Exhibit 10.19
INTELLECTUAL PROPERTY AGREEMENT
BETWEEN
ALCAN INTERNATIONAL LIMITED
AND
NOVELIS INC.
1 January 2005
TABLE OF CONTENTS
1.0 PREAMBLE...................................................................1
2.0 DEFINITIONS................................................................1
3.0 TRANSFER OF TECHNOLOGY.....................................................7
4.0 LICENSE RIGHTS GRANTED....................................................10
5.0 EXCLUDED TECHNOLOGY.......................................................12
6.0 TERMINATION OF PARTICIPATION IN JTA.......................................14
7.0 PROTECTION OF INFORMATION.................................................15
8.0 TERM AND TERMINATION......................................................16
9.0 SURVIVAL OF OBLIGATIONS...................................................18
10.0 REPRESENTATIONS..........................................................18
11.0 DISCLAIMER...............................................................18
12.0 TRADEMARK, TRADE NAME AND LOGO...........................................19
13.0 NON-WAIVER...............................................................20
14.0 NO PARTNERSHIP, JOINT VENTURE............................................20
15.0 FURTHER ASSURANCES, CONSENTS, ETC........................................20
16.0 NOTICES..................................................................20
17.0 ASSIGNMENT...............................................................21
18.0 INDEMNIFICATION..........................................................22
19.0 ENTIRE AGREEMENT, AMENDMENTS.............................................24
20.0 DISPUTE RESOLUTION .....................................................24
21.0 MISCELLANEOUS............................................................24
22.0 GOVERNING LAW............................................................25
INTELLECTUAL PROPERTY AGREEMENT
This Intellectual Property Agreement is entered into with effect as of the
Effective Date.
BETWEEN: Alcan International Limited, a Canadian corporation having its
head office at 0000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx,
Xxxxxx (hereinafter referred to as "Alcanint")
AND: Novelis Inc., a Canadian corporation having its registered office
at 0000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx
(hereinafter referred to as "NOVELIS") acting as principal and
as agent for other members of Novelis Group, as herein provided.
WHEREAS, Alcanint is a wholly-owned subsidiary of Alcan; and
WHEREAS, Alcan Inc. and Novelis have entered into the Separation Agreement with
effect as of the Effective Date, which provides, among other things, for the
transfer of certain assets from Alcan to Novelis and the assumption by Novelis
of certain liabilities in connection with the distribution of common shares of
Novelis to Alcan shareholders and the execution and delivery of certain other
agreements, including this Agreement; and
WHEREAS Alcanint owns and manages certain technology on behalf of and for the
benefit of Alcan and its Affiliates and desires to transfer or license to
Novelis certain rights in technology owned by it;
WHEREAS a further purpose of this Agreement is to achieve compliance with
regulatory requirements in respect of the separation of certain aluminum rolling
assets from Alcan in a manner which allows them to continue to be viable;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements set
forth below, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows:
1.0 PREAMBLE
The preamble hereto shall be considered an integral part of this
Agreement.
2.0 DEFINITIONS
2.1 "AEROSPACE INDUSTRY" shall mean the production of aircraft,
spacecraft, satellites and similar craft for manned or unmanned
flight;
2.2 "AFFILIATE" shall mean, with respect to any corporation, association
or other business entity, any other entity directly or indirectly
controlling, controlled by or under common control with such
specified corporation, association or entity.
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For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and
"under common control with"), means the possession, directly or
indirectly, of the power to direct or cause the direction of
management or policies, whether through the ownership of voting
securities, by agreement or otherwise; provided, however, that
beneficial ownership of 10% or more of the securities or other
interest entitled to vote generally in the election of directors
shall be deemed to be control;
2.3 "AGREEMENT" shall mean this Intellectual Property Agreement and all
other documents that are made a part hereof;
2.4 "ALCAN" shall mean Alcan Inc., a Canadian corporation;
2.5 "ALCAN GROUP COMPANY" shall mean Alcan or any entity of which a
majority of the total voting power of capital stock or other
interests entitled (without regard to 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 Alcan;
2.5A "ARRANGEMENT" shall have the meaning ascribed to such term in
the Separation Agreement;
2.6 "AUTOMOTIVE SHEET" shall mean aluminum Sheet products destined or
intended for use in or principally related to the production of
inner and outer body panels (including closures, skin, hoods,
deckslids and fenders) and Sheet-based body-in-white structures for
road vehicles;
2.7 "AUTOMOTIVE SHEET PATENTS" shall mean the patents and patent
applications in respect of Automotive Sheet as listed in Appendix
ASP;
2.8 "COCAST TECHNOLOGY" shall mean the Technology originally developed
by Xxxxxxxx Inc. and further developed by Alcan Group Companies,
primarily at the Solatens Facility, related to the casting of
composite ingots with distinct regions having different alloy
compositions as generally described in the patents and patent
applications listed in Appendix CCT;
2.9 "DESIGNATED PATENTS" shall mean patents and patent applications
owned by Alcanint and listed in Appendix DP;
2.10 "EFFECTIVE DATE" shall mean the Effective Date as defined in the
Separation Agreement;
2.11 "EXCLUDED TECHNOLOGY" shall mean the Technology described in Section
5.1;
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2.12 "FLEXCAST TECHNOLOGY" shall mean the Technology specific to
continuous casting of a thin strip between two chilled metallic
belts as generally described in the patents and patent applications
listed in Appendix FCT;
2.13 "FLEXSTREME TECHNOLOGY" shall mean the Technology and equipment
designs originally developed by Xxxxxxxx Inc. and further developed
by Alcan Group Companies, primarily at the Solatens Facility,
related to the horizontal direct chill casting of small diameter
ingots suitable for use as forging stock as generally described in
the patents and patent applications listed in Appendix FST;
2.14 "INSITU HOMOGENIZATION TECHNOLOGY" shall mean ***
2.15 "JOINT TECHNOLOGY AGREEMENTS" or "JTAS" shall mean the Agreements
between Alcanint and various other Alcan Group Companies for joint
research and technical assistance in the field of aluminum and other
materials fabricating and/or aluminum reduction and/or the
production of raw materials for the production of aluminum and/or
manufacturing packaging using aluminum foil and other materials;
2.16 "LICENSED PATENTS" shall mean the patents and patent applications
listed in Appendix LP;
2.17 "LICENSED EQUIPMENT PATENTS" shall mean the patents and patent
applications listed in Appendix LEP;
2.18 "LICENSED TECHNOLOGY" shall mean any and all, copyrights, trade
secrets, information, data, inventions, designs and similar rights
that have been used or developed, or are being used or developed for
use by Novelis or any Novelis Subsidiaries on or immediately before
the Effective Date for or in connection with the use and
exploitation of any one of the facilities that form part of Novelis
as of the Effective Date that are related to the following:
o Sheet ingot casting and metallurgy and associated melting,
metal cleaning, molten metal delivery, quality measurement and
environmental technologies;
o laminated products as pursued as of the Effective Date at the
Xxxx, Ludensheid, Berlin, Bridgnorth or Etobicoke foil
operations of Alcan;
*** 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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o Technology specific to the production of rolled Plate with a
thickness of less than 12mm to the extent that such technology
was in use immediately prior to the Effective Date at
manufacturing facilities that will form a part of Novelis as
of the Effective Date;
o the Ouro Preto/Aratu/Petrocoque Technology;
Licensed Technology shall also include all Technology related to
management systems and business processes including environment
health and safety, value based management, continuous improvement,
production scheduling and management and individual performance and
career management and all business forms, contract forms, and other
written and electronic business materials used by Novelis or a
Novelis Subsidiary prior to the Effective Date subject in each case
to Novelis obtaining at its sole cost any necessary consents,
provided that all such Technology and materials have been modified
as necessary to delete any reference to brand names, trademarks,
service marks being retained by Alcan Group Companies.
