<PAGE>
EXECUTION COPY
Exhibit 10.7
TRANSITIONAL SERVICES AGREEMENT
between
ALCAN INC.
and
NOVELIS INC.
Dated January 3, 2005
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TABLE OF CONTENTS
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1. DEFINITIONS AND
INTERPRETATION.........................................
1
1.1
Definitions.......................................................
1
1.2
Currency..........................................................
5
2. TRANSITION SERVICE
SCHEDULES........................................... 5
3.
SERVICES...............................................................
5
3.1 Services
generally................................................
5
3.2 Service
levels....................................................
6
3.3
Impracticability..................................................
6
3.4 Additional
resources..............................................
6
4. OPERATING
COMMITTEE....................................................
7
4.1
Organization......................................................
7
4.2 Decision
making...................................................
7
4.3
Meetings..........................................................
7
5.
TERM...................................................................
7
6.
COMPENSATION...........................................................
8
6.1 Charges for
Services.............................................. 8
6.2 Payment
terms.....................................................
8
6.3
Taxes.............................................................
9
6.4 Set
off...........................................................
9
6.5 Performance under Ancillary
Agreements............................ 9
6.6 Error correction; true-Ups;
accounting............................ 9
7. GENERAL OBLIGATIONS; STANDARD OF
CARE.................................. 10
7.1 Performance metrics: Alcan
Group.................................. 10
7.2 Performance Metrics: Novelis
Group................................ 10
7.3 Disclaimer of
warranties.......................................... 11
7.4 Transitional nature of
Services; changes.......................... 11
7.5 Responsibility for errors;
delays................................. 11
7.6 Cooperation;
consents............................................. 11
7.7
Alternatives......................................................
12
7.8
Personnel.........................................................
13
7.9
Insurance.........................................................
13
8.
TERMINATION............................................................
14
8.1
Termination.......................................................
14
8.2
Survival..........................................................
15
8.3
Payment...........................................................
15
8.4 User Ids,
passwords...............................................
16
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9. RELATIONSHIP BETWEEN THE
PARTIES....................................... 16
10.
SUBCONTRACTORS.........................................................
16
11. INTELLECTUAL
PROPERTY..................................................
17
11.1 Allocation of rights by Ancillary
Agreements...................... 17
11.2 Existing ownership rights
unaffected.............................. 17
11.3 Cross license to pre-existing
works............................... 18
11.4 Third Party
software.............................................. 18
11.5 Termination of
Licences........................................... 18
12. NO
OBLIGATIONS.........................................................
19
13.
CONFIDENTIALITY........................................................
19
14. LIMITATION OF LIABILITY AND
INDEMNIFICATION............................ 20
14.1
Indemnification...................................................
20
14.2 Limitation of
Liability........................................... 22
14.3
Exclusions........................................................
22
14.4 Provisions applicable with respect
to Indemnification
Obligations....................................................
23
14.5
Survival..........................................................
23
15. DISPUTE
RESOLUTION.....................................................
23
16.
ASSIGNMENT.............................................................
23
16.1 Prohibition on
Assignments........................................ 23
16.2 Assignment to Alcan Group
Company................................. 23
17.
MISCELLANEOUS..........................................................
23
17.1
Construction......................................................
23
17.2
Notices...........................................................
24
17.3 Governing
Law.....................................................
24
17.4 Judgment
Currency.................................................
24
17.5 Entire
Agreement..................................................
24
17.6
Conflicts.........................................................
24
17.7 Force
Majeure.....................................................
25
17.8
Waivers...........................................................
25
17.9 Further
Assurances................................................
25
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SCHEDULES
Schedule 1 - Form of Transition Service
Schedule to Transitional Services
Agreement
<PAGE>
TRANSITIONAL SERVICES AGREEMENT
THIS AGREEMENT entered into in the City of
Montreal, Province of Quebec, is
dated January 3, 2005.
