AGREEMENT WITH RESPECT TO DISPUTE RESOLUTION
Published on December 20, 2004
Exhibit 10.29
AGREEMENT WITH RESPECT TO DISPUTE RESOLUTION
DATED O, 2004
WITH EFFECT AS OF THE EFFECTIVE DATE
AGREEMENT WITH RESPECT TO
DISPUTE RESOLUTION
THIS AGREEMENT (the "AGREEMENT") entered into in the City of Montreal, Province
of Quebec, is dated December o, 2004, with effect as of the Effective Date.
BETWEEN: NOVELIS INC., a corporation incorporated under the Canada
Business Corporations Act ("NOVELIS"),
AND: NOVELIS FOIL FRANCE, a company organized under the laws of
France ("NOVELIS RUGLES"),
AND: NOVELIS PAE VOREPPE, a company organized under the laws of
France ("NOVELIS PAE"),
AND: NOVELIS SPECIALITES FRANCE, ANNECY, a company organized
under the laws of France ("NOVELIS SPECIALITES"),
AND: NOVELIS LUXEMBOURG SA, a company organized under the laws of
Luxembourg ("NOVELIS LUXEMBOURG"),
AND: NOVELIS DO BRASIL LTDA., a Brazilian limited liability
company incorporated under the laws of Brazil ("NOVELIS
BRAZILIAN AFFILIATE"),
AND: ARCUSTARGET INC., a corporation incorporated under the
Canada Business Corporations Act ("ARCUSTARGET"),
AND: ALCAN INC., a corporation organized under the Canada
Business Corporations Act ("ALCAN"),
AND: ALCAN CORPORATION, a corporation incorporated under the
Canada Business Corporations Act ("ALCAN CORPORATION"),
AND: ALCAN ALUMINUM CORPORATION, a corporation incorporated under
the Canada Business Corporations Act ("AAC"),
AND: ALCAN INTERNATIONAL LIMITED, a corporation organized under
the laws of Canada ("ALCANINT"),
AND: PECHINEY CENTRE DE RECHERCHES DE VOREPPE, a company
organized under the laws of France ("ALCAN PECHINEY").
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RECITALS:
WHEREAS Alcan and Novelis have entered concurrently with this Agreement into a
Separation Agreement (such agreement, as amended, restated or modified from time
to time, the "SEPARATION AGREEMENT") pursuant to which Alcan and Novelis set out
the terms and conditions relating to the separation of the Separated Businesses
from the Remaining Alcan Businesses (each as defined in the Separation
Agreement).
WHEREAS pursuant to the provisions of the Separation Agreement, Alcan and
Novelis have each covenanted and agreed to execute and deliver or, as
applicable, cause the appropriate members of their respective Groups (as defined
below) to execute and deliver, on or prior to the Effective Date (as defined
below), each of the Ancillary Agreements (as such term is defined in the
Separation Agreement) including each of the agreements identified on EXHIBIT "A"
attached to this Agreement.
WHEREAS the parties hereto wish to set out in this Agreement the procedures for
the resolution of all disputes, controversies or claims between Novelis and any
member of Alcan Group (as defined below) or between Alcan and any member of
Novelis Group (as defined below), that may arise out of, or relate to, or arise
under or in connection with any of the agreements identified on EXHIBIT "A"
attached to this Agreement.
NOW THEREFORE, in consideration of the agreements, covenants and other
provisions set forth in the Separation Agreement and in this Agreement, the
Parties (as defined below) hereby agree as follows:
ARTICLE I
INTERPRETATION
1.01 DEFINITIONS
In this Agreement the following terms and variations thereof have the
meanings specified or referred to in this Section 1.01 and capitalized
terms not otherwise defined herein have the meanings ascribed thereto in
the Separation Agreement;
"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" has the meaning set out at the beginning of this Agreement.
"ALCAN" has the meaning set out at the beginning of this Agreement.
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"ALCAN GROUP" means Alcan, Alcan Corporation, AAC, Alcanint and Alcan
Pechiney.
"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.
"BUSINESS CONCERN" means any corporation, company, limited liability
company, partnership, joint venture, trust, unincorporated association or
any other form of association.
"DISPUTE" has the meaning set forth in Section 2.01.
"EFFECTIVE DATE" means the effective date of the Separation Agreement as
defined therein.