2.19 "NETCAST TECHNOLOGY" shall mean the Technology originally developed
by Xxxxxxxx Inc. and further developed by Alcan Group Companies,
primarily at the Solatens Facility, related to the direct chill
casting of complex shapes certain aspects of which are described in
the patents and patent applications listed in Appendix NCT;
2.19A "NOVELIS GROUP" means Novelis and the Novelis Subsidiaires.
2.20 "NOVELIS SUBSIDIARY" shall mean, as of and from the Effective Date,
(i) Petrocoque S.A. - Industria E Comercio, Aluminium Norf GmbH and
Xxxxx Aluminum Inc, in each case for so long as Novelis retains at
least its current ownership stake in such entity and (ii) any other
entity of which 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 Novelis;
2.21 "OURO PRETO/ARATU/PETROCOQUE TECHNOLOGY" shall mean the Technology
employed in the operations of any one or more of the facilities
known as Ouro Preto, Aratu and Petrocoque as of the Effective Date.
Ouro Preto is a bauxite mine, alumina refinery and aluminum smelter,
Aratu is an aluminum smelter with an associated electricity
generating facility; and Petrocoque is a facility that produces
calcined petroleum coke;
2.21A "PECHINEY" means Pechiney, a wholly-owned subsidiary of Alcan,
together with all entities that were subsidiaries of Pechiney
when Pechiney became a subsidiary of Alcan, in December 2003.
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2.22 "PAE TWIN ROLL CASTING TECHNOLOGY" shall mean Technology specific to
the continuous casting of a relatively thin metal strip between two
chilled rolls which is marketed by Pechiney Aluminium Engineering
certain aspects of which are described in the patents and patent
applications listed in Appendix TRCT;
2.23 "PAE METAL TREATMENT TECHNOLOGY" shall mean Technology specific to
the melting, holding and casting of aluminum, treatments of molten
aluminum to remove hydrogen, solid and liquid inclusions and alkali
metal and related equipment namely XXXX, JetCleaner, Alpur, PDBF,
CCF and Autopak which is marketed by Pechiney Aluminium Engineering
as of the Effective Date, certain aspects of which are described in
the patents and patent applications listed in Appendix MTT;
2.24 "PLATE" shall mean rolled and/or cast aluminum product with a
thickness of greater than 6.5mm that is not intended for further
rolling to a thickness of 6.5mm or less (reroll);
2.25 "ROLLED PRODUCTS" means rolled aluminum products in the form of
Foil, Sheet and rolled Plate of a thickness of less than 12 mm;
2.26 "SECONDARY INTELLECTUAL PROPERTY AGREEMENT" shall mean that other
Intellectual Property Agreement of even date herewith between
Novelis as party of the first part and Alcanint as party of the
second part;
2.27 "SEPARATION AGREEMENT" shall mean the Separation Agreement herewith
between Alcan and Novelis, as described in the Preamble to this
Agreement;
2.28 "SHEET" and "FOIL" shall have the same meaning as is commonly
ascribed to those expressions in the aluminum industry in reference
to rolled aluminum provided that it is of a thickness of 6.5mm or
less;
2.29 "SOLATENS FACILITY" shall mean the facility in Spokane, Washington
known as Solatens;
2.30 "TECHNOLOGY" shall mean any and all patents, patent applications,
copyrights, trade secrets, information, data, inventions, designs,
manufacturing processes, know-how, technical information,
specifications, creative works and similar rights either conceived
or first reduced to practice on or before the Effective Date that
are owned, licensable or otherwise under the control and direction
of Alcanint or any other Alcan Group Company before the Effective
Date, including Novelis Subsidiaries;
2.31 "TRANSFERRED TECHNOLOGY" shall mean the Technology described in
Section 3.1; and
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2.32 "UNRESTRICTED LICENSED TECHNOLOGY" shall mean any and all,
copyrights, trade secrets, information, data, inventions, designs
and similar rights that have been used or developed, or are being
used or developed for use in connection with research, development,
production, marketing or sale of Rolled Products by Novelis or any
Novelis Subsidiary on or immediately before the Effective Date or in
connection with the use and exploitation of any of the facilities
owned or operated by Novelis or a Novelis Subsidiary as of the
Effective Date that are freely licensable by Alcanint or any Alcan
Group Company and related to the following:
o Recycling aluminum, scalping, homogenization and preheating
technology, hot rolling, cold rolling, foil rolling, coiling,
cooling and lubrication, continuous and batch heat treatment,
quenching, mechanical finishing, slitting, cutting to length,
laser blanking and all associated technologies (e.g. profile,
gauge and shape measurement and control and pollution
reduction and control);
o Mechanical finishing, surface texturing, chemical
pre-treatment, painting, lacquering and curing technologies
for Sheet and Foil;
o Metallurgy related to the properties and microstructural
evolution through continuous casting, hot rolling, coiling,
cooling, cold rolling, foil rolling, heat-treatment,
quenching, mechanical finishing, and downstream finishing and
fabrication processes for sheet, foil and sheet ingot applied
internally or by customers for Sheet and Foil (e.g. forming,
rolling, painting and lacquering, curing and etching of Sheet
and Foil);
o Manufacture of rigid and semi-rigid aluminum foil containers
and closures;
o Metal property and alloy composition specifications related to
Rolled Products;
o In-service sheet and foil product performance in terms of
mechanical property changes, corrosion (bare and surface
treated Sheet) in final applications;
o All process simulation models, scheduling and productivity
models and historic information to the extent recorded and
relevant to the Licensed Technology, Unrestricted Licensed
Technology or Transferred Technology;
o Enabling Technologies and know-how related to processes and
application of aluminum Rolled Products materials used by
customers (e.g. AVT automotive body-in-white assembly process,
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spot welding, adhesive bonding, riveting technologies, etching
and finishing, structural simulation models pertinent to
applications); and
o Technology for the production of Foil to the extent it is
being used or has been used under existing or past practices
at the former Pechiney Annecy, Rugles, Dudelange and Flemalle
sites for the sole purpose of painting Sheet or producing
circles from Sheet or producing Foil.
