Stock Purchase Agreement, dated as of March 14, 2019, by and among Tronox Limited, INEOS AG and INEOS Joliet US Holdco, LLC

This STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of March 14, 2019, is entered into by and among Tronox Limited, a public limited company incorporated under the laws of the State of Western Australia (“Seller”), INEOS AG, a company limited by shares (Aktiengesellschaft) organized under the laws of Switzerland (“Parent”) (solely for purposes of Article I, Article II, Section 5.14, Article VIII and Article XI), and INEOS Joliet US Holdco, LLC, a limited liability company organized under the laws of Delaware and a wholly-owned, indirect subsidiary of Parent (“Purchaser”) (each, a “Party” and, collectively, the “Parties”).  Defined terms shall have the meanings ascribed thereto in Section 11.05.

WHEREAS, Seller and The National Titanium Dioxide Company Limited, a limited company organized under the laws of the Kingdom of Saudi Arabia (“Cristal”), are among the parties to that certain Transaction Agreement, dated as of February 21, 2017 (as amended and as may be further amended, restated or otherwise modified from time to time, the “Acquisition Agreement”), pursuant to which Seller will acquire Cristal’s titanium dioxide business (such transaction, the “Acquisition”);

WHEREAS, the U.S. Federal Trade Commission (the “FTC”) has filed complaints in federal district court and before an administrative law judge to preliminarily and permanently enjoin the Acquisition;

WHEREAS, such federal district court granted the FTC’s motion for a preliminary injunction on September 5, 2018 (the “Preliminary Injunction”);

WHEREAS, such administrative law judge issued an Initial Decision and Order on December 7, 2018, ordering Seller, Cristal, The National Industrialization Company and Cristal USA Incorporated to terminate the Acquisition Agreement, and cease and desist from taking any actions to consummate the Acquisition Agreement;

WHEREAS, in order to resolve the concerns raised by the FTC or to otherwise obtain an order of a United States Court approving the Acquisition Agreement subject to Seller, Parent and Purchaser consummating the transactions contemplated by this Agreement, Seller has agreed to divest the titanium dioxide business conducted by Cristal and its Affiliates at Ashtabula Plant 1 and Ashtabula Plant 2 in Ashtabula, Ohio, including the production, manufacture, marketing, development and sale of titanium dioxide products, by-products and co-products from or relating to such plants (the “Business”), following the closing of the Acquisition (the “Acquisition Closing”), to Purchaser, to permit Purchaser to replace lost competition by itself producing, manufacturing, marketing, developing, and selling these products into and from North America, on the terms and subject to the conditions of this Agreement;

WHEREAS, this Agreement will be submitted to the FTC for FTC consent or, absent such consent, to a United States Court seeking approval of the Acquisition subject to each Party complying with the applicable terms of this Agreement;

WHEREAS, the FTC has or is about to issue a Decision and Order governing the scope, nature and extent and requirements of this Agreement;

WHEREAS, Seller desires to cause its Subsidiaries to sell, and Purchaser desires to purchase, the Business following the Acquisition Closing through a sale and purchase of the Acquired Shares, on the terms and subject to the conditions of this Agreement (the “Business Transaction”);

WHEREAS, in order to give effect to the Business Transaction, Seller desires to reorganize its assets and operations relating to the Business prior to the Closing on the terms and conditions set forth in Section 1.02 (the “Restructuring”);

WHEREAS, (a) following the Acquisition Closing, Seller will indirectly own all of the issued and outstanding shares of Cristal Holdings, Inc., a Delaware corporation (the “Company”, and such shares, the “Acquired Shares”), (b) the Company, through its Subsidiaries (together with the Company, the “Transferred Companies”), has historically operated the Business, and (c) following the completion of the Restructuring, the Transferred Companies will own, collectively, substantially all of the assets, operations and properties primarily relating to the Business, as set forth herein, so that through the purchase of the Acquired Shares, Purchaser will acquire the Business on the terms and subject to the conditions set forth herein; and

WHEREAS, Parent, Purchaser and Seller desire to make certain representations, warranties, covenants and agreements in connection with the Business Transaction and also to prescribe conditions to the Business Transaction.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties and covenants herein and intending to be legally bound, the Parties agree as follows:

Section 1.01     Sale and Purchase of the Acquired Shares.  Upon the terms and subject to the satisfaction or waiver of the conditions set forth in, and in accordance with, this Agreement, at the closing of the Business Transaction (the “Closing”), Seller shall sell, transfer, convey, assign and deliver to Purchaser, and Purchaser shall purchase and acquire from Seller, all of Seller’s right, title and interest in and to the Acquired Shares, free and clear of all Liens.

Section 1.02     Pre-Closing Restructuring.  Prior to the Closing, upon the terms and subject to the conditions set forth in this Agreement, except as otherwise set forth in Section 1.03 or Section 5.22, Seller shall, and shall cause its Subsidiaries to, (a) consummate the Restructuring in accordance with Exhibit A and pursuant to the transfer agreement substantially in the form of Exhibit B attached hereto; (b) deliver all agreements, instruments, certificates and other documents to effect the Restructuring to Purchaser for Purchaser’s review and comment and incorporate any reasonable comments to such documents; and (c) keep Purchaser reasonably informed with respect to all material activity concerning the status of the Restructuring and cooperate in good faith with all of Purchaser’s reasonable requests for information related to the Restructuring. 

Section 1.03       Limitations on Assignment.  Notwithstanding anything in this Agreement to the contrary, this Agreement (including Exhibit A) shall not constitute an agreement to assign, license, sublicense or otherwise provide rights with respect to any Business Asset or Excluded Asset if an attempted assignment, license, sublicense or other provision, without the Consent of a third party, would constitute a breach or other contravention of any applicable restriction upon such assignment, license, sublicense or other provision, trigger or accelerate rights of any Person, constitute a violation of or be ineffective under applicable Law or otherwise adversely affect the rights of Seller and its Subsidiaries or the Transferred Companies, respectively (such assignee, the “Proposed Assignee”). Prior to the Closing, Seller shall (subject to the Expenses Cap and the terms of Section 5.08(b), at Seller’s cost and expense) use its reasonable best efforts to obtain all Consents that are required to assign, convey or transfer the Business Assets or Excluded Assets and Purchaser shall cooperate in all reasonable respects with Seller to obtain all such Consents. If any such Consent with respect to any Business Asset or Excluded Asset has not been obtained prior to the Closing Date (each such asset, a “Non-Assignable Asset”), to the extent permitted by applicable Law and the terms of the Non-Assignable Assets, such Non-Assignable Assets shall be held, as of and from the Closing Date, by Seller or its applicable Subsidiary or by the applicable Transferred Company, as applicable (such assignor, the “Proposed Assignor”), in trust for the applicable Proposed Assignee and the covenants and obligations thereunder shall be performed by the Proposed Assignee (or its designated Subsidiary) in such Proposed Assignor’s name, the Proposed Assignee shall bear all expenses related thereto, and all benefits and obligations existing thereunder shall be for the Proposed Assignee’s account. From and after the Closing Date until the date that is twelve (12) months following the Closing Date, upon the reasonable request of the Proposed Assignee, the Proposed Assignor shall (subject to the Expenses Cap and the terms of Section 5.08(b), at Seller’s cost and expense) use its reasonable best efforts to obtain all Consents required to assign, convey or transfer any Non-Assignable Asset and the Proposed Assignee shall cooperate in all reasonable respects with the Proposed Assignor to obtain all such Consents.  The Proposed Assignor shall take or cause to be taken at the Proposed Assignee’s expense such actions in its name or otherwise as the Proposed Assignee may reasonably request so as to provide the Proposed Assignee with the benefits of the Non-Assignable Assets and to effect collection of money or other consideration that becomes due and payable under the Non-Assignable Assets, and the Proposed Assignor shall promptly pay over to the Proposed Assignee all money or other consideration received by it in respect of all Non-Assignable Assets. As of and from the Closing Date, the Proposed Assignor authorizes the Proposed Assignee (or its designee), to the extent permitted by applicable Law and the terms of the Non-Assignable Assets, at the Proposed Assignee’s expense, to perform all the obligations and receive all the benefits of the applicable Proposed Assignor under the Non-Assignable Assets and appoints the Proposed Assignee (or its designee) its attorney-in-fact to act in its name on its behalf with respect thereto, and the Proposed Assignee agrees to indemnify and hold the Proposed Assignor and its Subsidiaries, agents, successors and assigns harmless from and against any and all liabilities and Losses based upon, arising out of or relating to the Proposed Assignee’s performance of, or failure to perform, such obligations under the Non-Assignable Assets, except in the case of the Proposed Assignor’s gross negligence or willful misconduct.

Section 1.04        Purchase Price. In consideration for the Acquired Shares, at the Closing, Parent or Purchaser shall pay, or cause to be paid, to Seller an amount of cash equal to (i) $700,000,000 (the “Enterprise Value”) plus (ii) the Estimated Adjustment Amount plus (iii) the Unfunded Salaried Plan Amount (the total of clauses (i), (ii) and (iii), the “Estimated Purchase Price”), and in the case of clause (ii), as adjusted following the Closing in accordance with Section 1.06(g).

Section 1.05        Closing.

(a)        The Closing shall take place at the offices of Kirkland & Ellis LLP, 601 Lexington Avenue, New York, New York 10022, at 10:00 a.m., New York City time, on the final Business Day of the calendar month on which the last of the conditions to the Closing set forth in Article VI has been satisfied or (to the extent permitted by Law) waived by the Party or Parties entitled to the benefits thereof (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or (to the extent permitted by Law) waiver of such conditions by the Party or Parties entitled to the benefits thereof); provided that if the FTC Decision and Order specifies that the Closing shall occur on (another) specific date, on such other date specified by the FTC Decision and Order, provided further that such date is not earlier than the third (3rd) Business Day following the date on which the last of the conditions to the Closing set forth in Article VI has been satisfied or (to the extent permitted by Law) waived by the Party or Parties entitled to the benefits thereof (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or (to the extent permitted by Law) waiver of such conditions by the Party or Parties entitled to the benefits thereof); or at such other place, time or date as may be mutually agreed upon in writing by Seller and Purchaser (the date on which the Closing takes place being the “Closing Date”).

(b)         At the Closing:

(i)          Seller shall deliver, or cause to be delivered, to Purchaser:

(A)         a certificate or certificates representing the Acquired Shares duly endorsed by the applicable Subsidiary of Seller for transfer to Purchaser, with appropriate transfer stamps, if any, affixed, if the Acquired Shares are certificated;

(B)         resignations from office of each of the directors and officers of the Transferred Companies, in each case designated by Purchaser (in writing delivered to Seller at least five (5) Business Days prior to the Closing) to resign at the Closing;

(C)         the certificates of incorporation or formation, as applicable, common seals, minute books, statutory registers and share or membership interest certificate books (to the extent shares or other equity interests of the Transferred Companies were issued in certificate form) and all other statutory records of the Transferred Companies (provided that delivery of the foregoing to the offices of the Transferred Companies shall be deemed to satisfy this requirement), in each case, to the extent in possession of Seller;

(D)         a duly executed and acknowledged certificate from the Company, dated within thirty (30) days prior to the Closing Date and in form and substance reasonably acceptable to Purchaser, prepared in accordance with the applicable U.S. Treasury Regulations promulgated under Sections 1445 and 897 of the Code,  that certifies that the Company was not a “United States real property holding corporation” (within the meaning of Section 897(c)(2) of the Code) as of the Closing Date or at any time during the applicable period set forth in Section 897(c)(1)(A)(ii) of the Code, along with written authorization for Purchaser to deliver such certificate to the Internal Revenue Service on behalf of the Company upon Closing;

(E)          the certificate required to be delivered pursuant to Section 6.03(c);

(F)          executed counterparts of each of the other Ancillary Agreements to which Seller or any Seller Subsidiary is a party; and

(G)         all such other documents, certificates and instruments as Purchaser may reasonably request in order to give effect to the Business Transaction and the Ancillary Agreements or to vest in Purchaser good and valid title to the Acquired Shares.

(ii)         Purchaser shall deliver, or cause to be delivered, to Seller:

(A)         the Estimated Purchase Price, by wire transfer of immediately available funds, to the account designated by Seller in writing (which designation shall have been made at least two (2) Business Days prior to the Closing Date);

(B)          the certificate required to be delivered pursuant to Section 6.02(c);

(C)          executed counterparts of each of the other Ancillary Agreements to which Purchaser or any of its Subsidiaries is a party; and

(D)         all such other documents, certificates and instruments as Seller may reasonably request in order to give effect to the Business Transaction and the Ancillary Agreements or to vest in Purchaser or its Subsidiaries, as the case may be, good and valid title to the Acquired Shares.

