EX-10.2







Exhibit 10.2




CHANGE IN CONTROL AGREEMENT




     This Agreement is effective as of the date it is signed by both Novelis Inc., a Canadian
corporation (the “Company”), and Mr. Philip Martens (“Executive”).



     WHEREAS, the Company’s Board of Directors has determined that it is in the best interest of
the Company’s shareholders to reinforce and encourage the continued attention and dedication of
members of the Company’s management, including Executive, to their assigned duties without
distraction in potentially disturbing circumstances arising from the possibility of a Change in
Control; and



     WHEREAS, this Agreement sets forth the payments and other benefits to which Executive will be
entitled upon certain conditions if Executive’s employment with the Company terminates.



     NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements set
forth below, it is hereby agreed as follows:



     1. Term. This Agreement shall terminate, except to the extent that any obligation of
the Company hereunder remains unpaid as of such time, upon the earlier of:




	 	(a)	 	April 15, 2011, unless a Change in Control occurs on or
before such date; or
	 
	 	(b)	 	Twenty-four (24) months following the date of a Change in
Control.





     2. Payment upon Termination of Employment.




	 	(a)	 	Events Giving Rise to Benefits. Executive shall be
entitled to payments and other benefits as set forth in Sections 2(b) and 2(c)
if the Company shall terminate Executive’s employment other than for Cause, or
Executive shall terminate his or her employment for Good Reason, within
twenty-four (24) months after a Change in Control. Executive’s right to receive
compensation and benefits under this Agreement shall be subject to the terms
and conditions of the Company’s release from and waiver by Executive of claims,
non-compete agreement and non-solicitation agreement for executive employees.
No payments or benefits shall be paid pursuant to this Agreement unless
Executive executes such release and waiver of claims, non-compete agreement and
non-solicitation agreement. The release shall not release Executive’s right to
receive indemnification and defense from the Company for any claims arising out
of the performance of Executive’s duties on behalf of the Company. Termination
of employment due to Cause,





1









 






	 	 	 	Death, Disability or Retirement at any time shall not give rise to any rights to
compensation or benefits under this Agreement.
	 
	 	(b)	 	Severance Pay. In accordance with Section 2(a) above, the Company shall pay a lump sum cash amount equal to:
	 
	 	 	 	[A x (B + C)] – D, where
	 
	 	 	 	“A” equals a multiplier of 2.0;
	 
	 	 	 	“B” equals Executive’s annual base salary (including all amounts of such base salary that
are voluntarily deferred under any qualified and non-qualified plans of the Company)
determined at the rate in effect as of the date of such termination of employment;
	 
	 	 	 	“C” equals Executive’s target short term incentive opportunity for the calendar year in
which such Change in Control occurs; and
	 
	 	 	 	“D” equals the amount of severance payments, if any, paid or payable to Executive by the
Company other than pursuant to this Agreement; it being expressly understood that the
purpose of this deduction is to avoid any duplication of payments to Executive.
	 
	 	 	 	Except to the extent payment is required to be delayed pursuant to Section 2(d) below,
payment shall be made by the thirtieth (30th) day following the effective date
of the Executive’s termination of employment if such termination occurs after a Change in
Control.
	 
	 	(c)	 	Other Benefits.






	 	(i)	 	If Executive is not eligible for retiree medical benefits and is covered
under the Company’s group health plan at the time of the termination of employment,
the Company shall pay an additional lump sum cash amount for the purpose of assisting
Executive with the cost of post-employment medical continuation coverage equal to: (C
x M) / (1 – T), where
	 
	 	 	 	“C” equals the full monthly COBRA premium charged for coverage under the
Company’s group medical plan at Executive’s then current level of coverage;
	 
	 	 	 	“M” equals twelve (12) months; and
	 
	 	 	 	“T” equals an
assumed tax rate of 40%





2









 






	 	 	 	Except to the extent payment is required to be delayed pursuant to Section
2(d) below, payment shall be made by the thirtieth (30th) day
following the effective date of the Executive’s termination of employment
if such termination occurs after a Change in Control.
	 