BETWEEN: ALCAN INC., a corporation
organized under the Canada Business
Corporations Act ("ALCAN");
AND:
NOVELIS INC., a corporation incorporated under the Canada
Business
Corporations Act ("NOVELIS").
RECITALS:
WHEREAS Alcan 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 therein), directly or indirectly,
by Novelis (such agreement, as amended,
restated or modified from time to time,
the "SEPARATION AGREEMENT").
WHEREAS in connection therewith, Novelis
desires that Alcan and other members of
Alcan Group, as applicable, provide Novelis
and other members of Novelis Group,
as applicable, with certain transitional
services with respect to the operation
of Novelis Group following the Effective
Date, subject to the terms and
conditions of this Agreement.
WHEREAS in connection therewith, Alcan
desires that Novelis and other members of
Novelis Group, as applicable, provide Alcan
and other members of Alcan Group, as
applicable, with certain transitional
services with respect to the operation of
Alcan Group following the Effective Date,
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, in consideration of the
mutual agreements, covenants and other
provisions set forth in this Agreement, the
Parties hereby agree as follows:
1. DEFINITIONS AND
INTERPRETATION
1.1 DEFINITIONS
For the purposes
of this Agreement, the following words and expressions and
variations
thereof, unless a clearly inconsistent meaning is required
under
the context,
shall have the meanings specified or referred to in this
Section 1.1:
"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
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date on which or
at any time during the period for when such determination
is being made.
For purposes of this definition, "CONTROL" means the
possession,
directly or indirectly, of the power to direct or cause the
direction of the
management and policies of such Person, whether through
the ownership of
voting securities or other interests, by contract or
otherwise, and
the terms "CONTROLLING" and "CONTROLLED" have meanings
correlative to
the foregoing.
"AGREEMENT" has
the meaning set forth in Article 2.
"ALCAN" means
Alcan Inc., a corporation organized under the Canada Business
Corporations
Act.
"ALCAN
CONFIDENTIAL INFORMATION" has the meaning set forth in Section
13.2.
"ALCAN GROUP"
means Alcan and its Subsidiaries from time to time after the
Effective
Time.
"ALCAN GROUP
COMPANY" means any Person forming part of the Alcan Group.
"ALCAN
INDEMNIFIED PARTIES" has the meaning set forth in Section 14.1.
"ANCILLARY
AGREEMENT" has the meaning ascribed thereto in the Separation
Agreement.
"APPLICABLE LAW"
means any applicable law, statute, rule or regulation of
any Governmental
Authority or any outstanding order, judgment, injunction,
ruling or decree
by any Governmental Authority.
"BUSINESS
CONCERN" means any corporation, company, limited liability
company,
partnership, joint venture, trust, unincorporated association
or
any other form
of association.
"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).
"CHIEF
REPRESENTATIVE" has the meaning set forth in Section 7.8(c).
"COMMERCIALLY
REASONABLE EFFORTS" means the efforts that a reasonable and
prudent Person
desirous of achieving a business result would use in similar
circumstances to
ensure that such result is achieved as expeditiously as
possible in the
context of commercial relations of the type envisaged by
this Agreement;
provided, however, that an obligation to use Commercially
Reasonable
Efforts under this Agreement does not require the Person
subject
to that
obligation to assume any material obligations or pay any
material
amounts to a
Third Party.
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"CONFIDENTIAL
INFORMATION" has the meaning ascribed thereto in the
Separation
Agreement.
"CONSENT" means
any approval, consent, ratification, waiver or other
authorization.
"CONTRACT" means
any contract, agreement, lease, license, commitment,
consensual
obligation, promise or undertaking (whether written or oral and
whether express
or implied) that is legally binding on any Person or any
part of its
property under Applicable Law.
"DOLLARS" or "$"
means the lawful currency of the United States of America.
"EFFECTIVE DATE"
means the effective date of the Separation Agreement as
therein
defined.
