S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on December 22, 2006
As filed with the Securities and Exchange Commission on December 22, 2006
Registration No. 333-___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NOVELIS INC.
(Exact name of registrant as specified in its charter)
Canada 98-0442987
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3399 Peachtree Road, NE, Suite 1500
Atlanta, Georgia 30326
(Address, including zip code, of Principal Executive Offices)
Novelis Savings & Retirement Plan
Novelis Hourly Savings Plan
(Full title of the plans)
Leslie J. Parrette, Jr., Esq.
General Counsel
Novelis Inc.
3399 Peachtree Road, NE, Suite 1500
Atlanta, Georgia 30326
(404) 814-4200
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Jeffrey T. Haughey, Esq.
Blackwell Sanders Peper Martin LLP
Plaza Colonnade
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
(816) 983-8000
CALCULATION OF REGISTRATION FEE
- ----------------------------------------- --------------- ----------------------- ---------------------- --------------------
Proposed maximum Proposed maximum
Title of securities to be registered (1) Amount to be offering price per aggregate offering Amount of
registered (2) share (3) price registration fee (4)
- ----------------------------------------- --------------- ----------------------- ---------------------- --------------------
Common shares, no par value 1,030,000 $ 26.72 $27,521,600 $ 2944.81
- ----------------------------------------- --------------- ----------------------- ---------------------- --------------------
(1) Includes a common share purchase right attached to each common share
pursuant to Novelis Inc.'s Shareholder Rights Agreement. In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
(2) This Registration Statement covers 1,000,000 common shares to be offered
and sold pursuant to the Novelis Savings & Retirement Plan and 30,000
common shares to be offered and sold pursuant to the Novelis Hourly Savings
Plan. Also covers any additional common shares that may be issued as the
result of any future stock split, stock dividend or other anti-dilution
provision.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 (c) and (h) under the Securities Act of 1933. The
maximum offering price per share is based on the average of the high and
low prices of the common shares reported on the New York Stock Exchange on
December 19, 2006.
(4) On January 13, 2005, Novelis Inc. filed a registration statement on Form
S-8 (File No. 333-122028) to register 500,000 common shares pursuant to the
Alcancorp Employees' Savings Plan and 15,000 common shares pursuant to the
Alcancorp Hourly Employees' Savings Plan. There are currently 340,698
common shares registered pursuant to such plans under the prior
registration statement that have not been issued. Pursuant to General
Instruction E to Form S-8, $915.49 of registration fees paid with respect
to such shares are being carried forward from the prior registration
statement. As a result, the registration fee of $2944.81 has been offset by
$915.49, and the registration fee paid with this filing reflects the
reduction for the fee carried forward.
Explanatory Note
Novelis Inc. (the "Company") has filed this Registration Statement on Form
S-8 to register the offer and sale of 1,000,000 common shares pursuant to the
Novelis Savings & Retirement Plan (the "Savings Plan") and 30,000 common
shares pursuant to the Novelis Hourly Savings Plan (the "Hourly Plan"). On
January 13, 2005, the Company filed a registration statement on Form S-8, File
No. 333-122028 (the "Prior Registration Statement"), to register the offer and
sale of 500,000 common shares of the Company pursuant to the Alcancorp
Employees' Savings Plan (the "AESP") and 15,000 common shares of the Company
pursuant to the Alcancorp Hourly Employees' Savings Plan (the "HESP"). In
November 2005, the Company adopted the Savings Plan and the Hourly Plan and in
December 2005 transitioned its employees from the AESP to the Savings Plan and
from the HESP to the Hourly Plan. Under the Prior Registration Statement, there
is an aggregate of 340,698 common shares registered for offer and sale pursuant
to the AESP and the HESP that have not been issued (the "Unissued Shares").
In accordance with the principles set forth in Interpretation 89 under
Section G of the Manual of Publicly Available Telephone Interpretations of the
Division of Corporation Finance of the Securities and Exchange Commission (July
1997) and Instruction E to Form S-8, the Unissued Shares, and the $915.49
registration fee allocable thereto, are being carried forward from the Prior
Registration Statement.