	 	(ii)	 	To the extent available, Executive shall be entitled to
continue coverage under the Company’s group life plan for a period of twelve
(12) months at Executive’s pre-termination level of coverage.
	 
	 	(iii)	 	Executive shall be entitled to twelve (12) months of
additional credit for benefit accrual and contribution allocation purposes
including credit for age, service and earnings pro rated over twelve (12)
months under the Company’s tax-qualified and non-qualified pension, savings or
other retirement plans; provided that if applicable provisions of the Code
prevent payment in respect of such credit under the Company’s tax-qualified
plans, such payments shall be made under the Company’s non-qualified plans.
	 
	 	(iv)	 	To the extent Executive is not already fully vested under the
Company’s tax-qualified and non-qualified retirement pension, savings and
other retirement plans, Executive shall become 100% vested under such plans;
provided that if applicable provisions of the Code prevent accelerated vesting
under the Company’s tax-qualified plans, an equivalent benefit shall be
payable under the Company’s non-qualified plans.






	 	(d)	 	Notwithstanding the foregoing provisions of this Section 2 or any other
provision in this Agreement to the contrary, if Executive is a “specified employee”
within the meaning of Code Section 409A, then all payments under this Agreement shall
be delayed for a period of six (6) months to the extent required by Section 409A.





     3. Tax Reimbursement.




	 	(a)	 	Gross-Up Payment. Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any payment or distribution to or
for the benefit of Executive, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement (other than any payment under this Section 3)
or otherwise would be subject to the excise tax imposed by Section 4999 of the Code or
a similar section (such payment, a “Change in





3









 






	 	 	 	Control Payment” and such excise tax on all such Change in Control Payments, together with
any interest and penalties thereon, collectively the “Excise Tax”), then Executive shall be
entitled to receive an additional payment (a “Gross-Up Payment”) in an amount determined by
the Accounting Firm (defined below) such that after payment by Executive of any tax
thereon, Executive retains an amount of the Gross-Up Payment equal to the amount of the
Excise Tax; provided, however, that if the aggregate value (as determined under Section
280G of the Code) of such Change in Control Payments is less than 110% of the product of “3
times” the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) (such
product, the “Golden Parachute Threshold”), then Executive shall not be entitled to any
Gross-Up Payment and, instead, the Change in Control Payments shall be reduced so that
their aggregate value (as so determined) is equal to $1.00 less than the Golden Parachute
Threshold.
	 
	 	 	 	For purposes of this Section 3, Executive’s applicable Federal, state and local taxes
shall be computed at the maximum marginal rates, taking into account the effect of any
loss of personal exemptions resulting from receipt of the Gross-Up Payment.
	 
	 	(b)	 	Determinations. All determinations required to be made under this Section 3, including whether a Gross-Up Payment is required under
Section 3(a), and the assumptions to be used in determining the
Gross-Up Payment, shall be made by such nationally recognized
accounting firm as the Company may designate in writing prior to a
Change in Control (the “Accounting Firm”), which shall provide
detailed supporting calculations both to the Company and
Executive within thirty (30) days of the receipt of notice from
Executive that there has been a Change in Control, or such earlier
time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the Person
effecting the Change in Control or is otherwise unavailable,
Executive may appoint another nationally recognized accounting
firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm shall be
borne solely by the Company.
	 
