Exhibit 10.5
CHANGE OF CONTROL AGREEMENT made as of the 8 November 2004, between:
Alcan Inc., a corporation incorporated under the laws of Canada
with its registered office at 0000 Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0 ("Alcan");
Xx. Xxxxxxxx X. Xxxx (the "Executive")
WHEREAS, Alcan has announced its intention to spin off its Rolled Products
Business (as hereinafter defined) to Novelis Inc. in the manner described in
Alcan's current Form 10 registration statement filed with the Securities
Exchange Commission;
WHEREAS, the Executive has been identified as a key member of the Rolled
Products Business and is expected to transfer employment to Novelis Inc. in the
role of Chief Financial Officer;
WHEREAS Alcan acknowledges that the spin off or any other transaction in
replacement thereof that would result in a change of control of all or
substantially all of the Rolled Products Business, with the attendant
uncertainties and risks, may result in the departure or distraction of key
employees to the detriment of Alcan;
WHEREAS, Alcan has determined that it is appropriate to take steps to induce
key employees to remain as such, and to reinforce and encourage their continued
attention and dedication, when faced with the uncertainty surrounding the said
transfer of control; and
WHEREAS Alcan will, as a condition of the change of control of the Rolled
Products Business, cause the acquirer to assume all liability for the
undertakings to the Executive in this Agreement beginning from the date of the
said change of control.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Definitions
"Rolled Products Business" shall mean the majority of Alcan's rolled products
assets and certain alumina and primary metal related assets in Brazil,
substantially as detailed in Alcan's current Form 10 registration statement
filed with the Securities Exchange Commission, and shall include where
appropriate shares in relevant subsidiaries.
"Acquirer" shall mean the acquirer of the Rolled Products Business from Alcan,
which Acquirer may at the time of the Change of Control be subsidiary of Alcan
or an Independent third party (including Novelis Inc.);
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"Change of Control" shall mean the transfer, by sale or otherwise, of the Rolled
Products Business by Alcan to the Acquirer.
"Date of Termination" with respect to any purported termination of the
Executive's employment after a Change of Control, shall mean the date specified
in the notice of termination. In the case of a termination by the Employer, the
Date of Termination shall not be less than 30 days after the Change of Control
except in the case of a termination for Cause, which shall be the date specified
in the notice of termination. In the case of a termination by the Executive for
Good Reason, the Date of Termination shall not be earlier than 90 days after the
Change of Control.
"Employer" shall mean the employer of the Executive at the time of his or her
Date of Termination;
"Special Termination Indemnity Payment" shall mean an amount equal to 24 months
of the Executive's total cash compensation (i.e. base salary plus EPA Guideline
amount) in effect on the date of termination of employment;
"Termination for Good Reason" refers to a termination of employment by the
Executive within 90 days after the occurrence of the Good Reason event, failing
which such event shall not constitute Good Reason under this Agreement. For
purposes of this Agreement, "Good Reason" shall mean the occurrence or failure
to cause the occurrence of any of the following events without the Executive's
express written consent:
(i) any material diminution in the Executive's duties, responsibilities or
authority (except in each case in connection with the termination of the
Executive's employment for Cause or temporarily as a result of the
Executive's illness or other excusable absence);
(ii) a reduction in the Executive's annual base salary rate;
(iii) a relocation of the Executive's principal business location to an area
outside the country of the Executive's principal business location at the
time of the Change of Control;
(iv) a failure by the Employer after a Change of Control to continue any
annual Executive Performance Award Plan, program or arrangement in which
the Executive is then entitled to participate (the "Bonus Plans"),
provided that any such plan(s) may be modified at the Employer's
discretion from time to time but shall be deemed terminated if (x) any
such plan does not remain substantially in the form in effect prior to
such modification and (y) if plans providing the Executive with
substantially similar benefits are not substituted therefor ("Substitute
Plans"), or a failure by the Employer to continue the Executive as a
participant in the Bonus Plans and Substitute Plans on at least the same
basis as to potential amount of the bonus and the achievability thereof
as the Executive participated immediately prior to any change in such
plans of awards, in accordance with the Bonus Plans and the Substitute
Plans;
(v) a failure to permit the Executive after the Change of Control to
participate in cash or equity based long-term incentive plans and
programs other than Bonus Plans on a basis providing the Executive in the
aggregate with an annualized award value in each fiscal year after the
Change of Control at least equal to the aggregate annualized award value
being provided by the employer to the Executive under such incentive
plans and programs immediately prior to the Change of Control (with any
awards intended not to be repeated on an annual basis allocated over the
years the awards are intended to cover);
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(vi) the failure by the Employer to continue in effect any material employee
benefit program such as a saving, pension, excess pension, medical,
dental, disability, accident, life insurance plan or a relocation plan
or policy or any other material plan, program, perquisite or policy of
the Employer intended to benefit the Executive in which the Executive
is participating at the time of a Change of Control (or programs
providing the Executive with at least substantially similar benefits)
other than as a result of the normal expiration of any such employee
benefit program in accordance with its terms as in effect at the time
of a Change of Control, or taking of any action, or the failure to act,
by the employer which would adversely affect the executive's continued
participation in any of such employee benefit programs on at least as
favourable a basis to the Executive as is the case on the date of a
Change of Control; or which would materially reduce the Executive's
benefits in the future under any of such employee benefit programs or
deprive him or her of any material benefit enjoyed by the Executive at
the time of a Change of Control;
(vii) a material breach by the Employer of any other written agreement with
the Executive that remains uncured for 21 days after written notice of
such breach is given to the Employer; or
(viii) failure of any successor Employer to assume in a writing delivered to
the Executive the obligations hereunder within 21 days after written
notice by the Executive.