"GOVERNMENTAL AUTHORITY" means any court, arbitration panel, governmental
or regulatory authority, agency, stock exchange, commission or body.
"GROUP" means Alcan Group or Novelis Group, as the context requires.
"NOVELIS" has the meaning set out at the beginning of this Agreement.
"NOVELIS GROUP" means Novelis, Novelis Brazilian Affiliate, Novelis
Rugles, Novelis PAE, Novelis Specialites, Novelis Luxembourg and
Arcustarget.
"PARTIES" means Novelis Inc., Novelis Do Brasil Ltda., Novelis Foil
France, Novelis PAE Voreppe, Novelis Specialites France, Annecy, Novelis
Luxembourg SA, Arcustarget Inc., Alcan Inc., Alcan Corporation, Alcan
Aluminum Corporation, Alcan International Limited and Pechiney Centre de
Recherches de Voreppe and "PARTY" means each one of them.
"PERSON" means any individual, Business Concern or Governmental Authority.
"SEPARATION AGREEMENT" has the meaning set out in the preamble to this
Agreement.
ARTICLE II
DISPUTE RESOLUTION
2.01 DISPUTE RESOLUTION
The procedures for dispute resolution set forth in Article XII of the
Separation Agreement (which is reproduced on EXHIBIT "B" attached to this
Agreement) shall govern all disputes, controversies or claims (whether
arising in contract, delict, tort or otherwise), whether between Novelis
and any member of Alcan Group or between Alcan and any member of Novelis
Group that may arise out of, or relate to, or arise under or in connection
with any of the agreements identified on EXHIBIT "A" attached to this
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Agreement, or the transactions contemplated thereby (including all actions
taken in furtherance of the transactions contemplated hereby or thereby on
or prior to the date hereof), or the commercial or economic relationship
of the Parties relating thereto (a "DISPUTE").
For the purposes of EXHIBIT "A" attached to this Agreement, each of
Novelis Brazilian Affiliate, Novelis Rugles, Novelis PAE, Novelis
Specialites, Novelis Luxembourg and Arcustarget shall be deemed to
constitute a member of Novelis Group and each of Alcan Corporation, AAC,
Alcanint and Alcan PechineY shall be deemed to constitute a member of
Alcan Group.
2.02 APPOINTMENT OF AGENT
(a) Each member of Novelis Group hereby appoints and designates Novelis
as its irrevocable agent, nominee and appointee to institute and
conduct any proceeding or process for the purposes of the resolution
of any Dispute between itself and any member of Alcan Group, and for
the purposes of resolving any such Dispute each member of Novelis
Group hereby agrees to refrain from unilaterally instituting any
such proceeding or process and to abide by any decision of Novelis
in connection therewith. Each member of Novelis Group further
confirms and accepts hereby the authority of Novelis, and agrees to
be bound by Novelis's acts and decisions, in connection with any and
all matters governed by the provisions of Section 2.01 hereof and of
Article XII of the Separation Agreement reproduced on EXHIBIT "B"
attached to this Agreement.
(b) Each member of Alcan Group hereby appoints and designates Alcan as
its irrevocable agent, nominee and appointee to institute and
conduct any proceeding or process for the purposes of the resolution
of any Dispute between itself and any member of Novelis Group, and
for the purposes of resolving any such Dispute each member of Alcan
Group hereby agrees to refrain from unilaterally instituting any
such proceeding or process and to abide by any decision of Alcan in
connection therewith. Each member of Alcan Group further confirms
and accepts hereby the authority of Alcan, and agrees to be bound by
Alcan's acts and decisions, in connection with any and all matters
governed by the provisions of Section 2.01 hereof and of Article XII
of the Separation Agreement reproduced on EXHIBIT "B" attached to
this Agreement.
ARTICLE III
NOTICES
3.01 NOTICES
All notices or other communications under this Agreement shall be in
writing and shall be deemed to be duly given when delivered in person or
successfully transmitted by facsimile, addressed as follows:
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IF TO ALCAN, TO:
Alcan Inc.
1188 Sherbrooke Street West
Montreal, Quebec
H3A 3G2
Fax: 514-848-8115
Attention: Chief Legal Officer
IF TO NOVELIS, TO:
Novelis Inc.
