TECHNICAL SERVICES AGREEMENT
Published on December 22, 2004
EXHIBIT 10.22
TECHNICAL SERVICES AGREEMENT
between
NOVELIS INC.
and
ALCAN INTERNATIONAL LIMITED
WITH RESPECT TO THE RESEARCH & DEVELOPMENT FACILITIES
LOCATED IN ARVIDA, QUEBEC (CANADA)
AND IN KINGSTON, ONTARIO (CANADA)
DATED o, 2004
WITH EFFECT AS OF THE EFFECTIVE DATE
TABLE OF CONTENTS
TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT 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: ALCAN INTERNATIONAL LIMITED, a company organized under the laws
of Canada ("ALCANINT").
RECITALS:
WHEREAS Alcan Inc. and Novelis have entered into a Separation Agreement pursuant
to which the Parties (as defined hereinafter) 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 below), directly or indirectly, by
Novelis (such agreement, as amended, restated or modified from time to time, the
"SEPARATION AGREEMENT").
WHEREAS Alcanint 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 Separation Agreement, Novelis and Alcan Inc.
desire that Alcanint, a member of Alcan Group, provide Novelis, a member of
Novelis Group (as defined below), with certain technical assistance and services
following the Effective Date (as defined below) from Alcanint's research and
development facility located in Arvida, Province of Quebec (Canada) ("ARVIDA
FACILITY"), and that Novelis provide Alcanint with certain technical assistance
and services following the Effective Date from Novelis's research and
development facility located in Kingston, Province of Ontario (Canada)
("KINGSTON FACILITY"), subject to the terms and conditions of this Agreement.
WHEREAS Alcanint is willing and in a position to provide Novelis with such
technical assistance and services, and Novelis is willing and in a position to
provide Alcanint 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 and Alcanint agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following words and expressions
and variations thereof, unless another meaning is clearly required in
the context, shall have the meanings specified or referred to in this
Article 1:
"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 from time to time
after the Effective Time.
"ALCANINT" means Alcan International Limited.
"ALCANINT INDEMNIFIED PARTIES" has the meaning set forth in Section
18.2.
"ALCANINT TECHNICAL ASSISTANCE SERVICES" has the meaning set forth in
Section 2.1.
"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.
"ARVIDA FACILITY" has the meaning set out in the Preamble to this
Agreement.
"BASIC FEE" has the meaning set forth in Section 6.1.
"BASIC RATES" or "BR" has the meaning set forth in Section 6.5.
"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 City of Montreal (Canada) or in the City of New
York (United States), is a legal holiday or (ii) a day on which banks
are authorized by Applicable Law to close in the City of Montreal
(Canada) or in the City of New York (United States).
"CONSENT" means any approval, consent, ratification, waiver or other
authorization.
"DAILY RATE" has the meaning set forth in subsection 6.2.1.
"DOLLARS" or "$" means, except where otherwise expressly indicated, the
lawful currency of Canada.
"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 Arrangement as defined in the Separation
Agreement.
"EFFECTIVE TIME" means 12:01 a.m. Montreal time on the Effective Date.
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"FORCE MAJEURE EVENT" has the meaning set forth in Article 22.
"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 subsection 6.2.1.
"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 Alcanint or
Novelis under this Agreement.
"KINGSTON FACILITY" has the meaning set out in the Preamble to 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.
"LIABILITIES" has the meaning ascribed thereto in the Separation
Agreement.
"LICENSE AGREEMENT" means the agreement entitled "IP Agreement between
Alcan International Limited and Novelis Inc.", as amended, restated or
modified from time to time, and constituting an Ancillary Agreement to
the Separation Agreement.
"NOVELIS" means Novelis Inc.
"NOVELIS GROUP" means Novelis Inc. and its Subsidiaries from time to
time after the Effective Time.
"NOVELIS INDEMNIFIED PARTIES" has the meaning set forth in Section
18.2.
"NOVELIS TECHNICAL ASSISTANCE SERVICES" has the meaning set forth in
Section 2.2.
"PARTY" means each of Alcanint and Novelis as a party to this Agreement
and "PARTIES" means both of them.
"PERSON" means any individual, Business Concern or Governmental
Authority.