Section 1.06        Adjustment Amount.

(a)         Estimated Closing Statement. At least six (6) Business Days prior to the expected Closing Date (and in any event not more than ten (10) Business Days prior to the actual Closing Date), Seller shall prepare and deliver to Purchaser a statement (the “Estimated Closing Statement”) consisting of its good faith calculation in reasonable detail of the Estimated Adjustment Amount, including the estimated Closing Cash (the “Estimated Cash”), the estimated Closing Indebtedness (the “Estimated Indebtedness”), the estimated Closing Working Capital (the “Estimated Closing Working Capital”), the estimated Unpaid Seller’s Expenses (the “Estimated Unpaid Seller’s Expenses”), and the Estimated Purchase Price based thereon. The Estimated Closing Statement shall be signed by a duly authorized officer of Seller, prepared in good faith and in accordance with the Accounting Principles set forth in Exhibit C and in the form of the illustrative calculation set forth in Exhibit D. Seller shall provide to Purchaser and its Representatives such access to the books and records of the Business and to any other information, including such access to the employees of the Transferred Companies and work papers of Seller’s accountants (subject to Purchaser entering into, and such accountants agreeing to, a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants), as Purchaser shall reasonably request in connection with Purchaser’s review of the Estimated Closing Statement and preparation of the Closing Statement. Purchaser may object to the amounts contained in the Estimated Closing Statement within two (2) Business Days after the delivery of the Estimated Closing Statement to Purchaser. Seller shall in good faith consider the objections, if any, of Purchaser to the Estimated Closing Statement and the Parties shall cooperate in good faith to resolve such objections, and make any necessary revisions to the Estimated Closing Statement. The Parties shall agree on a final Estimated Closing Statement containing the Estimated Adjustment Amount (and components thereof) and the Estimated Purchase Price based thereon no later than one (1) Business Day prior to the Closing Date.

(b)          Closing Statement. As promptly as practicable following the Closing Date (but in any event within ninety (90) days thereafter), Purchaser shall prepare, or cause to be prepared, and deliver to Seller a statement (the “Closing Statement”) consisting of a combined carve-out balance sheet of the Business as of the Effective Time (the “Closing Balance Sheet”) and a calculation in reasonable detail (as derived from the Closing Balance Sheet) of (i) the Closing Working Capital, (ii) the Working Capital Adjustment Amount, (iii) the Closing Indebtedness, (iv) the Unpaid Seller’s Expenses, (v) the Closing Cash, (vi) the Adjustment Amount, if any, and (vii) the amount, if any, payable pursuant to Section 1.06(g). The Closing Statement shall be signed by a duly authorized officer of Purchaser, prepared in good faith and in accordance with the Accounting Principles set forth in Exhibit C and in the form of the illustrative calculation set forth in Exhibit D.

(c)         Access to Information. Seller shall provide, or cause to be provided, to Purchaser and its Representatives such access to the books and records of the Business and access to employees of the Business and Seller’s accountants (subject to Purchaser entering into, and such accountants agreeing to, a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants), as Purchaser shall reasonably request, in connection with Purchaser’s preparation of the Closing Statement.  Purchaser shall provide, or caused to be provided, to Seller and its Representatives such access to the books and records of the Business and to any other information, including such access to employees of Purchaser and work papers of the accountants who compiled or reviewed the Closing Statement or the underlying accounting data (subject to Seller entering into, and such accountants agreeing to, a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants), as Seller shall reasonably request, in connection with Seller’s review of the Closing Statement.

(d)         Closing Statement Dispute Notice. The Closing Statement shall become final, binding and conclusive upon Seller and Purchaser on the forty-fifth (45th) day following Purchaser’s delivery of the Closing Statement unless Seller delivers to Purchaser on or prior to such forty-fifth (45th) day a written notice (a “Closing Statement Dispute Notice”) stating that Seller disputes one or more items contained in the Closing Statement (a “Disputed Item”) and specifying in reasonable detail each Disputed Item. If Seller timely delivers a Closing Statement Dispute Notice, all items in the Closing Statement that are not Disputed Items shall be final, binding and conclusive as to Purchaser and Seller for all purposes hereunder except for any such items that must be changed or adjusted as a direct consequence of a change or adjustment to a Disputed Item.

(e)         Resolution Period. If Seller timely delivers a Closing Statement Dispute Notice, then Purchaser and Seller shall seek in good faith to resolve the Disputed Items during the 30-day period beginning on the date Purchaser receives the Closing Statement Dispute Notice (the “Resolution Period”). If Purchaser and Seller reach agreement with respect to any Disputed Items, Purchaser shall revise the Closing Statement to reflect such agreement.

(f)        Independent Accountant. If Purchaser and Seller are unable to resolve all Disputed Items during the Resolution Period, then, at the request of either Party, Purchaser and Seller shall jointly engage and submit the unresolved Disputed Items (the “Unresolved Items”) to such firm of independent accountants of internationally recognized standing as Seller and Purchaser agree or in the event that Seller and Purchaser are unable to agree on any such firm, such firm of independent accountants as selected by the American Arbitration Association (the “Independent Accountant”). Purchaser and Seller shall enter into reasonable and customary arrangements for the services to be rendered by the Independent Accountant, including a customary non-disclosure agreement. Purchaser and Seller shall use their reasonable best efforts to cause the Independent Accountant to issue its written determination regarding the Unresolved Items within thirty (30) days after such items are submitted to it for resolution. The Independent Accountant shall act as an expert and not as an arbitrator. The Independent Accountant shall make a determination with respect to the Unresolved Items only and in a manner consistent with this Section 1.06 and the Accounting Principles. The Independent Accountant shall limit its review only to the Unresolved Items. In reviewing any Unresolved Items, the Independent Accountant may not assign a value to any Unresolved Item that is greater than the greatest value or less than the smallest value for such Unresolved Item claimed by either Party. As an initial procedural matter, each Party shall no later than five (5) Business Days after the Independent Accountant has been retained prepare a statement which it shall deliver to the Independent Accountant setting forth its position regarding the Unresolved Items. Such statement shall be accompanied by such supporting documentation as the Party preparing the same may care to submit. After the Independent Accountant has received both statements, the Parties shall cause the Independent Accountant to simultaneously provide such statements to both Parties (including all accompanying exhibits and schedules). Following delivery of the Parties’ statements of position, the Parties shall have the opportunity to schedule a joint meeting with both Parties and the Independent Accountant so each Party may present its evidence and the Independent Accountant may ask any questions regarding the Parties’ respective positions. For the avoidance of doubt, the Independent Accountant may ask questions regarding the Parties’ respective positions both at the meeting or at any time after (but prior to the Independent Accountant’s delivery of its determination referred to below). Following the meeting with the Independent Accountant (but no more than ten (10) Business Days thereafter), the Parties may (using the same procedure specified above with respect to the preparation and submission of the initial position statements) submit a final statement of position (together with the initial statements, the “Position Statements”). Except as specified above regarding the delivery of the Parties’ Position Statements to the Independent Accountant, all communications between either Party and the Independent Accountant or from the Independent Accountant to either Party shall copy the other, and no ex-parte communications or meetings shall be permitted. The determination of the Independent Accountant shall be based solely on (x) the definitions and other applicable provisions of this Agreement, (y) the Parties’ respective Position Statements and (z) the meeting referred to above and follow up questions therefrom (and not on an independent review), and such determination shall be final, binding and conclusive on Purchaser and Seller absent manifest error. The fees, expenses and costs of the Independent Accountant shall be borne by Seller and Purchaser in the same proportion as the aggregate amount of the Unresolved Items that is unsuccessfully disputed by each (as determined by the Independent Accountant) bears to the total amount of the Unresolved Items submitted to the Independent Accountant.

(g)         Final Adjustment. If (i) the Adjustment Amount (A) as set forth on the Closing Statement delivered by Purchaser to Seller, if Seller does not timely deliver a Closing Statement Dispute Notice pursuant to Section 1.06(d), (B) as agreed by Purchaser and Seller pursuant to Section 1.06(e), or (C) as determined by the Independent Accountant pursuant to Section 1.06(f) (as applicable, the “Actual Adjustment Amount”) exceeds the Estimated Adjustment Amount, then Parent or Purchaser shall pay, or cause to be paid, to Seller an amount in cash equal to such excess, or (ii) the Estimated Adjustment Amount exceeds the Actual Adjustment Amount, then Seller shall pay, or cause to be paid, to Purchaser an amount in cash equal to such excess.

(h)         Sole Remedy. For the avoidance of doubt, this Section 1.06 shall serve as the sole and exclusive source of recovery for any amounts owed to Seller or Purchaser in connection with the determination of the Actual Adjustment Amount and any payments in connection therewith.

(i)        Method of Payment. Any amount due pursuant to Section 1.06(g) shall be made by wire transfer of immediately available funds to an account designated by the receiving Party within five (5) Business Days after the Closing Statement becomes final pursuant to Section 1.06(d), Section 1.06(e) or Section 1.06(f).

(j)          Effect of Adjustments.  The Parties agree that any payments made pursuant to this Section 1.06 shall be treated for all Tax purposes as an adjustment to the Purchase Price.

Section 1.07     Withholding. Parent, Purchaser, Seller and/or their Affiliates shall be entitled to deduct and withhold from the Purchase Price otherwise payable pursuant to this Agreement to Seller and/or its Subsidiaries, and other payments pursuant to this Agreement, such amounts as Parent, Purchaser, Seller and/or their Affiliates are required to deduct and withhold with respect to the making of such payment under the Code, or any applicable provision of any other U.S. federal, state, local or non-U.S. Tax Law. To the extent that such amounts are withheld by Parent, Purchaser, Seller and/or their Affiliates, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person to whom or for whose account the Agreement requires the applicable payment to be made. Parent, Purchaser or Seller, as applicable, shall (a) promptly notify the other Party of any anticipated withholding in respect of the Purchase Price, (b) consult with the other Party in good faith to determine whether such deduction and withholding is required under applicable Tax Law, and (c) cooperate with the other Party in good faith to minimize the amount of any applicable withholding.

Each of Parent and Purchaser represents and warrants to Seller that the statements contained in this Article II are true and correct except as set forth in the disclosure letter delivered by Purchaser to Seller at or before the execution and delivery by Purchaser of this Agreement (the “Purchaser Disclosure Letter”). The Purchaser Disclosure Letter shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained in this Article II, and the disclosure in any section shall be deemed to qualify other sections in this Article II to the extent (and only to the extent) that it is reasonably apparent from the face of such disclosure that such disclosure also qualifies or applies to such other sections (other than Section 2.01, Section 2.02 and Section 2.07 of the Purchaser Disclosure Letter, which matters shall be disclosed only by specific disclosure in the respective section of the Purchaser Disclosure Letter).

Section 2.01        Organization, Standing and Power. Each of Parent and Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized (in the case of good standing, to the extent such jurisdiction recognizes such concept).  Each of Parent and Purchaser has all requisite power and authority necessary to enable it to own, lease or otherwise hold its properties and assets and to conduct its businesses as presently conducted.

Section 2.02        Authority; Execution and Delivery; Enforceability.

(a)         Each of Parent and Purchaser has all requisite corporate or similar power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Business Transaction. The respective boards of directors of Purchaser and Parent have resolved that Purchaser or Parent, as applicable, enter into this Agreement and perform its obligations hereunder.  Such resolutions have not been amended or withdrawn. No corporate or similar proceedings on the part of either Parent or Purchaser are necessary to authorize, adopt or approve, as applicable, this Agreement or to consummate the Business Transaction, except as contemplated by this Agreement. Each of Parent and Purchaser has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Seller, this Agreement constitutes a legal, valid and binding obligation of each of Parent and Purchaser, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights generally and to general equity principles (the “Bankruptcy and Equity Exception”).

(b)       At the Closing, each of Parent and Purchaser and each of their respective Subsidiaries that shall be a party to any Ancillary Agreement shall have the requisite corporate or similar power and authority to execute and deliver such Ancillary Agreement, to perform its obligations thereunder and to consummate the transactions contemplated thereby. At the Closing, each of Parent and Purchaser and each of their respective Subsidiaries that shall be a party to any Ancillary Agreement will have duly executed and delivered each Ancillary Agreement and, assuming the due authorization, execution and delivery by Seller or its Subsidiary, each Ancillary Agreement will constitute a legal, valid and binding obligation of Parent, Purchaser or such Subsidiary, as applicable, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception.

Section 2.03        No Conflicts; Consents.