	 	(c)	 	Subsequent Redeterminations. Unless requested otherwise by the Company, Executive agrees to use reasonable efforts to contest in
good faith any subsequent determination by the Internal Revenue
Service that Executive owes an amount of Excise Tax greater than
the amount determined pursuant to Section 3(b), provided that
Executive shall be entitled to reimbursement by the Company of all





4









 






	 	 	 	fees and expenses reasonably incurred by Executive in contesting such
determination. In the event the Internal Revenue Service or any court of
competent jurisdiction determines that Executive owes an amount of Excise Tax
that is either greater or less than the amount previously taken into account
and paid under this Section 3, the Company shall promptly reimburse
Executive, or Executive shall promptly reimburse the Company, as the case may
be, the amount of such excess or shortfall. In the case of any payment that
the Company is required to make to Executive pursuant to the preceding
sentence (a “Later Payment”); the Company shall also reimburse Executive an
additional amount such that after payment by Executive of all of Executive’s
applicable Federal, state and local taxes, including any interest and
penalties assessed by any taxing authority, on such additional amount,
Executive will retain an amount of Executive’s applicable Federal, state and
local taxes, including any interest and penalties assessed by any taxing
authority, arising due to the Later Payment. In the case of any reimbursement
of Excise Tax that Executive is required to make to the Company pursuant to
the second sentence of this Section 3(c), Executive shall also reimburse the
Company at the amount of any additional payment received by Executive from
the Company in respect of applicable Federal, state and local taxes on such
repaid Excise Tax, to the extent Executive is entitled to a refund of (or has
not yet paid) such Federal, state or local taxes.





     4. Definitions. Except as otherwise provided under this Agreement, the following
capitalized terms used within this Agreement shall have the meaning set forth below:




	 	(a)	 	“Cause” means only (i) Executive’s conviction of any
crime
(whether or not involving the Company) constituting a felony in the
applicable jurisdiction; (ii) willful and material violation of
the
Company’s policies, including, but not limited to those relating to
sexual harassment and confidential information; (iii) willful
misconduct in the performance of Executive’s duties for the
Company; or (iv) willful and repeated failure or refusal to perform
the Executive’s material duties and responsibilities which is not
remedied within ten (10) days after written demand from the board
of directors to remedy such failure or refusal.
	 
	 	(b)	 	“Change in Control” means the first to occur of any of the
following
events:






	 	(i)	 	any person or entity (excluding any person or
entity affiliated with the Aditya Birla Group) is or becomes the
beneficial owner, directly or indirectly through any parent entity of
the





5









 






	 	 	 	Company or otherwise, of securities of the Company (not including in the securities
beneficially owned by such person or entity any securities acquired directly from the
Company or its affiliates, other than in connection with the acquisition by the Company
or its affiliates of a business) representing 35% or more of either the then outstanding
shares of common stock of the Company or the combined voting power of the Company’s then
outstanding securities; or
	 
	 	(ii)	 	the majority of the members of the Board of Directors of the Company is replaced during any
12-month period by directors whose appointment or election is not endorsed by a majority of
the members of the Board prior to the date of the appointment or election; or
	 
	 	(iii)	 	the consummation of a merger or consolidation of the Company with any other entity not
affiliated with the Aditya Birla Group, other than (a) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior to such merger
or consolidation continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, 50% or more of the combined voting power of the voting
securities of the Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no person or
entity is or becomes the beneficial owner, directly or indirectly, of securities of the
Company (not including in the securities beneficially owned by such person or entity any
securities acquired directly from the Company or its affiliates, other than in connection
with the acquisition by the Company or its affiliates of a business) representing 50% or more
of either the then outstanding shares of common stock of the Company or the combined voting
power of the Company’s then outstanding securities; or
	 
	 	(iv)	 	the stockholders of the Company approve a plan of complete liquidation or dissolution; or
	 
	 	(v)	 	the sale or disposition of all or substantially all of the Company’s assets, other than a
sale or disposition by the




6









 






	 	 	 	Company of all or substantially all of its assets to a member of the
Aditya Birla Group.






	 	 	 	Notwithstanding the foregoing, no “Change in Control” shall be deemed to
have occurred if there is consummated any transaction or series of
integrated transactions immediately following which the record holders of
the common stock of the Company immediately prior to such transaction or
series of transactions continue to have substantially the same
proportionate ownership in an entity which owns all or substantially all of
the assets of the Company immediately following such transaction or series
of transactions.
	 
