UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
(Exact name of registrant as specified in its charter)
| |
|
|
|
|
| Canada
|
|
001-32312
|
|
98-0442987 |
|
|
|
|
|
|
(State or other jurisdiction
of incorporation)
|
|
(Commission
File Number)
|
|
(IRS Employer
Identification No.) |
| |
|
|
| 3399 Peachtree Road NE, Suite 1500, Atlanta, GA
|
|
30326 |
|
|
|
|
| (Address of principal executive offices)
|
|
(Zip Code) |
Registrant’s telephone number, including area code
(404) 814-4200
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of
the registrant under any of the following provisions:
|
|
|
| o |
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
|
| x |
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
|
| o |
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
|
|
|
| o |
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
Arrangement Agreement
On
February 10, 2007, Novelis Inc. (“
Novelis”), Hindalco Industries Limited
(“
Hindalco”) and AV Aluminum Inc., a subsidiary of Hindalco (“
Acquisition Sub”),
entered into an Arrangement Agreement (the “
Arrangement Agreement”). Under the Arrangement
Agreement, Acquisition Sub will acquire all of the issued and outstanding common shares of Novelis
for cash at a per share price of $44.93, without interest (the “
Purchase Price”), to be
implemented by way of a court-approved
plan of arrangement (the “
Arrangement”).
Pursuant to the Arrangement Agreement, at the effective time of the Arrangement, each common
share of Novelis issued and outstanding immediately prior to the effective time (other than common
shares held by (i) Hindalco or Acquisition Sub or any of their affiliates or (ii) any shareholders
who properly exercise dissenters rights under the Canada Business Corporations Act), will be
automatically converted into the right to receive the Purchase Price. The total consideration for
the acquisition of Novelis is estimated at approximately $6 billion, including the assumption of
Novelis’ debt. The transaction is not subject to a financing condition.
The consummation of the Arrangement is subject to various customary conditions, including
Novelis shareholder approval and the expiration or termination of the applicable waiting periods
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and similar antitrust laws in Canada
and the European Union.
The Arrangement Agreement contains customary representations and warranties between Novelis
and Hindalco and Acquisition Sub. The Arrangement Agreement also contains customary covenants and
agreements, including covenants relating to (a) the conduct of Novelis’ business between the date
of the signing of the Arrangement Agreement and the closing of the Arrangement, (b) solicitation of
competing acquisition proposals and (c) the efforts of the parties to cause the Arrangement to be
completed. Additionally, the Arrangement Agreement requires Novelis to use its reasonable best
efforts to call and hold a meeting of its shareholders to adopt the Arrangement Agreement and the
Arrangement.
The Arrangement Agreement contains certain termination rights and provides that, upon or
following the termination of the Arrangement Agreement, under specified circumstances involving a
competing acquisition proposal, Novelis may be required to pay Hindalco a termination fee of $100
million.
The foregoing description of the Arrangement Agreement does not purport to be complete and is
qualified in its entirety by reference to the Arrangement Agreement, which is attached as
Exhibit 2.1 to this Current Report on Form 8-K and is
incorporated herein by reference.
The Arrangement Agreement contains representations and warranties made by and to the parties
thereto as of specific dates. The assertions embodied in those representations and warranties were
made for purposes of the respective agreements and are subject to qualifications and limitations
agreed by the respective parties in connection with negotiating the terms of the Arrangement
Agreement. In addition, certain representations and warranties were made as of a specified date,
may be subject to a contractual standard of materiality different from what might
2
be viewed as material to shareholders, or may have been used for the purpose of allocating
risk between the respective parties rather than establishing matters as facts. For the foregoing
reasons, no person should rely on the representations and warranties as statements of factual
information at the time they were made or otherwise.
Additional Information and Where to Find it
In
connection with the proposed acquisition, Novelis plans to file a
proxy statement/circular
with the SEC. INVESTORS AND SECURITY HOLDERS OF NOVELIS ARE ADVISED
TO READ THE PROXY STATEMENT/CIRCULAR AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE
THOSE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED ACQUISITION. The final
proxy statement/circular will be mailed to shareholders of Novelis. Investors and security holders may
obtain a free copy of the proxy statement/circular when it becomes available, and other documents filed
by Novelis with the SEC, at the SEC’s
web site at
http://www.sec.gov. In addition, you may
obtain Novelis filings with the SEC, free of charge, from Novelis’
website
(
www.novelis.com) under the tab
“Investors” through the
“SEC Filings” link.
Novelis and its directors, executive officers and other members of its management and
employees may be deemed to be participants in the solicitation of proxies from Novelis’
shareholders with respect to the Arrangement. Information about Novelis’ executive officers and
directors and their ownership of Novelis’ common shares is set forth in the information circular
for Novelis’ 2006 annual meeting of shareholders, which was filed with the SEC on
September 15,
2006. Investors and security holders may obtain more detailed information regarding the direct and
indirect interests of Novelis and its respective executive officers and directors in the
Arrangement by reading the preliminary and definitive proxy
statement/circulars regarding the
Arrangement, which will be filed with the SEC.
