As filed with the Securities and Exchange Commission on May 29, 2014
Registration No. 333-188811
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8 REGISTRATION STATEMENT NO. 333-188811
UNDER THE SECURITIES ACT OF 1933
AXIALL CORPORATION
(Exact name of Company as specified in its charter)
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Delaware |
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58-1563799 |
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(State or other jurisdiction of |
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(I.R.S. Employer Identification No.) |
1000 Abernathy Road, Suite 1200
Atlanta, Georgia 30328
(Address of Principal Executive Offices) (Zip Code)
EAGLE US 2 LLC EMPLOYEE SAVINGS PLAN FOR SALARIED EMPLOYEES
EAGLE US 2 LLC EMPLOYEE SAVINGS PLAN FOR CERTAIN COLLECTIVE BARGAINING EMPLOYEES
(Full title of the plans)
Timothy Mann, Jr.
Executive Vice President, General Counsel and Secretary
Axiall Corporation
1000 Abernathy Road, Suite 1200
Atlanta, Georgia 30328
(Name and address of agent for service)
(770) 395-4500
(Telephone number, including area code, of agent for service)
With a copy to:
Mark L. Hanson
Joel T. May
Jones Day
1420 Peachtree Street, N.E., Suite 800
Atlanta, Georgia 30309-3053
(404) 521-3939
Indicate by check mark whether the Company is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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o |
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 of Axiall Corporation (the “Company” or the “registrant”) relates to the Registration Statement on Form S-8 filed by the Company on May 23, 2013 (SEC File No. 333-188811) (the “2013 Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register, under the Securities Act of 1933, as amended (the “Securities Act”), common shares of the Company issuable under the Eagle US 2 LLC Employee Savings Plan for Salaried Employees (the “Salaried Plan”) and the Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees.
Effective as of February 1, 2014, the Salaried Plan was merged with and into the Axiall Corporation 401(k) Retirement Savings Plan (as amended and restated from time to time, the “Merged Plan”). This Post-Effective Amendment No. 1 to the 2013 Registration Statement is being filed solely to reflect the merger and to deregister the remaining 232,261 shares (the “Carried-Over Shares”) and related plan interests of the Salaried Plan previously registered on the 2013 Registration Statement. No future offers or sales of Common Stock will be made under the Salaried Plan, and the Carried-Over Shares are hereby deregistered for purposes of the Salaried Plan.
Contemporaneously with the filing of this Post-Effective Amendment No. 1, the Company is filing a registration statement on Form S-8 to register for offer and sale the Carried-Over Shares under the Merged Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information called for in Part I of the Registration Statement is included in the Section 10(a) of the prospectus to be sent or given to participants in the Merged Plan as specified by Rule 428(b)(1) under the Securities Act. In accordance with Rule 428 and the Note to Part I of Form S-8, the information is not being filed with the Commission, either as part of the Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Company with the Commission and are incorporated herein by this reference:
(a) The Company’s Annual Report on Form 10-K for the year ended December 31, 2013 filed with the Commission on February 28, 2014;
(b) The Company’s Amendment No. 1 to the Form 10-K on Form 10-K/A for the year ended December 31, 2013 filed with the Commission on March 25, 2014;
(c) The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014, filed with the Commission on May 8, 2014;
(d) The audited combined balance sheets of the Chlor-alkali and Derivatives Business previously owned by PPG Industries, Inc. (the “Merged Business”) as of December 31, 2012 and 2011 and audited combined statements of income, combined statements of comprehensive income and combined statements of cash flows of the Merged Business for the years ended December 31, 2012, 2011 and 2010, and the notes related thereto, contained in Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the Commission on May 23, 2013;
(e) The unaudited pro forma condensed combined statement of income of the Company for the year ended December 31, 2013, contained in Exhibit 99.1 to the Company’s Current Report on Form 8-K filed with the Commission on March 25, 2014;
(f) The Company’s Current Reports on Form 8-K filed with the Commission on February 6, 2014 (other than information furnished under Item 2.02 thereof), February 11, 2014, March 7, 2014, March 25, 2014 and May 22, 2014; and
(g) The description of the Company’s Class A common stock contained in the Company’s Registration Statement on Form 8-A declared effective by the Commission on May 15, 1990, as amended.