	 	 	 	For purposes of this Section, “beneficial ownership” shall be determined in
accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as
amended
	 
	 	(c)	 	“Code” means the Internal Revenue Code of 1986, as amended.
Any reference to a section of the Code shall include such section
and any comparable section or sections of any future legislation
that amends, supplements or supersedes such section.
	 
	 	(d)	 	“Disability” means Executive is permanently and totally
disabled
and unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of twelve months.
	 
	 	(e)	 	“Good Reason” means any of the following if it shall occur
without
Executive’s express written consent: (i) a material reduction in
Executive’s position, duties, reporting relationships, responsibilities,
authority, or status with the Company; (ii) a reduction in Executive’s
base salary and target short term and long term incentive
opportunities in effect on the date hereof or as the same may be
increased from time to time during the term of this Agreement; or
(iii) any failure of the Company to comply with its obligations under
this Agreement, in each case which is not remedied within ten (10)
days after written demand by Executive to remedy such reduction
or failure.
	 
	 	(f)	 	“Retirement” means Executive’s voluntary retirement on or after
qualifying for early or normal retirement under the applicable
Company pension plan in which such Executive participates.





     5. Notice of Termination. Any termination of Executive’s employment for any reason
shall take effect pursuant to a written notice of termination to the other party. Such notice must
set forth in reasonable detail the facts and circumstances claimed to




7









 







provide a basis for termination of Executive’s employment pursuant to this Agreement. No such
purported termination of employment shall be effective without such written notice of termination
conforming to the requirements of this Section.




     6. No Obligation to Mitigate Damages; No Effect on Other Contractual Rights.




	 	(a)	 	Executive shall not be required to mitigate damages or the
amount
of any payment provided for under this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment
provided for under this Agreement be reduced by any
compensation earned by Executive as the result of employment by
another employer after Executive’s termination of employment, or
otherwise.
	 
	 	(b)	 	The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts otherwise payable, or in
any way diminish Executive’s existing rights, or rights which would
accrue solely as a result of the passage of time, under any
employee benefit plan or arrangement providing retirement benefits
or health, life, disability or similar welfare benefits.





     7. Successor to the Company.




	 	(a)	 	The Company will require any successor or assign (whether
direct
or indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of the Company to
absolutely and unconditionally to assume and agree to perform this
Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or
assignment had taken place. Any failure of the Company to obtain
such assumption and agreement prior to the effectiveness of any
such succession or assignment shall entitle Executive to terminate
Executive’s employment for Good Reason.
	 
	 	(b)	 	This Agreement shall inure to the benefit of and be enforceable
by
Executive’s personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts are still
payable to him or her hereunder, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Executive’s devisee, legatee, or other
designee, or if there be no such designee, to Executive’s estate.
The services to be provided by Executive to the Company under
this Agreement are personal and are not delegable or assignable.





8









 




8. Notice. Notices and all other communications provided for in the
Agreement shall be in writing and shall be deemed to have been duly given when
delivered or mailed by certified or registered mail, return receipt requested, postage
prepaid, as follows:

If to the Company:


Novelis Inc.

Attn: Vice President, Human Resources

Lenox Building

3399 Peachtree Road NE, Suite 1500

Atlanta, Georgia 30326



If to Executive, to the address of Executive on the books of the Company.

Another address may be used if a party has furnished a different address to the other party in
writing in accordance herewith, except that notices of change of address shall be effective only
upon receipt.



     9. Sole Agreement. This Agreement (together with any signed employment
agreement) represents the entire agreement between the parties with respect to the
matters contemplated herein. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement.


     10. Validity. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.


     11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument.


     12. Legal Fees and Expenses. The Company shall pay all legal fees and
expenses which Executive reasonably may incur as a result of the Company’s
contesting the validity, enforceability or Executive’s interpretation of, or determinations
under, this Agreement except to the extent Executive’s position is frivolous or carried
out in bad faith.