"Termination for Cause" shall mean:
(i) the failure by the Executive to attempt to substantially perform his
or her duties and responsibilities with regard to the Employer or any
affiliate (other than any such failure resulting from the Executive's
incapacity due to physical or mental illness) after demand for
substantial performance is delivered by Employer that specifically
identifies the manner in which the Employer believes the Executive has
failed to attempt to substantially perform his or her duties and
responsibilities and a reasonable time for the Executive to correct or
remedy;
(ii) the willful engaging by the Executive in misconduct in connection with
the Employer or its business which is materially injurious to the
Employer monetarily or otherwise; or
(iii) any misappropriation or fraud with regard to the Employer or any of
the assets of the Employer (other than good faith expense account
disputes).
For purposes of this paragraph, no act, or failure to act, on the Executive's
part shall be considered "willful" unless done, or omitted to be done, by him
or her not in good faith and without reasonable belief that his or her action
or omission was in the interests of the Employer. In the event that the
Executive alleges that the failure to attempt to perform his or her duties and
responsibilities is due to a physical or mental illness, and thus not "Cause",
the Executive shall be required to furnish the Employer with a written
statement from a licensed physician who is reasonably acceptable to the
Employer which confirms the Executive's inability to attempt to perform due to
such physical or mental illness. A termination for Cause after a Change of
Control shall be based only on events occurring after such Change of Control;
provided, however, the foregoing limitation shall not apply to an event
constituting Cause which was not discovered by the Employer prior to a Change
of Control.
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2. ALCAN'S UNDERTAKINGS TO THE EXECUTIVE UPON CHANGE OF CONTROL
2.1 The term of Alcan's undertakings as set out hereunder shall commence on
the date of this Agreement and shall expire, unless previously terminated
as provided herein, on the earliest of:
(a) 24 months after the date of Change of Control;
(b) the date of the Executive's death;
(c) the date of the Executive's retirement;
(d) the day following the termination of the Executive's employment for
any other reason; or
(e) 30 June 2005, in the event that no Change of Control has taken
place.
2.2 Alcan shall cause the Acquirer to assume all liability for the
undertakings to the Executive as a condition of the Change of Control. If
the Executive's employment with Alcan, the Acquirer or a subsequent
acquirer of the Rolled Products Business is terminated during the
above-stated term:
(a) by the Employer by reason other than for Cause; or
(b) by the Executive for Good Reason,
the Executive shall be entitled to the Special Termination Indemnity
Payment from Alcan.
3. EXECUTIVE'S UNDERTAKINGS TO ALCAN
The Executive, as an executive of Alcan, undertakes (i) to act in good faith
and cooperate reasonably with a view to the completion of the Change of Control
of the Rolled Products Business in the best interests of Alcan as a whole as
determined by the Alcan Board of Directors, including in respect of any
subsequent spin-off or other transaction, (ii) to conduct himself or herself as
an employee of Alcan and use his or her influence as an executive so that the
interests of Alcan as a whole are fairly protected and well-managed in a manner
consistent with past practice until such time as Alcan spins off or otherwise
transfers the Rolled Products Business, (iii) to conduct himself or herself so
as to facilitate the due exercise by the Alcan Board of Directors of the
fiduciary and other duties to which it is bound in the context of the said
transaction, and (iv) to facilitate the transfer of Alcan's obligations under
this Agreement to the Acquirer or to a subsequent acquirer of the Rolled
Products Business.