o Technology specific to making and using the inventions claimed
in the Designated Patents and the Automotive Sheet Patents;
o All other Technology, other than Excluded Technology, that is
in use or held for use as of the Effective Date in connection
with the research, development, production, marketing or sale
of Rolled Products at the facilities of Novelis and the
Novelis Subsidiaries as of the Effective Date subject to
Alcanint's right, upon reasonable request, to be informed as
to the identity, scope and use of such other Technology;
2.33 In the event of any ambiguity as to the inclusion of a particular
Technology within Excluded Technology, Licensed Technology,
Transferred Technology, or Unrestricted Licensed Technology, such
Technology still be allocated in the following order of preference:
(1) Transferred Technology; (2) Excluded Technology; (3) Licensed
Technology; and (4) Unrestricted Licensed Technology.
3.0 TRANSFER OF TECHNOLOGY
3.1 Alcanint hereby grants, conveys, transfers and assigns and agrees to
deliver (and agrees to cause any appropriate Alcan Group Company to
grant, convey, transfer, assign and agree to deliver) to Novelis, in
its capacity as principal for the sole purpose of acquiring legal
title therein, and in its capacity as agent for the relevant members
of Novelis Group for the purpose of acquiring all beneficial
ownership therein and for all other purposes, all right, title and
interest, of whatever nature or kind throughout the world of
Alcanint or any Alcan Group Company in and to the following:
3.1.1 the Designated Patents;
3.1.2 the Automotive Sheet Patents and related Technology which is
only useful in the production of Automotive Sheet and which
originated: (i) without use of or reference to Technology
owned or developed by Pechiney, and (ii) within a business
unit or manufacturing facility that will be owned by Novelis
Group as of the Effective Date;
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3.1.3 Technology that is only useful in the production of beverage
can body Sheet, beverage can end Sheet and tab stock (for
beverage cans) which originated: (i) without use of or
reference to Technology owned or developed by Pechiney, and
(ii) within any business unit or manufacturing facility that
will form part of Novelis as of the Effective Date;
3.1.4 NetCast Technology, CoCast Technology, FlexStreme Technology
and Insitu Homogenisation Technology;
3.1.5 PAE Twin Roll Casting Technology and FlexCast Technology, in
both cases subject to Schedule FT;
3.1.6 PAE Metal Treatment Technology;
3.1.7 the right to grant licenses and rights under and with respect
to any of the foregoing and to xxx for any infringement
occurring before or after the Effective Date as well as all
statutory, contractual and other claims, demands and causes of
action for royalties, fees or other income from, or
infringement, misappropriation or violation of, any of the
foregoing, and all of the proceeds from the foregoing that are
accrued and unpaid as of, and/or accruing after, the Effective
Date;
3.1.8 all causes of action and rights of recovery against third
parties for past infringement in and to the Transferred
Technology, and for past misappropriation by third parties of
trade secrets in and to the Transferred Technology; and
3.1.9 the right to apply for and obtain statutory rights and
registrations with respect to any of the foregoing Technology.
3.2 The foregoing transfer and assignment shall be subject to the
licenses granted to Alcanint and other Alcan Group Companies
pursuant to the Secondary Intellectual Property Agreement.
3.3 If and to the extent that, as a matter of law in any jurisdiction,
ownership, title, or any rights of interest in or to any of the
Transferred Technology cannot be assigned as provided in Section
3.1, (i) Alcanint agrees subject to the other terms and conditions
of this Agreement to assign and transfer, and hereby assigns and
transfers to Novelis (as agent for the relevant member of Novelis
Group) all rights (including, without limitation, all economic and
commercialization rights) that can be assigned pursuant to Section
3.1 to the fullest extent permissible; and (ii) Alcanint agrees
subject to the other terms and conditions of this Agreement to
grant, and hereby grants, Novelis (as agent for the relevant member
of Novelis Group) an unlimited, exclusive, irrevocable, worldwide,
perpetual, royalty-free license, to use, exploit and commercialize
in any manner now known or in the future discovered and for
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whatever purpose, any rights to Transferred Technology that cannot
be assigned as contemplated by Section 3.1.
3.4 Alcanint further covenants that it will, without demanding any
further consideration therefor, at the request and expense of
Novelis (except for the value of the time of Alcanint employees), do
(and cause Alcan Group Companies to do) all lawful and just acts
that may be or become necessary for evidencing, maintaining,
recording and perfecting Novelis' rights to such Transferred
Technology consistent with Alcan's general business practice as of
the Effective Date, including but not limited to, execution and
acknowledgement of (and causing Alcan Group Companies to execute and
acknowledge) assignments and other instruments in a form reasonably
required by Novelis for each relevant jurisdiction.
3.5 Alcanint and each other Alcan Group Company shall retain any
Technology not transferred to Novelis by virtue of the foregoing.
Novelis warrants to Alcanint that neither it nor any Novelis
Subsidiary owns any Technology (other than the Transferred
Technology and only to the extent conveyed hereunder) as of the
Effective Date and further acknowledges that any other Technology
that it or any Novelis Subsidiary may be deemed to have owned prior
to the Effective Date was intended to be owned by Alcanint and shall
be deemed to have been held by Novelis or such Novelis Subsidiary
for the benefit of Alcanint. This provision shall not apply to that
Technology described in the final paragraph of Section 2.18.