(a)         The execution and delivery by each of Parent and Purchaser of this Agreement does not, and the performance by each of Parent and Purchaser of its obligations hereunder and the consummation of the Business Transaction will not, conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, modification, cancellation or acceleration of any obligation, any obligation to make an offer to purchase or redeem any Indebtedness or shares or any loss of a material benefit under, or result in the creation of any Lien upon any of the properties, rights or assets of Parent, Purchaser or any of their respective Subsidiaries under, or require any consent, approval, clearance, waiver, exemption, modification of any Law, Permit or order (“Consent”)  by, or any notice to, any Person under any provision of (i) the Organizational Documents of Parent, Purchaser or any of their respective Subsidiaries, (ii) any Contract or Permit to which Parent, Purchaser or any of their respective Subsidiaries is a party or by which any of their respective properties or assets is bound or (iii) subject to the filings and other matters referred to in Section 2.03(b), any judgment, writ, injunction, award, summons, notice of violation, directive, notice or demand letter, order, determination or decree (“Judgment”) of any federal, national, state, provincial or local, whether domestic or foreign, government or any Court, department, semi-governmental, statutory, administrative agency or commission or other governmental authority or instrumentality or arbitral body, whether domestic, foreign or supranational (including, for the avoidance of doubt, any self-regulatory organization established under Law) (a “Governmental Entity”) or statute, law (including any foreign, federal, state, local or common law), act, code, executive order, ordinance, rule or regulation, or other similar requirement, enacted adopted or promulgated by any Governmental Entity (“Law”), in each case, applicable to Parent, Purchaser or any of their respective Subsidiaries or their respective properties or assets, other than, in the case of clauses (ii) and (iii) above, any matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Purchaser Material Adverse Effect.

(b)        No Consent of or from, or registration, declaration, notice or filing made to, or with, any Governmental Entity is required to be obtained or made by or with respect to Parent, Purchaser or any of their respective Subsidiaries in connection with the execution and delivery of this Agreement or its performance of its obligations hereunder or the consummation of the Business Transaction, other than (i) FTC Consent, (ii) in connection, or in compliance, with the FTC Decision and Order or other requests or requirements of the FTC or the staff of the FTC (the “FTC Staff”) and (iii) such other matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Purchaser Material Adverse Effect.

Section 2.04      Litigation. There is no suit, claim, action, charge, complaint, audit, investigation, arbitration or other proceeding (“Proceeding”) pending or, to the Knowledge of Purchaser, threatened against Parent, Purchaser or any of their respective properties or assets, that, if adversely determined, nor is there any Judgment outstanding against Parent or Purchaser that, would reasonably be expected to impair or materially delay the ability of Parent or Purchaser to consummate the Business Transaction or to perform its obligations under this Agreement.

Section 2.05        Compliance with Applicable Laws. Neither Parent nor Purchaser is in violation of any Laws and orders applicable to it or by which any of its material assets is bound or affected, except for violations the existence of which would not reasonably be expected to impair or materially delay the ability of Parent or Purchaser to consummate the Business Transaction or to perform its obligations under this Agreement.

Section 2.06        Financial Ability.  Purchaser has, as of the date of this Agreement, and will have as of the Closing Date, on hand (or access through intercompany loans or committed credit facilities to), adequate funds to perform all of its obligations under this Agreement (including, without limitation, payment of the Purchase Price and all fees and expenses required to be paid by Purchaser in connection with the transactions contemplated by this Agreement), and there is no restriction or condition on the use of such funds for such purposes or fact or circumstance that, individually or in the aggregate with all other facts and circumstances, could reasonably be expected to prevent or delay the availability of such funds at the Closing.

Section 2.07        Brokers’ Fees and Expenses. No broker, investment banker, financial advisor or other Person, other than The Valence Group, LLC, the fees and expenses of which will be paid by Parent or Purchaser, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Business Transaction based upon arrangements made by or on behalf of Parent or Purchaser.

Section 2.08        No Implied Representations. None of Parent, Purchaser, their respective Subsidiaries or Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding Parent, Purchaser or any of their respective Subsidiaries, except for the representations and warranties made by Parent or Purchaser that are expressly set forth in this Agreement or any agreement, certificate or instrument delivered in connection with this Agreement.

Section 2.09        No Inducement or Reliance; Independent Assessment.

(a)        Each of Parent and Purchaser has made its own independent investigation, review and analysis regarding the Business, Seller, the Transferred Companies and the Business Transaction, which investigation, review and analysis were conducted by Parent and Purchaser together with advisors, including legal counsel, that it has engaged for such purpose and, in making the determination to enter into this Agreement and to proceed with the Business Transaction, each of Parent and Purchaser and its Subsidiaries and Representatives have relied on the results of their own independent investigation.

(b)        Without limiting the generality of Section 2.09(a), each of Parent and Purchaser acknowledges and agrees that, except as may be set forth in this Agreement, none of Seller, Cristal or their respective Subsidiaries or Representatives has made, is making or will make any representation or warranty, express or implied, as to the prospects of the Business or the Transferred Companies after the consummation of the Business Transaction, or their potential profitability or with respect to any business plans or forecasts, projections or estimates of revenues, profits, cash flows or other financial performance measures that have been or may in the future be made available to Parent, Purchaser or any of their respective Subsidiaries or Representatives in connection with their review of the Business or the Business Transaction.

(c)        Notwithstanding the foregoing, nothing in this Section 2.09 shall relieve Seller and Cristal, and their respective Subsidiaries and Representatives, from any liability or damages incurred or suffered by Parent, Purchaser or their respective Subsidiaries solely to the extent such liabilities or damages were the result of actual fraud on the part of Seller, its Subsidiaries and their respective Representatives.

Seller represents and warrants to Parent and Purchaser that the statements contained in this Article III are true and correct except as set forth in the disclosure letter delivered by Seller to Purchaser at or before the execution and delivery by Seller of this Agreement (the “Seller Disclosure Letter”). The Seller Disclosure Letter shall be arranged in numbered and lettered sections corresponding to the numbered and lettered sections contained in this Article III, and the disclosure in any section shall be deemed to qualify other sections in this Article III to the extent (and only to the extent) that it is reasonably apparent from the face of such disclosure that such disclosure also qualifies or applies to such other sections (other than Section 3.01, Section 3.02, Section 3.03, Section 3.04 and Section 3.18 of the Seller Disclosure Letter, which matters shall be disclosed only by specific disclosure in the respective section of the Seller Disclosure Letter).

Notwithstanding anything to the contrary set forth in this Article III, each of Parent and Purchaser understands and agrees that, as of the date hereof, the Business is (and, until the Acquisition Closing, will be) owned by Cristal. Accordingly, each of the representations and warranties of Seller in Section 3.01, Section 3.02, Section 3.03, and Section 3.05 through and including Section 3.23 made with respect to the Company (in the case of Section 3.01) or the historical operation of the Business by “Seller” or its “Subsidiaries” shall be deemed made (A) as of the date hereof, with respect to the Company, the Business and any operation of the Business by Cristal or its Subsidiaries and (B) as of the Closing Date, with respect to the Company, the Business and any operation of the Business by (i) Cristal or its Subsidiaries prior to the Acquisition Closing and (ii) Seller or its Subsidiaries (including the Transferred Companies) with respect to the period after the Acquisition Closing. To the extent any representations and warranties of Seller in Section 3.01, Section 3.02, Section 3.03, or Section 3.05 through and including Section 3.23 speak to Seller’s ownership, obligation, right or similar concept, such statements shall be deemed to be made as if the Acquisition Closing followed by the Restructuring had each occurred as of the date hereof.

Section 3.01       Organization, Standing and Power. Each of Seller and the Company is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized (in the case of good standing, to the extent such jurisdiction recognizes such concept). Each of Seller and the Company has all requisite power and authority necessary to enable it to own, lease or otherwise hold its properties and assets and to conduct the Business as presently conducted. Each of Seller and the Company is duly qualified or licensed to do business in each jurisdiction where the nature of its business or the ownership or leasing of its properties make such qualification necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, has not had and would not reasonably be expected to have a Business Material Adverse Effect. Seller has delivered or made available to Purchaser, prior to execution of this Agreement, true and complete copies of the Organizational Documents of each of the Transferred Companies in effect as of the date of this Agreement.

Section 3.02      Subsidiaries.  Section 3.02 of the Seller Disclosure Letter sets forth a true and complete list of the Company’s Subsidiaries.  Each of the Subsidiaries set forth in Section 3.02 of the Seller Disclosure Letter is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized (or appropriately recognized as legally in existence and active under the laws of its jurisdiction), which jurisdiction is identified in Section 3.02 of the Seller Disclosure Letter.  Each Subsidiary set forth in Section 3.02 of the Seller Disclosure Letter has all requisite power and authority necessary to enable it to own, lease or otherwise hold its properties and assets and to conduct its business as presently conducted.  Each Subsidiary set forth in Section 3.02 of the Seller Disclosure Letter is duly qualified or licensed to do business in each jurisdiction where the nature of its business or the ownership or leasing of its properties make such qualification necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, has not had and would not reasonably be expected to have a Business Material Adverse Effect.  No other corporate or similar proceedings on the part of any Subsidiary are necessary to authorize, adopt or approve this Agreement and the transactions contemplated hereby.  All the outstanding shares of capital stock or voting securities of, or other equity interests in, the Subsidiaries of the Company are directly or indirectly owned by the Company, free and clear of all Liens, except for restrictions imposed by applicable securities Laws.  Except as set forth in Section 3.02 of the Seller Disclosure Letter, neither the Company nor any of its Subsidiaries, directly or indirectly, own any interest in any other Person or any option to acquire any interest in any other Person.

Section 3.03        Capital Structure of the Transferred Companies.

(a)         The Acquired Shares and all the outstanding shares of capital stock or voting securities of, or other equity interests, in the Subsidiaries of the Company (collectively, the “Transferred Company Equity”) are validly issued, fully-paid and nonassessable and not subject to, or issued in violation of, any voting agreement, purchase option, call option, right of first refusal, right of first offer, preemptive right, subscription right or any similar right (including any restriction on the right to vote, sell or otherwise dispose of such Transferred Company Equity) under any provision of applicable Law (other than restrictions imposed by applicable securities Laws), the Organizational Documents of any Transferred Company or any Contract to which Seller or any Transferred Company is a party or is otherwise bound.  Except for the Transferred Company Equity set forth in Section 3.03(a) of the Seller Disclosure Letter, there are no issued or outstanding equity interests of the Transferred Companies, and there are no outstanding obligations of any Transferred Company owing to a Person other than the Company or any other Transferred Company to issue, transfer, dispose of, redeem, repurchase, acquire, deliver or sell, or cause to be issued, transferred, disposed of, redeemed, repurchased, acquired, delivered or sold, (x) any capital stock of any Transferred Company or any securities of any Transferred Company convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, any Transferred Company, (y) any warrants, calls, options, restricted or performance stock units, or other rights to acquire from any Transferred Company, or any other obligation of any Transferred Company to issue, transfer, dispose of, redeem, repurchase, acquire, deliver or sell, or cause to be issued, transferred, disposed of, redeemed, repurchased, acquired, delivered or sold, any capital stock or voting securities of, or other equity interests in, any Transferred Company or (z) any stock appreciation right, phantom stock or any rights issued by or other obligations of any Transferred Company that are linked in any way to any shares of capital stock or other equity interests of any Transferred Company, the value of any Transferred Company, or any part of any Transferred Company or any dividends or other distributions declared or paid on any Transferred Company Equity.

(b)         There are no bonds, debentures, notes or other Indebtedness of any Transferred Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which equityholders of any Transferred Company may vote (“Company Voting Debt”).  None of the Transferred Companies is a party to any voting agreement with respect to the voting of any capital stock or voting securities of, or other equity interests in, any Transferred Company.  None of the Transferred Companies is a party to any agreement pursuant to which any Person is entitled to elect, designate or nominate any director or manager of any Transferred Company.

Section 3.04        Authority; Execution and Delivery; Enforceability.

(a)        Seller has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Business Transaction. The board of directors of Seller has, by unanimous vote at a meeting duly called at which a quorum of the board of directors of Seller was present, (i) approved the execution, delivery and performance of this Agreement, and (ii) determined that entering into this Agreement is in the best interests of Seller and its shareholders. Such approval has not been amended or withdrawn. No other corporate or similar proceedings on the part of Seller or any of its Subsidiaries are necessary to authorize, adopt or approve this Agreement or to consummate the Business Transaction. Seller has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Purchaser and Parent, this Agreement constitutes a legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms subject to the Bankruptcy and Equity Exception.

(b)        At the Closing, Seller and each of its Subsidiaries that shall be a party to any Ancillary Agreement shall have the requisite corporate or similar power and authority to execute and deliver such Ancillary Agreement, to perform its obligations thereunder and to consummate the transactions contemplated thereby. At the Closing, Seller and each of its Subsidiaries that shall be a party to any Ancillary Agreement will have duly executed and delivered each such Ancillary Agreement and, assuming the due authorization, execution and delivery by Parent or its applicable Subsidiary, each Ancillary Agreement will constitute a legal, valid and binding obligation of Seller and/or such Subsidiary, as applicable, enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exception.

