Attached files
| file | filename |
|---|---|
| 10-Q - FORM 10-Q - Resolute Forest Products Inc. | g25223e10vq.htm |
| EX-31.2 - EX-31.2 - Resolute Forest Products Inc. | g25223exv31w2.htm |
| EX-32.2 - EX-32.2 - Resolute Forest Products Inc. | g25223exv32w2.htm |
| EX-31.1 - EX-31.1 - Resolute Forest Products Inc. | g25223exv31w1.htm |
| EX-32.1 - EX-32.1 - Resolute Forest Products Inc. | g25223exv32w1.htm |
Exhibit 10.1
SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into by and between AbitibiBowater Inc., a Delaware
corporation, and its Canadian subsidiaries Abitibi-Consolidated Company of Canada,
Abitibi-Consolidated Inc. and AbitibiBowater Canada Inc. (collectively “AbitibiBowater”), and Her
Majesty the Queen in Right of Canada (“the Government of Canada”). AbitibiBowater and the
Government of Canada are hereinafter referred to collectively as the “Parties”.
WHEREAS, on 16 December 2008, the Government of Newfoundland and Labrador (the “Province”) passed
An Act to Return to the Crown Certain Rights Relating to Timber and Water use Vested in
Abitibi-Consolidated and to Expropriate Assets and Lands Associated with the Generation of
Electricity Enabled by Those Water Use Rights (the “Act”);
WHEREAS, on 16 April 2009, AbitibiBowater Inc. and certain of its U.S. and Canadian subsidiaries
filed voluntary petitions in the United States Bankruptcy Court for the District of Delaware (the
“U.S. Court”) for relief under the provisions of Chapter 11 of the United States Bankruptcy Code,
as amended (the “Chapter 11 Bankruptcy Proceedings”);
WHEREAS, on 17 April 2009, certain of AbitibiBowater Inc.’s Canadian subsidiaries also sought
creditor protection under the Companies’ Creditors Arrangement Act with the Superior Court of
Quebec in Canada (the “CCAA Proceedings”);
WHEREAS AbitibiBowater is currently finalizing its restructuring process under the Chapter 11
Bankruptcy Proceedings and the CCAA Proceedings and intends to continue operations in Canada under
a new corporate structure (the “New Company”);
WHEREAS, on 25 February 2010, AbitibiBowater Inc. served a Notice of Arbitration and Statement of
Claim (the “Notice of Arbitration”) on the Government of Canada, pursuant to Articles 1116, 1117
and 1120 of the North American Free Trade Agreement (“NAFTA”) and Articles 3 and 18 of the
Arbitration Rules of the United Nations Commission on International Trade Law (the “UNCITRAL
Rules”), on its own behalf and on behalf of Abitibi-Consolidated Company of Canada,
Abitibi-Consolidated Inc. and AbitibiBowater Canada Inc., seeking compensation under NAFTA Chapter
11 for damages arising out of the Act (the “Claims”);
WHEREAS, the Parties wish finally and irrevocably to settle the Claims;
NOW, THEREFORE, in consideration of the mutual promises, undertakings and representations contained
in this Settlement Agreement, the Parties agree as follows:
| 1. | AbitibiBowater Inc. hereby irrevocably and permanently withdraws its Notice of Arbitration
served against the Government of Canada. |
|
| 2. | AbitibiBowater Inc. hereby releases and forever discharges the Government of Canada from the
Claims. |
|
| 3. | AbitibiBowater, or any successor company, hereby waives any right to bring a NAFTA Chapter 11
claim against the Government of Canada for any loss arising out of the Act. |
|
| 4. | AbitibiBowater, or any successor company, shall indemnify and hold harmless the Government of
Canada against any claim, action or proceeding that itself, its subsidiaries, parents,
predecessors, successors or assigns, have initiated or may initiate against the Government of
Canada relating to the Act. Nothing in this indemnification shall be interpreted as extending
to any rights or claims of AbitibiBowater’s partners in the Star Lake Hydro Partnership and
the Exploits River Hydro Partnership and/or of lenders or creditors to those projects. |
|
| 5. | As consideration for the above-cited final settlement and waiver of any and all legal action
by AbitibiBowater against the Government of Canada arising out of or related to the Act and/or
claims by AbitibiBowater against the Government of Canada relating to the assets and rights
cited therein, including those raised in the Notice of Arbitration, the Government of Canada
shall make a payment of $130 million (CAD), following the constitution of the New Company,
representing not more than the fair market value of the rights and assets owned by
AbitibiBowater expropriated under the Act. Payment made under this Settlement Agreement shall
be made to the New Company. |
|
| 6. | This Settlement Agreement is conditional upon AbitibiBowater obtaining the approval of its
terms by the Superior Court of Quebec in the CCAA Proceedings and by the U.S. Court in the
Chapter 11 Bankruptcy Proceedings and court approval of AbitibiBowater’s restructuring plan.