3.6 Each of Alcanint and Novelis shall deliver to the other all
documents and instruments necessary or appropriate to be duly
executed where appropriate by the applicable party(ies) and
notarized where indicated in the exhibits to this Agreement.
3.7 Novelis acknowledges and agrees that the foregoing assignment is
subject to any and all licenses or other rights that may have been
granted by Alcanint or any other Alcan Group Company with respect to
the Transferred Technology prior to the Effective Date.
3.8 The determination regarding which Novelis Group company (sometimes
referenced in this Agreement as the "relevant member of Novelis
Group") shall be entitled to beneficial ownership of Transferred
Technology or to a license of Licensed Patents, Unrestricted
Licensed Technology or Licensed Technology shall be made having
regard to the following factors:
3.8.1 whether the relevant member of Novelis Group was a party to
any JTA while such entity was an Alcan Group Company;
3.8.2 whether the relevant member of Novelis Group reasonably
requires the relevant beneficial ownership or license in
connection with the ownership
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or operation of one or more of its businesses on and after the
Effective Date, based on the use of Technology in connection
with such business prior to the Effective Date; and
3.8.3 such other factors as may reasonably be taken into account by
Novelis and as are consistent with the provisions of this
Agreement.
3.9 Novelis covenants that it will enter into such agreements with the
relevant members of Novelis Group as may be necessary or desirable
for the orderly management of the Technology mentioned in section
3.8.
4.0 LICENSE RIGHTS GRANTED
4.1.1 Alcanint hereby grants to Novelis and Novelis hereby accepts,
as agent for the relevant members of Novelis Group and subject
to the terms and conditions of this Agreement a royalty free
license to use and commercialize the Licensed Patents,
Unrestricted Licensed Technology and Licensed Technology to
operate, maintain, repair, reconstruct, rebuild and expand any
present or future facilities of Novelis Group and to use and
sell the products produced using the Licensed Patents,
Unrestricted Licensed Technology and/or the Licensed
Technology pursuant thereto world wide; provided that the
royalty free license in respect of the Ouro
Preto/Aratu/Petrocoque Technology shall be limited such that
it may be used only at the same geographic sites.
4.1.2 Pursuant to the license granted under Section 4.1.1, Novelis
shall be permitted to sublicense any Unrestricted Licensed
Technology except to the extent the use of such Unrestricted
Licensed Technology is covered by patents held by Alcanint or
any other Alcan Group Company.
4.1.3 Novelis may grant sublicenses under the Licensed Patents and
the Licensed Technology (i) to third parties (such as
customers and vendors) to the extent necessary or appropriate
to give commercial effect to the rights sought to be
transferred, assigned or licensed hereunder and (ii) to
Novelis Subsidiaries provided that any such sublicense may be
made effective retroactively but not prior to the
sublicensee's becoming a Novelis Subsidiary and any such
sublicense shall terminate immediately upon such sublicensee
no longer being a Novelis Subsidiary, except in a transaction
that meets the conditions of Section 17.2.
4.2 All licenses granted to Novelis under this Agreement are personal,
indivisible, royalty-free, non-exclusive, and non-transferable
except as otherwise specifically provided herein, and shall be
subject to all terms and conditions herein set forth and apply only
to the extent herein specified and defined. The
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non-exclusive licenses granted hereunder shall exist as long as this
Agreement is effective in accordance with Article 8.0, provided,
however that the non-exclusive licenses granted hereunder is subject
to termination in accordance with Article 8.0.
4.2.1 Alcanint hereby grants to Novelis (and agrees to cause any
appropriate Alcan Group Company to grant to Novelis) and
Novelis hereby accepts, as agent for the relevant members of
Novelis Group and subject to the terms and conditions to this
Agreement (i) a royalty-free right and license to operate,
maintain and repair equipment subject to the Licensed
Equipment Patents that was acquired prior to the Effective
Date and to use and sell the products produced therewith on a
world-wide basis and (ii) a conditional royalty-free right and
license to use the Licensed Equipment Patents to build,
operate, maintain, repair, reconstruct, rebuild and expand any
present or future facilities of Licensee and to use and sell
the products produced therewith on a world-wide basis.
4.2.2 To the extent that (i) Alcanint continues the commercial sale
of equipment for implementing any Licensed Equipment Patent
either directly or through a licensee and (ii) Alcanint or its
licensee offers such equipment to Novelis for sale on terms
and conditions (including royalties) at least as favourable to
Novelis as the best of those offered to any third party during
the previous 24 months or, if no such equipment has not been
offered within the previous 24 months at market rates (such
conditions (i) and (ii) being referred to herein as a
"COMMERCIAL LICENSE"), then Novelis shall operate under the
terms of such Commercial License rather than the licenses
granted in clause (ii) herein which shall be deemed suspended
until the occurrence of condition (i) or (ii) above. At any
time thereafter, Novelis shall be entitled to operate under
the license granted under clause (ii) or Section 4.2.1 as the
case may be, with no further action required by either
Alcanint or Novelis provided that Novelis shall provide
reasonably prompt notice to Alcanint that Novelis is operating
under the license set forth in paragraph 4.2 (ii). The
licenses provided for in clause (ii) of Section 4.2.1 shall
not apply to any equipment purchased by Novelis prior to the
date of such notice for implementing Licensed Equipment
Patents to the extent that equipment has been acquired with a
valid Commercial License. Such previously purchased equipment
shall continue to be operated under the terms and conditions
specified at the time such equipment was acquired by Novelis.
Except as otherwise specifically provided in this Agreement, Novelis
is not granted and does not have the right to assign, sub-license or
otherwise dispose of the Licensed Patents or Licensed Technology or
any part thereof.
4.3 Except as otherwise specifically provided in this Agreement,
Alcanint shall retain all right, title and interest in and to the
Licensed Technology and
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Licensed Patents including the right (but not the obligation) to
file for, prosecute and maintain any applications, registrations or
recordation thereof and to bring any action to enforce or otherwise
seek to xxxxx any infringement thereof.
4.4 Novelis shall have the right (to be exercised reasonably) from time
to time to request additional information concerning the Transferred
Technology, Licensed Technology, Unrestricted Licensed Technology
and Licensed Patents. Alcanint shall, subject to the availability of
appropriate personnel, supply the information so requested with the
related cost and expense of doing so, if any, being for Novelis'
account.