Suite 3800
Royal Bank Plaza, South Tower
P.O. Box 84
200 Bay Street
Toronto, Ontario
M5J 2Z4
Fax: 416-216-3930
Attention: Chief Executive Officer
Any Party may, by notice to the other Party as set forth herein, change
the address or fax number to which such notices are to be given.
Any communication given to Alcan in accordance with the foregoing
provisions shall be deemed to be effective notice to any other member of
Alcan Group and each of Alcan Corporation, AAC, Alcanint and Alcan
Pechiney hereby appoints Alcan as its irrevocable agent, nominee and
appointee for the purpose of receiving any communication or notice
addressed to it. Novelis shall be entitled to and shall act on any
communication given or agreement entered into by Alcan on Alcan's behalf
or on behalf of any of Alcan Corporation, AAC, Alcanint and Alcan
Pechiney.
Any communication given to Novelis in accordance with the foregoing
provisions shall be deemed to be effective notice to any other member of
Novelis Group and each of Novelis Brazilian Affiliate, Novelis Rugles,
Novelis PAE, Novelis Specialites, Novelis Luxembourg and Arcustarget
hereby appoints Novelis as its irrevocable agent, nominee and appointee
for the purpose of receiving any communication or notice addressed to it.
Alcan shall be entitled to and shall act on any communication or agreement
entered into by Novelis on Novelis's behalf or on behalf of any of Novelis
Brazilian Affiliate, Novelis Rugles, Novelis PAE, Novelis Specialites,
Novelis Luxembourg and Arcustarget.
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ARTICLE IV
MISCELLANEOUS
4.01 CONSTRUCTION
In this Agreement, unless a clear contrary intention appears:
(a) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
not prohibited by this Agreement;
(b) reference to any agreement, document or instrument means such
agreement, document or instrument as amended, modified, supplemented
or restated, and in effect from time to time in accordance with the
terms thereof subject to compliance with the requirements set forth
herein;
(c) reference to any Applicable Law means such Applicable Law as
amended, modified, codified, replaced or re-enacted, in whole or in
part, and in effect from time to time, including rules and
regulations promulgated thereunder, and reference to any section or
other provision of any Applicable Law means that provision of such
Applicable Law from time to time in effect and constituting the
substantive amendment, modification, codification, replacement or
re-enactment of such section or other provision;
(d) "herein", "hereby", "hereunder," "hereof," "hereto," and words of
similar import shall be deemed references to this Agreement as a
whole and not to any particular Article, Section or other provision
hereof;
(e) "including" (and with correlative meaning "include") means including
without limiting the generality of any description preceding such
term;
(f) headings are for convenience of reference only and shall not affect
the construction or interpretation hereof; and
(g) references to documents, instruments or agreements shall be deemed
to refer as well to all addenda, exhibits, schedules or amendments
thereto.
4.02 GOVERNING LAW
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein, irrespective of conflict of laws principles under
Quebec law, as to all matters, including matters of validity,
construction, effect, enforceability, performance and remedies.
4.03 ENTIRE AGREEMENT
This Agreement and the specific agreements contemplated herein, 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.
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4.04 CONFLICTS
In case of any conflict or inconsistency between this Agreement and the
Separation Agreement, this Agreement shall prevail.
4.05 EXECUTION IN COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective
when one or more counterparts have been signed by each of the Parties and
delivered to the other Parties.
4.06 WAIVERS
No failure on the part of a Party to exercise and no delay in exercising,
and no course of dealing with respect to, any right, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by Applicable Law.
4.07 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.
4.08 ASSIGNMENT
This Agreement shall be binding upon and enure to the benefit of the
Parties and their respective successors and assigns; provided, however,
that no Party may assign its rights or obligations under this Agreement
without the express prior written consent of the other Parties.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement with Respect
to Dispute Resolution to be executed by their duly authorized representatives.
NOVELIS INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
NOVELIS DO BRASIL LTDA.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
NOVELIS FOIL FRANCE
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
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NOVELIS PAE VOREPPE
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
NOVELIS SPECIALITES FRANCE, ANNECY
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
NOVELIS LUXEMBOURG SA
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
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ARCUSTARGET INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
ALCAN INC.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
ALCAN CORPORATION
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
ALCAN ALUMINUM CORPORATION
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
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ALCAN INTERNATIONAL LIMITED
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
PECHINEY CENTRE DE RECHERCHES DE VOREPPE
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title: