STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement (this "AGREEMENT"), dated for
reference October 1, 2001 (the "Effective Date"), is by and between NORSKE
SKOGINDUSTRIER ASA, a Norwegian corporation ("Norske Xxxx"), and NORSKE XXXX
CANADA LIMITED, a Canadian corporation ("NorskeCanada"), (Norske Xxxx and
NorskeCanada each sometimes a "Party" and collectively, the "Parties").
W I T N E S S E T H:
WHEREAS Norske Xxxx formerly owned over 50% of the issued and
outstanding Common Shares of NorskeCanada;
WHEREAS as a result of a recent acquisition and related issuance of
Common Shares by NorskeCanada, Norske Xxxx, is still the single largest
shareholder of NorskeCanada, but now owns 36.1% of the issued and outstanding
Common Shares of NorskeCanada, ; and
WHEREAS Norske Xxxx owns or has an interest in, and produces paper at,
20 xxxxx located in Europe, South America, Asia and Australasia and markets its
products throughout the world; and
WHEREAS NorskeCanada owns and produces pulp and paper at four xxxxx
located on the coast of British Columbia, Canada, and markets its products
throughout the world principally in North America, Asia and South America; and
WHEREAS the parties have entered into a confidentiality agreement dated
August 27, 2001 by which Norske Xxxx has agreed to keep financial information
regarding NorskeCanada confidential as provided for in such agreement; and
WHEREAS the parties have formed Norske Xxxx North America LLC for the
purposes of marketing in North America specialty papers produced by Norske Xxxx
and NorskeCanada respectively; and
WHEREAS the parties have entered into an agency agreement for the
purpose of marketing and sales of a variety of grades of paper in South America;
and
WHEREAS Norske Xxxx and NorskeCanada desire to form a strategic
alliance to provide a mechanism to participate in activities intended to create
mutual cost reduction and value creation opportunities for both organisations in
areas of mutual interest as set out in this Agreement, to the extent permitted
by applicable law; and
WHEREAS each of Norske Xxxx and NorskeCanada acknowledge that (i) they
will not co-operate or share information to the extent or in a manner that is
contrary to applicable laws; and (ii) that the information to be exchanged
between the parties is limited to the purposes of the strategic alliance set out
in this Agreement.
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NOW, THEREFORE, in consideration of the premises, mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Norske Xxxx and NorskeCanada agree
as follows:
1. STRATEGIC ALLIANCE
(a) ALLIANCE. Subject to, and in accordance with, the terms and
conditions of this Agreement, Norske Xxxx and NorskeCanada hereby
establish a strategic alliance (the "Alliance") all as more fully
set forth herein.
(b) PURPOSE OF THE ALLIANCE. The purpose of this Alliance is to provide
a mechanism for the Parties to participate in activities intended to
create mutual cost reduction or add value to the respective parties'
enterprises. Within the spirit of this purpose, the Parties propose
to share information and co-operate with each other to the extent
permitted by applicable law and this Agreement as follows:
(i) exchange of best practises and information on manufacturing
developments, processes and efficiencies as well as technical
consultation in connection with the purchase, maintenance and
operation of paper machines and related equipment and the
operation of paper manufacturing xxxxx;
(ii) cooperation on procurement initiatives for the benefit of each
of Norske Xxxx and NorskeCanada;
(iii) exchange of information and cooperation relating to the
purchasing, development and use of information technology and
other initiatives related to information technology;
(iv) exchange of information and expertise concerning health and
safety issues;
(v) exchange of information and expertise concerning environmental
issues; In addition to areas of mutual cooperation, each party
commits to advise the other of specific environmental
strategies or initiatives that may be required by either
company to address issues affecting its business, reputation
or interests. While respecting and accommodating the interests
of the other party wherever possible, it is recognized that
each party will make independent decisions;
(vi) in connection with the exchange of particular expertise useful
for the Alliance, the transfer of personnel between the
Parties;
(vii) exchange and discussion of information obtained from external
third party sources or non-confidential information relating
to current or previous
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general market conditions for paper products such as key
economic conditions, technology and production developments
and similar matters;
(viii) establishment of other opportunities for the purposes of
sharing expertise, best practices and utilization of combined
resources to save costs or to create value for each of the
Parties; and
(ix) formation and operation of a joint venture in the United
States for the sale of specialty papers,
in each case, in a manner that does not give rise to issues or
concerns under the laws of any jurisdiction.
2. STRUCTURE OF THE ALLIANCE
STEERING COMMITTEE:
The Parties will establish a steering committee (the "Steering
Committee") to co-ordinate their respective activities in respect of the
Alliance.
(a) DUTIES OF STEERING COMMITTEE. The Steering Committee will, in
connection with the Alliance, among other things:
(i) monitor the progress, review the performance and make
recommendations with respect to the Alliance;
(ii) make efforts to promptly resolve problems and disputes
concerning the Alliance submitted to the Steering Committee by
a Party;
(iii) evaluate from time to time, the progress and results of the
Alliance; and
(iv) allocate costs incurred by a Party in respect of agreed to
initiatives or projects undertaken by the Alliance between the
Parties in a manner that fairly recognizes the costs that are
incurred, and the benefits to be obtained, by each Party as a
result of such initiative or project.
(b) COMPOSITION OF THE STEERING COMMITTEE. The following provisions
shall apply in respect of the appointment of representatives to the Steering
Committee:
(i) each Party shall appoint and maintain at all times, and from
time to time, two individuals as its representatives (the
"Party Representatives") on the Steering Committee. The
following are the initial Party Representatives on the
Steering Committee:
From NorskeCanada:
Xxx Xxxxxxxxx
Xxx Xxxxxxxx
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From Norske Xxxx:
Xxx Xxxxxxxx
Jan Oksum;
(ii) each Party may change its representatives on the Steering
Committee; and
(iii) a Party Representative may from time to time appoint an
alternate representative to attend any meeting of the Steering
Committee and act as a Party Representative in place of the
Party Representative for whom he or she is an alternate.
(c) MEETINGS OF THE STEERING COMMITTEE. The following provisions
shall apply in respect of meetings of the Steering Committee:
(i) meetings ("Meetings") of the Steering Committee shall be held
at the reasonable request of any Party Representative and
shall be held not less frequently than quarterly;
(ii) meetings shall be held at such places as may be agreed upon
from time to time by the Party Representatives. Party
Representatives may participate in such meetings by way of
telephone conference;
(iii) the Party Representatives may permit others from, or on behalf
of, the Parties, to attend Meetings from time to time; and
(iv) the Party Representatives shall appoint from among them, or
shall appoint another mutually agreed upon individual to
record minutes from each meeting which minutes are to be
circulated to all Party Representatives.
(d) RELEASE AND INDEMNITY. Each of the Parties hereby:
(i) releases and forever discharges each of the other Party's
Party Representatives from any and all actions, proceedings,
liabilities, claims, damages, costs and expenses which such
Party may at any time hereafter have against any such Party
Representative in respect of anything done or omitted to be
done by him or her in the performance of his or her duties;
and
(ii) agrees that no fee, salary, commission or other compensation
shall be paid jointly by the Parties to Parties
Representatives.
The provisions of this subsection 2(d) shall survive the
termination of this Agreement and may be relied upon by anyone
who, from time to time, acts as a Party Representative; it
being acknowledged and agreed by the Parties that each Party
may institute and pursue an action to enforce the terms of
this section on
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behalf of a Party Representative as an intended third party
beneficiary of the provisions of this subsection 2(d) or
otherwise.
3. GUIDELINES, RESTRICTIONS AND LIMITATIONS
(a) PROHIBITED AREAS OF INTEREST. The Parties will at all times comply
with applicable laws and not cooperate in a manner, or share information, that
might constitute a violation of applicable laws.
(b) COMPLIANCE PROGRAMS. Each party will establish a compliance program
for all employees to ensure they comply with applicable laws in their respective
interaction with each other within the Alliance.
(c) INDEPENDENCE OF ACTION. Each Party acknowledges that the creation
of the Alliance will not affect the entitlement of a Party to pursue its own
interests in the market, independently of the other Party, even if the pursuit
of such interest is competitive with, or adverse to the interests of, the other
Party. Each Party is at all times entitled to determine, independently of the
other Party, the strategy that a Party will pursue in the market.