5.0 EXCLUDED TECHNOLOGY
5.1 For the avoidance of doubt, all Technology that is not clearly
identified as one of Licensed Patents, Licensed Equipment Patents,
Licensed Technology, Unrestricted Licensed Technology or Transferred
Technology shall not be transferred pursuant to Article 3.0 nor
shall it be licensed pursuant to Article 4.0, all rights in such
Technology shall be retained by Alcanint and such Technology shall
be deemed "EXCLUDED TECHNOLOGY" and any license or right granted
hereunder shall be specifically limited such that no right, license
or permission to use Excluded Technology is granted. Without
limitation and notwithstanding anything else contained herein,
"Excluded Technology" specifically includes:
o all Technology owned or licensable or controlled by Pechiney
except for the following Technology to the extent such
Technology is otherwise agreed to be transferred or licensed
hereunder: (i) the PAE Twin Roll Casting Technology; (ii) the
PAE Metal Treatment Technology; and (iii) other Technology to
the extent that it is being used or has been used under the
existing or past practice at the former Pechiney Annecy,
Rugles, Dudelange and Flemalle sites for the sole purpose of
painting Sheet or the production of circles from Sheet or the
production of Foil;
o all Technology specific to the production of bright Sheet,
reflector Sheet and capacitor Foil to the extent that the
rights thereto originated with the 2000 acquisition by Alcan
of Alusuisse Group AG together with any subsequent
improvements thereto made at the Singen facility;
o all Technology related to the production and application of
metal - non-metal bonded composites (e.g. Alucobond),
structural composites, foamed plastics, balsa wood products,
honeycomb-cored composites, non-aluminum core materials and
roll bond Sheet and components made from roll bond except for
any such Technology related to the production and application
of laminates
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typically used for roofs, walls, ceilings, automotive
applications and caravans (e.g., FF2, FF2 Plus, FALZONALI and
AluSilent) or anti-graffiti composite products (e.g.,
Aluclean) that are in use or held for use as of the Effective
Date in connection with the research, development, production,
marketing or sale such products at the facilities of Novelis
and the Novelis Subsidiaries;
o all Technology specific to the production and application of,
diecastings, forgings, except forging stock, non-Rolled
Products mass transport systems, non-Rolled Products
automotive components and assemblies (e.g. auto bumper beams,
crash management systems, side impact beams, cockpit carriers,
and certain BIW sub-assemblies, chassis parts and engine
cradles) except to the extent that any such Technologies are
in use or held for use as of the Effective Date in connection
with the research, development, production, marketing or sale
of Rolled Products at the facilities of Novelis and the
Novelis Subsidiaries;
o all Technology related to the mining of bauxite, the refining
and production of alumina and alumina based chemicals other
than the Ouro Preto/Aratu/Petrocoque Technology to the extent
licensed under Section 4.1;
o all Technology related to the smelting, the operation of
smelters, reduction and other processes and techniques
relating to the production of molten aluminum metal from
alumina or other ores, the generation and transmission of
electricity and related technologies other than the Ouro
Preto/Aratu/Petrocoque Technology to the extent licensed under
Section 4.1;
o all Technology other than Technology related only to Foil that
is specific to the manufacturing of any packaging related
products made from or incorporating rigid plastics, flexible
plastics, carton, steel, glass or paper but subject to the
rights under Section 4.2.2(i) and except for any such
Technology that was in use or in development for use in May
2004 in connection with, manufacturing activities conducted at
the Xxxx, Ludensheid, Berlin, Bridgnorth and Etobicoke
facilities;
o all Technologies specific to the production of magnesium
chloride and magnesium metal.
5.2 For the avoidance of doubt, the rights and licenses granted in
Technology pursuant to Article 3.0 and licensed pursuant to Article
4.0, do not grant such rights and licenses to use any of Licensed
Patents, Licensed Technology, Unrestricted Licensed Technology
13
or Transferred Technology in the following fields:
o Plate, except to the extent that they relate to rolled Plate
of a thickness of less than 12mm and except as otherwise
specifically permitted in Appendix PE;
o products destined or intended for use in the Aerospace
Industry;
o aluminum lithium alloys and Series 2000 and Series 7000
alloys;
o production and application of aluminum extruded products and
multi-material co-extrusions for all markets, including the
casting of extrusion billet except to the extent that they
relate to casting extrusion billet using FlexStream Technology
and except that Novelis may continue to use such co-extrusion
Technology that is being used in, has been used in or is being
developed for use in the manufacturing activities conducted by
Novelis at the Ludensheid facility to produce products for its
existing markets (e.g. cable wrap and pipes);
o production and application of continuous cast bar, rolled rod
and products made therefrom including rod, strip, wire and
cables; and
o smooth wall containers adapted for the application of heat
sealed lids and such lids, destined or intended for use in the
packaging of pet food and coating and/or laminating strip used
in their manufacture.
6.0 TERMINATION OF PARTICIPATION IN JTA
6.1 As of the Effective Date and provided that the Arrangement becomes
effective, Novelis and all Novelis Subsidiaries will cease to be
Participants in the JTAs as that term is defined in the JTAs. In
consideration of the rights and licenses granted herein and other
good and valuable rights received pursuant to the Distribution and
related Agreements, Novelis hereby grants and will cause each such
Participant to grant to Alcanint all rights of such Participants in
technology developed under the JTAs.
6.2 Alcanint on behalf of the Participants in the JTAs hereby releases
Novelis and the Novelis Subsidiaries from all obligations under the
JTAs as of the Effective Date, provided that Novelis and the Novelis
Subsidiaries shall remain responsible for performance of all of
their respective obligations under the JTA, up to and including the
Effective Date; and provided further that any default in the
performance of these obligations shall be deemed a default
hereunder.
14
7.0 PROTECTION OF INFORMATION
7.1 Alcanint and Novelis hereby agree that the Licensed Technology made
available to or produced or developed for the other party at any
time and Excluded Technology that may be in the possession of
Novelis (the "INFORMATION") is confidential information of Alcanint
and shall not be disclosed to any third party except as may be
expressly provided for herein and that Novelis shall have only such
rights in the Information as are 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 Novelis, or
lawfully is or becomes public knowledge through no breach of
this Agreement;
7.2.2 was received from any third party on a non-confidential basis
and did not originate from Alcanint or any Alcan Group
Company; or
7.2.3 was disclosed by Novelis pursuant to legal process,
governmental request or regulatory requirement; provided,
however, that Novelis shall use all reasonable efforts to
provide notice to Alcanint in order to afford Alcanint a
reasonable opportunity to seek a protective order or an
injunction.