In addition, all documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that (i) indicates that all securities offered under this Registration Statement have been sold, or (ii) removes from registration all securities then remaining unsold under this Registration Statement, shall be deemed to be incorporated by reference in this Registration Statement and to be a part of this Registration Statement from the date of filing of any such documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference in this Registration Statement will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that is also incorporated or deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Set forth below is a description of how the Restated Certificate of Incorporation of the Company (the “Articles”), the Second Amended and Restated Bylaws of the Company (the “Bylaws”), the Delaware General Corporation Law (the “DGCL”) and certain agreements entered into between the Company and its directors and officers treat the indemnification of the Company’s directors and officers. This description is intended as a summary only and is qualified in its entirety by reference to the Articles, the Bylaws and the DGCL.
Article XIII of the Articles provides that to the fullest extent permitted by the DGCL, a director of the Company will not be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transactions from which the director derived any improper personal benefit.
The Bylaws provide that the Company will indemnify any person who was or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director or officer of the Company or is or was serving at the request of the Company as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, to the fullest extent permitted by the DGCL, against all expense, liability and loss (including attorney’s fees, judgments, fines and amounts paid in settlement) reasonably incurred and suffered by him in connection with
such action, suit or proceeding, subject to limited exceptions. The Bylaws also provide that the Company is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding; provided, however, that, if the DGCL so requires, an advancement of expenses incurred by an indemnitee in his capacity as a director or officer shall be made only upon delivery to the Company of an undertaking, by or on behalf of himself, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that he is not entitled to be indemnified for such expenses.
With respect to indemnification of officers and directors, Section 145 of the DGCL provides that a corporation will have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Under this provision of the DGCL, the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, will not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 145(g) of the DGCL provides that a corporation will have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of Section 145.
The Bylaws provide that the Company may maintain insurance to protect any director, officer, employee or agent of the Company against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the DGCL. The Company maintains several directors and officers liability policies which, subject to the terms and exclusions of the policies, cover any claim or claims made during the period the policies are in force, against all persons who were, now are or will be duly elected directors or officers of the Company for any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty by such persons insured while acting in their individual or collective capacities, on any matter, not excluded by the terms and conditions of the policies, claimed against them solely by reason of their being directors or officers of the Company.
The Company also enters into indemnification agreements with its officers and directors. These indemnification agreements specify the extent and circumstances under which an indemnitee is entitled to indemnification from the Company, and the processes to obtain such indemnification. Under the indemnification agreements, an indemnitee is generally entitled to indemnification to the fullest extent allowable under Delaware law for claims or losses regarding the indemnitee’s (i) act or failure to act in his or her capacity as a director, officer, employee or agent of the Company (or in a similar or other representative capacity for another entity or enterprise as to which the indemnitee is serving at the Company’s request); (ii) act or failure to act in respect of any business, transaction, communication, filing or other disclosure or other activity of the Company or such other entity or enterprise; and (iii) status as a current or former director, officer, employee or agent of the Company (or representative of such other entity or enterprise) or any act or failure to act in connection with any obligation or restriction on such person by reason of such status. These indemnification agreements are intended to provide rights in addition to, and not to limit, any rights to indemnification under the Articles, Bylaws or the DGCL. In addition to the rights to indemnification specified therein, these agreements are intended to increase the certainty of receipt by the indemnitee thereunder of the benefits to which he or she is entitled by providing specific procedures for obtaining such indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit No |
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Description |
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4.1 |
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Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees (incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8 filed on May 23, 2013). |
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*4.2 |
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Amendment No.1 to the Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees. |
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*4.3 |
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Amendment No.2 to the Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees. |
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*23.1 |
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Consent of Ernst & Young LLP. |
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*23.2 |
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Consent of Deloitte & Touche LLP. |
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24.1 |
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Powers of Attorney (incorporated by reference as Exhibit 24.1 to the Company’s Registration Statement on Form S-8 filed on May 23, 2013). |
* filed herewith
In lieu of filing an opinion of counsel concerning compliance with the requirements of the Employee Retirement Income Act of 1974, as amended, or an Internal Revenue Service (“IRS”) determination letter that the Axiall Corporation 401(k) Retirement and Savings Plan (the “Merged Plan”) is qualified under Section 401 of the Internal Revenue Code, as amended, the Company has submitted and hereby undertakes to submit the Merged Plan and any amendment thereto to the IRS in a timely manner and has made and will continue to make all changes required by the IRS in order to qualify the Merged Plan.