Section 3.05        No Conflicts; Consents.

(a)        The execution and delivery by Seller of this Agreement does not, and the performance by Seller of its obligations hereunder and the consummation of the Business Transaction will not, conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of, or result in, termination, modification, cancellation or acceleration of any obligation, any obligation to make an offer to purchase or redeem any Indebtedness or capital stock or other equity interests or any loss of a material benefit under, or result in the creation of any Lien upon any of the properties, rights or assets of the Business or the Transferred Companies under, or require any Consent by, or any notice to, any Person under any provision of (i) the Organizational Documents of Seller or the Transferred Companies, (ii) any Business Material Contract or any Business Permit or (iii) subject to the filings and other matters referred to in Section 3.05(b), any Judgment or Law, in each case, applicable to the Transferred Companies or their respective properties or assets, or the properties or assets of the Business, other than, in the case of clauses (ii) and (iii) above, any matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Business Material Adverse Effect.

(b)        No Consent of or from, or registration, declaration, notice or filing made to, or with, any Governmental Entity is required to be obtained or made by Seller or any of its Subsidiaries or with respect to the Business or the Transferred Companies in connection with the execution and delivery of this Agreement or its performance of its obligations hereunder or the consummation of the Business Transaction, other than (i) FTC Consent or a Court Approval (including the removal of the Preliminary Injunction), (ii) the filing of the appropriate documents with the relevant authorities of the other jurisdictions in which Seller is qualified to do business and (iii) such other matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Business Material Adverse Effect.

Section 3.06        Financial Statements.

(a)        Set forth in Section 3.06(a) of the Seller Disclosure Letter is a copy of (i) the audited, combined carve-out balance sheets of the Business giving effect to the consummation of the Restructuring at and as of each of December 31, 2015, December 31, 2016 and December 31, 2017, and the related combined statements of income, cash flows and changes in stockholder’s equity for each of the years ended December 31, 2015, December 31, 2016 and December 31, 2017, in each case together with the notes thereto (such financial statements for the year ended December 31, 2017, the “2017 Financial Statements”, and together with such financial statements for the years ended December 31, 2015 and December 31, 2016, the “Annual Financial Statements”), and (ii) the unaudited interim condensed combined carve-out balance sheet of the Business giving effect to the consummation of the Restructuring at and as of December 31, 2018, and the related condensed combined statements of income and cash flows for the twelve-month period ended December 31, 2018, in each case together with the notes thereto (the “2018 Unaudited Financial Statements” and, together with the Annual Financial Statements, collectively, the “Business Financial Statements”).

(b)        Except as described in the notes thereto, the Business Financial Statements (i) present fairly and accurately, in all material respects, the financial position and the results of operations of the Business (after giving effect to the consummation of the Restructuring), as of and for the periods presented therein, (ii) have been prepared based on the books and records of the Business and (iii) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved, except that the Interim Financial Statements may be subject to year-end adjustments and may not contain all footnotes and other presentation items required under GAAP. The books and records of the Business used in the preparation of the Business Financial Statements are true and correct and fairly and accurately reflect the businesses and operations of the Business in all material respects. Except as required by GAAP or disclosed in Section 3.06(b) of the Seller Disclosure Letter, between December 31, 2017 and the date of this Agreement, there has not been a material change in the accounting methods, practices or policies applicable to the Business.

(c)       The 2017 Financial Statements and the 2018 Unaudited Financial Statements were prepared on a basis which was substantially consistent on a quarter-to-quarter basis during the period to which they relate.

(d)       There are no internal investigations or governmental inquiries or investigations pending or, to the Knowledge of Seller, threatened, in each case, regarding any accounting practices of the Business.

(e)         Except (i) as reflected or reserved against in the Business Financial Statements (or the notes thereto), (ii) Liabilities that have been incurred or accrued by the Transferred Companies since December 31, 2018, in the ordinary course of business, and (iii) Liabilities incurred in connection with or contemplated by this Agreement, the Business does not have any Liability of any nature (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, have had or would reasonably be expected to have a Business Material Adverse Effect.

(f)        The Transferred Companies maintain, and have maintained for periods reflected in the Business Financial Statements, a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and to maintain asset accountability; and (iii) access to assets is permitted only in accordance with management’s general or specific authorization.

(g)       Neither Seller nor any of its Subsidiaries has Knowledge of any fraud, whether or not material, that involves management or other employees who have a significant role in the Business’s internal control over financial reporting. To the Knowledge of Seller, no executive officer or director has received or otherwise had or obtained knowledge of, and no auditor, accountant, or representative of the Transferred Companies, has provided written notice to Seller or any of its Subsidiaries, any Transferred Company or any executive officer or director of Seller, any of its Subsidiaries or any Transferred Company of, any substantive complaint or allegation that the Transferred Companies have engaged in improper accounting practices.

Section 3.07       Absence of Certain Changes or Events. Since January 1, 2018, there has not occurred any fact, circumstance, effect, change, event or development that, individually or in the aggregate, has had or would reasonably be expected to have a Business Material Adverse Effect. From January 1, 2018 through the date of this Agreement, the Business has been conducted in the ordinary course of business in all material respects and there has not occurred any:

(a)         change in accounting methods, principles or practices affecting the Business or any Transferred Company;

(b)        amendment, cancellation or termination of any Business Lease or Business Permit or other material commitment or transaction relating to the Business Assets or the Business, or entry into any material Contract (including any Contract that would be a Business Material Contract if in effect as of the date hereof), transaction or Permit which is not in the ordinary course of business, including, without limitation, any employment or consulting agreements;

(c)         incurrence of Indebtedness (other than any Specified Lien) issued or guaranteed by any of the Transferred Companies;

(d)        disposition or lapsing of any material Business Intellectual Property (other than expirations of patents at the end of their natural terms) or any disclosure to any Person of any material Business Intellectual Property not theretofore a matter of public knowledge (other than disclosures made in the ordinary course of business to a Person bound by reasonable confidentiality obligations); or

(e)        agreement by Seller, any of its Subsidiaries or any Transferred Company to do any of the things described in the preceding Section 3.07(a) through (d) other than as expressly provided for herein.

Section 3.08        Taxes.

(a)         In all material respects, (i) each Transferred Company has timely filed, taking into account any applicable extensions, all Tax Returns required to have been filed and such Tax Returns are true, complete and correct; (ii) each Transferred Company has paid all Taxes (whether or not shown to be due on such Tax Returns) required to have been paid by it other than Taxes that are not yet due or that are being contested in good faith in appropriate proceedings (including contests that a Transferred Company is preparing to timely contest); (iii) no deficiency for any Tax has been asserted or assessed by a taxing authority against any Transferred Company, which deficiency has not been paid or is not being contested in good faith in appropriate proceedings (including contests that a Transferred Company is preparing to timely contest); (iv) each Transferred Company has properly withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any shareholder, employee, creditor, independent contractor or other third party; (v) no Transferred Company currently is the beneficiary of any extension of time within which to file any Tax Return; and (vi) no Transferred Company has received written notice of any Proceeding or examination from any taxing authority for unpaid Taxes asserted against a Transferred Company, which have not been fully paid or settled or are being contested in good faith in appropriate proceedings (including contests that a Transferred Company is preparing to timely contest).

(b)       No Transferred Company (i) is a party to or is bound by any material Tax sharing, allocation or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among a Transferred Company and its wholly-owned Subsidiaries) or (ii) has any material liability for the Taxes of any Person other than a Transferred Company pursuant to Section 1.1502-6 of the U.S. Treasury Regulations (or any similar provision of state, local or non-United States law) as a transferee or successor, or otherwise by operation of law (other than Taxes imposed pursuant to customary provisions in contracts entered into in the ordinary course of business the principal purpose of which is not Taxes).

(c)        Within the past three (3) years, no Transferred Company has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code.

(d)         No Transferred Company has been a party to a transaction that, as of the date of this Agreement, constitutes a “listed transaction” for purposes of Section 6011 of the Code and applicable U.S. Treasury Regulations thereunder (or a similar provision of state law).

Section 3.09        Benefits Matters; ERISA Compliance.

(a)        Section 3.09(a) of the Seller Disclosure Letter sets forth, as of the date of this Agreement, a list identifying all material Business Benefit Plans. For purposes of this Agreement, “Business Benefit Plan” means, collectively: (i) “employee pension benefit plans” (as defined in Section 3(2) of ERISA), “employee welfare benefit plans” (as defined in Section 3(1) of ERISA) and all other bonus, pension, profit sharing, retirement, Tax gross-up, deferred compensation, incentive compensation, equity or equity-based compensation, severance, retention, change in control, disability, vacation, death benefit, hospitalization, medical or other plans, arrangements or understandings, whether written or unwritten, providing, or designed to provide, benefits to any current or former Business Employees, (ii) all employment, severance, retention, change of control or termination agreements or arrangements between any Transferred Company and any current or former directors, officers, or employees of any Transferred Company or any current or former Business Employee and (iii) any other employee benefit plan, program, policy or agreement maintained, sponsored or contributed to by any Transferred Company or with respect to which any Transferred Company has any liability or contingent liability or covering any current or former Business Employee.

(b)        With respect to each Business Benefit Plan, prior to the execution of this Agreement, Seller has made available to Purchaser complete copies of (i) each Business Benefit Plan, including without limitation all plan documents, trust agreements, insurance contracts or other funding vehicles and all amendments thereto, (ii) all current summaries and summary plan descriptions, including any summary of material modifications, (iii) the most recent annual reports (Form 5500 series) filed with the U.S. Department of Treasury’s Internal Revenue Service (“IRS”) with respect to such Business Benefit Plan, (iv) the most recent actuarial report or other financial statement relating to such Business Benefit Plan, (v) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Business Benefit Plan and any pending request for such a determination letter, (vi) the most recent nondiscrimination tests performed under the Code (including 401(k) and 401(m) tests) for each Business Benefit Plan, and (vii) all non-routine filings made with any Governmental Entity during the past three (3) years.

(c)       All Business Benefit Plans which are intended to be qualified and/or exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, have been the subject of, have timely applied for or have not been eligible to apply for, as of the date of this Agreement, determination letters or opinion letters from the IRS to the effect that such Business Benefit Plans and the trusts created thereunder are so qualified and tax-exempt, and no such determination letter or opinion letter has been revoked nor, to the Knowledge of Seller, has revocation been threatened, nor has any such Business Benefit Plan been amended since the date of its most recent determination letter or application therefor that would adversely affect its qualification and, to the Knowledge of Seller, there are no facts or circumstances that would be reasonably likely to result in the revocation of, or otherwise adversely effect, the qualified status of any such Business Benefit Plan.

(d)        Except as set forth in Section 3.09(d) of the Seller Disclosure Letter, (i) no Business Benefit Plan which is subject to Title IV of ERISA, Section 302 of ERISA, Section 412 or 430 of the Code or Section 4971 of the Code (a “Pension Plan”) had, as of the respective last annual valuation date for each such Pension Plan, an “unfunded benefit liability” (within the meaning of Section 4001(a)(18) of ERISA), based on actuarial assumptions that have been furnished to Parent, in any material respect, and (ii) none of the Pension Plans has failed to meet any “minimum funding standards”, as applicable (as such terms are defined in Section 302 or 303 of ERISA or Section 412 or 430 of the Code), whether or not waived, in any material respect.

(e)         None of the Transferred Companies, any officer of any Transferred Company or any of the Business Benefit Plans which are subject to ERISA, including the Pension Plans, any trust created thereunder or, to the Knowledge of Seller, any trustee or administrator thereof, has engaged in a material, non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other material breach of fiduciary responsibility that could subject any Transferred Company or any officer of any Transferred Company to the Tax or penalty on prohibited transactions imposed by the Code, ERISA or other applicable Law.  Other than the transactions contemplated herein, there has not been any “reportable event” (as that term is defined in Section 4043 of ERISA) with respect to any Pension Plan during the last six (6) years as to which the thirty (30)-day advance-notice requirement has not been waived.

(f)         No Business Benefit Plans and related trusts are the subject of any material Proceeding by any Person, including any Governmental Entity, other than routine claims for benefits, and, to the Knowledge of Seller, no facts or circumstances exist that could reasonably be expected to result in any such Proceeding.

(g)        No Transferred Company has, or within the past six (6) years had, contributed to, been required to contribute to, or has any liability or potential liability (including “withdrawal liability” within the meaning of Title IV of ERISA) with respect to, any Multiemployer Plan.

