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. 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 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.