(d) PROHIBITED ACTIVITIES AND INFORMATION. None of the Party
Representatives nor any other representative of a Party will be entitled to, and
neither Norske Xxxx nor NorskeCanada will permit such person to, participate in
any meeting or any other venue in which discussions take place, or in any
program or activity, that includes, or might include, measures that are aimed at
increasing prices for the products produced by Norske Xxxx or NorskeCanada or
that might result in the prevention, restriction or distortion and/or an undue
lessening of competition in the relevant product and geographic markets of the
Parties' products, or in respect of future pricing and market strategy of either
Party. Without limiting the generality of the foregoing, the Parties agree that
all information exchanged between them will be consistent with the purposes of
the Alliance and that they will not, nor will any representative of a Party,
exchange information regarding their respective pricing policies or decisions,
specific customer ordering; pricing, rebate or discount programs; capacity or
supply management strategies or planning; or similar pricing and supply matters.
4. COSTS
(a) COSTS. Each of the Parties shall pay all of their own costs and
expenses incurred in connection with this Agreement and the Alliance, including,
but not limited to, costs and expenses incurred in respect of travel, consulting
services, marketing materials or services and legal services.
5. REPRESENTATIONS AND WARRANTIES
As an inducement to the other to enter into this Agreement,
each Party represents and warrants to the other in respect of itself the
following:
(a) ORGANIZATION, CORPORATE POWER, ETC. Each Party is duly organized,
validly existing and in good standing, in the case of Norske Xxxx, under the
laws of Norway, under which it is incorporated, and, in the case of
NorskeCanada, under the laws of the Canada, under
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which it is continued, and each has the corporate power and authority to carry
on its business as it is now being conducted, and is, or shall be at the
Effective Date, duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it makes such licensing or
qualification necessary;
(b) AUTHORITY OF PARTIES. Each Party has full power and authority to
execute, deliver and perform this Agreement and the execution, delivery and
performance of this Agreement has been duly authorized and approved by all
necessary corporate action on the part of each Party and does not require any
further authorization or consent on the part of each Party;
(c) BINDING OBLIGATION. This Agreement has been duly executed and
delivered by each Party and constitutes the valid and binding obligation of each
Party, enforceable against each Party in accordance with its respective terms
(except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship and other laws
relating to or affecting creditors' rights generally and by general equity
principles);
(d) NO LITIGATION. To each Party's respective knowledge, there are no
lawsuits, claims, suits, proceedings or investigations pending or threatened
against it which question the legality or propriety of the agreements set forth
in this Agreement;
(e) CONSENTS AND APPROVALS. No consent, approval, authorization, action
or order of, or declaration, filing or registration with, or notice to, any
court, administrative agency, governmental body or other third party is required
to be made or obtained by either Party in connection with the execution and
delivery of this Agreement, the agreements contemplated hereby or the
performance of either Party's obligations hereunder;
6. CONFIDENTIALITY
(a) OBLIGATIONS OF PARTIES. Each Party understands and acknowledges
that so long as this Agreement remains in effect, the Parties will have access
to certain Confidential Information (as defined in Section 6(b) below)
concerning their respective businesses that is a valuable and unique asset of
the respective Parties upon which their respective businesses are dependent. To
ensure the continued secrecy of this Confidential Information, and that this
Confidential Information will only be used for purposes of the Alliance, and not
in a manner that is detrimental to either Party:
(i) subject to paragraphs 6(a)(ii) and (v), each Party agrees not
to disclose Confidential Information of the other Party or
permit Confidential Information of the other Party to be
disclosed to any third party or to use such Confidential
Information other than for purposes of the Alliance and in any
event, not to use such Confidential Information in any manner
that is detrimental to the other Party without the prior
written consent of the other Party;
(ii) Confidential Information of the other Party may be disclosed
by a Party to its Party Representatives and to its directors,
officers, employees, auditors and counsel who need to know
such Confidential Information for the purposes of the Alliance
and in order to fulfill their responsibilities to the
7 Party, but the Party shall issue appropriate instructions to
such persons to satisfy its obligations under this Subsection
6(a) and to otherwise comply with the terms of this Agreement
and shall be responsible for any and all failures by such
persons to comply with the terms of this Agreement;
(iii) each Party agrees that if this Agreement is terminated for any
reason, neither Party shall take or retain, without prior
written authorization from the other Party, originals or
copies of any records, papers, programs, computer software,
documents, files, or any other matter of whatever nature which
is, contains or may facilitate access to Confidential
Information of the other Party to the extent received after
the date of this Agreement;
(iv) there shall be a rebuttable presumption that a Party's
disclosure to a third party of Confidential Information of the
other Party will result in irreparable damage or harm to such
other Party and that monetary damages will not be adequate to
compensate such other Party for any damage or harm resulting
from such disclosure, and any Party who seeks injunctive or
other equitable relief against the other Party in respect of
any disclosure of the Party's Confidential Information to a
third party by such other Party will not be required to prove
that such disclosure will result in irreparable damage or harm
to the Party and that monetary damages will not be adequate to
compensate the Party for any damage or harm resulting from
such disclosure; and
(v) a Party may disclose Confidential Information when disclosure
by such Party is required under applicable law or stock
exchange or securities commission rule or policy, or by a
valid subpoena or other court or governmental order, decree,
regulation or rule; provided, however, that if disclosure is
required under this provision, such Party shall advise the
other Party of the requirement to disclose Confidential
Information prior to such disclosure and as soon as reasonably
practicable after such Party becomes aware of such required
disclosure or aware that an action has been taken seeking such
disclosure unless such notice is legally prohibited; and
provided further, that upon the request of the other Party,
such Party agrees to reasonably cooperate with and at the
expense of the other Party in any reasonable and lawful
actions which the other Party takes to resist such disclosure,
limit the information to be disclosed or limit the extent to
which the information so disclosed may be used or made
available to third parties.