7.3 Specific information shall not be deemed to be within the exceptions
of Section 7.2 above merely because such specific information may be
construed as being within broader, non-confidential information
which is either in the public domain or 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 Novelis shall not use the Information received hereunder for any
purpose other than that specified in this Agreement without first
obtaining written consent from Alcanint.
7.5 Novelis may disclose the Information relating to Licensed Technology
received hereunder to its officers, employees, contractors,
suppliers, customers for Sheet and Foil, representatives and others
to the extent necessary for the normal operation of its business.
Novelis shall take reasonable precautions, consistent with past
practices to preserve the value of the Information. Novelis 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 7.0.
15
7.6 The obligations of confidentiality and non-disclosure with respect
to specific Information received under this Agreement or otherwise
shall expire ten years after the Effective Date of this Agreement.
7.7 The parties recognize that a breach of this Article 7.0 may give
rise to irreparable injury to Alcanint that cannot be adequately
compensated by monetary damages. Accordingly, in the event of a
breach or threatened breach, Alcanint may be entitled to preliminary
and permanent injunctive relief to prevent or enjoin a violation of
this Article 7.0 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
Alcanint to furnish any information (i) acquired from others on
terms prohibiting or restricting disclosure by Alcanint, or (ii) the
furnishing of which is in contravention of any law, regulation, or
executive order of any government. Each party shall use its
commercially reasonable efforts to avoid conditions that prevent the
exchange of information under this Agreement.
7.9 Nothing in this Agreement shall preclude Novelis from using any
information that is in the public domain at the time of its use of
such information unless such information is in the public domain as
a result of Novelis' breach of the confidentiality obligations under
this Article 7.0.
8.0 TERM AND TERMINATION
8.1 This Agreement shall be effective until and shall terminate on the
*** anniversary of the Effective Date except for the
restrictions in respect of Transferred Technology as reflected in
Section 5.2 which shall be effective until and shall terminate on
the *** anniversary of the Effective Date. Upon termination
pursuant to this Section 8.1, each of the licenses granted hereunder
shall be deemed a fully-paid, unrestricted, unconditional, perpetual
license, with the right to grant unrestricted sublicenses subject
only to any patents held by Alcanint or an Alcan Group Company and
to any obligations to pay any royalties due to any third party from
which the Technology was originally acquired or licensed. For
clarity, the parties intend that upon termination of this agreement
pursuant to this Section 8.1, Novelis shall have all of the rights
of a nonexclusive owner of the Licensed Technology, Unrestricted
Technology and Transferred Technology and have an unrestricted,
unconditional right to use and license such Technology without
notice or accounting to Alcanint or any Alcan Group Company.
8.2 Should there be a material default by Novelis in the performance of
any of its obligations under this Agreement or under the Separation
Agreement and such default is not cured within 30 days following
written notification of such default
*** 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.
16
from Alcanint, this Agreement shall terminate on the date specified
on such notice which shall not be less than 30 days following the
date of such notice, unless Novelis cures such default before such
specified termination date. This shall be referred to as early
termination.
8.3 This Agreement shall terminate immediately upon the occurrence of
any of the following:
(a) the bankruptcy or insolvency of Novelis;
(b) the appointment of a receiver for Novelis' assets;
(c) the making by Novelis of a general assignment for the benefit
of creditors; or
(d) the institution by Novelis of proceedings for a reorganization
of Novelis under the Bankruptcy Act or similar legislation for
the relief of debtors or the institution of involuntary
proceedings by a party other than Novelis which are not
terminated in 30 days.
8.4 All of the licenses of Licensed Technology shall terminate and 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 such termination by Alcan 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 such termination by Alcan to
Novelis pursuant to Section 15.04 of the Separation Agreement. In
the case of a termination of licenses of Licensed Technology granted
to Novelis under this Agreement and termination of this Agreement
pursuant to clause (1) or clause (2) hereof, such termination shall
be effective immediately upon Alcan providing Novelis notice
pursuant to Section 14.03(b) or Section 14.04(e) of the Separation
Agreement, as the case may be and Novelis shall cease all use of the
Licensed Technology that is the subject of licenses terminated
pursuant to this section (including any license granted by virtue of
Section 3.3). This section shall not preclude Novelis from using any
information that is in the public domain at the time of its use of
such information unless such information is in the public domain as
a result of Novelis' breach of the confidentiality obligations under
Article 7.0.
8.5 This Agreement shall be terminated upon written notice from Alcanint
in the event that (i) the Secondary Intellectual Property Agreement
is at any time no longer in full force and effect (other than by
virtue of a termination caused by the actions or inaction of
Alcanint) or (ii) Novelis or any Novelis Subsidiary or any of their
respective Affiliates asserts that the Secondary Intellectual
Property Agreement is invalid, unenforceable or no longer in full
force and
17
effect and does not withdraw such assertion within five business
days following a request to do so from Alcanint.
8.6 Early termination pursuant to this Article 8.0 shall not prejudice
Alcanint's rights to recover any amounts due at the time of such
termination nor shall it prejudice any other remedy or cause of
action or claim of Alcanint accrued or to accrue against Novelis on
account of any such default by Novelis.
8.7 This Agreement may be terminated at the option of Novelis, upon
receipt of written notice to Alcanint, at any time provided all
payments owed hereunder have been remitted to Alcanint.
8.8 Upon early termination of this Agreement pursuant to this Article
8.0, all licenses of any Licensed Technology shall terminate and
Novelis shall cease all use of the Licensed Technology. This section
shall not preclude Novelis from using any information that is in the
public domain at the time of its use of such information unless such
information is in the public domain as a result of Novelis' breach
of the confidentiality obligations under Article 7.0.
8.9 Notwithstanding the foregoing, Novelis may, after the date this
Agreement is terminated pursuant to this Article 8.0 sell any
product made before such termination, as if such product were sold
prior to termination.
9.0 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 7.0, 10.0, 11.0, 12.0, 15.0, 16.0, 17.0, 18.0, 19.0, 21.0 and
22.0 shall survive the termination of this Agreement.
10.0 REPRESENTATIONS; COVENANT
Each party hereto represents that it has full power and authority to enter
into this Agreement and to perform all obligations hereunder. Novelis
further represents that it has fully power and authority to act as agent
for each member of Novelis Group for all purposes under this Agreement.