     13. Confidential Information. Executive agrees not to disclose during the term
hereof or thereafter any of the Company’s confidential or trade secret information,
except as required by law. Executive recognizes that Executive shall be employed in a
sensitive position in which, as a result of a relationship of trust and confidence,
Executive will have access to trade secrets and other highly confidential and sensitive
information.


9








 




     Executive further recognizes that the knowledge and information acquired by Executive
concerning the Company’s materials regarding employer/employee contracts, customers,
pricing schedules, advertising, manuals, systems, procedures and forms represent the most
vital part of the Company’s business and constitute by their very nature, trade secrets
and confidential knowledge and information. Executive hereby stipulates and agrees that
all such information and materials shall be considered trade secrets and confidential
information. If it is at any time determined that any of the information or materials
identified in this Section are, in whole or in part, not entitled to protection as trade
secrets, they shall nevertheless be considered and treated as confidential information in
the same manner as trade secrets, to the maximum extent permitted by law. Executive
further agrees that all such trade secrets or other confidential information, and any
copy, extract or summary thereof, whether originated or prepared by or for Executive or
otherwise coming into Executive’s knowledge, possession, custody, or control, shall be and
remain the exclusive property of the Company.


     14. Withholding. The Company may withhold from any benefits payable under
this Agreement all applicable taxes and other amounts as shall be required pursuant to
any law or governmental regulation or ruling.


     15. Non-Binding Arbitration; Claim Venue. Any claim or controversy arising
out of or relating to this Agreement or any breach thereof shall be subject to
non-binding
arbitration before either party may seek any other legal recourse. Any such arbitration
shall take place in Atlanta, Georgia, in accordance with the rules of the American
Arbitration Association. Each party further submits to the exclusive jurisdiction of the
Georgia state courts and the United States District Court for the Middle District of
Georgia (Atlanta, Georgia) and irrevocably waives, to the fullest extent permitted by
law, any objections that either party may now or hereafter have to the aforesaid venue,
including without limitation any claim that any such proceeding brought in either such
court has been brought in an inconvenient forum, provided however, this provision shall
not limit the ability of either party to enforce the other provisions of this Section.


     16. Code Section 409A. To the extent applicable, this Agreement shall be
interpreted in accordance with Section 409A of the Code and the applicable U.S.
Treasury regulations and other interpretative guidance issued there under, including
without limitation any regulations or other guidance that may be issued after the
effective date of this Agreement. Notwithstanding any provision of the Agreement to the
contrary, the Company may adopt such amendments to the Agreement or adopt other
policies and procedures, or take any other actions that the Company determines is
necessary or appropriate to exempt the Agreement from Section 409A and/or preserve
the intended tax treatment of the benefits provided hereunder, or to comply with the
requirements of Section 409A and related U.S. Treasury guidance.


     17. Attachment. Except as required by law, the right to receive payments
under this Agreement shall not be subject to anticipation, sale, encumbrance, charge,
levy, or similar process or assignment by operation of law.


10







 




     18. Waivers. Any waiver by a party or any breach of this Agreement by
another party shall not be construed as a continuing waiver or as consent to any
subsequent breach by the other party. Except as otherwise expressly set forth herein,
no failure on the part of any party hereto to exercise and no delay in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.


     19. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or modify any of
the terms or provisions hereof.


     20. Governing Law. This Agreement shall be governed and construed under
the laws of the State of Georgia.

THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.



	 	 	 	 	 
	NOVELIS INC.	 	 
	 
	 	 	 	 
	By:
	 	/s/ D. Bhattacharya	 	 
	 
	 	 
	 	 
	Date:
	 	 	 	 
	 
	 	 
	 	 
	 
	 	 	 	 
	EXECUTIVE	 	 
	 
	 	 	 	 
	By:
	 	/s/ Philip R. Martens	 	 
	 
	 	 
	 	 
	 
	 	 	 	 
	Date:
	 	 	 	 
	 
	 	 
	 	 




11