TECHNICAL SERVICES AGREEMENT
Published on December 20, 2004
Exhibit 10.21
TECHNICAL SERVICES AGREEMENT
between
NOVELIS TECHNOLOGY AG
and
ALCAN TECHNOLOGY & MANAGEMENT AG
WITH RESPECT TO THE RESEARCH & DEVELOPMENT FACILITIES
LOCATED IN NEUHAUSEN, SWITZERLAND
Dated December 13, 2004
________________________________________________________________________________
TABLE OF CONTENTS
1. DEFINITIONS...........................................................4
2. SCOPE OF AGREEMENT....................................................7
3. TECHNOLOGY............................................................8
4. TECHNOLOGY AND TECHNICAL ASSISTANCE LIMITATIONS.......................9
5. OWNERSHIP AND RIGHT TO USE............................................9
6. CONSIDERATION........................................................10
7. PROTECTION OF INFORMATION............................................13
8. TERM AND TERMINATION.................................................15
9. SURVIVAL OF OBLIGATIONS..............................................16
10. REPRESENTATIONS AND WARRANTIES.......................................16
11. DISCLAIMER OF WARRANTY AND INDEMNITY.................................16
12. TRADEMARK, TRADE NAME AND LOGO.......................................17
13. NON-WAIVER...........................................................17
14. NO PARTNERSHIP, JOINT VENTURE........................................17
15. FURTHER ASSURANCES...................................................17
16. NOTICES..............................................................17
17. ASSIGNMENT...........................................................18
18. LIMITATION OF LIABILITY AND INDEMNIFICATION..........................18
19. ENTIRE AGREEMENT.....................................................19
20. CONFLICTS............................................................20
21. FORCE MAJEURE........................................................20
22. LANGUAGE.............................................................20
23. AMENDMENTS...........................................................21
24. GOVERNING LAW........................................................21
25. DISPUTE RESOLUTION...................................................21
26. EXECUTION IN COUNTERPARTS............................................21
TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into as of the 13th day of December, 2004.
BETWEEN: NOVELIS TECHNOLOGY AG, a company having its registered
office at Badische Bahnhofstrasse 16, 8212 Neuhausen am
Rheinfall ("NOVELIS TECHNOLOGY");
AND: ALCAN TECHNOLOGY & MANAGEMENT AG., a company organized and
existing under the laws of Switzerland and having its
registered office at Badische Bahnhofstrasse 16, 8212
Neuhausen, Switzerland ("ATM").
RECITALS:
WHEREAS, on or before December 31, 2004 Alcan Inc. and Novelis Inc. have entered
into a Separation Agreement pursuant to which they set out the terms and
conditions relating to the separation of the Separated Businesses from the
Remaining Alcan Businesses (each as defined therein) such that the Separated
Businesses are to be held, as at the Effective Time (as defined therein),
directly or indirectly, by Novelis Inc. (such agreement, as amended, restated or
modified from time to time, the "MASTER SEPARATION AGREEMENT").
WHEREAS, as a consequence of the Master Separation Agreement, ATM and Novelis
Technology have entered into a Local Separation Agreement as well as a Demerger
Agreement for the transfer of assets and liabilities by ATM to Novelis
Technology relating to the Research & Development activities dedicated to the
rolled products business.
WHEREAS ATM develops, owns and manages certain technology on behalf of and for
the benefit of Alcan Inc. and other members of Alcan Group (as defined below).
WHEREAS in connection with the Local Separation Agreement, the Parties desire
that ATM, a member of Alcan Group, provide Novelis Technology, a member of
Novelis Group, with certain technical assistance and services following the
Effective Date from ATM's research and development facility located in
Neuhausen, Switzerland ("NEUHAUSEN FACILITY"), and that Novelis Technology
provide ATM with certain technical assistance and services from Novelis
Technology's research and development facility located in Neuhausen,
Switzerland, following the Effective Date, subject to the terms and conditions
of this Agreement.
WHEREAS ATM is willing and in a position to provide Novelis Technology with such
technical assistance and services, and Novelis Technology is willing and in a
position to provide ATM with such technical assistance and services, subject to
the terms and conditions of this Agreement.
WHEREAS the Parties have entered into this Agreement in order to set forth such
terms and conditions.
NOW THEREFORE, for and in consideration of the agreements set forth below,
Novelis Technology and ATM agree as follows:
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
1. DEFINITIONS
For the purposes of this Agreement, the following words and expressions
and variations thereof, unless a clearly inconsistent meaning is required
under the context, shall have the meanings specified or referred to in
this Article 1:
"ADDITIONAL FEES" has the meaning set forth in Section 6.2.
"AFFILIATE" of any Person means any other Person that, directly or
indirectly, controls, is controlled by, or is under common control with
such first Person as of the date on which or at any time during the period
for when such determination is being made. For purposes of this
definition, "CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or other
interests, by contract or otherwise and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"AGREEMENT" means this Technical Services Agreement, including all of the
Schedules and Exhibits hereto.
"ALCAN GROUP" means Alcan Inc. and its Subsidiaries, whether held directly
or indirectly; for greater certainty, Alcan Group excludes Novelis, Inc.
Arcustarget Inc. and their respective Subsidiaries.