"EFFECTIVE TIME"
means 12:01 a.m. Montreal time on the Effective Date.
"EVENT OF
DEFAULT" has the meaning set forth in Section 8.1.
"EXPIRATION
DATE" has the meaning set forth in Article 5.
"FORCE MAJEURE
EVENT" has the meaning set forth in Section 17.7.
"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.
"IMPRACTICABILITY" has the meaning set forth in Section 3.3.
"INTELLECTUAL
PROPERTY AGREEMENT" means, individually or collectively, the
Intellectual
Property Agreements by and between Alcan International Limited
and Novelis, as
amended, restated or modified from time to time, and
constituting an
Ancillary Agreement to the Separation Agreement.
"LIABILITIES"
has the meaning ascribed thereto in the Separation Agreement.
"NOVELIS" means
Novelis Inc., a corporation incorporated under the Canada
Business
Corporations Act.
"NOVELIS
CONFIDENTIAL INFORMATION" has the meaning set forth in Section
13.2.
"NOVELIS GROUP"
means Novelis and its Subsidiaries from time to time after
the Effective
Time.
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"NOVELIS
INDEMNIFIED PARTIES" has the meaning set forth in Section 14.1.
"OPERATING
COMMITTEE" has the meaning set forth in Section 4.1.
"PARTY" means
each of Alcan and Novelis as a party to this Agreement and
"PARTIES" means
both of them.
"PERMITTED
PURPOSE" has the meaning set forth in Section 13.3.
"PERSON" means
any individual, Business Concern or Governmental Authority.
"PRIME RATE"
means the floating rate of interest established from time to
time by the
Royal Bank of Canada (the "BANK") as the reference rate of
interest the
Bank will use to determine rates of interest payable by its
borrowers on US
dollar commercial loans made by the Bank to such borrowers
in Canada and
designated by the Bank as its "prime rate" and which shall
change from time
to time as changed by the Bank.
"SALES TAXES"
means any sales, use, consumption, goods and services, value
added or similar
tax, duty or charge imposed pursuant to Applicable Law.
"SEPARATION
AGREEMENT" has the meaning set out in the Preamble to this
Agreement.
"SERVICE(S)" has
the meaning set forth in Section 3.1.
"SERVICE
MANAGER" has the meaning set forth in Section 7.8(c).
"SERVICE
PROVIDER" means Alcan or a member of Alcan Group when it is
providing a
Service to Novelis or a member of Novelis Group hereunder in
accordance with
a Transition Service Schedule, and Novelis or a member of
Novelis Group
when it is providing a Service to Alcan or a member of Alcan
Group hereunder
in accordance with a Transition Service Schedule.
"SERVICE
RECIPIENT" means Novelis or a member of Novelis Group when it
is
receiving a
Service from Alcan or a member of Alcan Group hereunder in
accordance with
a Transition Service Schedule, and Alcan or a member of
Alcan Group when
it is receiving a Service from Novelis or a member of
Novelis Group
hereunder in accordance with a Transition Service Schedule.
"SUBCONTRACTOR"
has the meaning set forth in Section 10.1.
"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.
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"TERM" has the
meaning set forth in Article 5.
"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.
"TRANSITION
SERVICE SCHEDULE" has the meaning set forth in Article 2.
1.2 CURRENCY
Except as
otherwise specified in a Transition Service Schedule, all
references to
currency herein are to lawful money of the United States of
America.
2. TRANSITION SERVICE
SCHEDULES
This Agreement will govern individual
transitional Services as requested by
Novelis or any other member of Novelis
Group, and provided by Alcan or any other
member of Alcan Group, the details of which
are set forth in the Transition
Service Schedules attached to and forming
part of this Agreement. This Agreement
will also govern individual transitional
Services as requested by Alcan or any
other member of Alcan Group, and provided
by Novelis or any other member of
Novelis Group, the details of which are set
forth in the Transition Service
Schedules attached to and forming part of
this Agreement. Each Service shall be
covered by this Agreement upon execution of
a transition service schedule in the
form attached hereto (each transition
service schedule, a "TRANSITION SERVICE
SCHEDULE").