Novelis covenants that it will cause each member of Novelis Group to act
strictly in accordance with the provisions of this Agreement.
11.0 DISCLAIMER
11.1 Novelis acknowledges and agrees that the foregoing assignments and
licenses are made on an "as is" quitclaim basis and that neither
Alcanint nor any Alcan Group Company is providing or is responsible
to provide any representation or warranty of any nature or kind
(whether express, implied, statutory, contractual or other in nature
and whether relating to title enforceability, merchantability,
fitness for purpose, non-infringement, absence of rights of third
parties or
18
other) in respect of the Transferred Technology or, Licensed
Technology or any use to be made thereof or any product to be
produced therewith. Neither Alcanint nor any Alcan Group Company
shall be liable to Novelis, 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, consequential special or punitive damages.
11.2 Nothing in this Agreement shall be construed as a warranty or
representation 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.
11.3 Neither Alcan nor any other Alcan Group Company nor any of their
current Affiliates shall have any infringement action or claim
against Novelis or any or its current Affiliates in respect of
Designated Patents, Licensed Patents or Technology to the extent of
any use of same prior to the Effective Date. None of Novelis, any
Novelis Subsidiary nor any of their Affiliates shall have any
infringement action against any Alcan Group Company in respect of
any past, use of Technology. Each party, on behalf of itself and its
Subsidiaries and Affiliates, hereby releases the other party and it
Affiliates and Subsidiaries, from, and agrees not to xxx concerning,
any and all claims for infringement in respect of any use of
Technology prior to the Effective Date, whether based on contract,
tort, statutory or other legal or equitable theory of recovery,
which such party (or its Subsidiaries or Affiliates) has asserted or
could have asserted against the other party (or its Subsidiaries or
Affiliates). Promptly following the Effective Date, the relevant
Alcan Group Company (or Affiliate) and Novelis (or Affiliate) shall
promptly execute and deliver stipulations of dismissal with
prejudice of any claims filed in respect of any such alleged
infringement, in forms suitable for immediate filing in the relevant
court.
11.4 Without limiting Section 11.1 hereof, in no event shall either party
or any of their respective Affiliates be liable to the other party
or its Affiliates for any special, consequential, indirect,
incidental or punitive damages or lost profits, however caused and
on any theory of liability (including negligence) arising in any way
out of this Agreement, whether or not such party has been advised of
the possibility of such damages.
12.0 TRADEMARK, TRADE NAME AND LOGO
No right is conveyed under this Agreement for the use, either directly,
indirectly, by implication or otherwise, of any trademark, trade name or
logo owned by Alcanint or any Alcan Group Company. The parties will enter
into a separate trademark license agreement if appropriate.
19
13.0 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.
14.0 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 before and solely for the limited purposes herein.
15.0 FURTHER ASSURANCES, CONSENTS, ETC.
The parties to this Agreement shall co-operate together using their
respective commercially reasonable best efforts to take such further
steps, including the execution and delivery of documentation and
applications which are required for legal or regulatory purposes or to
obtain the consents or approvals of third parties or necessary or
advisable registrations. All fees and expenses related to registrations
which are advisable or necessary shall be at the expense of the future
owner of such registrations and all registrations will be the
responsibility of such owner. Nothing contained in this Agreement shall be
interpreted to oblige any party to do anything more than apply its
commercially reasonable best efforts (without material expense to it) to
obtain any consent, approval or registration which may be required to give
full effect to the terms and conditions hereof. Similarly, no party shall
be obliged to convey any rights or do any other thing which would cause it
to be in breach of any legal or contractual obligation.
16.0 NOTICES
Any notice, consent or other instrument required or permitted to be given
by one party to the other party hereunder shall be in writing and shall be
delivered or sent by first class mail or telefax and shall be deemed
received five days following prepaid mailing or the next business day when
telefaxed to the other party with receipt confirmation at the addresses
set forth below;
20
To Alcanint: Alcan International Limited
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: Company Secretary
In all cases with copy (which shall not constitute
notice) to:
Alcan Inc.
0000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: Company Secretary
To Novelis: Novelis Inc.
Xxxxx 0000
Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx
X. X. Xxx 00
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: President
Either party may change the notice address by giving written notice to the
other party. If sent by telefax, a confirming copy of such shall be sent
by regular mail to the addressee.
17.0 ASSIGNMENT
17.1 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 others, and any attempt to assign any rights
or obligations under this Agreement without such consent shall be
null and void and deemed to be in breach hereof.
17.2 Notwithstanding the preceding Section 17.1, this Agreement may be
assigned (i) by Alcanint to any Alcan Group Company, by Novelis to
any Novelis Subsidiary and (ii) by either party in whole in
connection with a merger or consolidation or the sale of all or
substantially all of the assets of such Party, or (iii) by Novelis
in part in connection with a sale or other divestiture of a Novelis
Subsidiary, plant, or business unit whose field of activity is
principally related to the portion of Novelis' business that makes
actual use of the Technology licensed under this Agreement;
provided, however, that such assignee must expressly agree in
writing to be bound by the terms and conditions of this Agreement.
21
17.3 Nothing in this Article 17.0 shall operate to entitle any transfer,
assignment or license to any entity which has any activities
directly or through Affiliates of a type which would be contrary to
Section 8.4. Any such transfer assignment, or license (actual or
attempted) shall in all aspects be void ab initio and any attempted
assignment in violation thereof shall be deemed to constitute a
material default within the meaning of Section 8.2 hereunder.
18.0 INDEMNIFICATION
18.1 Novelis shall indemnify, defend and hold harmless Alcanint and all
Alcan Group Companies and their respective directors and officers
(the "ALCANINT INDEMNITEES") from and against any and all losses
incurred or suffered by any of the Alcanint Indemnitees arising out
of the use of any Transferred Technology or Licensed Technology by
Novelis or any of its Affiliates or customers.
18.2 If any Alcanint Indemnitee determines that it is or may be entitled
to indemnification by any party (the "INDEMNIFYING PARTY"), under
this Article 18.0, (other than in connection with an action subject
to Section 18.3), the Indemnified Party shall deliver to the
Indemnifying Party a written notice describing to the extent
reasonably practicable, the basis for its claim for indemnification
and the amount for which the Indemnified Party reasonably believes
it is entitled to be indemnified. If the Indemnifying Party has not
responded within 30 days after receipt of such notice, the
Indemnified Party shall deliver a second notice to the Indemnifying
Party within ten days of the expiration of the original 30 day
period. Within 30 days after receipt of any second notice, the
Indemnifying Party shall pay the Indemnified Party such amount in
cash or other immediately available funds unless the Indemnifying
Party objects to the claim for indemnification or the amount
thereof.