"APPLICABLE LAW" means any applicable law, statute, rule or regulation of
any Governmental Authority or any outstanding order, judgment, injunction,
ruling or decree by any Governmental Authority.
"ATM" means Alcan Technology and Management AG.
"ATM INDEMNIFIED PARTIES" has the meaning set forth in Section 18.2.
"ATM TECHNICAL ASSISTANCE SERVICES" has the meaning set forth in Section
2.1.
"BASIC FEE" has the meaning set forth in Section 6.1.
"BASIC RATES" or "BR" has the meaning set forth in Section 6.6.
"BUSINESS CONCERN" means any corporation, company, limited liability
company, partnership, joint venture, trust, unincorporated association or
any other form of association.
"BUSINESS DAY" means any day excluding (i) Saturday, Sunday and any other
day which, in the Canton of Schaffhausen (Switzerland), is a legal
holiday.
"CHF" means Swiss Francs.
"CONSENT" means any approval, consent, ratification, waiver or other
authorization.
"EFFECTIVE DATE" means the date shown on the certificate of arrangement
issued by the director under the Canada Business Corporations Act giving
effect to the Separation.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
"FORCE MAJEURE EVENT" has the meaning set forth in Article 21.
"GOVERNMENTAL AUTHORITY" means any court, arbitration panel, governmental
or regulatory authority, agency, stock exchange, commission or body.
"GOVERNMENTAL AUTHORIZATION" means any Consent, license, certificate,
franchise, registration or permit issued, granted, given or otherwise made
available by, or under the authority of, any Governmental Authority or
pursuant to any Applicable Law.
"GROUP" means Alcan Group or Novelis Group, as the context requires.
"HOURLY RATE" has the meaning set forth in Section 6.1(a).
"INFORMATION" means, without being limitative, all Results and all data,
documents and information relating to the Technology as well as to any
Technical Assistance Service, improvement, know how, engineering,
manufacturing and other techniques and procedures, including systems,
plans, methods, processes and techniques of inspection, quality control
and tests, made available to ATM or Novelis Technology under this
Agreement.
"LAB YEAR" means the services equating to one qualified technical person
for one year spread reasonably evenly throughout the time period during
which the Services are to be provided.
"LICENSE AGREEMENT" means the agreement entitled "IP Agreement between
Alcan International Limited and Novelis Inc." entered into and effective
as of THE EFFECTIVE DATE.
"LOCAL SEPARATION AGREEMENT" has the meaning set out in the Preamble to
this Agreement.
"MASTER SEPARATION AGREEMENT" has the meaning set out in the Preamble to
this Agreement.
"NEUHAUSEN FACILITY" has the meaning set out in the Preamble to this
Agreement.
"NOVELIS GROUP" means Novelis Inc. and its Subsidiaries, whether held
directly or indirectly; for greater certainty, Novelis Group include
Arcustarget Inc. and its Subsidiaries.
"NOVELIS INDEMNIFIED PARTIES" has the meaning set forth in Section 18.2.
"NOVELIS TECHNOLOGY" means Novelis Technology AG.
"NOVELIS TECHNOLOGY TECHNICAL ASSISTANCE SERVICES" has the meaning set
forth in Section 2.3.
"PARTY" means each of ATM and Novelis Technology as a party to this
Agreement and "PARTIES" means both of them.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
"PERSON" means any individual, Business Concern or Governmental Authority.
"REIMBURSABLE COSTS" has the meaning set forth in Section 6.4.
"RESULTS" means data, reports and conclusions produced in the course of
providing the Services.
"SEPARATION" means the transfer by Alcan Inc. to Novelis Inc., pursuant to
a plan of arrangement under the Canada Business Corporations Act, of
substantially all of the aluminum rolled products businesses operated by
Alcan prior to december 2003 together with certain other assets, the whole
as further described in the Master Separation Agreement as well as various
other agreements between Alcan Inc. and Novelis Inc. giving effect to
these transfers.
"SERVICES" means the Technical Assistance Services and other services
provided by either Party to the other under this Agreement, including the
Services on Request.
"SERVICE ON REQUEST" has the meaning set forth in Section 2.4.
"SUBLEASE AGREEMENT" shall have the meaning set forth in Section 2.2.3.
"SUBSIDIARY" of any Person means any corporation, partnership, limited
liability entity, joint venture or other organization, whether
incorporated or unincorporated, of which of a majority of the total voting
power of capital stock or other interests entitled (without the occurrence
of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person.
"TECHNICAL ASSISTANCE SERVICES" means individually or collectively, the
ATM Technical Assistance Services and the Novelis Technology Technical
Assistance Services.
"TECHNOLOGY" means any and all patents, patent applications, trade
secrets, inventions, designs and similar rights either conceived or first
reduced to practice in the course of providing the Services hereunder, but
excludes any and all Results.
"TERM" has the meaning set forth in Section 8.1.
"THIRD PARTY" means a Person that is not a Party to this Agreement, other
than a member of Alcan Group or a member of Novelis Group and that is not
an Affiliate of such Group.
"THIRD PARTY CLAIM" has the meaning set forth in the Separation Agreement.