AbitibiBowater shall apply for such approvals promptly. Should |
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AbitibiBowater fail to obtain the approvals referred to in this paragraph 6, this Agreement
shall become null and void and AbitibiBowater shall retain the full benefit of the Claims. |
||
| 7. | This Settlement Agreement shall not constitute a legal precedent for any person, and shall
not be used except for the sole purpose of giving effect to its terms, and shall not prejudice
or affect the rights or defenses of the Parties or the rights of any other person except to
the extent provided herein. |
|
| 8. | The Parties agree each to bear their own legal costs and expenses and to pay in equal shares
the fees and expenses of the Arbitral Tribunal constituted under NAFTA Chapter 11 to hear the
dispute between the Parties and of the International Centre for the Settlement of Investment
Disputes, incurred as of the date of signature of this Settlement Agreement. |
|
| 9. | The Parties agree jointly to request the incorporation in full of this Settlement Agreement
in the form of a Consent Award, pursuant to NAFTA Article 1136 and Article 34(1) of the
UNCITRAL Rules, to be issued by the Arbitral Tribunal constituted under NAFTA Chapter 11 to
hear the dispute between the Parties, which will result in the formal and permanent
discontinuance and termination of the NAFTA Chapter 11 arbitration proceedings commenced by
AbitibiBowater with the filing of its Notice of Arbitration. |
|
| 10. | In accordance with NAFTA Annex 1137.4, the Parties agree to the publication of this
Settlement Agreement and the resulting Consent Award. |
|
| 11. | The Parties shall communicate and cooperate with each other prior to any public disclosure of
the transactions contemplated in this Agreement. If one party is required by law or the rules
and regulations of any stock exchange upon which its securities are listed to disclose the
content of this Agreement, then it shall consult with the other party and allow it to comment
on the proposed communication prior to its issuance. |
|
| 12. | For the purpose of construction and interpretation of this Settlement Agreement the entire
agreement shall be read and construed as a whole without giving any specific effect to any
article separately. |
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| 13. | This Settlement Agreement shall be executed in three original copies in counterparts, one
original for each Party and one original for the Arbitral Tribunal, and shall take effect upon
the court approval referred to in paragraph 6 being obtained and all relevant appeal periods
for such approvals having lapsed, and the New Company being constituted. |
|
| 14. | This Settlement Agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and such rules of international law as may be applicable. |
IN WITNESS WHEREOF, the Parties have executed and delivered this Settlement Agreement on August 24,
2010.
| AbitibiBowater Inc. | The Government of Canada | |||||
By:
|
/s/ David J. Paterson | By: | /s/ Louis Levesque | |||
Title:
|
President and CEO | Title: | Deputy Minister of International Trade | |||
Dated:
|
August 23, 2010 | Dated: | August 24, 2010 | |||
| Abitibi-Consolidated Company of Canada | ||||||
By:
|
/s/ David J. Paterson | |||||
Title:
|
President | |||||
Dated:
|
August 23, 2010 | |||||
| Abitibi-Consolidated Inc. | ||||||
By:
|
/s/ David J. Paterson | |||||
Title:
|
President | |||||
Dated:
|
August 23, 2010 | |||||
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| AbitibiBowater Canada Inc. | ||||||
By:
|
/s/ David J. Paterson | |||||
Title:
|
President | |||||
Dated:
|
August 23, 2010 | |||||
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