(h)        Except as set forth in Section 3.09(h) of the Seller Disclosure Letter, no Business Benefit Plan provides health, medical or other welfare benefits after retirement or other termination of employment (other than for continuation coverage required under Section 4980(B)(f) of the Code or applicable Law).

(i)          Each Business Benefit Plan and its related trust, insurance contract or other funding vehicle has been administered in accordance with its terms, the terms of any applicable collective bargaining agreement and is in compliance with ERISA, the Code and all other Laws applicable to such Business Benefit Plan, and the Transferred Companies are in compliance with ERISA, the Code and all other Laws applicable to the Business Benefit Plans, in each case, in all material respects.

(j)          Except as set forth in Section 3.09(j) of the Seller Disclosure Letter, each Business Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA either (i) is funded through an insurance company contract and is not a “welfare benefit fund” with the meaning of Section 419 of the Code or (ii) is unfunded.

(k)        Except as set forth in Section 3.09(k) of the Seller Disclosure Letter, there does not now exist any material liability to any Transferred Company following the Closing due to any Transferred Company being treated as an ERISA Affiliate of a Person who is not a Transferred Company. “ERISA Affiliate” means any Person that for purposes of Title I and Title IV of ERISA and Section 412 of the Code would be deemed at any relevant time to be a single employer with another Person, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA. Without limiting the generality of the foregoing, neither any Transferred Company, nor any of their respective ERISA Affiliates, has engaged in any material transaction described in Section 4069 of ERISA.

(l)        Except as set forth in Section 3.09(l) of the Seller Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Business Transaction (alone or in conjunction with any other event, including any termination of employment on or following the Closing) will (i) entitle any current or former director, officer, employee or consultant of the Business to any compensation or benefit, or (ii) accelerate the time of payment or vesting, or trigger any payment or funding, of any compensation or benefits or trigger any other obligation under any Business Benefit Plan.

(m)      No amount that could be received (whether in cash or property or the vesting of property) as a result of the consummation of the Acquisition or the Business Transaction (alone or in conjunction with any other event, including any termination of employment at or following the Closing) by any “disqualified individual” (as defined under Section 280G) under any Business Benefit Plan or otherwise, would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code.

Section 3.10      Litigation. There is no Proceeding pending or, to the Knowledge of Seller, threatened against the Business or the Transferred Companies or any of their respective properties or assets, that, if adversely determined, would reasonably be expected to adversely affect in any material respect the Business or the Transferred Companies, nor is there any Judgment outstanding against the Business or the Transferred Companies or any of their respective properties or assets or, to the Knowledge of Seller, any investigation by any Governmental Entity involving the Business or the Transferred Companies or any of their respective properties or assets in any material respect.

Section 3.11        Compliance with Applicable Laws. Each Transferred Company possesses all permits necessary to enable it to own, lease or otherwise hold its properties and assets and to conduct the Business as conducted over the twelve (12) months preceding the Closing in all material respects (the “Business Permits”). The Transferred Companies are, and have been since January 1, 2015, in compliance with all applicable Laws and Business Permits in all material respects. No allegation or Proceeding by or before any Governmental Entity is pending or, to the Knowledge of Seller, threatened alleging that the Business is not in compliance with any applicable Law or Business Permit in any material respect or which challenges or questions the validity of any material rights of the holder of any Business Permit. All Business Permits are in full force and effect in all material respects, no material default (with or without notice, lapse of time or both) has occurred under any such Business Permit and there has been no written notice from any Governmental Entity threatening to suspend, revoke, withdraw or adversely modify (in any material respect) any such Business Permit.

Section 3.12        Environmental Matters.

(a)          

(i)        Since January 1, 2013, the Transferred Companies are and have been in compliance with all applicable Environmental Laws in all material respects and, to the Knowledge of Seller, as of the date hereof, no capital expenditure is reasonably anticipated to be required in excess of $4,000,000 in order to maintain material compliance with all applicable Environmental Laws;

(ii)         the Transferred Companies have obtained all permits required to own, lease or otherwise hold its properties and assets and to conduct the Business at the relevant period in time prior to the Closing pursuant to applicable Environmental Laws (“Environmental Permits”), and (A) the Transferred Companies are, and have been since January 1, 2013, in compliance with all such Environmental Permits, (B) all such Environmental Permits are valid and in good standing, and (C) no suspension or cancellation of such Environmental Permits is pending, in each case of clauses (A), (B) and (C), in all material respects, and, to the Knowledge of Seller, as of the date hereof, no capital expenditure is reasonably anticipated to be required in excess of $4,000,000 in order to maintain material compliance with all such Environmental Permits;

(iii)       there are no material Environmental Claims pending or, to the Knowledge of Seller, threatened against the Transferred Companies;

(iv)       there have been no Releases or disposal of (including no Releases at, under or from, or disposal to, any waste disposal site, whether such site is a Business Property or otherwise), or exposure of any Person to, nor, to the Knowledge of Seller, has there been any sale or distribution of any current or former product of any Transferred Company containing, any Hazardous Material that has resulted in or would result in any material Environmental Claim or any material Liability under Environmental Law against the Transferred Companies or against any Person whose Liabilities for such Environmental Claims or Liabilities under Environmental Law the Transferred Companies have assumed or are otherwise responsible;

(v)        none of the Transferred Companies has assumed, retained or provided an indemnity with respect to any material Liabilities or material obligations of any other Person with respect to Environmental Law or any Hazardous Material;

(vi)      to the Knowledge of Seller, prior to the execution of this Agreement, Seller has made available all environmental audits, assessments and reports prepared within the five (5) years prior to the date hereof materially bearing on environmental, health or safety Liabilities, in Seller’s possession, custody, or reasonable control, relating to the Business (including past or current operations, properties or facilities); and

(vii)      to the Knowledge of Seller, Section 3.12 of the Seller Disclosure Letter summarizes all outstanding Liabilities of, and Environmental Claims against, the Transferred Companies with respect to the Fields Brook Superfund Site (including, without limitation, the site referred to as “Operable Unit 3” in relation to the Ashtabula River and Harbor and including any alleged natural resource damages relating thereto) or with respect to any Releases of Hazardous Materials forming the bases of such Liabilities.

(b)         As used herein:

(i)        “Environmental Claim” means any Proceedings, orders, demands, directives, claims, liens, or notices of noncompliance, violation or other liability by or from any Person alleging liability of whatever kind or nature arising out of, based on or resulting from (y) the manufacture, distribution, presence or Release of, or exposure of any Person to, any Hazardous Materials; or (z) any Environmental Law or any Environmental Permit or any failure to comply therewith.

(ii)       “Environmental Laws” means all Laws, Judgments, or Contracts relating to pollution, public or worker health or safety, or the protection of natural resources or the environment (including ambient air, indoor air, surface water, groundwater, sediments, land surface or subsurface strata).

(iii)     “Hazardous Materials” means (y) any petroleum or petroleum products or by-products, explosive or radioactive materials or wastes, asbestos in any form, lead or lead-containing pigment or paint, and polychlorinated biphenyls; and (z) any other pollutant, contaminant, chemical, material, substance or waste that is prohibited, limited or regulated (or can give rise to liability or standards of conduct) under any Environmental Law because of its hazardous or toxic properties or characteristics.

(iv)      “Release” means any actual or threatened spill, emission, leaking, dumping, injection, pumping, emptying, escaping, pouring, disposal, discharge, leaching or migration into or through the environment.

Section 3.13        Contracts.

(a)         Section 3.13(a) of the Seller Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of each Contract to which a Transferred Company is a party or is otherwise bound, as of the date of this Agreement, which:

(i)         restricts in any material respect the ability of any Transferred Company to compete in any business or with any Person in any geographical area or which includes “most favored nation,” exclusive relations or non-solicitation clauses (excluding customary provisions for non-solicitation of employees entered into in commercial contracts in the ordinary course of business),

(ii)        relates to a Transferred Company’s membership or participation in any partnership, consortium, joint venture or similar Contract, understanding or undertaking,

(iii)       relates to the disposition or acquisition of any assets in a single transaction or series of related transactions, for aggregate consideration in excess of $250,000, by any Transferred Company other than in the ordinary course of business with obligations remaining to be performed or Liabilities continuing after the date of this Agreement,

(iv)        except for any Organizational Document of any Transferred Company, is an indemnification Contract with (x) any member of the board of directors of any Transferred Company or (y) any officer of any Transferred Company,

(v)        is material to the Business and includes the licensing of Intellectual Property Rights by a Transferred Company to any Person, or by any Person to a Transferred Company, or which affects a Transferred Company’s ability to own, use, transfer, license, disclose, or enforce any Intellectual Property Rights (including covenant not to sue, royalty, development, concurrent use, consent to use, software escrow, and indemnification agreements relating to any Intellectual Property Rights), other than (A) Contracts solely relating to Off-the-Shelf Software Licenses, (B) employee invention assignment agreements, and (C) confidentiality agreements, in each case of clauses (A) through (C), entered into in the ordinary course of business,

(vi)         is a material hedge, collar, option, forward purchasing, swap, derivative, or similar Contract,

(vii)        is an Employment Contract providing salary in excess of $150,000 annually,

(viii)      is a (A) Collective Bargaining Agreement or (B)  a settlement, conciliation, or similar agreement with any Governmental Entity or that imposes any material monetary or other material Liability on any Transferred Company after the date of this Agreement,

(ix)         is a Contract with a (A) Business Significant Supplier or (B) Business Significant Customer,

(x)         relates to Indebtedness or to the mortgaging or pledging of, or otherwise placing a Lien (other than a Permitted Lien) on, any assets of the Transferred Companies, in each case, to the extent such Indebtedness or Lien will exist as of the Closing,

(xi)         is a Business Lease,

(xii)        is a Contract under which the Transferred Companies are obligated to make or entitled to receive payments in the future in excess of $500,000 during the life of such Contract, in each case, other than those Contracts (A) terminable by the Transferred Companies on no more than thirty (30) days’ notice without liability or financial obligation to the Transferred Companies, (B) with any customer or supplier or (C) that are Employment Contracts, or

(xiii)      requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any Transferred Company in an amount in excess of $1,000,000 during the term of such Contract, understanding or undertaking,

excluding, in the cases of the foregoing clauses (i) through (xiii), any Contract that is a Shared Contract. Each agreement, understanding or undertaking set forth in Section 3.13(a) of the Seller Disclosure Letter and each Non-TC Ashtabula Contract between a Non-TC Party, on the one hand, and a Business Significant Customer, on the other hand, relating to the Business that is set forth in Section 3.13(a)(xiv) of the Seller Disclosure Letter is referred to herein as a “Business Material Contract”.  Prior to the execution of this Agreement, Seller has made available to Purchaser true and complete copies of each Business Material Contract.

(b)         (i) Each Business Material Contract is a valid, binding and legally enforceable obligation of the applicable Transferred Company or Non-TC Party, as applicable, and, to the Knowledge of Seller, of the other parties thereto, in accordance with its terms, except, in each case, subject to the Bankruptcy and Equity Exception, (ii) each such Business Material Contract is in full force and effect, (iii) there is no material breach or material default under any Business Material Contract either by any Transferred Company or Non-TC Party party thereto or, to the Knowledge of Seller, by any other party thereto, and no event has occurred that with notice or lapse of time or both would constitute a material breach or material default thereunder by the Transferred Company or Non-TC Party which is a party thereto or, to the Knowledge of Seller, any other party thereto, and (iv) no Transferred Company or Non-TC Party, as applicable, has received written notice of termination or cancellation of any Business Material Contract, and no party to any Business Material Contract has provided notice exercising or, to the Knowledge of Seller, threatening exercise of any termination rights with respect thereto or of any material dispute with respect to any Business Material Contract.

Section 3.14        Properties.

(a)        Each of the Transferred Companies has good, valid and marketable fee simple title to, or good and valid leasehold interests in, all their respective real properties, buildings, fixtures and other improvements used in the Business, including the Business Owned Property and the Business Leased Property (collectively, the “Business Properties”). The Business Properties constitute all of the real property that is used, occupied or otherwise held in connection with the operation of the Business and are, in all material respects, adequate and sufficient, to support the operations of the Business as conducted over the twelve (12) months preceding the Closing. All of the Business Properties are free and clear of all Liens, except for Permitted Liens. None of the Transferred Companies has leased, subleased, licensed or otherwise granted to any Person the right to use or occupy the Business Properties or any portion thereof. Section 3.14(a) of the Seller Disclosure Letter sets forth the legal description or tax parcel number, street address, acreage, function and the current owner of each parcel of real property that is owned by any of the Transferred Companies, including Ashtabula Plant 1, Ashtabula Plant 2, and any other owned parcels at the Ashtabula Complex (collectively, the “Business Owned Property”).  Other than the rights set forth pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal or similar rights to purchase the Business Properties or any portion thereof or interest therein.