"VAT" means value added tax applicable in Switzerland as well as any
similar indirect tax, duty or charge imposed pursuant to Applicable Law.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
2. SCOPE OF AGREEMENT
ATM and Novelis Technology will provide technical assistance and other
services to the other consistent with their respective resources. The
Parties shall mutually agree on the scope, timing and content of the
services to be provided in each area identified. Such services are divided
into the following main categories:
2.1 TECHNICAL ASSISTANCE SERVICES BY ATM
The technical assistance services to be provided by ATM or other
members of Alcan Group to Novelis Technology during the Term of this
Agreement will consist of the following services (hereinafter
referred to as "ATM TECHNICAL ASSISTANCE SERVICES") as more fully
described in SCHEDULE 2.1:
2.1.1 materials characterization support;
2.1.2 chemical analysis support;
2.1.3 mechanical testing and formability evaluation support; and
2.1.4 general technical support.
The ATM Technical Assistance Services will comprise a minimum of
four (4) Lab Years of effort during the year 2005, commencing on the
Effective Date. The Parties shall meet and discuss at mutually
agreed upon times the ATM Technical Assistance Services then being
provided with the objective of making effective use of the ATM
Technical Assistance Services in light of Novelis Inc.'s plans and
R&D programs. Prior to October 1, 2005, the Parties shall mutually
agree upon the level and nature of ATM Technical Assistance Services
to be provided during the year 2006. In the event the Parties do not
agree upon any changes in the nature and level of ATM Technical
Assistance Services to be provided, the ATM Technical Assistance
Services shall continue at the 2005 level, subject to early
termination of this Agreement pursuant to Article 8.
2.2 ADDITIONAL SERVICES AND SUPPORT BY ATM
In addition to the ATM Technical Assistance Services, ATM shall
provide the following services to Novelis Technology during the Term
of this Agreement:
2.2.1 access to service areas and equipment at Neuhausen Facility
while Novelis Technology's personnel remain at Neuhausen
Facility;
2.2.2 access to ATM's information technology services (library and
literature research) while Novelis Technology's personnel
remain at Neuhausen Facility; and
2.2.3 use of office space , laboratory and storage at Neuhausen
Facility for approximately thirty-two (37) technical and IP
personnel and two to three (2-3) administrative personnel,
including all utilities (heat,
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
electricity (excluding Building 15 and CTC energy consumption)
and services (housekeeping, security, maintenance, etc.))
normally provided to ATM's personnel located at Neuhausen
Facility and phone fixnet services. All other communications
services (phone, internet and computer network access) are
excluded. The office space arrangements are more fully
described in a separate sublease agreement between the Parties
(the "SUBLEASE AGREEMENT") and SCHEDULE 2.2.3.
2.3 TECHNICAL ASSISTANCE SERVICES BY NOVELIS TECHNOLOGY
Novelis Technology shall provide access to the GD-OES surface probe
material characterization equipment and XRD equipment to ATM during
the Term of this Agreement (the "NOVELIS TECHNOLOGY TECHNICAL
ASSISTANCE SERVICES").
2.4 ADDITIONAL SERVICES TO BE PROVIDED UPON REQUEST
The Parties may from time to time during the Term of this Agreement,
agree on additional services to be provided hereunder by one Party
to the other ("SERVICES ON REQUEST"). The terms and conditions of
Services on Request will be subject to a separate agreement between
the Parties on a case-by-case basis but based on the fee structure
described in this Agreement.
Each Party will make a reasonable effort to provide the Services on
Request subject, however, to the availability of the necessary
resources. Furthermore either party shall be free, for whatever
reason, to decline any specific demand for Services on Request.
3. TECHNOLOGY
3.1 INFORMATION EXCHANGE
In connection with the planning, managing, providing and
communicating the results of the Services, ATM and Novelis
Technology shall communicate and meet periodically as mutually
agreed. The topics to be discussed shall be agreed before each
meeting and recorded on an agenda. Actual discussion topics shall be
recorded in minutes of the meeting. A written record of other
communications shall also be retained.
3.2 REPORTING OF RESULTS
All Results generated in the course of providing the Services shall
be promptly reported to the Party requesting the Services. These
reports may be oral or written as specified by the Party requesting
the Services. The preparation of such reports shall be considered
part of the provision of the Services.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
4. TECHNOLOGY AND TECHNICAL ASSISTANCE LIMITATIONS
4.1 Nothing herein limits in any way the rights and benefits granted to
ATM and Novelis Technology in the License Agreement.
4.2 Subject to Section 4.1 but notwithstanding anything contained
elsewhere in this Agreement, ATM and Novelis Technology shall be
under no obligation to:
4.2.1 provide any Information, the disclosure of which is restricted
due to contractual obligations; or
4.2.2 provide Information the transmission of which is prohibited by
Applicable Law, protocol or directive of the Governmental
Authority of the country from which it is to be provided.
4.3 The Parties agreement to provide each other the Technical Assistance
Services described in Sections 2.1 and 2.3 is conditional upon the
continued availability of the personnel identified for the provision
of such Technical Assistance Services. In the event that one or more
individuals who was identified for performance of any portion of the
Technical Assistance Services becomes unavailable to continue to
provide the Technical Assistance Services, the Parties shall meet
and discuss appropriate actions and each Party shall have the option
to modify the description of the Technical Assistance Services and
the corresponding obligation to pay for such services and to delete
any portion of the Technical Assistance Services expected to have
been performed by such person but not actually performed by such
person.