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;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendments thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this 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 reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement;
(2) that, for the purpose of determining any liability under the Securities Act, 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; and
(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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 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 Commission, such indemnification is against public policy as expressed in the Securities Act 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 Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant 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 Post-Effective Amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on this 29th day of May, 2014.
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AXIALL CORPORATION | |
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By: |
/s/ Paul D. Carrico |
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Name: |
Paul D. Carrico |
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Title: |
President & Chief Executive Officer |
Pursuant to the requirements of the Securities Act, the persons who administer the Axiall Corporation 401(k) Retirement Savings Plan have duly caused this Post-Effective Amendment to the Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on this 29th day of May, 2014.
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AXIALL CORPORATION 401(K) RETIREMENT SAVINGS PLAN | |
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By: |
/s/ Michael L. Smith |
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Name: |
Michael L. Smith |
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Title: |
Director — Compensation, Benefits & Human Resources Information Systems |
Pursuant to the requirements of the Securities Act, as amended, this Post-Effective Amendment to the Registration Statement has been signed by the following persons in the capacities indicated, on the dates indicated below.
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Signature |
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Title |
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Date |
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/s/ Paul D. Carrico |
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President, Chief Executive Officer and Director |
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May 29, 2014 |
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Paul D. Carrico |
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(Principal Executive Officer) |
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* |
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Chief Financial Officer |
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May 29, 2014 |
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Gregory C. Thompson |
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(Principal Financial and Principal Accounting Officer) |
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* |
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Director |
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May 29, 2014 |
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Mark L. Noetzel |
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* |
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Director |
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May 29, 2014 |
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Kevin T. DeNicola |
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* |
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Director |
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May 29, 2014 |
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Patrick J. Fleming |
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Signature |
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Title |
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Date |
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* |
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Director |
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May 29, 2014 |
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Robert M. Gervis |
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* |
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Director |
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May 29, 2014 |
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Dr. Victoria Haynes |
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* |
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Director |
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May 29, 2014 |
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William L. Mansfield |
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* |
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Director |
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May 29, 2014 |
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Michael H. McGarry |
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* |
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Director |
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May 29, 2014 |
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Robert Ripp |
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* |
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Director |
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May 29, 2014 |
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David N. Weinstein |
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* The undersigned, by signing his name hereto, does sign and execute this Post-Effective Amendment to the Registration Statement on Form S-8 pursuant to the Power of Attorney executed by the above-named directors of the registrant and filed with the Commission on behalf of such directors.
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By: |
/s/ Paul D. Carrico |
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Paul D. Carrico |
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Attorney-in-Fact |
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EXHIBIT INDEX
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Exhibit No |
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Description |
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4.2 |
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Amendment No.1 to the Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees. |
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4.3 |
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Amendment No.2 to the Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees. |
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23.1 |
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Consent of Ernst & Young LLP. |
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23.2 |
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Consent of Deloitte & Touche LLP. |
Exhibit 4.2
FIRST AMENDMENT
TO THE
EAGLE US 2 LLC
EMPLOYEE SAVINGS PLAN FOR
CERTAIN COLLECTIVE BARGAINING EMPLOYEES
(As Effective as of January 28, 2013)
THIS AMENDMENT to the Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees, as effective as of January 28, 2013 (the “Plan”), is made this 1st day of July, 2013 by Eagle US 2 LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H :
WHEREAS, Eagle US 2 LLC established the Plan, effective as of January 28, 2013;
WHEREAS, the Company wishes to amend the Plan at this time for the purpose of permitting employees to make “rollover” contributions to the Plan that consist of, or include, “after-tax” contributions that the employee made to a prior benefit plan;
WHEREAS, the Company recognizes that there will be from time to time instances in which it is in the business interest of the Company for an employee to transfer from a category of employees who are eligible to participate in this Plan to a unit of employees who are eligible to participate in the Eagle US 2 LLC Employee Savings Plan for Salaried Employees (“Salaried Employees Plan”), and that it may be in the employee’s interest to accept such transfer;
WHEREAS, the Company recognizes that there will be from time to time instances in which it is in the business interest of the Company for an employee to transfer to a unit of employees covered by a collective bargaining agreement that provides for participation in this Plan from a unit of employees who are eligible to participate in the Salaried Employees Plan and that it may be in the employee’s interest to accept such transfer;
WHEREAS, the Company recognizes that the transferring employees referred to above may wish to consolidate their retirement savings under this Plan and under the Salaried Employees Plan in whichever of these two plans applies to the employees of the unit to which the individual is transferring (which will be the plan to which such an employee will be eligible to make contributions on an ongoing basis) so that recordkeeping is simplified for the employees and for the Plan Administrator; and
WHEREAS, the Company wishes to amend the Plan at this time to provide for the transfers of account balances between this Plan and the Salaried Employees Plan, in the case of transferring employees, as described above;
NOW, THEREFORE, the Plan is hereby amended as follows:
1.