Amendment to Recognition Agreements
On
February 10, 2007, the Board of Directors of Novelis (the “
Board”) adopted
resolutions to amend the Recognition Agreements it entered into on
September 25, 2006 with the
following executive officers: Martha Brooks, Rick Dobson, Les Parrette, David Godsell, Steve
Fisher, Kevin Greenawalt, Arnaud de Weert, Tadeau Nardocci, Orville Lunking, Bob Patterson and
Brenda Pulley. The Board also adopted resolutions to amend Recognition Agreements it entered into
on
September 25, 2006 with certain other key employees who are not executive officers of Novelis.
Under
the amended Recognition Agreements, if the officer remains
continuously employed by Novelis through the vesting dates of
December 31, 2007 and
December 31, 2008, the officer is entitled to a
Recognition Award (as defined in the Recognition Agreement) payable
in either, at the option of Hindalco, Hindalco common shares in
certain circumstances (upon the approval of the officer) or
(ii) an amount in cash in each case equivalent to the value of
Novelis common shares determined at the effective time of the
Arrangement. The form of the amendment to the Recognition Agreements will be
filed as an amendment to this Current Report on Form 8-K upon completion.
3
Amendment to Amended and Restated Novelis Founders Performance Awards Plan
On
March 24, 2005, the
Board adopted the Novelis Founders Performance Awards
Plan (the “
Plan”) to allow for a one-time additional
compensation opportunity for certain executives of Novelis. The
Plan provides that if share price improvement targets with respect to
Novelis common shares for performance periods beginning in 2005, 2006
and 2007 are achieved, then participants may be awarded performance
share units, which represent the right to receive a cash payment in
an amount equal to the market price of one Novelis common share at
the time of payment (a “
PSU”). If awarded, PSUs for a
particular tranche will be paid in cash on the later of six months
from the date the specific share price target is achieved or twelve
months after the start of the performance period for that tranche and
will be based on the average of the daily closing price of a Novelis
common share on the New York Stock Exchange for the last five trading
days prior to the payment date. The Board amended the Plan on
March 14, 2006 in order to clarify that PSUs would only be
awarded under the second and third tranches of the Plan for
performance periods beginning in 2006 and 2007, respectively, if the
share price met the applicable threshold for 15 consecutive days
during an open trading window (i.e., when Novelis insiders are not
subject to a trading blackout).
On
February 10, 2007, the
Board recognized that the applicable share
price threshold had been (or would likely be) met with respect to the
second tranche and would probably be met for the third tranche, but
in light of the insiders’ awareness of the possibility of a
change in control transaction, they have been subject to a trading
blackout. Moreover, it is unlikely that 15 day open trading
window under the Novelis disclosure and insider trading policies will
arise between the date hereof and the closing of the change in
control transaction (e.g., by the end of the second quarter).
Accordingly, on
February 10, 2007, the Board further amended the
Plan in order to provide that the applicable threshold for
(a) the second tranche will be met as of
February 28, 2007,
and (b) the third tranche will be met as of
March 26, 2007,
for purposes of PSUs to be awarded under the Plan. The form of
amendment to the Plan will be filed as an amendment to this Current Report
on Form 8-K upon completion.
Item 3.03 Material Modifications to Rights of Security Holders.
On
February 10, 2007, Novelis
amended the Shareholders
Rights Agreement, dated as of
December
23, 2004 (the “
Rights Agreement”), by and between Novelis and CIBC Mellon Trust Company, as
rights agent, and the Board adopted resolutions deferring the Separation Time of the Rights (as
such terms are defined in the
Rights Agreement) to a later date to be determined by subsequent
decision of the Board so that the transactions contemplated by the Arrangement Agreement will not
cause the Rights to become exercisable. The foregoing description of the amendment to the
Shareholders
Rights Agreement is not complete and is qualified in its entirety by reference to the
First Amendment to the
Rights Agreement, which is filed as
Exhibit 4.1 hereto and is
incorporated herein by reference.
Item 8.01 Other Events.
On
February 11, 2007, Novelis distributed via e-mail to employees
(a) an invitation to a conference call to discuss the
transaction attached hereto as
Exhibit 99.4, (b) the press
release announcing the transaction that is being filed as
Exhibit 99.1, and (c) the employee communication that is
being filed as
Exhibit 99.3, which are incorporated herein by
reference.
On
February 12, 2007, Novelis distributed via email to employees
(a) the employee communication that is being filed as
Exhibit 99.5, (b) the key messages summary regarding the
transaction that is being filed as
Exhibit 99.6, and (c) a
form letter to customers that is being filed as
Exhibit 99.7.
Also
on
February 12, 2007, Novelis distributed via e-mail to
employees (a) a communication to employees that is being filed
as
Exhibit 99.8 and (b) a slide presentation that is
being filed as
Exhibit 99.9, which are incorporated herein by
reference.
4