5. OWNERSHIP AND RIGHT TO USE
5.1 The Party that requested Services performed under this Agreement
shall receive and own all Results generated in the course of
performing such Services, including any copyright therein.
5.2 This Agreement does not restrict Novelis Technology or ATM from
obtaining technology from other sources as long as Information
acquired from the other Party is not disclosed.
5.3 Any equipment and supplies purchased pursuant to the Reimbursable
Cost mechanism described in Section 6.4 and not actually consumed at
the termination of this Agreement shall be the property of the Party
that funded their purchase. The Parties shall cooperate in the
packaging, shipment or other disposal of such equipment and
supplies, provided, however, that all related costs shall be for the
account of the Party that owns the equipment or supplies.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
6. CONSIDERATION
In consideration for the Services rendered by ATM under this Agreement,
Novelis Technology shall pay to ATM the following fees:
6.1 BASIC FEE PAYABLE BY NOVELIS TECHNOLOGY
Novelis Technology shall pay to ATM during the Term of this Agreement a
basic annual fee of CHF *** ("BASIC FEE") with respect to the year
2005. The Basic Fee for the year 2005 can be broken down as described
below. For the year(s) following 2005, the Basic Fee is subject to
escalation as provided in Section 6.6.
(a) CHF *** of Services.
The Services actually provided to Novelis Technology will be
tracked by ATM and Novelis Technology, as appropriate. In the
event the charges for Services actually provided by ATM exceed
the charge for Services included in the Basic Fee, then
Novelis Technology shall pay for such additional Services as
if they were Additional Fees.
The Services shall be charged based on the qualifications of
the personnel providing such Services in accordance with the
following grid:
The above rates (the "HOURLY RATES") are applicable to working
time rendered during a normal five-day workweek. For overtime
and Services performed on the weekend, the rates shall be
increased as required by Swiss Applicable Law. The Basic Fee
for Services covers all fully absorbed costs related to the
provision of Services and information including all salary and
benefits for the persons providing the services, all overhead
costs including rent, utilities, maintenance, management and
corporate charges, and other similar charges.
The Basic Fee does not include the cost of metal and equipment
required for the performance of the Services, travel related
costs and special project costs, which shall be in addition to
the Basic Fee and shall be reimbursed at cost by Novelis
Technology to ATM, separately from the Basic Fee;
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
(b) CHF *** for the sublease of office, laboratory and storage
space, as described in subsection 2.2.3 and the Sublease
Agreement. For the avoidance of doubt, the rent under the
Sublease Agreement is to be understood to be in lieu of, and
not cumulative to, this charge set out in this subparagraphs
(b) of Section 6.1;
(c) CHF *** for infrastructure, including maintenance and repair
of infrastructure, standard electrical supply excluding
special equipment (CTC-Line), heating EHS, cleaning, fire
service, info centre, logistic, waste management,
neutralisation and site security, as further described in
subsection 2.2.3; and
(d) CHF *** for access to and the use of service areas, equipment
and information technology services at the Neuhausen Facility,
as described in subsections 2.2.2 and 2.2.2.
6.2 FEES PAYABLE BY ATM
In consideration for the Technical Assistance Services provided by
Novelis Technology, ATM shall pay to Novelis Technology, during the
Term of this Agreement, a service fee equal to CHF *** per hour for the
use of the GD-OES equipment plus, if applicable, an hourly charge for
an operator at the applicable Hourly Rates.
6.3 ADDITIONAL SERVICES AND ADDITIONAL FEES
In the event the charges for the Services actually provided by ATM to
Novelis Technology exceed the charge for Services included in the Basic
Fee on a cumulative basis for a calendar year, then Novelis Technology
shall pay ATM for such additional Services at the Hourly Rates (the
"ADDITIONAL FEES"). The Parties shall attempt to manage the level of
Services to correspond to the Basic Fee for Services. No refund shall
be payable or due to Novelis Technology in the event Novelis Technology
does not request Services at least equal to the Services included in
the Basic Fee. An appropriate reduction in the Basic Fee will be made
in the event ATM does not perform Services, as the case may be,
reasonably requested by Novelis Technology. The fees for the sublease
of office space, infrastructure and access described in Sections
6.1(b), (c) and (d) are fixed.
6.4 REIMBURSABLE COSTS
For all the Services set forth in Sections 2.1, 2.2 and 2.3 rendered to
Novelis Technology or ATM inside or outside of Switzerland, metal and
equipment acquisition costs, special project costs and travel related
expenses reasonably incurred, such as air tickets, cost of car hires
and other travelling expenses, transportation of personnel baggage,
accommodation, meals including beverages, sundry items, laundry
services, etc., are not included in the Basic Fee or Hourly Rates and
they shall be reimbursed at cost (the "REIMBURSABLE COSTS"). All travel
related expenses shall be incurred and reimbursed in accordance with
Alcan Inc.'s travel policy.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
6.5 PAYMENT TERMS
Payments shall be made as follows:
6.5.1 Basic Fee
ATM will invoice Novelis Technology for one-twelfth (1/12) of
the Basic Fee (being the sum of CHF *** with respect to the
year 2005) at the end of each month during the Term of this
Agreement, with the payment due within thirty (30) days from
the date of the invoice.