(b)        The Transferred Companies have complied with the terms of all leases, subleases, licenses, use or other occupancy agreements with respect to any leased, subleased or licensed real property used in the Business under which a Transferred Company is a tenant, subtenant or licensee (together with all amendments, extensions, renewals, guaranties, modifications and supplements thereto, the “Business Leases”) in all material respects. Section 3.14(b) of the Seller Disclosure Letter sets forth the address of each property subject to the Business Leases (collectively, the “Business Leased Property”), and a true, correct and complete list of all Business Leases (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto).  Prior to the execution of this Agreement, the Transferred Companies have delivered or made available to Purchaser a true, correct and complete copy of each of the Business Leases, and in the case of any oral lease, a written summary of the material terms of such lease. The Transferred Companies are in exclusive possession of the Business Leased Property and other assets purported to be leased under the Business Leases, subject to the terms of the Business Leases. No Transferred Company, and, to the Knowledge of Seller, no other party to any Business Lease is in material breach or default under such lease and there is no event or circumstance that has resulted or, to the Knowledge of Seller, would reasonably be expected to result (with or without the giving of notice, the lapse of time or both) in a material breach or default with respect to any Business Lease. No Transferred Company has collaterally assigned or granted any mortgage or other security interest in such Business Leases or any interest therein. For purposes of this Section 3.14(b) only, Business Leases shall be deemed to include the Baltimore Lease and Business Leased Property shall be deemed to include the Baltimore Technical Facility.

(c)         To the Knowledge of Seller, the Business Properties and the current use, occupancy and operation thereof comply in all material respects with Law, and none of Seller, any of its Subsidiaries or the Transferred Companies has received any notice to the contrary.  There are no pending, nor to the Knowledge of Seller, threatened condemnation, eminent domain or similar proceedings with respect to the Business Properties.  No casualty event has occurred with respect to the Business Properties that has not been fully remedied.

(d)        Each of the Business Properties is adequately served by access roads, electrical, gas, storm, sanitary sewer, sewer, water, internet, telecommunications, and other utilities necessary or appropriate to operate the Business as conducted over the twelve (12) months preceding Closing. The Transferred Companies have complied in all material respects with the terms of all material easements at the Ashtabula Complex that benefit either of Ashtabula Plant 1 or Ashtabula Plant 2 (the “Business Easements”). Prior to the execution of this Agreement, the Transferred Companies have delivered or made available to Purchaser a true and complete copy of each of the Business Easements, to the extent in the possession of the Transferred Companies. No Transferred Company, and, to the Knowledge of Seller, no grantor party to any Business Easement is in material breach or default under such easement and there is no event or circumstance that has resulted or, to the Knowledge of Seller, would reasonably be expected to result (with or without the giving of notice, the lapse of time or both) in a material breach or default with respect to any Business Easement.

(e)        To the Knowledge of Seller, the buildings, structures, fixtures and other improvements located on or related to the Business Properties comply in all material respects with all applicable Laws.

Section 3.15        Intellectual Property.

(a)        Section 3.15(a) of the Seller Disclosure Letter sets forth a complete and accurate list of all of the following Intellectual Property Rights included in the Business Intellectual Property: (i) patents and patent applications; (ii) trademark and service mark registrations and applications; (iii) copyright registrations and applications; (iv) domain name registrations; and (v) registrations protecting designs and applications therefor (together, the “Business Registered IP”). Each item of Business Registered IP is subsisting and, to the Knowledge of Seller, is valid and enforceable. A Transferred Company exclusively owns and possesses all right, title, and interest in and to the Business Registered IP free and clear of all Liens other than Permitted Liens. Immediately after the Closing, the Transferred Companies will, after taking into account all of the Ancillary Agreements, Section 5.07, Section 5.08, Section 5.10 and Section 5.13, own good and valid title to or have the valid right to use all of the Intellectual Property Rights, free and clear of all Liens, other than Permitted Liens, that are used in or necessary for the Business (except with respect to Excluded Assets that do not constitute Licensed Retained IP).

(b)        (x) No Proceedings are pending or, to the Knowledge of Seller, threatened in writing against or with respect to the Business, or against any of the Transferred Companies, that (i) allege any infringement, misappropriation or other violation of the Intellectual Property Rights of any other Person, or (ii) challenge the use, ownership, scope, enforceability, validity, patentability or registrability of any material Business Intellectual Property; and (y) no material Business Intellectual Property is subject to any consent, settlement, ruling, injunction or other outstanding order of any Governmental Entity adversely affecting any Transferred Company’s use or disposition thereof or any rights with respect thereto. Since January 1, 2015, (1) no Transferred Company has infringed, misappropriated, or otherwise violated, any Intellectual Property Rights of any other Person, and (2) no Person has infringed, misappropriated, or otherwise violated, any Business Intellectual Property.

(c)        Since January 1, 2015, no Person other than Seller and its Subsidiaries, Cristal or a Transferred Company has asserted in writing to Seller, its Subsidiaries, Cristal or any Transferred Company that such Person has any ownership in any Business Intellectual Property or Licensed Retained IP.

(d)       The Transferred Companies take and, since January 1, 2015, have taken commercially reasonable actions to (i) maintain and protect the secrecy of the confidential information they hold and other Business Intellectual Property (including the secrecy, confidentiality and value of their trade secrets) and (ii) protect and maintain the Systems, including the data stored therein or transmitted thereby, and provide for the continuity, integrity, and security thereof, as well as the back-up and recovery of data stored therein.

(e)       To the Knowledge of Seller, there has been no (x) security breach, theft or unauthorized disclosure, use or access or (y) material interruption, modification, or corruption, in each case, of or with respect to any Systems or any material trade secrets that constitute Business Intellectual Property used, collected, maintained or stored by or on behalf of the Business (or any unintended loss, destruction, compromise or unauthorized disclosure thereof).

(f)         All Persons who, since January 1, 2015, have participated in or contributed to the conception, authorship, or creation of Business Intellectual Property that is material to the Business have validly executed a written agreement containing language adequate to assign to a Transferred Company all right, title, and interest in and to all such Intellectual Property Rights, to the extent such rights do not automatically vest therewith by function of applicable Law.  Except as set forth in Section 3.15(f) of the Seller Disclosure Letter, each Person that, since January 1, 2015, has had access to any material trade secret that constitutes Business Intellectual Property or has executed a written agreement requiring such Person to keep confidential, and (other than for the benefit of the Business) not disclose or use, such trade secrets. To the Knowledge of Seller, no agreement referenced in this Section 3.15(f) has been breached by any Person.

(g)        The transactions contemplated by this Agreement shall not materially impair any right, title or interest of Seller or the Transferred Companies in the Business Intellectual Property or Licensed Retained IP and immediately subsequent to the Closing, all of the Intellectual Property Rights that are material to the Business will be owned by, or licensed to, the Transferred Companies on terms and conditions identical in all material respects to those under which Seller and the Transferred Companies owned, licensed or used such Intellectual Property Rights immediately prior to the Closing, without the payment of any additional amounts or consideration (in each case, subject to the Ancillary Agreements, Section 5.07, Section 5.08, Section 5.10 and Section 5.13, and excluding Excluded Assets that do not constitute Licensed Retained IP).

(h)        No material software included in the Business Intellectual Property has been, since January 1, 2015, used in a manner that has triggered any obligation or condition under any license identified as an open source license by the Open Source Initiative (www.opensource.org) that conditions the distribution of such software on (i) the disclosure, licensing or distribution of any source code for any portion of such software, (ii) the granting to licensees of the right to make derivative works or other modifications to such software, (iii) the licensing under terms that allow such software or portions thereof or interfaces therefor to be reverse engineered, reverse assembled or disassembled (other than by operation of Law) or (iv) redistribution of such software at no license fee.

Section 3.16        Labor Matters.

(a)       Section 3.16(a) of the Seller Disclosure Letter sets forth a true and complete list of all Collective Bargaining Agreements. Except as set forth in Section 3.16(a) of the Seller Disclosure Letter, no union, labor organization, employee representative or similar labor organization or representative body or group of Business Employees has made a demand for union recognition or union certification or, to the Knowledge of Seller, engaged in any union organizing or decertification activities since January 1, 2013, and, to the Knowledge of Seller, in respect to any Business Employees, there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or threatened to be brought or filed, with the National Labor Relations Board or any other Governmental Entity.

(b)        There are no strikes, slowdowns, organized work stoppages, lockouts, material arbitrations or other material labor disputes pending or, to the Knowledge of Seller, threatened against the Transferred Companies.

(c)          None of the Transferred Companies has materially breached any provision of any Collective Bargaining Agreement.

(d)         Except as disclosed in Section 3.16(d) of the Seller Disclosure Letter, there are no pending, or to the Knowledge of Seller threatened, Proceedings or material labor grievances against the Transferred Companies with respect to any current or former Business Employee or otherwise concerning any labor or employment practices of the Transferred Companies. None of the Transferred Companies or, solely with respect to the Business, Seller or any of its other Subsidiaries, have received within the past four (4) years any notice of intent by any Governmental Entity to conduct an investigation, audit or Proceeding relating to any current or former Business Employees or any labor or employment practices of any Transferred Company or solely with respect to the Business, Seller or any of its other Subsidiaries.

(e)         The Transferred Companies are, and for the last three (3) years have been, in compliance in all material respects with all applicable Contracts and Laws respecting labor and employment matters, including as relates to hiring, background checks, compensation, benefits, collective bargaining, discrimination, harassment, sexual harassment, retaliation, civil rights, child labor, equal employment opportunity, immigration, work eligibility, pay equity, data privacy, safety and health, workers’ compensation, wage and hour matters, classification of employees as exempt or non-exempt, classification of workers as employees or independent contractors, testing, transfers, accommodations, time off work and leaves of absence, record retention, notice, wage payment and deduction, Taxes, and termination. Each current and former Business Employee who has provided services to any Transferred Company or Seller or any of its other Subsidiaries as an exempt employee, temporary employee, leased employee or seasonal employee, or independent contractor has been properly classified in all material respects as such under all applicable Laws, including those relating to wage and hour matters and Taxes and no Transferred Company has any material Liability arising out of improperly classifying any such current or former Business Employee.

(f)        To the Knowledge of Seller, none of Seller or any of the Transferred Companies is a party to a material settlement agreement entered into in the three (3) years prior to the date hereof with a current or former Business Employee that primarily relates to allegations relating to sexual harassment or misconduct. To the Knowledge of Seller, since January 1, 2015, no allegations of sexual harassment or misconduct have been made against any current or former Business Employee.

(g)        Since January 1, 2015, with respect to the Business, none of the Transferred Companies, Seller or any of its other Subsidiaries has committed any unfair labor practices, as defined by the National Labor Relations Act.

(h)       With respect to the Business Transaction, the Transferred Companies have satisfied, or prior to the Closing will satisfy, all notice, consultation and bargaining obligations owed to any current or former Business Employees and/or their representatives under applicable law or Collective Bargaining Agreements.

(i)         Since January 1, 2013, none of the Transferred Companies or Seller or any of its other Subsidiaries with respect to the Business has implemented any facility closing or layoff of employees subject to the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Law (collectively, the “WARN Act”), nor are any such closings or layoffs presently contemplated, planned or announced.

Section 3.17        Customers and Suppliers.

(a)         Section 3.17(a) of the Seller Disclosure Letter sets forth an accurate and complete list of each customer who, for the year ended December 31, 2018, accounted for more than $14,000,000 of revenues for the Business (each, a “Business Significant Customer”). As of the date hereof, none of the Transferred Companies or, solely to the extent related to the Business, Non-TC Party has any outstanding disputes with a Business Significant Customer other than in the ordinary course of business, that reasonably would be expected to involve an amount greater than $500,000, and none of the Transferred Companies or, solely to the extent related to the Business, Non-TC Party has received written notice of the intention of a Business Significant Customer  to reduce the scale of the business conducted with the Transferred Companies or, solely to the extent related to the Business, Non-TC Party that would reasonably be expected to result in a reduction in revenues in excess of $500,000 per fiscal year or to terminate or materially and adversely modify any existing Contract with the Transferred Companies or, solely to the extent related to the Business, Non-TC Party such that the revenues from such Business Significant Customer would reasonably be expected to be reduced by an amount greater than $500,000 per fiscal year.

(b)        Section 3.17(b) of the Seller Disclosure Letter sets forth an accurate and complete list of each supplier or other service provider of the Business that accounted for more than $1,000,000 of the accounts payable of the Business, on a consolidated basis, for the year ended December 31, 2018 (each, a “Business Significant Supplier”). As of the date hereof, none of the Transferred Companies has received any written notice of the intention of a Business Significant Supplier not to continue as a supplier of the Transferred Companies or to terminate or materially modify existing Contracts with the Transferred Companies other than any such modification that would reasonably be expected to result in an increase in such accounts payable by less than $500,000 per fiscal year.