For each Service, the Parties shall set
forth in a Transition Service Schedule
substantially in the form of SCHEDULE 1
hereto, among other things, (i) the time
period during which the Service will be
provided if different from the Term of
this Agreement; (ii) a summary of the
Service to be provided; and (iii) the
method for determining the charge, if any,
for the Service and any other terms
applicable thereto. Obligations regarding a
Transition Service Schedule shall be
effective upon the later of the Effective
Date of this Agreement or the date of
execution of the applicable Transition
Service Schedule. This Agreement and all
the Transition Service Schedules shall be
defined as the "AGREEMENT" and
incorporated herein wherever reference to
it is made.
3. SERVICES
3.1 SERVICES GENERALLY
Except as
otherwise provided herein, for the Term hereof, (a) Alcan shall
provide to
Novelis and the other members of Novelis Group, and shall cause
the other
applicable members of Alcan Group to provide or cause to be
provided to
Novelis and the other members of Novelis Group, and (b) Novelis
shall provide to
Alcan and the other members of Alcan Group, and shall
cause the other
applicable members of
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Novelis Group to
provide or cause to be provided to Alcan and the other
members of Alcan
Group, the Services described in the Transition Service
Schedule(s)
attached hereto identified on such Schedules as Services to be
provided by
members of Alcan Group or Novelis Group, as applicable. The
Service(s)
described on a single Transition Service Schedule shall be
referred to
herein as a "SERVICE". Collectively, the services described on
all the
Transition Service Schedules shall be referred to herein as
"SERVICES".
Alcan and Novelis shall cause the members of their respective
Groups to, if
applicable, comply with the terms and conditions set forth in
this Agreement
or in the Transition Services Schedules.
3.2 SERVICE LEVELS
Except as
otherwise provided in a Transition Service Schedule for a
specific
service: (i) a Service Provider shall provide the Services only
to
the extent such
Services are being provided by Alcan or any other member of
Alcan Group or
by Arcustarget Inc. or any of its Subsidiaries immediately
prior to the
Effective Date and at a level of service substantially similar
to that provided
by Alcan or any other member of Alcan Group or by
Arcustarget Inc.
or any of its Subsidiaries immediately prior to the
Effective Date;
and (ii) the Services will be available only for purposes
of conducting
the business of the Service Recipient substantially in the
manner it was
conducted prior to the Effective Time; provided, however,
that nothing in
this Agreement will require a Party to favor the other
Party over its
other business operations. Except as otherwise provided in a
Transition
Service Schedule in respect of a specific Service, the Parties
will not be
entitled to any new service.
3.3 IMPRACTICABILITY
A Service
Provider shall not be required to provide any Service to the
extent the
performance of such Service becomes impracticable as a result
of
a cause or
causes outside the reasonable control of the Service Provider,
including
unfeasible technological requirements, or to the extent the
performance of
such Services would require the Service Provider to violate
any Applicable
Law, or would result in the breach of any license,
Governmental
Authorization or Contract (an "IMPRACTICABILITY").
3.4 ADDITIONAL RESOURCES
In accordance with
Section 7.8 below and except as specifically provided in
a Transition
Service Schedule for a specific Service, in providing the
Services, a
Service Provider shall not be obligated to: (i) hire any
additional
employees; (ii) maintain the employment of any specific
employee; (iii)
purchase, lease or license any additional facilities,
equipment or
software; or (iv) pay any costs related to the transfer or
conversion of
the Service Recipient's data to the Service Provider or any
alternate
supplier of Services.