Contemporaneously with the filing of this Registration Statement, the
Company is filing an amendment to post-effectively amend the Prior Registration
Statement to deregister the offer and sale of the Unissued Shares.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As permitted by the rules of the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, this Registration
Statement omits the information specified in Part I of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission by the Company are
incorporated in this Registration Statement on Form S-8 by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 2005;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended March
31, 2006, June 30, 2006 and September 30, 2006;
3. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
December 31, 2005, except for information furnished under Current Reports
on Form 8-K, which is not deemed filed and not incorporated herein by
reference; and
4. The description of common shares and purchase rights associated with such
shares contained in the Company's Registration Statement on Form 10 filed
pursuant to Section 12 of the Exchange Act, including the information
statement filed as Exhibit 99.1 thereto, and any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Company or by the plans pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all of the securities offered then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
The Canada Business Corporations Act (the "Act"), the governing act to
which the Company is subject, provides that,
(1) a corporation may indemnify a director or officer of the corporation, a
former director or officer of the corporation or another individual who acts or
acted at the corporation's request as a director or officer or an individual
acting in a similar capacity, of another entity, against all costs, charges and
expenses, including an amount paid to settle an action or satisfy a judgment,
reasonably incurred by the individual in respect of any civil, criminal,
administrative, investigative or other proceeding in which the individual is
involved because of that association with the corporation or other entity.
(2) a corporation may advance moneys to a director, officer or other
individual for the costs, charges and expenses of a proceeding referred to in
paragraph (1). However, the individual shall repay the moneys if he or she does
not fulfill the conditions of paragraph (3).
(3) a corporation may not indemnify an individual under paragraph (1),
unless the individual:
(a) acted honestly and in good faith with a view to the best interests
of the corporation, or, as the case may be, to the best interests of the
other entity for which the individual acted as a director or officer or in
a similar capacity at the corporation's request; and
(b) in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, the individual had reasonable
grounds for believing that the individual's conduct was lawful.
(4) a corporation may with the approval of a court indemnify a person
referred to in paragraph (1), or advance moneys under paragraph (2), in respect
of an action by or on behalf of the corporation or other entity to procure a
judgment in its favor, to which the individual is made a party because of the
individual's association with the corporation or other entity as described in
paragraph (1) against all costs, charges and expenses reasonably incurred by the
individual in connection with such action if the individual fulfils the
conditions set out in paragraph (3).
(5) despite paragraph (1), an individual referred to in paragraph (1) is
entitled to indemnity from the corporation in respect of all costs, charges and
expenses reasonably incurred by the individual in connection with the defense of
any civil, criminal, administrative, investigative or other proceeding to which
the individual is subject because of the individual's association with the
corporation or other entity as described in paragraph (1), if the individual
seeking indemnity:
(a) was not judged by the court or other competent authority to have
committed any fault or omitted to do anything that the individual ought to
have done; and
(b) fulfils the conditions set out in paragraph (3).
The Directors' Standing Resolution pertaining to indemnification of
directors and officers of the corporation represents, in general terms, the
extent to which directors and officers may be indemnified by the Company under
the Act. This resolution provides as follows:
"14. (1) INDEMNITY - Subject to the limitations contained in the governing
Act but without limit to the right of the Corporation to indemnify as provided
for in the Act, the Corporation shall indemnify a Director or Officer, a former
Director or Officer, or a person who acts or acted at the Corporation's request
as a Director or Officer of a body corporate of which the Corporation is or was
a Shareholder or creditor (or a person who undertakes or has undertaken any
liability on behalf of the Corporation or at the Corporation's request on behalf
of any such body corporate) and his heirs and legal representatives, against all
costs, charges and expenses, including an amount paid to settle an action or
satisfy a judgment, reasonably incurred by him in respect of any civil,
criminal, administrative, investigative or other proceeding to which he is made
a party by reason of being or having been a Director or Officer of the
Corporation or such body corporate or by reason of having undertaken such
liability.
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(2) ADVANCE OF COSTS - The Corporation shall advance moneys to a Director,
Officer or other individual for the costs, charges and expenses of a proceeding
referred to in subsection (1). The individual shall repay the moneys if the
individual does not fulfill the conditions of subsection(3).
(3) LIMITATION - The Corporation may not indemnify an individual under
subsection (1) unless the individual:
(a) acted honestly and in good faith with a view to the best interests
of the Corporation; and
(b) in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, he had reasonable grounds for
believing that his conduct was lawful."
The Company also has an insurance policy covering directors and officers of
the Company and of its subsidiaries against certain liabilities which might be
incurred by them in their capacities as such, but excluding those claims for
which such insured persons could be indemnified by the Company or its
subsidiaries.
The board of directors of Novelis Corporation, a wholly-owned subsidiary of
the Company and sponsor of the plans, adopted resolutions requiring Novelis
Corporation to indemnify, to the extent permitted by law, individuals designated
from time to time by the board of directors of Novelis Corporation as named
fiduciaries, including but not limited to any individual who is a member of the
Novelis Employee Benefits Committee or the Novelis US Pension Investment
Committee, and any other officer, director and employee of Novelis Corporation
who has or exercises or is alleged to have or exercise fiduciary authority with
respect to the plans (each a "Fiduciary"), and to keep and hold such individuals
harmless from and against any and all damages, costs, liabilities, expenses,
actions, claims, demands and accounts whatsoever which such individuals may
incur, whether jointly or severally, individually or as a Fiduciary, by reason
of any act or omission, except with respect to any act or omission which
constitutes a willful violation of ERISA. This indemnification shall not be
construed as limiting in any way any other indemnification currently, heretofore
or hereafter applicable to the acts or omissions of any individual under the
plans.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Restated Certificate and Articles of Incorporation of Novelis Inc.