Section 3.18       Brokers’ Fees and Expenses. No broker, investment banker, financial advisor or other Person, other than Moelis & Company LLC, the fees and expenses of which will be paid by Seller, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Business Transaction based upon arrangements made by or on behalf of Seller.

Section 3.19      Insurance. The Transferred Companies maintain insurance policies with respect to the Business and the Business Assets with reputable insurance carriers against all risks of a character and in such amounts as are usually insured against by similarly situated companies in the same or similar businesses. Each such insurance policy is in full force and effect and was in full force and effect during the periods of time such insurance policy is purported to be in effect, and no Transferred Company is (with or without notice or lapse of time, or both) in breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice) under any such policy, in each case, in all material respects. There is no claim pending under any such policies that (a) has been denied or disputed by the insurer other than denials and disputes in the ordinary course of business or (b) if not paid would constitute a Business Material Adverse Effect.

Section 3.20        Compliance with Foreign Corrupt Practices Act.

(a)         Since January 1, 2012, no Transferred Company, or any director, officer or employee or, to the Knowledge of Seller, any other Person while such other Person was acting for or on behalf of the Transferred Companies or the Business has violated or allegedly violated any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, the United Kingdom Bribery Act 2010 or any other anti-bribery or anti-corruption Laws applicable to the Business or the Transferred Companies (collectively, the “Applicable Anti-Corruption Laws”).

(b)         Since January 1, 2012, no Transferred Company has received any written notice from any Governmental Entity that such Transferred Company, or any director, officer, employee or, to the Knowledge of Seller, other Person while such other Person was acting for or on behalf of such Transferred Company or the Business, has violated or allegedly violated any Applicable Anti-Corruption Laws.

Section 3.21        Compliance with Trade Laws.

(a)        Since January 1, 2012, no Transferred Company, and no director, officer, or employee, or, to the Knowledge of Seller, any other Person while such other Person was acting for or on behalf of any Transferred Company or the Business: (i) has been or is designated on, or is owned or controlled by any party that has been or is designated on, any list of restricted parties maintained by any U.S., E.U., UK or non-U.S. Governmental Entity, including the U.S. Department of Treasury, Office of Foreign Asset Control’s (“OFAC”) Specially Designated Nationals and Blocked Persons List, OFAC’s List of Foreign Sanctions Evaders, OFAC’s Sectoral Sanctions Identifications List, the U.S. Department of Commerce’s (“Commerce”) Denied Persons List, the Commerce Entity List, the Commerce Unverified List, the Debarred List maintained by the U.S. Department of State (“State Department”), the State Department’s Nonproliferation Sanctions List, the E.U.’s Consolidated List of Persons, Groups, and Entities subject to E.U. financial sanctions, the UN Sanctions List, and HM Treasury’s Consolidated List of financial sanctions targets in the UK (“Sanctioned Person”); (ii) has participated in any transaction involving a designated Sanctioned Person, or any country subject to comprehensive sanctions or substantial restrictions under the U.S. sanctions administered by OFAC or applicable non-U.S. sanctions, including the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria (“Sanctioned Country”) to the extent such activities or business would violate U.S. sanctions or other applicable non-U.S. sanctions; (iii) has been organized, resident or located in a Sanctioned Country; or (iv) has imported, exported (including deemed exportation) or re-exported, directly or indirectly, any commodity, software, technology, or services in violation of any applicable U.S., E.U., UK or non-U.S. export control, anti-boycott, or economic sanctions laws, regulations, or orders administered by OFAC, Commerce, the State Department, or the IRS.

(b)       Since January 1, 2012, no Transferred Company has to the Knowledge of Seller received any notice or inquiry from any Governmental Entity, made any voluntary or involuntary disclosure to a Governmental Entity, or conducted any internal investigation to confirm, that any Transferred Company or any director, officer, employee or other Person acting for or on behalf of any Transferred Company has violated or allegedly violated any Laws administered by: (i) the E.U., any E.U. member state, the UK or the Bureau of Industry and Security of Commerce or the Directorate of Defense Trade Controls of the State Department pertaining to export controls; (ii) OFAC, the E.U., any E.U. member state, or the UK pertaining to economic and trade sanctions; (iii) Commerce or the IRS pertaining to anti-boycott; (iv) the Bureau of Customs and Border Protection of the U.S. Department of Homeland Security pertaining to importations; or (v) the Census Bureau of Commerce pertaining to export and import reporting.

Section 3.22        Sufficiency of Assets; Title to Assets. Immediately after the Closing, the Transferred Companies will, after taking into account all of the Ancillary Agreements, Section 1.03, Section 5.07, Section 5.08, Section 5.10 and Section 5.13, own good and valid title to or have the valid right to use all of the assets (including intangible assets), free and clear of all Liens, other than Permitted Liens, used or held for use in the conduct of the Business and to obtain all of the services (on the terms and subject to the conditions of the Contracts governing the provision of such services) necessary to allow Purchaser immediately after the Closing to conduct the Business, in each case (other than Intellectual Property Rights, which are the subject of the representations and warranties set forth in Section 3.15(a)), in substantially the same manner as conducted over the twelve (12) months preceding the Closing in all material respects, other than the Shared Contracts (if any) or the assets described under clause (ii) of the Excluded Assets definition herein. After taking into account all of the Ancillary Agreements, Section 1.03, Section 5.07, Section 5.08, Section 5.10 and Section 5.13, at the Closing the Transferred Companies will own, lease or have the legal rights to use all of the Business Assets. The material tangible assets of the Transferred Companies are (i) maintained in accordance with normal industry practice, (ii) in good operating condition and repair (subject to normal wear and tear consistent with the age of such assets) and (iii) are usable in the ordinary course of business, other than in each case assets that are not material to the Transferred Companies and are disposed of in the ordinary course of business.

Section 3.23          Credit Support. Set forth in Section 3.23 of  the Seller Disclosure Letter is a correct and complete list of all bonds, letters of credit, guarantees (whether payment or performance), security and other credit support of any Person with respect to the Business or any of the Transferred Companies (together, “Credit Support”) as of the date of this Agreement.

Section 3.24         No Implied Representations. None of Seller, Cristal or their respective Subsidiaries or Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Business, Seller or any of the Transferred Companies or the Business Transaction, except for the representations and warranties made by Seller that are expressly set forth in this Agreement or any agreement, certificate or instrument delivered in connection with this Agreement.

Section 3.25          No Inducement or Reliance; Independent Assessment.

(a)         Seller has made its own independent investigation, review and analysis regarding Parent, Purchaser and their respective Subsidiaries, which investigation, review and analysis were conducted by Seller together with advisors, including legal counsel, that it has engaged for such purpose and, in making the determination to enter into this Agreement and to proceed with the Business Transaction, Seller and its Subsidiaries and Representatives have relied on the results of their own independent investigation.

(b)         Notwithstanding the foregoing, nothing in this Section 3.25 shall relieve Parent and Purchaser, and their respective Subsidiaries and Representatives, from any liability or damages incurred or suffered by Seller or its Subsidiaries solely to the extent such liabilities or damages were the result of actual fraud on the part of Parent, Purchaser, its Subsidiaries and their respective Representatives.

Section 4.01        Conduct of Business.

(a)        Except for matters set forth in the Seller Disclosure Letter or otherwise expressly permitted or expressly contemplated by this Agreement (including actions contemplated by Exhibit A), or as required by applicable Law, or with the prior written consent of Purchaser (which shall not be unreasonably withheld or delayed), from the date of this Agreement to the Closing, Seller shall, and shall cause each Transferred Company to, subject to Section 11.11(b):

(i)           conduct the Business in the ordinary course in all material respects;

(ii)         use reasonable best efforts to manage the current assets and current liabilities of the Business in the ordinary course of business, taking into account historical fluctuations therein;

(iii)           continue to maintain the books and records of the Transferred Companies to the extent related to the Business in the ordinary course of business; and

(iv)          use their respective reasonable best efforts to preserve intact in all material respects their current business organization and the current relationships and goodwill of the Business with its current officers, key employees, customers, suppliers and other Persons having business dealings with the Business.

(b)        Without limiting the foregoing Section 4.01(a), except for matters set forth in the Seller Disclosure Letter or otherwise expressly permitted or expressly contemplated by this Agreement (including actions contemplated by Exhibit A), or as required by applicable Law, or with the prior written consent of Purchaser (which shall not be unreasonably withheld or delayed), from the date of this Agreement to the Closing, Seller shall not, and shall not permit any Transferred Company to, do any of the following, subject to Section 11.11(b):

(i)           (A) split, combine, subdivide or reclassify any capital stock, other equity interests or voting securities of any Transferred Company, or (B) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any capital stock, other equity interests or voting securities of any Transferred Company;

(ii)          (A) amend the Organizational Documents of the Company or (B) amend in any material respect the Organizational Documents of any other Transferred Company;

(iii)           issue, deliver, sell, transfer, dispose of, redeem, repurchase, acquire, grant, pledge or otherwise encumber or subject to any Lien, (A) any shares of capital stock of any Transferred Company or (B) any Company Voting Debt;

(iv)          (A) grant to any current or former director, employee or officer of the Business any increase in compensation, bonus or fringe or other benefits or grant any type of compensation or benefit to any such Person not previously receiving or entitled to receive such compensation, except to the extent required under (x) any Collective Bargaining Agreement set forth in Section 3.16(a) of the Seller Disclosure Letter or (y) any Business Benefit Plan set forth in Section 3.09(a) of the Seller Disclosure Letter, in each case, as in effect as of the date of this Agreement; (B) grant to any Person any severance, retention, change in control or termination compensation or benefits or any increase therein, except with respect to (1) severance benefits for new hires or (2) additional severance benefits for employees in the context of promotions based on job performance or workplace requirements, in each case, with an annualized salary or equivalent annual compensation of less than $75,000, and, in each case in the ordinary course of business and consistent with the existing terms of the Transferred Companies’ applicable severance plans set forth in Section 3.09(a) of the Seller Disclosure Letter as in effect on the date of this Agreement or except to the extent required under (x) any Business Benefit Plan set forth in Section 3.09(a) of the Seller Disclosure Letter as in effect as of the date of this Agreement or (y) any Collective Bargaining Agreement set forth in Section 3.16(a) of the Seller Disclosure Letter as in effect as of the date of this Agreement; or (C) adopt or amend any Business Benefit Plan in a manner that would increase the costs with respect thereto, except to the extent required by applicable Law or to the extent expressly provided in this Agreement;

(v)         make any material change in financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP (after the date of this Agreement);

(vi)         directly or indirectly acquire or agree to acquire in any transaction any equity interest in or business of any firm, corporation, partnership, company, limited liability company, trust, joint venture, association or other entity or division thereof or any properties or assets (other than purchases of supplies and inventory in the ordinary course of business);

(vii)        sell, transfer, deliver, lease (as lessor or sublessor), license, mortgage, sell and leaseback or otherwise encumber or subject to any Lien (other than Permitted Liens), redeem any existing Lien on, or otherwise dispose of, abandon, fail to maintain, or permit to lapse or expire (other than (1) expirations of patents at the end of their natural terms or (2) the disposal of Intellectual Property Rights that are not registered, issued, or the subject of any applications to register or issue, and no longer used or useful in the conduct of the Business in the reasonable business judgement of the Transferred Companies) any properties or assets of the Transferred Companies (other than sales of products or services in the ordinary course of business) or any interests therein, except (A) in relation to mortgages, liens and pledges to secure Indebtedness for borrowed money permitted pursuant to Section 4.01(b)(ix), (B) any discharge of any Specified Lien prior to Closing, (C) as expressly required by the Business Material Contracts or (D) disposals of obsolete or worthless equipment or inventory no longer used or useful in the conduct of the Business;

(viii)       grant any covenant not to sue with respect to any Business Intellectual Property;

(ix)         incur any Indebtedness, except for (A) Indebtedness that will be paid off at or prior to the Closing, (B) Indebtedness that will be assumed or retained by Seller or a Subsidiary of Seller (including Subsidiaries of Cristal acquired by Seller in the Acquisition but excluding the Transferred Companies) at or prior to the Closing or (C) Indebtedness that is incurred in the ordinary course of business at levels consistent with the recent past practices of the Business; provided that, for the avoidance of doubt, in no event shall this Section 4.01(b)(ix) prohibit or otherwise restrict the Transferred Companies from the declaration or payment of any dividends or other distributions;