The terms “Georgia Gulf Corporation” and “GGC” are deleted in each place where the terms appear and “Axiall Corporation” is inserted in their place, effective as of January 28, 2013.
2.
Section 1.1(a) is amended by deleting the last sentence and inserting in its place the following, effective as of January 28, 2013:
An Eligible Employee who is an Eligible Employee on the Effective Date but who is not an active participant in the PPG Plan on that date and each person who becomes an Eligible Employee after the Effective Date may elect to become a Participant as of the first of any month that is coincident with or following his original hire date in accordance with the procedures established by the EBC; provided, however, that an Eligible Employee who transfers out of a position in a unit of employees covered by the Eagle US 2 LLC Employee Savings Plan for Salaried Employees (“Salaried Savings Plan”) shall be a Participant immediately upon his becoming an Eligible Employee under this Plan. The initial Account of such an Eligible Employee under this Plan shall be equal to the Account (if any) that is transferred to this Plan from the Salaried Savings Plan. The different types of contributions in such transferred Account shall have the same character under this Plan (as Participant Savings, Participant Elective Deferrals, Roth Elective
Deferrals, Company Contributions, Catch-Up Contributions, or Rollover Contributions as the case may be) as those amounts had under the Salaried Savings Plan. The portion of such transferred Account attributable to Appendix I of the Salaried Savings Plan shall be accounted for under Appendix I or Appendix II (as appropriate) of this Plan. Amounts in the transferred Account initially shall be invested in the same investment funds under this Plan as the investment funds in which those amounts were invested under the Salaried Savings Plan.
3.
Section 1.5 of the Plan is amended by adding the following new subsection (c) at the end thereof, effective as of January 28, 2013:
(c) Transfers of Employees and Account Balances. Notwithstanding any other provision herein, if an Eligible Employee who is a Participant transfers out of a unit of employees covered by a collective bargaining agreement with a labor union to a unit of employees who are eligible to participate in the Salaried Savings Plan, then the Plan Administrator shall direct the Trustee to transfer the Account of such individual under this Plan to the trust under the Salaried Savings Plan. Such transfer of the Account shall be deemed to occur immediately after the termination of the individual’s status as an Eligible Employee under this Plan and immediately before the inclusion of that person in the unit of employees who are eligible for the Salaried Savings Plan. The assets transferred shall thereafter be maintained in accordance with the terms of the Salaried Savings Plan.
4.
Section 4.4(a) is amended by deleting the third sentence and inserting the following in its place, effective as of January 28, 2013:
A “Rollover Contribution” means that amount that is transferred to the Plan by a Participant, which represents all or part of a distribution received by the Participant from an eligible retirement plan, as defined in Code Section 402(c)(8)(B), which distribution meets the requirements of Code Section 402(c)(4) and has been paid to the EBC or its delegate, within the time limit established by Code Section 402(c)(3).
Exhibit 4.3
SECOND AMENDMENT
TO THE
EAGLE US 2 LLC
EMPLOYEE SAVINGS PLAN FOR
CERTAIN COLLECTIVE BARGAINING EMPLOYEES
(As Effective as of January 28, 2013)
THIS AMENDMENT to the Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees, as effective as of January 28, 2013 (the “Plan”), is made this 20th day of August, 2013 by Eagle US 2 LLC, a Delaware limited liability company (the “Company”).