"REIMBURSABLE COSTS" has the meaning set forth in Section 6.3.
"RESULTS" means data, reports and conclusions produced in the course of
providing the Services.
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"SALES TAXES" means any sales, use, consumption, goods and services,
value added or similar tax, duty or charge imposed by a Governmental
Authority pursuant to Applicable Law.
"SEPARATION AGREEMENT" has the meaning set out in the Preamble to this
Agreement.
"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 2.3.
"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
Alcanint Technical Assistance Services and the Novelis 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.
2. SCOPE OF AGREEMENT
Alcanint and Novelis 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 to the extent not
expressly provided herein. Such services are divided into the following
main categories:
2.1 TECHNICAL ASSISTANCE SERVICES BY ALCANINT
The technical assistance services to be rendered by Alcanint
or Alcan Group personnel under this Agreement (the "ALCANINT
TECHNICAL ASSISTANCE SERVICES") will comprise six (6) Lab
Years of effort per year for a period of twelve (12) months
commencing on the Effective Date, with provision for extension
of certain Alcanint Technical Assistance Services into a
second year upon request of Novelis. The Alcanint Technical
Assistance Services will consist of such services as the
Parties mutually agree upon from time to time during the Term
of this Agreement.
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The Parties currently anticipate that the Alcanint Technical
Assistance Services to be rendered by Alcanint to Novelis
during the Term of this Agreement will include the following
services:
2.1.1 analytical services including optical emission
spectroscopy services;
2.1.2 services related to the melting and recycling of
aluminum and its alloys;
2.1.3 services related to energy management, melting and
refractories;
2.1.4 services related to casting and molten metal
treatment;
2.1.5 metallography services; and
2.1.6 technical assistance related to customer and
production issues.
2.2 TECHNICAL ASSISTANCE SERVICES BY NOVELIS
The technical assistance services to be rendered by Novelis or
Novelis Group personnel under this Agreement (the "NOVELIS
TECHNICAL ASSISTANCE SERVICES") will comprise two and one-half
(2 1/2) Lab Years of effort per year and will consist of such
services as the Parties will mutually agree upon from time to
time during the Term of this Agreement.
The Parties currently anticipate that the Novelis Technical
Assistance Services to be rendered by Novelis to Alcanint
during the Term of this Agreement will include the following
services:
2.2.1 access to and operation of key extrusion equipment
and associated equipment while such equipment remains
at Kingston Facility;
2.2.2 services related to the provision of metal for
development orders associated with:
(a) the operation of the extrusion equipment
while such equipment remains at Kingston
Facility;
(b) DC casting of samples in support of Alcan
Group's customers for a period of up to
twelve (12) months from the Effective Date,
with provision for extension into a second
year upon request by Alcanint;
2.2.3 assistance in arranging the move of the extrusion and
associated equipment from Kingston Facility to Arvida
Facility, which move is planned to occur before the
end of the third quarter of 2005;
2.2.4 training in the operation of the extrusion and
associated equipment before and after the equipment
has been moved from Kingston Facility to Arvida
Facility;
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2.2.5 materials characterization services, including but
not limited to metallography, lubrication and
lubricant testing, mechanical testing and corrosion
testing related to Alcanint's cable, extrusion and
foundry R&D programs; and
2.2.6 support for the separation of the Alcan Cable R&D
program that will remain at the Kingston Facility, to
be mutually agreed upon by the Parties.
The Novelis Technical Assistance Services described in
subsections 2.2.1, 2.2.2, 2.2.3 and 2.2.4 are to be provided
over the twelve (12) month period commencing on the Effective
Date, except as otherwise specifically provided in subsection
2.2.2(b).
The Novelis Technical Assistance Services described in
subsections 2.2.5 and 2.2.6 will be provided over the twelve
(12) month period commencing on the Effective Date.
2.3 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.
3. TECHNOLOGY
3.1 INFORMATION EXCHANGE
In connection with the planning, managing, providing and
communicating the results of the Services, Alcanint and
Novelis 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.
4. TECHNOLOGY AND TECHNICAL ASSISTANCE LIMITATIONS
4.1 Nothing herein limits in any way the rights and benefits
granted to Alcanint and Novelis in the License Agreement.