(incorporated by reference to Exhibit 3.1 to the Form 8-K filed by
Novelis Inc. on January 7, 2005 (File No. 001-32312)).
4.2 By-law No. 1 of Novelis Inc. (incorporated by reference to Exhibit 3.2
to the Form 10 filed by Novelis Inc. on November 17, 2004 (File No.
001-32312)).
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4.3 Shareholder Rights Agreement between Novelis Inc. and CIBC Mellon
Trust Company (incorporated by reference to Exhibit 4.1 to the Form
10-K filed by Novelis Inc. on March 30, 2005 (File No. 001-32312)).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included in signature page of Registration
Statement).
The Company hereby undertakes that, to the extent required, it has
submitted or will submit the plans and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify the
plans.
Item 9. Undertakings
(A) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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(B) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(C) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on December 22, 2006.
NOVELIS INC.
By: /s/ William T. Monahan
-----------------------------------------
William T. Monahan
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William T. Monahan or Leslie J. Parrette, Jr., or
any of them, severally, as his/her attorney-in-fact and agent, with full power
of substitution and resubstitution, for him/her and in his/her name, place, and
stead, in any and all capacities, to sign any and all post-effective amendments
to this registration statement, and to file the same with all exhibits hereto,
and all other documents in connection herewith, with the Commission, granting
unto said attorney-in-fact and agent, and either of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as
he/she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or either of them, or their or his
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on December 22, 2006:
Signature Title
--------- -----
/s/ William T. Monahan Chairman of the Board and
- ------------------------------------
William T. Monahan Chief Executive Officer
(Principal Executive Officer)
/s/ Rick Dobson Chief Financial Officer
- ------------------------------------
Rick Dobson (Principal Financial Officer)
/s/ Robert M. Patterson Vice President and Controller
- ------------------------------------
Robert M. Patterson (Principal Accounting Officer)
Director
- ------------------------------------
Edward A. Blechschmidt
/s/ Charles G. Cavell Director
- ------------------------------------
Charles G. Cavell
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Signature Title
--------- -----
/s/ Clarence J. Chandran Director
- ------------------------------------
Clarence J. Chandran
/s/ C. Roberto Cordaro Director
- ------------------------------------
C. Roberto Cordaro
/s/ Helmut Eschwey Director
- ------------------------------------
Helmut Eschwey
Director
- ------------------------------------
David J. FitzPatrick
/s/ Suzanne Labarge Director
- ------------------------------------
Suzanne Labarge
/s/ Rudolf Rupprecht Director
- ------------------------------------
Rudolf Rupprecht
/s/ Kevin M. Twomey Director
- ------------------------------------
Kevin M. Twomey
/s/ Edward V. Yang Director
- ------------------------------------
Edward V. Yang
/s/ Leslie J. Parrette, Jr. Authorized Representative in the
- ------------------------------------
Leslie J. Parrette, Jr. United States of America
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Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cleveland, State of Ohio, on December
22, 2006.
NOVELIS SAVINGS & RETIREMENT PLAN
By: /s/ John N. Stamatiades
------------------------------------------------
John N. Stamatiades, on behalf of the
Novelis Employee Benefits Committee
of the Board of Directors of Novelis Corporation
NOVELIS HOURLY SAVINGS PLAN
By: /s/ John N. Stamatiades
-------------------------------------------------
John N. Stamatiades, on behalf of the
Novelis Employee Benefits Committee
of the Board of Directors of Novelis Corporation
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Index of Exhibits
Exhibit
Number Document
------ --------
4.1 Restated Certificate and Articles of Incorporation of Novelis Inc.
(incorporated by reference to Exhibit 3.1 to the Form 8-K filed by
Novelis Inc. on January 7, 2005 (File No. 001-32312)).
4.2 By-law No. 1 of Novelis Inc. (incorporated by reference to Exhibit 3.2
to the Form 10 filed by Novelis Inc. on November 17, 2004 (File No.
001-32312)).
4.3 Shareholder Rights Agreement between Novelis Inc. and CIBC Mellon
Trust Company (incorporated by reference to Exhibit 4.1 to the Form
10-K filed by Novelis Inc. on March 30, 2005 (File No. 001-32312)).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included in signature page of Registration
Statement).