6.5.2 Additional Fees
ATM will invoice the Additional Fees accrued per Section 6.1
or 6.3 to the other at the end of each month, if applicable,
during the Term of this Agreement, with the payment due within
thirty (30) days from the date of the invoice. ATM will
combine, where applicable, the invoicing of the Additional
Fees with the monthly invoice for the Basic Fee.
Novelis Technology will invoice ATM for the charges accrued
per Section 6.2 at the end of each month during the Term of
this Agreement, with the payment due within thirty (30 days
from the date of the invoice.
6.5.3 Reimbursable Costs
ATM and Novelis Technology will include in the invoices
described in subsections 6.5.1 and 6.5.2 any Reimbursable
Cost. All invoices will be against a purchase order and will
be supported, as applicable, by reasonably detailed reports
and documentation about time spent and expenses incurred.
6.5.4 Taxes and Charges
All amounts payable hereunder are exclusive of VAT. Each Party
shall pay VAT applicable to Services performed for the benefit
of such Party, and shall remit the amount of such Sales Taxes
to the other Party as required by Applicable Law. All invoices
shall separately identify VAT payable in respect of the
Services.
6.5.5 Payment Address
All amounts due under this Agreement shall be paid to ATM by
electronic transfer to ATM's account indicated on ATM's
invoice, with a confirmation of such transfer sent to the
accounting department of ATM, or to Novelis Technology at
Novelis Technology's account indicated in Novelis Technology's
invoice, with a confirmation of
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
such transfer sent to the accounting department of Novelis
Technology, at the addresses provided in Article 16 or in such
manner as ATM or Novelis Technology may from time to time
notify to the other Party.
6.6 ESCALATION
The Basic Fee for Services and the Hourly Rates (referred to
in this Section 6.6 as "BASIC RATES" or "BR") are valid until
December 31, 2005. For each of the years following 2005, the
Basic Rates are subject to escalation as per the following
formula: ***
6.7 SET-OFF
Each Party shall be entitled to set-off against any amounts
due to the other under this Agreement any amounts due to it
from such other Party under this Agreement. Such right of
set-off shall not extend to amounts owed to a Party by the
other Party under any other agreement. Any amount by which
either Party's obligation to make a payment under this
Agreement is reduced shall be treated as discharging the
obligation of the other Party to the extent of the amount
set-off.
7. PROTECTION OF INFORMATION
7.1 Each of ATM and Novelis Technology hereby agree that the
Information produced or developed for the other Party at any
time is confidential information of the Party that requested
that the Services be performed and shall not be disclosed to
any Third Party except as may be expressly provided for herein
and that the Party that generated the Information shall have
only such rights in the Information as expressly provided
herein.
7.2 The obligations of confidentiality and non-disclosure shall
not apply to Information to the extent that said Information:
7.2.1 is in the public domain through no fault of the other
Party, or lawfully is or becomes public knowledge
through no breach of this Agreement; or
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
7.2.2 was received from any Third Party on a
non-confidential basis,
7.2.3 was disclosed pursuant to legal process, governmental
request, or regulatory requirement.
Specific information shall not be deemed to be within the
exceptions of Section 7.2 merely because such specific
information may be construed as being within broader,
non-confidential information which is either in the public
domain or in the possession of the receiving party on the
Effective Date, nor shall a combination of features which form
confidential information be deemed to be non-confidential
information merely because the individual features, without
being combined, are non-confidential.
7.3 The Party that performed the Services shall not use the
Information produced hereunder for any other purpose other
than that specified in this Agreement without first obtaining
written consent from the other Party.
7.4 Each Party may disclose the Information it produces hereunder
for the other Party to its own officers, employees,
contractors, suppliers, customers, representatives and others
to the extent necessary for the normal operation of its
business. Each Party shall take reasonable precautions,
consistent with past practices to preserve the value of the
Information. Each Party shall advise the appropriate officers,
employees, contractors, suppliers, customers, representatives
and others to whom such Information is supplied of the
confidentiality obligation hereunder, and shall ensure that,
where appropriate, they have agreed to comply with the
provisions of this Article 7.
7.5 The obligations of confidentiality with respect to specific
Information received under this Agreement or otherwise shall
expire on the tenth (10th) anniversary date of the Effective
Date.
7.6 The Parties recognize that a breach of this Article 7 may give
rise to irreparable injury that cannot be adequately
compensated by monetary damages. Accordingly, in the event of
a breach or threatened breach, the other Party may be entitled
to preliminary and permanent injunctive relief to prevent or
enjoin a violation of this Article 7 and the unauthorized use
or disclosure of any confidential Information in addition to
such other remedies as may be available for such breach or
threatened breach, including the recovery of damages.
7.7 No provision of this Agreement shall be construed to require
either Party to furnish any information (i) acquired from
others on terms prohibiting or restricting disclosure, or (ii)
the furnishing of which is in contravention of any Applicable
Law or Governmental Authorization. Each Party shall use its
commercially reasonable efforts to avoid conditions that
prevent the exchange of information under this Agreement.
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8. TERM AND TERMINATION
8.1 The term of this Agreement (the "TERM") shall be from the
Effective Date until the date which is the two (2) year
anniversary thereof, unless terminated earlier pursuant to the
provisions of this Agreement or except as expressly otherwise
provided in this Agreement.