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4.2 Subject to Section 4.1 but notwithstanding anything contained
elsewhere in this Agreement, Alcanint and Novelis 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 set forth in Sections 2.1 and 2.2 is
conditional upon the continued availability of the Parties'
respective personnel identified for the provision of the
Alcanint Technical Assistance Services and the Novelis
Technical Assistance Services, as applicable. In the event
that one or more individuals who was identified for
performance of any portion of the Alcanint Technical
Assistance Services or of the Novelis Technical Assistance
Services, as applicable, becomes unavailable to continue to
provide the Alcanint Technical Assistance Services or the
Novelis Technical Assistance Services, as applicable, the
Parties shall meet and discuss appropriate actions and each
Party shall have the option to modify the description of the
Alcanint Technical Assistance Services or the Novelis
Technical Assistance Services, as applicable, and the
corresponding obligation to pay for such services and to
delete any portion of the Alcanint Technical Assistance
Services or the Novelis Technical Assistance Services, as
applicable, 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 Alcanint shall own all Technology created by its employees in
the course of performing the Services for Novelis, and
Alcanint hereby grants to Novelis and its Affiliates a
non-exclusive, world-wide, non-transferable licence to use in
perpetuity such Technology.
5.3 Novelis shall own all Technology created by its employees in
the course of performing the Services for Alcanint, and
Novelis hereby grants to Alcan and the other members of Alcan
Group a non-exclusive, world-wide, non-transferable licence to
use in perpetuity such Technology.
5.4 This Agreement does not restrict Novelis or Alcanint from
obtaining technology from other sources as long as Information
acquired from the other Party is not disclosed.
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6. CONSIDERATION
In consideration for the Technical Assistance Services rendered by
Alcanint and by Novelis under this Agreement, each of Novelis and
Alcanint, as applicable, shall pay to the other, the following fees:
6.1 BASIC FEE
The basic fee ("BASIC FEE") for rendering one Lab Year of
Services under each of Sections 2.1 and 2.2 with respect to
the year 2005 is set forth in Schedule 6.1. For the year(s)
following 2005, the Basic Fee is subject to escalation as
provided in Section 6.5. 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 one Party to the other, as applicable,
separately from the Basic Fee.
6.2 FEE FOR SERVICES ON REQUEST
6.2.1 Work on Daily Rate Basis
Unless otherwise agreed by the Parties, time spent by
specialists or personnel of either Party for the
rendering of Services on Request, will be charged
either on a daily rate or hourly rate basis at the
applicable daily rate ("Daily Rate") and hourly rate
("Hourly Rate") set forth in Schedule 6.1, subject to
the provisions of Section 6.5.
The Daily Rate is applicable to working time rendered
during an 8 (eight) hour workday. Should working time
be more than (or less than) 8 (eight) hours in one
work day, the Daily Rate for that workday will be
increased (or decreased) on a pro-rata basis.
The Basic Fee and Daily Rate are applicable to
working time rendered during a normal five-day
workweek. Any travel time associated with the
rendering of Services on Request shall also be paid,
as applicable, at the above Basic Fee or Daily Rate,
as applicable. Travel time is only billable if it
occurs during regular business hours. Travel time
that occurs outside normal business hours is not
chargeable to the other Party.
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6.2.2 Fixed Price
For certain Services on Request, the Parties may, but
shall have no obligation to, agree on a fixed price
rather than on a price based on a Daily Rate.
6.3 REIMBURSABLE COSTS
For all the Services set forth in Sections 2.1, 2.2 and 2.3
rendered to Novelis or Alcanint inside or outside of Canada,
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 Daily 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.
6.4 PAYMENT TERMS
Payments shall be made as follows:
6.4.1 Basic Fee
Each of Alcanint and Novelis will invoice the Basic
Fee in four (4) equal installments on January 1,
April 1, July 1 and October 1 of every year during
the Term of this Agreement, with the payment due
within thirty (30) days from the date of the invoice.
6.4.2 Services on Request and Reimbursable Costs
Each of Alcanint and Novelis will invoice the cost of
Services on Request and the Reimbursable Costs on a
monthly basis, with the respective payments due
within thirty (30) days from the date of the invoice.
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.