W I T N E S S E T H :
WHEREAS, Eagle US 2 LLC established the Plan, effective as of January 28, 2013;
WHEREAS, the Company recognizes that there will be from time to time instances in which it is in the business interest of the Company for an employee to transfer from a category of employees who are eligible to participate in this Plan to a unit of employees who are eligible to participate in the Eagle US 2 LLC Employee Savings Plan for Salaried Employees (“Salaried Employees Plan”) or to a unit of employees who are eligible to participate in the Axiall Corporation 401(k) Retirement Savings Plan (“Axiall 401(k) Plan”), and that it may be in the employee’s interest to accept such transfer;
WHEREAS, the Company recognizes that there will be from time to time instances in which it is in the business interest of the Company for an employee to transfer to a unit of employees covered by a collective bargaining agreement that provides for participation in this Plan from a unit of employees who are eligible to participate in the Salaried Employees Plan or from a unit of employees covered by the Axiall 401(k) Plan and that it may be in the employee’s interest to accept such transfer;
WHEREAS, the Company recognizes that the transferring employees referred to above may wish to consolidate their retirement savings under this Plan and under the Salaried Employees Plan or the Axiall 401(k) Plan (as the case may be) in the plan that applies to the employees of the unit to which the individual is transferring (which will be the plan to which such an employee will be eligible to make contributions on an ongoing basis) so that recordkeeping is simplified for the employees and for the Plan Administrator; and
WHEREAS, the Company wishes to amend the Plan at this time to provide for the transfers of account balances between and among this Plan, the Salaried Employees Plan and the Axiall 401(k) Plan, in the case of transferring employees, as described above;
NOW, THEREFORE, the Plan is hereby amended as follows:
1.
The “Definitions” portion of the Plan is amended by adding the following:
PRIOR EMPLOYER GENERAL ACCOUNT means the portion of a Participant’s Account attributable to “Discretionary Contributions” (as defined in Sections 3.1(a) and 6.1(a) of the Axiall Corporation 401(k) Retirement Savings Plan) plus the portion of the Account attributable to “Pre-2008 Matching Elective Contributions” (as defined in Section 1.58 of the Axiall Corporation 401(k) Retirement Savings Plan), in the case of an Eligible Employee (i) who transfers to Eagle or another Employer from a member of the Controlled Group that is a participating employer in the Axiall Corporation 401(k) Retirement Savings Plan, (ii) whose account balance under the Axiall Corporation 401(k) Retirement Savings Plan is transferred to this Plan, and (iii) who is first credited with an Hour of Service with Axiall Corporation or another participating employer in the Axiall Corporation 401(k) Retirement Savings Plan prior to January 1, 2013.
PRIOR EMPLOYER SAFE HARBOR MATCH ACCOUNT means the portion of a Participant’s Account attributable to the “Safe Harbor Matching Elective Contributions Account” (as defined in Section 1.81 of the Axiall Corporation 401(k) Retirement Savings Plan) in the case of an Eligible Employee who transfers to Eagle or another Employer from a member of the Controlled Group that is a participating employer in the Axiall Corporation 401(k) Retirement Savings Plan, and whose account balance under the Axiall Corporation 401(k) Retirement Savings Plan is transferred to this Plan.
2.
Section 1.1(a), as previously amended by the First Amendment, is further amended by deleting the last sentence and inserting in its place the following, effective as of January 28, 2013:
An Eligible Employee who is an Eligible Employee on the Effective Date but who is not an active participant in the PPG Plan on that date and each person who becomes an Eligible Employee after the Effective Date may elect to become a Participant as of the first of any month that is coincident with or following his original hire date in accordance with the procedures established by the EBC; provided, however, that an Eligible Employee who transfers out of a position in a unit of employees covered by the Eagle US 2 LLC Employee Savings Plan for Salaried Employees (“Salaried Savings Plan”) or a unit of employees of a Controlled Group member that is eligible to participate in the Axiall Corporation 401(k) Retirement Savings Plan (“Axiall 401(k) Plan”) shall be a Participant immediately upon his becoming an Eligible Employee under this Plan.