8.2 Should there be a default in the performance of any material
obligation of the other Party under this Agreement (or under
the Local Separation Agreement) and such default is not cured
within thirty (30) days following written notification of such
default from the aggrieved Party, the aggrieved Party's
obligations and this Agreement shall terminate on the date
specified on such notice which shall not be less than thirty
(30) days following the date of such notice unless the default
is cured before such specified termination date. Early
termination shall not prejudice either Party's right to
recover any amounts due at the time of such termination nor
shall it prejudice any other remedy or cause of action or
claim accrued or to accrue jointly or severally on account of
any such default.
8.3 This Agreement may be terminated with immediate effect by
either Party by giving written notice to the other Party
should any of the following events of default occur:
(a) the other Party or any of its Affiliates declares
bankruptcy or insolvency or is declared bankrupt or
insolvent;;
(b) the other Party becomes subject to receivership or
comes under the control of a receiver for the assets
or any other official appointed by a Governmental
Authority;
(c) the other Party or any of its Affiliates makes a
general assignment for the benefit of creditors,;
(d) the institution by the other Party of proceedings for
a moratorium or a composition agreement under the
Swiss Federal Act on Debt Enforcement and Bankruptcy
for the relief of debtors.
8.4 In addition, this Agreement shall terminate (1) upon the
occurrence of a Non Compete Breach (as defined in the Master
Separation Agreement) and the giving of notice of such
termination by Alcan Inc. to Novelis Inc. pursuant to Section
14.03(b) of the Master Separation Agreement, or (2) upon the
occurrence of a Change of Control Non Compete Breach (as
defined in the Master Separation Agreement) and the giving of
notice of such termination by Alcan Inc. to Novelis Inc.
pursuant to Section 14.04(e) of the Master Separation
Agreement, and the termination of this Agreement shall be
effective immediately upon Alcan Inc. providing Novelis Inc.
notice pursuant to Section 14.03 or Section 14.04 of the
Separation Agreement.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
8.5 Subject to the provisions of Sections 8.3 and 8.4, termination
will take effect thirty (30) days after receipt of the notice
without any further notice being given, unless the event of
default is rectified or diligent efforts to rectify the event
of default commence within the 30-day period.
8.6 Such right of termination shall not be exclusive of any other
remedies or means of redress to which a Party may be entitled
under Applicable Law.
8.7 This Agreement may be terminated at the option of either Party
on or after the first (1st) anniversary of the Effective Date,
by providing notice to the other Party at least six (6) months
before the termination is to become effective, provided all
payments owed under Article 6 have been remitted by the
terminating Party to the other Party. For clarity, the
earliest date on which early termination by Novelis Technology
or by ATM can become effective under this Section 8.7 is July
1, 2006. In addition, each Party will endeavour, to the extent
possible, to keep the other Party informed on a heads up basis
of events that could lead to the possible early termination of
this Agreement.
9. SURVIVAL OF OBLIGATIONS
Except as otherwise provided in this Agreement and unless otherwise
agreed in writing by the Parties, the rights and obligations of the
Parties under Articles 6, 7, 10, 11, 14, 16, 18, 24 and 25 shall
survive the expiration or earlier termination of this Agreement.
10. REPRESENTATIONS AND WARRANTIES
10.1 Each Party represents that it has full power and authority to
enter into this Agreement and to perform all its obligations
hereunder.
10.2 No representation or warranty of any nature or kind is given
by either Party (whether express, implied, statutory,
contractual or other in nature and whether relating to the
enforceability, merchantability, fitness for purpose,
non-infringement, absence of rights of Third Parties or other)
in respect of the Technology or other rights to be licensed or
transferred by it pursuant to the terms of this Agreement.
10.3 Nothing in this Agreement shall be construed as a warranty or
representation that the Services will produce any specific
result or Technology or that any product made, used, sold or
otherwise disposed with the benefit of any rights or license
granted pursuant to this Agreement is or will be free from
infringement of patents of Third Parties.
11. DISCLAIMER OF WARRANTY AND INDEMNITY
Except to the limited extent provided in Article 10, ATM expressly
disclaims all and any liability or responsibility whatsoever for any
liability arising out of the use of the Technology or the provision of
any Service. ATM AND NOVELIS TECHNOLOGY DO NOT WARRANT THAT THE
TRANSFERRED TECHNOLOGY, LICENSED TECHNOLOGY OR SERVICES PROVIDED BY ATM
OR NOVELIS
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
TECHNOLOGY, OR THAT ANY PRODUCT, IS OR WILL BE OF MERCHANTABLE QUALITY
OR FIT FOR ANY PARTICULAR PURPOSE FOR WHICH IT MAY BE BOUGHT OR USED.
ATM and Novelis Technology shall in no event be liable to the other, or
any other Person, for any damage, injury or loss, including loss of use
arising from any activities or obligations under this Agreement, or for
any direct or indirect, incidental or consequential damages.
12. TRADEMARK, TRADE NAME AND LOGO
No right is conveyed by either Party to the other under this Agreement
for the use, either directly, indirectly, by implication or otherwise,
of any trademark, trade name or logo owned by Novelis Technology or ATM
or any of their respective Affiliates. The Parties will enter into a
separate trademark license agreement if appropriate.