6.4.3 Taxes and Charges
All amounts payable hereunder shall be made in full
and net of all Sales Taxes. Each Party shall pay all
Sales Taxes applicable to Services performed for the
benefit of such Party or to such Party's payments
under this Agreement, and shall remit the amount of
such Sales Taxes to the prescribed Person as required
by Applicable Law. All invoices shall separately
identify Sales Taxes payable in respect of the
Services.
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6.4.4 Payment Address
All amounts due under this Agreement shall be paid by
electronic transfer to Alcan Inc.'s Royal Bank of
Canada account number 000-003-4 located at 1 Place
Ville Marie, Montreal, Quebec, Canada, with a
confirmation of such transfer sent to the corporate
Secretary of Alcanint, or to Novelis at Novelis'
account indicated on Novelis' invoice, with a
confirmation of such transfer sent to the corporate
Secretary of Novelis, at the addresses provided in
Article 16 or in such manner as Alcanint or Novelis
may from time to time notify to the other Party.
6.5 ESCALATION
The Basic Fee and the Daily Rate (referred to in this Section
6.5 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 of the first day of January of
each year beginning on January 1, 2006, as per the following
formula:***
The Canadian Consumer Price Index referred to is the index
published monthly by Statistics Canada and which is referred
to as being the Consumer Price Index and Major Components (Not
Seasonally Adjusted), Canada, All-items.
6.6 SET-OFF
Unless otherwise agreed, neither 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. The Parties may agree to consolidate all or
any of their respective monthly invoicing under Article 6 and
may further agree that the corresponding invoices will be
discharged by set off, with the debtor of the larger invoice
making payment of the net amount owing after deduction of the
amount invoiced by such debtor to the other Party.
Notwithstanding any such set off, any amount in respect of
Sales Taxes required to be remitted by one Party to
***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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the other Party pursuant to this Agreement shall be remitted
in full as if no set-off had occurred.
7. PROTECTION OF INFORMATION
7.1 Each of Alcanint and Novelis 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
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.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
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7.7 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.
7.8 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.
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 *** year
anniversary thereof, unless terminated earlier pursuant to the
provisions of this Agreement or except as expressly otherwise
provided in this Agreement. Upon expiry or earlier termination
of this Agreement, each Party shall retain the licences
granted under Sections 5.2 and 5.3, as applicable.
8.2 Should there be a default in the performance of any material
obligation of the other Party under this 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 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 by either Party by giving
written notice to the other Party should any of the following
events of default occur with respect to the other party:
(a) the bankruptcy or insolvency of the other Party;
(b) the appointment of a receiver for the other Party's
assets;
(c) the making by the other Party of a general assignment
for the benefit of creditors;
(d) the institution by the other Party of proceedings for
a reorganization under the Bankruptcy and Insolvency
Act (Canada) or similar legislation for the
***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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relief of debtors or the institution of involuntary
proceedings against a Party which are not terminated
in thirty (30) days;
(e) Novelis, or in the case of Alcanint, Alcan Inc.,
breaches any representation or warranty, or fails to
perform or comply with any covenant, provision,
undertaking or obligation in or of the Separation
Agreement.
8.4 In addition, this Agreement shall terminate (1) upon the
occurrence of a Non Compete Breach (as defined in the
Separation Agreement) and the giving of notice of the
termination of this Agreement by Alcan Inc. to Novelis
pursuant to Section 14.03(b) of the Separation Agreement, or
(2) upon the occurrence of a Change of Control Non Compete
Breach (as defined in the Separation Agreement) and the giving
of notice of the termination of this Agreement by Alcan Inc.
to Novelis pursuant to Section 14.04(e) of the Separation
Agreement, in which event the termination of this Agreement
shall be effective immediately upon Alcan Inc. providing
Novelis notice pursuant to Section 14.03(b) or Section
14.04(e) of the Separation Agreement.
8.5 Subject to the provisions of Section 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.
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 Sections 5.2 and 5.3 and under Articles 6, 7, 9, 10, 11,
14, 16, 18, 21 and 26 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
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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, Alcanint 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. Alcanint and Novelis do not warrant that the transferred
technology, licensed technology or services provided by Alcanint or
Novelis, 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.