(i) The initial Account under this Plan of a transferring Eligible Employee who has been a participant in the Salaried Savings Plan shall be equal to the Account (if any) that is transferred to this Plan from the Salaried Savings Plan. The different types of contributions in such transferred Account shall have the same character under this Plan (as Participant Savings, Participant Elective Deferrals, Roth Elective Deferrals, Company Contributions, Catch-Up Contributions, or Rollover Contributions as the case may be) as those amounts had under the Salaried Savings Plan. The portion of such transferred Account attributable to Appendix I of the Salaried Savings Plan shall be accounted for under Appendix I or Appendix II (as appropriate) of this Plan. Amounts in the transferred Account initially shall be invested in the same investment funds under this Plan as the investment funds in which those amounts were invested under the Salaried Savings Plan.
(ii) The initial Account under this Plan of a transferring Eligible Employee who has been a participant in the Axiall 401(k) Plan shall be equal to the Account that is transferred to this Plan from the Axiall 401(k) Plan. Contributions that are transferred from the Axiall 401(k) Plan to this Plan shall be characterized as follows:
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Contributions under Axiall 401(k) Plan |
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Characterization under this Plan |
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Discretionary Contributions Account for participants first credited with an Hour of Service prior to December 31, 2012 (Sections 3.1(a) and 6.1(a)) |
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Prior Employer General Account (100% vested) |
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Discretionary Contributions for participants first credited with an Hour of Service on or after December 31, 2012 |
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Natrium DC Program Account (Appendix I, Section 1.6) or LC DC Program Account (Appendix II, Section 2.6) (depending upon the collective bargaining unit in which the individual is working) |
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Elective Contributions (Participant) (Sections 3.1(b) and 6.1(b)) |
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Elective Deferrals |
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catch-up Elective Contributions (Section 3.5(h)) |
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Catch-Up Contributions |
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Pre-2008 Matching Elective Contributions (Sections 3.1(e) and 6.1(e)) |
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Prior Employer General Account |
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Post-2007 Matching Elective Contributions (Sections 3.1(e) and 6.1(f)) |
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Prior Employer Safe Harbor Match Account |
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Voluntary (Nondeductible) Contributions (Sections 3.2(b) and 6.1(g)) |
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Savings |
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Rollover Contributions (Sections 3.2(c) and 6.1(h)) |
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Rollover Contributions |
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ESOP Dividends (Sections 6.1(i) and 15.5(a)(i)) |
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ESOP Dividends |
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CONDEA Account (Appendix III, Section 3.2(a) |
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Savings (allocated to Accumulated Mature Months Class) |
3.
Section 1.5 of the Plan, as previously amended by the First Amendment, is further amended by revising subsection (c) to provide as follows, effective as of January 28, 2013:
(c) Transfers of Employees and Account Balances. Notwithstanding any other provision herein, (i) if an Eligible Employee who is a Participant transfers out of a unit of employees covered by a collective bargaining agreement
with a labor union to a unit of employees who are eligible to participate in the Salaried Savings Plan, then the Plan Administrator shall direct the Trustee to transfer the Account of such individual under this Plan to the trust under the Salaried Savings Plan, and (ii) if an Eligible Employee who is a Participant transfers out of a unit of employees covered by a collective bargaining agreement that provides for participation in this Plan to a unit of employees of a Controlled Group member who are eligible to participate in the Axiall 401(k) Plan, then the Plan Administrator shall direct the Trustee to transfer the Account of such individual under this Plan to the trust under the Axiall 401(k) Plan. Such transfer of the Account shall be deemed to occur immediately after the termination of the individual’s status as an Eligible Employee under this Plan and immediately before the inclusion of that person in the unit of employees who are eligible for the Salaried Savings Plan, or the Axiall 401(k) Plan, as the case may be. The assets transferred shall thereafter be maintained in accordance with the terms of the Salaried Savings Plan or the Axiall 401(k) Plan, as appropriate.
4.
Section 9.1(c) is amended in its entirety to provide as follows, effective as of January 28, 2013:
(c) A Participant may not withdraw any of the Company Contributions or any part of the Natrium DC Program Account (as defined in Section 1.6(b) of Appendix I) or any part of the LC DC Program Account (as defined in Section 2.6(b) of Appendix II) or any of the Gain thereon until Termination of Employment; provided, however, that a Participant who has a Prior Employer General Account may make in-service withdrawals from the portion of that account equal to the balance of the “Discretionary Contributions Account” (under Section 1.24 of the Axiall Corporation 401(k) Retirement Savings Plan determined as of December 31, 2012), plus the “Pre-2008 Matching Elective Contributions Account” under the Axiall Corporation 401(k) Retirement Savings Plan, in the event of Hardship, in accordance with Section 9.5, or upon the Participant’s attainment of the age of 55 years; provided, further, that a Participant who has a Prior Employer Safe Harbor Match Account may make in-service withdrawals from that account upon the Participant’s attainment of the age of 59-½ years.