18.3 Promptly following the earlier of (i) receipt of notice of the
commencement of an action by a third party against or otherwise
involving any indemnified party, or (ii) receipt of information from
a third party alleging the existence of a claim against an
Indemnified Party, in either case, with respect to which
indemnification may be sought pursuant to this Agreement, (a "THIRD
PARTY CLAIM"), the Indemnified Party shall give the Indemnifying
Party written notice thereof. The failure of the Indemnified Party
to give notice as provided in this Article 18.0 shall not relieve
the Indemnifying Party of its obligations under this Agreement,
except to the extent that the Indemnifying Party is prejudiced by
such failure to give notice. Within 30 days after receipt of such
notice, the Indemnifying Party may (i) by giving written notice
thereof to the Indemnified Party, acknowledge liability for such
indemnification claim and at is option elect to assume the defence
of such Third Party Claim at its sole cost and expense or (ii)
object to the claim for indemnification set forth in the notice
delivered by the Indemnified Party pursuant to the first sentence of
this Section 18.3;
22
provided that if the Indemnifying Party does not within such 30 day
period give the Indemnified Party written notice objecting to such
indemnification claim and setting forth the grounds therefor, the
Indemnified Party shall give the Indemnifying Party an additional
notice of its claim for indemnification and if the Indemnifying
Party does not give the Indemnified Party written notice objecting
to such claim within ten days after receipt of such notice the
Indemnifying Party shall be deemed to have acknowledged its
liability for such indemnification claim. If the Indemnifying Party
has elected to assume the defence of a Third Party Claim, (x) the
defence shall be conducted by counsel retained by the Indemnifying
Party and reasonably satisfactory to the Indemnified Party, provided
that the Indemnified Party shall have the right to participate in
such proceedings and to be represented by counsel of its own
choosing at the Indemnified Party's sole cost and expense; and (y)
the Indemnifying Party may settle or compromise the third Party
claim without the prior written consent of the Indemnified Party so
long as such settlement includes and unconditional release of the
Indemnified Party from all claims that are the subject of such Third
Party Claim provided the Indemnifying Party may not agree to any
such settlement pursuant to which any remedy or relief, other than
money damages for which the Indemnifying Party shall be responsible
hereunder, shall be applied to or against the Indemnified Party,
without the prior written consent of the Indemnified Party, which
consent shall not be unreasonably withheld. If the Indemnifying
Party does not assume the defence of a Third Party Claim for which
it has acknowledged liability for indemnification hereunder, the
Indemnified Party may require the Indemnifying Party to reimburse it
on a current basis for its reasonable expenses of defending against
such Third Party Claim and the Indemnifying party shall be bound by
the result obtained with respect thereto by the Indemnified Party;
provided that the Indemnifying Party shall not be liable for any
settlement effected without its consent, which consent shall not be
unreasonably withheld. The Indemnifying Party shall pay to the
Indemnified Party in cash the amount, if any, for which the
Indemnified Party is entitled to be indemnified hereunder within 15
days after such Third Party Claim has been finally determined, or in
the case of an indemnity claim as to which the Indemnifying Party
has not acknowledged liability, within 15 days after such
Indemnifying Party's objection to liability hereunder has been
finally determined.
18.4 If for any reason the indemnification provided for in Section 18.1
is unavailable to an Indemnified Party, or insufficient to hold it
harmless, then the Indemnifying Party shall contribute to the amount
paid or payable to such Indemnified Party as a result of such losses
in such proportion as is appropriate to reflect all relevant
equitable considerations.
18.5 The remedies provided for in this Article 18.0 are not exclusive and
shall not limit any rights or remedies which may otherwise be
available to any Indemnified Party at law or in equity.
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19.0 ENTIRE AGREEMENT, AMENDMENTS
19.1 This Agreement constitutes the entire agreement and understanding
between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and
discussions whether oral or written of the parties, and there are no
representations, warranties or conditions expressed or implied or
otherwise between the parties in connection with the subject matter
hereof, except as specifically set forth herein. No amendment to the
terms and conditions hereof or waiver in respect thereto shall be
binding unless it is in writing and signed by duly authorized
representatives of both parties.
19.2 Notwithstanding the foregoing, the rights and interests transferred,
assigned or granted to Novelis or Novelis Subsidiaries 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 Novelis Subsidiaries 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 on the part of Novelis in respect of
Technology which would be greater than those established herein.
20.0 DISPUTE RESOLUTION
The Master Agreement with Respect to Dispute Resolution, effective on the
Effective Date, among Alcanint, Novelis 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 this Agreement) or the commercial or economic relationship
of the Parties relating hereto or thereto.
21.0 MISCELLANEOUS
21.1 The division of this Agreement into sections, subsections and other
subdivisions and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in the
construction or interpretation of this Agreement.
21.2 The parties hereto have requested that this Agreement and all other
documents, notices or written communications relating thereto, be in
the English language.
24
21.3 The parties may amend this Agreement only by a written agreement
signed by each party to be bound by the amendment and that
identifies itself as an amendment to this Agreement.
21.4 Except as expressly stated to the contrary herein, the provisions of
this Agreement are solely for the benefit of the parties and are not
intended to confer upon any person except the parties any rights or
remedies hereunder, and there are no third party beneficiaries of
this Agreement, and this Agreement shall not provide any third
person with any remedy, claim, liability, reimbursement, claim of
action or other right in addition to those existing without
reference to this Agreement.
22.0 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 according to the laws of the
Province of Quebec, Canada without the application of the provisions
relating to the conflict of laws. Any provision in this Agreement
prohibited by 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.
Alcanint and Novelis hereby agree, however, to negotiate an equitable
amendment of this Agreement if a material provision is adversely affected.
IN WITNESS WHEREOF duly authorised representatives of the parties hereto have
signed duplicate copies of this Agreement.
ALCAN INTERNATIONAL LIMITED NOVELIS INC.
Per: ...................... Per: ......................
Per: ...................... Per: ......................
INTERVENTION
Alcan Inc. has intervened in this Agreement to acknowledge its terms and agree
to be bound by and benefit from same.
ALCAN INC.
Per: .......................
Per: .......................
25