4. OTHER PROVISIONS
4.1 No Duty to Mitigate/Set-off. Alcan agrees that if the Executive's
employment is terminated pursuant to this Agreement other than for Cause during
the term of this Agreement, the Executive shall not be required to seek other
employment or to attempt in any way to reduce any amounts payable to the
Executive by Alcan pursuant to this
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Agreement. Further, the amount of any payment or benefit provided for in
this Agreement shall not be reduced by any compensation earned by the
Executive or benefit provided to the Executive as the result of
employment by another employer. Alcan's obligations to perform its
obligations hereunder shall not be affected by any circumstances,
including without limitation, any set-off, counterclaim, defense or other
right which Alcan may have against the Executive.
4.2 References to Subsidiaries. For purposes of this Agreement, unless the
context otherwise required, references to Alcan or to the Acquirer shall
include as appropriate references to one or more of their respective
subsidiaries (as "subsidiary" is defined in the Canada Business
Corporations Act).
4.3 Confidentiality and Non-Competition Undertakings. Without prejudice to
any other confidentiality undertakings or obligations by which the
Executive may be bound in favour of Alcan, the Executive shall not at any
time during the term of this Agreement, or thereafter, directly or
indirectly, for any reason whatsoever, communicate or disclose to any
unauthorized person, firm or corporation, or use for the Executive's own
account, any proprietary processes, trade secrets or other confidential
data or information of Alcan and their respective related and affiliated
companies concerning their businesses or affairs, accounts, products,
services or customers, it being understood, however, that these
obligations shall not apply to the extent that the aforesaid matters (i)
are disclosed in circumstances in which the Executive is legally required
to do so, or (ii) become known to and available for use by the public
other than by the Executive's wrongful act or omission. The provisions of
this paragraph shall survive and remain in effect notwithstanding the
termination of this Agreement and the termination of the Executive's
employment.
4.4 Successors -- Binding Agreement. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors and heirs. If the
Executive shall die after termination of his or her employment while any
amount would still be payable to the Executive hereunder if the Executive
had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
the executors, personal representatives or administrators of the
Executive's estate. This Agreement is personal to the Executive and
neither this Agreement nor any rights hereunder may be assigned by the
Executive.
4.5 Severability. If any provisions of this Agreement shall be declared to be
invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which
shall remain in full force and effect.
4.6 Legal Fees. In the event Alcan does not make the payments due hereunder
on a timely basis and the Executive collects any part or all of the
payments provided for hereunder or otherwise successfully enforces the
terms of this Agreement by or through legal counsel. Alcan shall pay all
costs of such collection or enforcement, including reasonable legal fees
and other reasonable fees and expenses which the Executive may incur.
Alcan shall pay to the Executive interest at the prime lending rate as
announced from time to time by Royal Bank of Canada on all or any part of
any amount to be paid to
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Executive hereunder that is not paid when due. The prime rate for each
calendar quarter shall be the prime rate in effect on the first day of the
calendar quarter.
4.7 Non-Exclusivity of rights. Except as otherwise specifically provided
therein, (i) nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any benefit, bonus,
incentive, equity or other plan or program provided by Alcan and for which
the Executive may qualify, nor (ii) shall anything herein limit or
otherwise prejudice such rights as the Executive may have under any other
currently existing plan, agreement as to employment or severance from
employment with or the Employer or statutory entitlements. Amounts that are
vested benefits or which the Executive is otherwise entitled to receive
under any plan or program, at or subsequent to the date of termination
shall be payable in accordance with such plan or program, except as
otherwise specifically provided herein.
4.8 Not an Agreement of Employment. This is not an agreement assuring
employment and Alcan reserves the right to terminate the Executive's
employment at any time with or without cause, subject to the provisions
hereof.
4.9 Interpretation. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in
writing by the parties. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any condition or
provision shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. This Agreement
constitutes the entire agreement between the parties hereto pertaining to
the subject matter hereof. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement or the Employment Agreement. All references to any law shall be
deemed also to refer to any successor provisions to such laws.
4.10 Governing Law. This Agreement shall be construed, interpreted, and governed
in accordance with the laws of the Province of Quebec.
4.11 English Language. The parties hereto declare that they require that this
Agreement and any related documents be drawn up and executed in English.
Les parties declarent qu'elles requierent que cette convention ainsi que
tous documents relatifs a cette convention soient rediges et executes en
anglais.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first set forth above.
ALCAN INC. XXXXXXXX X. XXXX
By: /s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxxxx X. Xxxx
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