptcy Court of higher or better competing bids. From and after the date of the Bidding entry of the Bid Procedures Order is entered by Order, until the Bankruptcy Courtcompletion of the auction on the Auction Date, Sellers and Target Companies are permitted, and are permitted to cause their Representatives respective representatives and Affiliates, Affiliates to (i) initiate contact with, or 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 Buyer and their respective Affiliates, agents its Affiliates 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 any transaction (or series of transactions) that is or may be a Restructuring Competing Transaction to the extent extent, but only to the extent, that Tronox Incorporated determines, the Company (on behalf of itself and the other Sellers) determines in good faith, faith that such action so doing is permitted or required by the Tronox Incorporated board of directors’ fiduciary duties to Tronox Incorporated’s stakeholdersBid Procedures Order. In additionFollowing the Auction Date, 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 will not participate in any material respect to Sellers (other than with respect to the effective periods (e.g.discussions with, the term of such agreement or furnish 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 Lawinformation to, 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 Person with respect to any Competing Transaction regardless of the terms thereof. For the avoidance of doubt, nothing herein will prohibit Sellers from (a) participating in any discussions with, or Restructuring furnishing any information to, any Person with respect to the sale or disposition of any Excluded Asset or (b) prior to the date of entry of the Bid Procedures Order, participating in any discussions with, or furnishing any information to, any Person in response to such Person’s written proposal regarding a Competing Transaction if, in the case of clause (b), the Company (on behalf of itself and shall deliver the other Sellers) determines in good faith and consistent with its fiduciary duties (after consultation with outside counsel) that such Competing Transaction is reasonably expected to Buyers result in a Competing Transaction that that the Company (on behalf of itself and the other Sellers) determines in good faith, after consulting with Representatives of its creditors, to be a higher or better proposal for the Company and its creditors than the transactions with Buyer contemplated by email transmission or same day courier service true and complete copies of all documents related to any such offer. Sellers shall this Agreement; provided that the Company will (i) provide copies to Buyer of all such written proposals and will use its best efforts to keep Buyers Buyer informed on a reasonably prompt basis of the status and material details (including any material changes in the terms thereof) of any such written proposal or offer and (ii) simultaneously provide Buyers reasonably promptly, and in to Buyer any event with forty-eight hours, with copies of all significant correspondence and other written material sent or received in connection with any information furnished to such offer or proposalPersons.

Competing Transaction. (a) This Agreement is subject to approval by the Bankruptcy Court and the consideration by Seller of higher or better competing bids (each a “Competing Bid”). (b) From and after the date of this Agreement until the earlier of the date that the Bankruptcy Court enters the Bidding Procedures Order is entered or the termination of this Agreement, except as otherwise required by the Bankruptcy Court, Sellers and Target Companies are permittedSeller shall not, and shall cause its Affiliates and officers, trustees, employees, agents and representatives not to directly or indirectly, solicit or initiate any inquiry, offer or proposal from any Person regarding the sale or other disposition of all or any part of the Purchased Assets; provided, however, that Seller and its Representatives shall be permitted at all times to respond to any unsolicited inquiries or offers to purchase all or any part of the Purchased Assets and perform any and all other acts related thereto which are required under the Bankruptcy Code or other applicable Law, including supplying information relating to the Business and the assets of Seller to prospective purchasers and negotiating a Competing Bid. For the avoidance of doubt, any statements made by Seller in the Bidding Procedures Motion or in the hearing in connection therewith shall not be deemed to be a solicitation for purposes of this Agreement. Prior to Seller furnishing any non- public information to any Person in connection with an offer regarding the sale or other disposition of all or any part of the Purchased Assets, Seller must enter into a customary confidentiality agreement with such Person on terms no less favorable to Seller than those contained in Section 8.6. (c) Following the entry of the Bidding Procedures Order by the Bankruptcy Court and until the Contemplated Transactions are consummated, Seller is permitted to cause their its Representatives to market 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 Purchaser and their respective Affiliates, agents and its Representatives) in connection with any Competing Transactionsale or other disposition of all or any part of the Purchased Assets, provided, however, that any such solicitation may occur only alone or in accordance connection with the Bidding Procedures Order, and (ii) engage in discussions with the official committees appointed in the Chapter 11 Cases sale 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 other disposition of directors’ fiduciary duties to Tronox Incorporated’s stakeholdersany other asset of Seller. In addition, Sellers may supply during such time period, Seller shall have the responsibility and obligation to respond to any inquiries or offers to purchase all or any part of the Purchased Assets and perform any and all other acts related thereto which are required under the Bankruptcy Code or other applicable law, including supplying information relating to the Business and the Acquired Assets assets of Seller 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 proposalpurchasers.