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4. OPERATING COMMITTEE
4.1 ORGANIZATION
The Parties
shall create an operating committee (the "OPERATING COMMITTEE")
and shall each
appoint one (1) employee to the Operating Committee for the
Term. The
Operating Committee will oversee the implementation and
application of
this Agreement and shall attempt to resolve any dispute
between the
Parties. Each of the Parties shall have the right to change its
Operating
Committee member at any time with employees of comparable
knowledge,
expertise and decision-making authority.
4.2 DECISION MAKING
All Operating
Committee decisions shall be taken unanimously. If the
Operating
Committee fails to make a decision, resolve a dispute, agree
upon
any necessary
action, or if a Party so requests, in the event of a material
breach of this
Agreement, a senior officer of Alcan and a senior officer of
Novelis, neither
of whom shall have any direct oversight or responsibility
for the subject
matter in dispute, shall attempt within a period of
fourteen (14)
days to conclusively resolve any such unresolved issue.
4.3 MEETINGS
During the Term,
the Operating Committee members shall meet, in person or
via
teleconference, at least once in each week. In addition, the
Operating
Committee shall
meet as often as necessary in order to promptly resolve any
disputes
submitted to it by any representative of either Party.
5. TERM
The term of this Agreement shall commence
on the Effective Date and end on
December 31, 2005 (the "EXPIRATION DATE"),
unless earlier terminated under
Article 8 or extended or earlier terminated
as hereinafter provided, (the
"TERM"). The Parties shall be deemed to
have extended this Agreement with
respect to a specific Service if the
Transition Service Schedule for such
Service specifies a completion date beyond
the Expiration Date. The Parties may
agree on an earlier expiration date
respecting a specific Service by specifying
such date on the Transition Service
Schedule for that Service. Services shall be
provided up to and including the date set
forth in the applicable Transition
Service Schedule, subject to earlier
termination as provided in Article 8. It
shall be the sole responsibility of the
Service Recipient, upon and after
expiration or early termination of this
Agreement with respect to a specific
Service, to perform, render and provide for
itself (or to make arrangements with
one or more Third Party service providers
to perform, render and provide) such
Service, and to do all necessary planning
and make all necessary preparations in
connection therewith.
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-8-
6. COMPENSATION
6.1 CHARGES FOR SERVICES
The Service
Recipient shall pay the Service Provider the charges, if any,
set forth on the
Transition Service Schedules for each of the Services
listed therein
as adjusted, from time to time, in accordance with the
processes and
procedures established under Sections 7.1 and 7.2 hereof.
Unless
specifically indicated otherwise on a Transition Service
Schedule,
such fees shall
be equal to the aggregate of all direct and indirect costs
and expenses incurred by the
Service Provider in providing the Services
plus a margin
equal to five percent (5%) of all such costs and expenses. No
margin shall be
added to the cost of services supplied by external
suppliers or
subcontractors required in order to render the Services. If
there is any
inconsistency between the Transition Service Schedule and this
Section 6.1, the
terms of the Transition Service Schedule shall govern. The
Parties also
intend, having regard to the reciprocal and transitional
nature of this
Agreement and other factors, for charges to be easy to
administer and
justify; and, therefore, they hereby acknowledge that it may
be
counterproductive to try to recover every cost, charge or
expense,
particularly
those that are insignificant or de minimus.
6.2 PAYMENT TERMS
Subject to
Section 6.4 and except as otherwise specified in a Transition
Service
Schedule, the Service Provider shall invoice the Service
Recipient
monthly (or on
such other basis as the Parties may mutually determine) for
all charges
pursuant to this Agreement. Such invoices shall specify the
Services
provided to the Service Recipient during the preceding month
and
identifying the
Service fee applicable to each Service so specified, and
shall be
accompanied by reasonable documentation or other reasonable
explanations
supporting such charges. Except as otherwise specified in a
Transition
Service Schedule, the Service Recipient shall pay, net of
applicable
withholding tax, if any, the Service Provider for all Services
provided
hereunder within thirty (30) days after receipt of an invoice
therefor by wire
transfer of immediately available funds to the account
designated by
the Service Provider for this purpose. Late payments shall
bear interest at
a rate per annum equal to the Prime Rate plus 2%,
calculated for
the actual number of days elapsed, accrued from and
excluding the
date on which such payment was due up to and including the
date of
payment.