13. NON-WAIVER
The failure of any Party to insist in any one or more instances upon
the strict performance of any one or more of the obligations of this
Agreement or to exercise any election herein contained, shall not be
construed as a waiver for the future of the performance of such one or
more obligations of this Agreement or of the right to exercise such
election. No waiver of any breach or default of this Agreement shall be
held to be a waiver for any subsequent breach.
14. NO PARTNERSHIP, JOINT VENTURE
The Parties to this Agreement agree and acknowledge that the Agreement
does not create a partnership, joint venture or any other relationship
between ATM and Novelis Technology save the relationship specifically
set out herein and solely for the limited purposes herein.
15. FURTHER ASSURANCES
The Parties to this Agreement shall sign or cause their respective
employees to execute any documents necessary to file any desired
registrations and applications to protect any Technology originating in
the course of the Services and receive any patents, copyrights, design
rights, mask works or other forms of legal protection resulting from
such applications and registrations in any selected countries and
co-operate using their respective commercially reasonable efforts to
obtain any necessary Consent of Third Parties. Nothing contained in
this Agreement shall be interpreted to oblige any Party to do anything
more than use its commercially reasonable efforts (without material
expense to it) to obtain any Consent which may be required to give full
effect to the terms and conditions hereof.
16. NOTICES
All notices or other communications under this Agreement shall be in
writing and shall be deemed to be duly given (a) on the date of
delivery, if delivered personally, (b) on the first Business Day
following the date of dispatch if delivered by a nationally recognized
next-day courier service, (c) on the date of actual receipt if
delivered by registered or
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
certified mail, return receipt requested, postage prepaid or (d) if
sent by facsimile transmission, when transmitted. If sent by telefax, a
confirming copy of such notice shall be sent by regular mail to the
addressee. All notices hereunder shall be delivered as follows:
IF TO ATM, TO:
Alcan Technology and Management AG
Badische Bahnhofstrasse 16,
CH-8212 Neuhausen, Switzerland
Attention: General Manager
IF TO NOVELIS TECHNOLOGY, TO:
Novelis Technology AG
Badische Bahnhofstrasse 16,
CH-8212 Neuhausen, Switzerland
Attention: General Manager
Any Party may, by notice to the other Party as set forth herein, change
the address to which such notices are to be given.
17. ASSIGNMENT
This Agreement shall not be assignable, in whole or in part, directly
or indirectly, by any Party hereto without the prior written consent of
the other, and any attempt to assign any rights or obligations under
this Agreement without such consent shall be void and deemed to be in
breach hereof.
18. LIMITATION OF LIABILITY AND INDEMNIFICATION
18.1 LIMITATION OF LIABILITY
Except as otherwise provided herein and as permitted by
Applicable Law, neither Party shall be liable to the other
Party for any special, consequential, indirect, collateral,
incidental or punitive damages, lost profits, or failure to
realize expected savings, or other commercial or economic loss
of any kind, however caused and on any theory of liability,
(including negligence) arising in any way out of this
Agreement, whether or not such Person has been advised of the
possibility of any such damages.
18.2 INDEMNIFICATION
ATM shall indemnify, defend and hold harmless Novelis
Technology, each other member of Novelis Group and each of
their respective directors, officers and employees, and each
of the heirs, executors, trustees, administrators, successors
and assigns of any of the foregoing (collectively, the
"NOVELIS INDEMNIFIED PARTIES"), from and against any and all
liabilities of the Novelis Indemnified
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
Parties incurred by, borne by or asserted against any of them
relating to, arising out of or resulting from any of the
following items (without duplication):
(a) the breach or the failure of performance by ATM of
any of the covenants, promises, undertakings or
agreements which it is obligated to perform under
this Agreement; and
(b) the use of any Technology by any member of Novelis
Group or its customers or the provision by ATM of any
Service hereunder,
but subject however to the limitations of liability provided
in Section 18.1.
Novelis Technology shall indemnify, defend and hold harmless
ATM, each other member of Alcan Group and each of their
respective directors, officers and employees, and each of the
heirs, executors, trustees, administrators, successors and
assigns of any of the foregoing (collectively, the "ATM
INDEMNIFIED PARTIES"), from and against any and all
liabilities of the ATM Indemnified Parties incurred by, borne
by or asserted against any of them relating to, arising out of
or resulting from any of the following items (without
duplication):
(a) the breach or the failure of performance by Novelis
Technology of any of the covenants, promises,
undertakings or agreements which it is obligated to
perform under this Agreement; and
(b) the use of any Technology by any member of Alcan
Group or its customers or the provision by Novelis
Technology of any Service hereunder,
but subject however to the limitations of liability provided
in Section 18.1.
19. ENTIRE AGREEMENT
This Agreement, the Local Separation Agreement and exhibits, schedules
and appendices hereto and thereto and the specific agreements
contemplated herein or thereby, contain the entire agreement between
the Parties with respect to the subject matter hereof and supersedes
all previous agreements, negotiations, discussions, writings,
understandings, commitments and conversations with respect to such
subject matter. No agreements or understandings exist between the
Parties other than those set forth or referred to herein or therein.