(b) "CONFIDENTIAL INFORMATION". For purposes of this Agreement and
except as provided in Subsection 6(c) below, "Confidential Information" of a
Party is information of whatever nature in the possession or control of that
Party that is not generally known or available to members of the general public,
including any copies, worksheets, or extracts from any of the above.
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(c) EXCEPTIONS. The term "Confidential Information" of a Party shall
not include any information which (i) is or becomes generally available to and
known by the public (other than as a result of an impermissible disclosure
directly or indirectly by the other Party), (ii) is or becomes available to the
other Party on a non-confidential basis from a source other than the Party,
provided, that such source is not and was not bound by a confidentiality
agreement with, or other obligation of secrecy to, the Party, or (iii) has been
or is hereafter independently acquired by the other Party without violating any
confidentiality agreement with, or other obligation to, the Party.
(d) SECURITIES LAWS. Each Party acknowledges that it is aware, that
securities laws prohibit any person who has received material non-public
information concerning a public company from dealing in securities of that
public company or from communicating such material non-public information to any
other person in circumstances in which it is reasonably foreseeable that such
person is likely to deal in such securities and that any breach of paragraph
6(a) of this Agreement may constitute a breach of applicable securities or other
laws.
(e) OWNERSHIP OF CONFIDENTIAL INFORMATION. Each Party shall own and
shall be entitled to use and otherwise exploit, in its sole discretion, all
information which such Party has acquired independently of the other Party or
which is not Confidential Information and neither Party grants any rights or
interest it may have in its Confidential Information to the other Party.
(f) SHARING OF INFORMATION. Neither Party is
obligated to share with the other Party any of its Confidential Information or
other information, other than as expressly provided for in this Agreement.
7. LIMITATION OF LIABILITY; NO THIRD PARTY BENEFICIARIES
(a) LIMITATION OF LIABILITY. In no event shall either party be liable
to the other for any special, incidental, punitive, statutory or consequential
damages or any multiple of actual damages, whether based on breach of contract,
tort (including negligence), or otherwise, and whether or not that party has
been advised of the possibility of such damage.
(b) NO THIRD PARTY BENEFICIARIES. Except as expressly provided in
subsection 2(d), this Agreement does not confer upon any person, and nothing
expressed or referred to in this Agreement shall be construed to give any
person, other than the Parties to this Agreement, any legal or equitable right,
remedy, or claim under or with respect to this Agreement or any provision of
this Agreement. This Agreement and all of its provisions and conditions are
otherwise for the sole and exclusive benefit of the Parties hereto.
(c) NO LIABILITY FOR ACTS OF THE OTHER. Neither Party accepts any
liability for or arising out of the actions of the other Party.
8. TERMINATION
BY AGREEMENT. This Agreement may be terminated at any time by the
written agreement of the Parties or by not less than six months written notice
by either Party to the other. This Agreement will immediately terminate if it is
determined that the actions of the Parties pursuant to this Agreement are in
contravention of any laws.
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9. GOVERNING LAW; JURISDICTION
(a) GOVERNING LAW. This Agreement shall be governed by, and in
accordance with, the internal laws of the Province of British Columbia, Canada,
without giving effect to the conflict of laws principles thereof.