For the purpose
of the Interest Act (Canada) and disclosure thereunder,
whenever
interest to be paid hereunder is to be calculated on the basis
of
a year of 360
days or any other period of time that is less than a calendar
year, the yearly
rate of interest to which the rate determined pursuant to
such calculation
is equivalent is the rate so determined multiplied by the
actual number of
days in the calendar year in which the same is to be
ascertained and
divided by either 360 or such other period of time, as the
case may be.
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6.3 TAXES
The fees and
charges payable by the Service Recipient under this Agreement
and set forth on
the Transition Service Schedules shall be exclusive of any
Sales Taxes or
excise taxes or any customs or import charges or duties or
any similar
charges or duties which may be imposed by any Governmental
Authority in
connection with the purchase or delivery of the Services or
materials to the
Service Recipient. The Service Recipient shall remit to
the Service
Provider any Sales Taxes properly payable to the Service
Provider
pursuant to this Agreement. Applicable Sales Taxes shall be
indicated by the
Service Provider separately on all of the Service
Provider's
invoices. The Parties shall co-operate with each other to
minimize each
other's applicable Sales Taxes and each shall provide the
other with any
reasonable certificates or documents which are useful for
such
purpose.
6.4 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,
by decision of the Operating Committee or otherwise, agree
to consolidate
all or any of their respective monthly invoicing under
Section 6.2 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. Such practice, if commenced, may be discontinued
at any time at
the request of either Party. Notwithstanding any such set
off, any amount
in respect of Sales Taxes required to be remitted by one
Party to the
other Party pursuant to this Agreement shall be remitted in
full as if no
set off had occurred.
6.5 PERFORMANCE UNDER ANCILLARY
AGREEMENTS
Notwithstanding
anything to the contrary contained herein, a Service
Recipient shall
not be charged under this Agreement for any obligations
that are
specifically required to be performed under the Separation
Agreement or any
other Ancillary Agreement; and any such other obligations
shall be
performed and charged for (if applicable) in accordance with
the
terms of the
Separation Agreement or such other Ancillary Agreement.
6.6 ERROR CORRECTION; TRUE-UPS;
ACCOUNTING
The Parties
shall agree to develop, through the Operating Committee or
otherwise,
mutually acceptable reasonable processes and procedures for
conducting
internal audits and making adjustments to charges as a result
of
the movement of
employees and functions between the Parties, the discovery
of errors or
omissions in charges, as well as a true-up of amounts owed. In
no event shall
such processes and procedures extend beyond eighteen (18)
months after
completion of a Service.
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7. GENERAL OBLIGATIONS;
STANDARD OF CARE
7.1 PERFORMANCE METRICS: ALCAN
GROUP
Subject to
Sections 3.2 to 3.4 and any other terms and conditions of this
Agreement, Alcan
shall maintain, and shall cause the relevant other members
of Alcan Group
to maintain, sufficient resources to perform their
obligations
hereunder. Specific performance metrics for Alcan for a
specific Service
may be set forth in the corresponding Transition Service
Schedule. Where
none is set forth, Alcan and the other relevant members of
Alcan Group
shall use Commercially Reasonable Efforts to provide Services,
or to cause the Services to be
provided, in accordance with Alcan's
policies,
procedures, service levels and practices in effect before the
Effective Date
and shall exercise the same care and skill as Alcan
exercises in
performing similar services for itself or for the other
members of Alcan
Group. In addition, to the extent within the possession
and control of
Alcan and the other relevant members of Alcan Group, Alcan
shall provide,
and shall cause the other relevant members of Alcan Group to
provide, Novelis
and the other relevant members of Novelis Group with
information and
documentation sufficient for