Notwithstanding the foregoing, the rights and interests transferred,
assigned or granted to Novelis Technology, its Affiliates and the other
members of Novelis Group, or to ATM, its Affiliates and the other
members of Alcan Group, or otherwise to be made available to them
pursuant to the terms of this Agreement, shall in all respects be
subject to the provisions of the Master Separation Agreement as well as
the Local Separation Agreement and nothing in this Agreement shall
entitle Novelis Technology or ATM to have any rights or pursue any
activity which would otherwise be restricted by the Master Separation
Agreement or the Local Separation Agreement. The Master Separation
Agreement shall not in defining the assets, businesses, rights and
obligations to form part
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
of Novelis Technology, be interpreted so as to grant, convey or
confirm, directly or indirectly, any rights in respect of Technology
which would be greater than those established herein.
20. CONFLICTS
In the event of any conflict between this Agreement, the Local
Separation Agreement and the Master Separation Agreement, the following
order of priority shall apply:
1. the Master Separation Agreement;
2. the Local Separation Agreement; and
3. this Agreement.
21. FORCE MAJEURE
No Party shall be deemed in default of this Agreement to the extent
that any delay or failure in the performance of its obligations under
this Agreement results from superior force ("force majeure") or any
act, occurrence or omission beyond its reasonable control and without
its fault or negligence, such as fires, explosions, accidents, strikes,
lockouts or labour disturbances, except strikes, lockouts and labour
disturbances of the employees of the Alcan Group or the Novelis Group
respectively, floods, droughts, earthquakes, epidemics, seizures of
cargo, wars (whether or not declared), civil commotion, acts of God or
the public enemy, action of any government, legislature, court or other
Governmental Authority, action by any authority, representative or
organisation exercising or claiming to exercise powers of a government
or Governmental Authority, compliance with Applicable Law, blockades,
power failures or curtailments, inadequacy or shortages or curtailments
or cessation of supplies of raw materials or other supplies, failure or
breakdown of equipment of facilities or, in the case of computer
systems, any failure in electrical or air conditioning equipment (a
"FORCE MAJEURE EVENT"). In the event of a Force Majeure Event, then,
upon notice by the Party who is delayed or prevented from performing
its obligations to the other Party, (i) the affected provisions or
other requirements of this Agreement shall be suspended to the extent
necessary during the period of such disability, (ii) the Party which is
delayed or prevented from performing its obligations by a Force Majeure
Event shall have the right to apportion its Services in an equitable
manner to all users and (iii) such Party shall have no liability to the
other Party or any other Person in connection therewith. The Party
which is delayed or prevented from performing its obligations by the
Force Majeure Event shall resume full performance of this Agreement as
soon as reasonably practicable following the cessation of the Force
Majeure Event (or the consequences thereof).
22. LANGUAGE
The Parties hereto have requested that this Agreement and, subject to
mandatory provisions of Applicable Law, all other documents, notices or
written communications relating thereto, be in the English language.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
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23. AMENDMENTS
No provisions of this Agreement shall be deemed waived, amended,
supplemented or modified by any Party, unless such waiver, amendment,
supplement or modification is in writing and signed by the authorized
representative of the Party against whom it is sought to enforce such
waiver, amendment, supplement or modification.
24. GOVERNING LAW
Recognizing the numerous jurisdictions associated with this Agreement
and the activities contemplated by it, the Parties agree that this
Agreement shall be governed, construed and interpreted in accordance
with the laws of Switzerland without the application of the provisions
relating to the conflict of laws. Any provision in this Agreement
prohibited by Applicable Law or by court decree shall be ineffective to
the extent of such prohibition without in any way invalidating or
affecting the remaining provisions of this Agreement, and this
Agreement shall be construed as if such prohibited provision had never
been contained herein. ATM and Novelis Technology hereby agree,
however, to negotiate an equitable amendment of this Agreement if a
material provision is adversely affected. The terms of the United
Nations (Vienna Convention) on Contracts for the International Sale of
Goods shall not apply to this Agreement or the obligations of the
Parties hereunder.
25. DISPUTE RESOLUTION
All disputes, controversies, or claims (whether arising in contract,
tort or otherwise) that may arise out of, or relate to, or arise under
or in connection with, this Agreement or any Ancillary Agreement, or
the transactions contemplated hereby or thereby shall be resolved in
accordance with and governed by the provisions of Article IX of the
Local Separation Agreement, with the exception that section 9.02 (c) to
(g) shall be replaced by the following: The competent court in the
Canton Schaffhausen shall have exclusive jurisdiction in respect to
such dispute, controversy or claim.
26. EXECUTION IN COUNTERPARTS
This Agreement shall be executed in three counterparts, all of which
shall be considered one and the same agreement, and shall become
effective when having been signed by each of the Parties and delivered
to the other Party.
IN WITNESS WHEREOF, the Parties hereto have caused this Technical Services
Agreement to be executed by their duly authorized representatives.
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Technical Services Agreement between NOVELIS Technology AG and Alcan
Technology & Management AG
NOVELIS TECHNOLOGY AG
By: _______________________________
Name:
Title: President of the Board
By: _______________________________
Name:
Title: Board Member
ALCAN TECHNOLOGY & MANAGEMENT AG
By: _______________________________
Name:
Title: President of the Board
By: _______________________________
Name:
Title: Board Member
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