Alcanint and Novelis 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 or Alcanint or
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 Alcanint and Novelis 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
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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 certified mail, return receipt requested,
postage prepaid or (d) if sent by facsimile transmission, when
transmitted and receipt is confirmed by telephone. All notices
hereunder shall be delivered as follows:
IF TO ALCANINT, TO:
Alcan International Limited
1188 Sherbrooke Street West
Montreal, Quebec, Canada
H3A 3G2
Fax: (514) 848-1535
Attention: Corporate Secretary
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.
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.
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18. LIMITATION OF LIABILITY AND INDEMNIFICATION
18.1 LIMITATION OF LIABILITY
Except as otherwise provided herein, 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; provided,
however, that the foregoing limitations shall not limit either
Party's indemnification obligations for Liabilities with
respect to Third Party Claims as set forth in Article IX of
the Separation Agreement (as if such Article was set out in
full herein by reference to the obligations of the Parties
hereunder).
18.2 INDEMNIFICATION
Alcanint shall indemnify, defend and hold harmless Novelis,
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 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 Alcanint
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 Alcanint
of any Service hereunder,
but subject however to the limitations of liability provided
in Section 18.1.
Novelis shall indemnify, defend and hold harmless Alcanint,
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 "ALCANINT INDEMNIFIED
PARTIES"), from and against any and all Liabilities of the
Alcanint 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
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 of
any Service hereunder,
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but subject however to the limitations of liability
provided in Section 18.1.
18.3 PROVISIONS APPLICABLE WITH RESPECT TO INDEMNIFICATION
OBLIGATIONS
Sections 9.04, 9.05, 9.06, 9.07 and 9.09 of the Separation
Agreement shall apply mutatis mutandis with respect to any
Liability subject to indemnification or reimbursement pursuant
to Article 18 of this Agreement (as if such Article was set
out in full herein by reference to the obligations of the
Parties hereunder).
19. ENTIRE AGREEMENT
This Agreement, the 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, its Affiliates and the other members of
Novelis Group, or to Alcanint, 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 Separation Agreement and nothing in this Agreement
shall entitle Novelis or Alcanint to have any rights or pursue any
activity which would otherwise be restricted by the Separation
Agreement. The Separation Agreement shall not in defining the assets,
businesses, rights and obligations to form part of Novelis, 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 and the Separation
Agreement, the latter shall be paramount.
21. DISPUTE RESOLUTION
The Master Agreement with Respect to Dispute Resolution, effective on
the Effective Date, among the Parties and other parties thereto shall
govern all disputes, controversies or claims (whether arising in
contract, delict, tort or otherwise) between the Parties that may arise
out of, or relate to, or arise under or in connection with, this
Agreement or the transactions contemplated hereby (including all
actions taken in furtherance of the transactions contemplated hereby),
or the commercial or economic relationship of the Parties relating
hereto or thereto.
22. 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
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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,
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"). If a Force Majeure Event has occurred and its
effects are continuing, 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).
23. CONSTRUCTION
The rules of construction and interpretation set forth in Section 16.04
of the Separation Agreement shall apply to this Agreement.
24. LANGUAGE
The Parties hereto have requested that this Agreement and all other
documents, notices or written communications relating thereto, be in
the English language.
25. 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.
26. GOVERNING LAW
The Parties agree that this Agreement shall be governed, construed and
interpreted in accordance with the laws of the Province of Quebec and
the laws of Canada applicable therein. 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.
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27. SEVERABILITY
If any provision of this Agreement or any Ancillary Agreement or the
application thereof to any Person or circumstance is determined by a
court of competent jurisdiction to be invalid, void or unenforceable,
the remaining provisions hereof or thereof, or the application of such
provision to Persons or circumstances or in jurisdictions other than
those as to which it has been held invalid or unenforceable, shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby or thereby, as the
case may be, is not affected in any manner adverse to any Party. Upon
such determination, the Parties shall negotiate in good faith in an
effort to agree upon such a suitable and equitable provision to effect
the original intent of the Parties.
28. 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 Party.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the Parties hereto have caused this Technical Services
Agreement to be executed by their duly authorized representatives.
NOVELIS INC.
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
ALCAN INTERNATIONAL LIMITED
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
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