(x)          make any capital expenditures in excess of $5,000,000, other than (i) as set forth in Section 4.01(b)(x)(A)(i) of the Seller Disclosure Letter, (ii) capital expenditures required to be made by applicable Law and (iii) capital expenditures required to be made pursuant to Contracts in force on the date of this Agreement that have been made available to Purchaser prior to the execution of this Agreement;

(xi)        enter into or amend any Contract or take any other action (except as expressly permitted or contemplated by this Agreement) if such Contract, amendment of a Contract or action would reasonably be expected to prevent or materially impede, interfere with, hinder or delay the consummation of the Business Transaction or adversely affect in a material respect the expected benefits (taken as a whole) of the Business Transaction;

(xii)        hire or terminate any employees (A) with an annualized salary or equivalent annual compensation of greater than $75,000, except any terminations for cause or (B) with an annualized salary or equivalent annual compensation equal to or less than $75,000, except, in the case of this subclause (B), in the ordinary course of business;

(xiii)       transfer internally (including in response to a request for transfer by an employee), or otherwise alter the duties and responsibilities of, any employee of Seller or its Affiliates, in each case, in a manner that would alter whether such employee is classified as a Business Employee, other than, in the case of any Business Employee, such actions that are taken in order to fill a vacancy in the Business in the ordinary course of business or upon a termination for cause or due to a voluntary resignation, death or disability;

(xiv)        implement (A) any employee layoffs requiring notice under the WARN Act, or (B) any other reduction in force, early retirement program, buyout, or other voluntary or involuntary employment termination program;

(xv)        other than any litigation that is an Excluded Liability, waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages paid in full prior to the Closing, do not involve any admission of fault or wrongdoing and involve only the payment of monetary damages or other amounts less than $500,000 individually and less than $1,000,000 in the aggregate;

(xvi)       (A) modify, amend, terminate or expressly waive any rights or claims under any Business Material Contract (other than renewals of Business Material Contracts that have otherwise expired pursuant to their terms in the ordinary course of business), the Baltimore Lease or, solely to the extent related to the Business, any Shared Contract, in each case in any respect in a manner which is materially adverse to the Business, or (B) enter into any new Contract that (i) would have been considered a Business Material Contract or a Shared Contract if it were entered into prior to the date of this Agreement, or (ii) contains a change of control or similar provision in favor of the other party or parties thereto that would require a material payment to or give rise to any material rights to such other party or parties in connection with the consummation of the Business Transaction (including in combination with any other event or circumstances);

(xvii)      make, change or revoke any material Tax election, other than in the ordinary course of business; adopt or change any material Tax accounting method, except a change that is required under applicable Law to conform to a change permitted under Section 4.01(b)(v) or in the ordinary course of business; settle or compromise any material Tax liability or refund other than in the ordinary course of business; enter into any Tax sharing, allocation or similar agreement (other than as part of an agreement entered into in the ordinary course of business the principal purpose of which is not Taxes) or closing agreement with respect to Taxes; consent to the extension or waiver of the limitations period applicable to any material Tax claim or assessment other than in the ordinary course of business; or apply for or obtain any material Tax ruling;

(xviii)     merge or consolidate any Transferred Company with any other Person (provided that, for the avoidance of doubt, nothing in this Section 4.01(b)(xviii) shall prohibit any Transferred Company from merging or consolidating with any other Transferred Company);

(xix)       make any material capital contributions or investments (including through any loans or advances) in any Person (other than any Transferred Company) except for the management of the cash of the Transferred Companies in all material respects in the ordinary course;

(xx)         adopt a plan or agreement of complete or partial liquidation or dissolution of any Transferred Company; or

(xxi)        authorize any of, or commit, resolve or agree to take any of, or participate in any negotiations or discussions with any other Person regarding any of, the foregoing actions (including, for the avoidance of doubt, directing or permitting Cristal or any of its Subsidiaries to take any of the actions set forth in the foregoing clauses (i) through (xx)).

Section 4.02        Advice of Changes. Purchaser and Seller shall promptly advise the other orally and in writing of any change or event that, individually or in the aggregate with all past changes and events, has caused or would reasonably be expected to cause any of the conditions set forth in Article VI not to be satisfied or materially delay or impede the ability of such Party to consummate the Closing.

Section 4.03        Exclusive Dealing.  None of Seller or its Subsidiaries shall, nor shall Seller or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants, Subsidiaries or other agents or advisors (“Representatives”) to, nor shall Seller or any of its Subsidiaries authorize, or otherwise grant its consent to, Cristal or any of its Representatives to, directly or indirectly, (i) solicit, initiate, induce, explore or knowingly take any action to facilitate or encourage the submission or announcement of any Business Transaction Proposal, or any inquiries, proposals or offers that may reasonably be expected to lead to a Business Transaction Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Business or afford access to the business, properties, assets, books or records of the Business to, or otherwise cooperate in any way with, assist or facilitate any Person (whether or not a Person making a Business Transaction Proposal) with respect to, or cooperate in any way with any Person with respect to any Business Transaction Proposal or any inquiry or proposal that may reasonably be expected to lead to a Business Transaction Proposal, (iii) approve, recommend or declare advisable, or propose to approve, recommend or declare advisable, or allow Seller or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement or arrangement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Business Transaction Proposal, or requiring, or reasonably expected to cause, Seller to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the Business Transaction or (iv) resolve, propose or agree to do any of the foregoing. Seller shall, and shall cause its Subsidiaries, Cristal and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Business Transaction Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Business Transaction Proposal, and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives.

Section 5.01        Access to Information; Confidentiality. Subject to applicable Law, Seller shall, and shall cause its Subsidiaries and the Transferred Companies to, afford to Purchaser, and its Representatives, reasonable access, during the period prior to the Closing, to its and their respective properties (including for the purposes of conducting a survey or similar thereon, provided that none of Purchaser or its Representatives shall be permitted to conduct any sampling, including invasive sampling, of any environmental media, including soil, groundwater, or air), Tax-related materials, books, contracts, commitments, personnel and records and, during such period, Seller shall, and shall cause its Subsidiaries to, furnish promptly to Purchaser (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws and (b) all other information concerning its business, properties and personnel as Purchaser may reasonably request; provided that Seller or, as applicable, Cristal may withhold any document or information (i) that is subject to the terms of a confidentiality agreement with a third party (provided that Seller shall use its reasonable best efforts to obtain the required consent of such third party to such access or disclosure), (ii) that is subject to any attorney-client privilege (provided that the withholding Party shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does not result in a loss of attorney-client privilege) or (iii) if providing such access or disclosing such information would, in the reasonable opinion of counsel to Seller, violate applicable Law (including antitrust and privacy Laws). If any material is withheld by Seller or, as applicable, Cristal pursuant to the proviso to the preceding sentence, Seller shall inform Purchaser as to the general nature of what is being withheld. All information exchanged pursuant to this Section 5.01 shall be subject to the Confidentiality Agreement, dated April 4, 2018, by and among Seller, Cristal and INEOS Europe AG (the “Confidentiality Agreement”).

Section 5.02        Required Actions.

(a)         Each of the Parties shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things reasonably necessary, reasonably proper or reasonably advisable to consummate and make effective, as soon as reasonably possible, the Closing and the Business Transaction, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers and consents from, the making of all necessary registrations, declarations and filings with and the taking of all reasonable steps as may be necessary to avoid a Proceeding by any Governmental Entity with respect to this Agreement or the Business Transaction, (ii) the execution and delivery of any additional instruments necessary to consummate the Closing and to fully carry out the purposes of this Agreement and (iii) the consummation of the Restructuring in accordance with Section 1.02.

(b)         In connection with and without limiting the generality of Section 5.02(a), Section 5.02(c) and Section 5.02(d), each of Purchaser and Seller shall:

(i)         subject to the other Party furnishing any necessary information and assistance, make or cause to be made as promptly as reasonably practicable (and in any event, Purchaser and/or Seller, as applicable, shall cause all documents, forms, applications, submissions and notifications to be filed with the appropriate Governmental Entity as promptly as reasonably practicable following the date of this Agreement), in consultation and cooperation with the other, all filings required under the HSR Act relating to the Business Transaction, and to supply as promptly as reasonably practicable to the appropriate Governmental Entity any additional information or documentary material that may be requested by such Governmental Entity in connection with any such filing, and be responsible for paying its owns fees and costs in connection with any such filings; and

(ii)       subject to applicable Laws relating to the sharing of information and unless prohibited by a Governmental Entity, in connection with obtaining FTC Consent, (A) subject to Section 5.02(c) promptly notify the other Party of any substantive communication (including oral communication) with any Governmental Entity with respect to (and to the extent related to) this Agreement or the Business Transaction; and (B) promptly provide the other Party with copies of all substantive correspondence, filings or communications between such Party or any of its Representatives, on the one hand, and any Governmental Entity or members of the staff of any Governmental Entity, on the other hand, in each case to the extent relating to the matters that are the subject of this Agreement.

(c)        Seller shall control and lead all communications and strategy in connection with the efforts to obtain FTC Consent or a Court Approval, including (i) the scheduling of, and strategic planning for, any meeting with the FTC related to the FTC Consent or Court Approval; (ii) the making of any filings or submissions to the FTC; (iii) the process for the receipt of FTC Consent or Court Approval; and (iv) the resolution of any investigation or other inquiry of the FTC; provided, however, that Seller shall consult in advance with Purchaser and in good faith take Purchaser’s views into account regarding the overall strategic direction related to the FTC Consent or a Court Approval, as applicable, and consult with Purchaser prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such FTC Consent or Court Approval. Without limiting the foregoing two sentences, each Party shall (i) cooperate and consult with the other in connection with all matters relating to FTC Consent, including any remedy requested pursuant to any Antitrust Law, (ii) use its reasonable best efforts to obtain FTC Consent (including defending the Business Transactions through litigation in a United States Court), (iii) cooperate in good faith to jointly develop a strategy for obtaining FTC Consent and (iv) not, except with the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed), extend, stay or toll any applicable review period or waiting period. Subject to the last sentence of this Section 5.02(c), each of Seller, on the one hand, and Purchaser, on the other hand, shall keep the other Party informed and notify the other Party of all material communications with a Governmental Entity regarding obtaining FTC Consent regarding the Business Transaction. Subject to applicable Laws and unless requested by the FTC or FTC Staff, Purchaser shall not, and shall cause its Subsidiaries not to, agree to participate in any meeting or conference, whether in person or by telephone, with any Governmental Entity relating to the matters that are the subject of this Agreement without Seller’s consent, to the extent permitted by the relevant Governmental Entity and applicable Law, and Seller is given a reasonable opportunity to attend and participate at such meeting. Each of Seller and Purchaser may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.02 as “outside counsel only.” Such competitively sensitive material and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from Seller or Purchaser, as the case may be, or its legal counsel.  Notwithstanding anything set forth herein to the contrary, each of Seller and Purchaser acknowledges and agrees that nothing in this paragraph precludes either Party from having full, frank, and confidential discussions with the FTC or FTC Staff regarding the subject matter of this Agreement or the FTC remedy generally, without obligation to include, consult with, or report back to the other Party regarding the substance or extent of those communications.

(d)        Purchaser understands that Seller is entering into this Agreement to obtain FTC Consent or an order of a United States Court approving the Acquisition and the Business Transaction. Purchaser and Seller, as promptly as practicable after the date hereof (to the extent neither Purchaser nor Seller has already completed the following activities), will prepare and furnish all necessary information and documents reasonably requested by the FTC, FTC Staff or any other Antitrust Authority. Nothing in this Agreement shall prevent Seller from complying with the FTC Decision and Order and Seller shall not be considered in breach of this Agreement for taking any actions to comply with an injunction entered by a United States Court.  Each Party shall use reasonable best efforts to obtain, and agrees to take all actions and provide such assistance as the other Party may reasonably request in order to obtain, the FTC Consent. In addition to any other obligations set forth in this Section 5.02, each of Seller and Purchaser shall promptly notify the other Party of the occurrence (or reasonably impending occurrence) of any of the following events: (i) Purchaser is not (or will not be) preliminarily recommended to be approved by the FTC or other necessary Governmental Entity as a purchaser of the Transferred Companies hereunder; (ii) the FTC Staff informs Seller or Purchaser that the FTC Staff will not recommend approval of Purchaser as purchaser of the Transferred Companies hereunder; (iii) the FTC Staff informs Seller or Purchaser that the FTC Staff will recommend the transfer to Purchaser hereunder of any asset other than the Transferred Companies or that the FTC Staff will recommend prohibition of transfer to Purchaser hereunder of the Transferred Companies; (iv) the FTC or FTC Staff informs Seller or Purchaser of any request or requirement for Purchaser to divest any assets or otherwise modify their business; or (v) the FTC Staff informs Seller or Seller that it has recommended approval or will recommend approval of another purchaser for the Transferred Companies other than Purchaser.