(b) JURISDICTION. Each Party agrees (i) that any action, dispute or
proceeding relating to this Agreement may be brought in the Courts of the
Province of British Columbia sitting in Vancouver, British Columbia, and freely
submits to the jurisdiction of such courts, (ii) that it freely waives any right
to, and will not, oppose any such action or proceeding in such courts on the
basis that the jurisdiction is not a convenient forum, and (iii) not to oppose
the enforcement against it in any other jurisdiction of any judgement or order
properly obtained from such a British Columbia court.
10. NOTICES
All notices provided for or permitted to be given under this Agreement shall be
in writing. All notices or other communications to be sent to a Party under this
Agreement shall be sent to or made at the following addresses, or such other
address as the Parties may specify by notice to each other from time to time in
accordance herewith:
If to Norske Xxxx, at the following address:
Norske Skogindustrier ASA
Xxxxxxxxxxxx 00
Xxxxxxx, Xxxxxx
Attention: President & Chief Executive Officer
Facsimile No.: 011-447-67-599-190
If to NorskeCanada, at the following address:
Xxxxx 000, 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: President & Chief Executive Officer
Facsimile No.: 000-000-0000
A notice or other communication given under this Agreement shall be effective
upon receipt by the person to whom such notice was sent.
11. MISCELLANEOUS
(a) NO PARTNERSHIP - INDEPENDENT CONTRACTORS. Nothing contained in this
Agreement is intended or shall be construed to create any partnership or
association between the Parties, and any inferences to the contrary are hereby
expressly negated. The relationship of the Parties is and
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shall at all times be solely that of independent contractors. No agency,
employment or any fiduciary relationship is created by this Agreement. Neither
Party shall do anything that has the effect of creating an obligation by the
other Party to a third party.
(b) ASSIGNMENT. This Agreement is binding upon and enures to the
benefit of each Party's respective successors. Neither Party may assign this
Agreement, or any rights or obligations hereunder, whether by contract or by
operation of law, except with the express written consent of the other Party,
which consent may be granted or withheld in that Party's sole discretion.
(c) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties and there are no
warranties, representations or other agreements between the Parties in
connection with the subject matter hereof except as specifically set forth
herein or contemplated hereby. Except as otherwise provided herein, no
supplement, modification or waiver of this Agreement shall be binding unless it
shall be specifically designated to be a supplement, modification or waiver of
this Agreement and shall be executed in writing by both of the Parties.
(d) WAIVER. No failure on the part of a Party to exercise , and no
delay in its exercise of, any right, power or privilege under this Agreement
shall operate as a waiver thereof. No single or partial exercise by a Party of
any right, power or privilege under this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
(e) HEADINGS. The use of headings in this Agreement is for convenience
only and shall not affect the construction or interpretation of this Agreement.
(f) SCHEDULES. Each Schedule referred to in this Agreement is a part
of, and hereby incorporated into, this Agreement. Any reference to "this
Agreement" shall be deemed to include the Schedules hereto.
(g) SEVERABILITY. If one or more of the provisions of this Agreement
are at any time found to be invalid by a court, tribunal or other forum of
competent jurisdiction, or otherwise rendered unenforceable, such decision shall
not have the effect of invalidating or voiding the remainder of this Agreement.
This Agreement shall be deemed amended by modifying or severing such provisions
as necessary to render it valid, legal and enforceable while preserving its
intent, or if that is not possible, by substituting another provision that is
valid, legal and enforceable which materially effectuates the Parties' intent.
Any such invalid or unenforceable provision or provisions shall be severable
from this Agreement, so that the validity or enforceability of the remaining
provisions of this Agreement, or the validity of the provisions) in question in
any other jurisdiction, shall not be affected thereby.
(h) BANKRUPTCY. Each Party must notify the other if it becomes
insolvent or enters into any bankruptcy or insolvency proceedings.
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(i) SURVIVAL. The provisions of Sections 2(d), and Sections 6, 7, 10
and 11 inclusive shall survive the termination of this Agreement for whatever
reason, subject to any applicable statute of limitations and subject to any
provisions contained in such sections.
(j) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different Parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Agreement.
Executed this 6th day of February, 2002 by:
NORSKE SKOGINDUSTRIER ASA
by /s/ Xxx Xxxxxx
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President & Chief Executive Officer
NORSKE XXXX CANADA LIMITED
by /s/ Xxxxxxx X. Xxxxxx
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President & Chief Executive Officer