5.
Section 9.3(d) is amended in its entirety to provide as follows, effective as of January 28, 2013:
(d) Except as may be required by Section 9.5, Company Contributions and the Gains or Losses thereon contributed to a Participant’s Account may not be
withdrawn until the Participant has a Termination of Employment; provided, however, that a Participant who has a Prior Employer General Account may make in-service withdrawals from the portion of that account equal to the balance of the “Discretionary Contributions Account” (under Section 1.24 of the Axiall Corporation 401(k) Retirement Savings Plan determined as of December 31, 2012), plus the “Pre-2008 Matching Elective Contributions Account” under the Axiall Corporation 401(k) Retirement Savings Plan, in the event of Hardship, in accordance with Section 9.5(b), or upon the Participant’s attainment of the age of 55 years; provided, further, that a Participant who has a Prior Employer Safe Harbor Match Account my make in-service withdrawals from that account upon the Participant’s attainment of the age of 59-½ years.
6.
Section 1.4 of Appendix I is amended by redesignating subsection (e) as subsection (f) and by inserting a new subsection (e) as follows:
(e) Transferring Employees. In the case of a person (i) who becomes an Eligible Eagle Natrium Employee during the course of a Plan Year as a result of a transfer of employment to Eagle from a unit of the Controlled Group that is participating in the Axiall Corporation 401(k) Retirement Savings Plan, and (ii) who would have been eligible to receive a contribution under Section 3.1(a) of the Axiall 401(k) Plan if the Eligible Eagle Natrium Employee had remained an employee of the other unit of the Controlled Group until the end of the Plan Year in question, then such Eligible DC Program Salaried Employee shall receive an additional contribution under this Plan for that Plan Year only equal to the amount that the individual would have received under Section 3.1(a) of the Axiall 401(k) Plan if the individual had remained an employee of such other unit until December 31 of the Plan Year in question; such additional contribution shall be calculated in accordance with the provisions of the Axiall 401(k) Plan, but shall only take into account “Eligible Compensation” (as defined in Section 3.1(a)(v)(C) of the Axiall 401(k) Plan) paid to the individual in the Plan Year in question prior to the date of the individual’s transfer of employment to Eagle from the other unit of the Controlled Group.
7.
Section 2.2 of Appendix II is amended by deleting subsection (a) and by inserting the following in its place, effective as of January 28, 2013:
(a) Eligible Eagle LC Employee means an Eligible Employee (as defined in the Plan) who is assigned to the Lake Charles Plant of Eagle and who is
covered by a collective bargaining agreement with the International Association of Machinists and Aerospace Workers, Local Lodge 470 of District 161, and who is not designated by Eagle as part of the “utility crew” and who is not eligible to participate in the Eagle US 2 LLC Retirement Pension Plan because the individual was hired by PPG Industries, Inc. or the Company on or after September 1, 2006 and who:
(i) Is an Eligible Employee who receives credit for at least one Hour of Service with respect to that month,
(ii) Is an Eligible Employee who is receiving Short-Term Disability Benefits during the month in question,
(iii) Is on layoff status or on an approved leave of absence for that month,
(iv) Terminates employment with the Employer during such month (whether due to Retirement or otherwise), or
(v) Becomes entitled to payment of benefits under an Employer-sponsored severance plan or program during the month.
Leased Employees shall not be considered Eligible Eagle LC Employees eligible to participate in the Plan. Notwithstanding any other provision of the Plan to the contrary, the term “Eligible Eagle LC Employee” shall not include any individual not reported on the Employer’s payroll records as an employee subject to payroll tax withholding, regardless of whether the Employer, a court or an administrative agency later determines that such individual should have been classified as an employee subject to payroll tax withholding.
8.
Section 2.2 of Appendix II, as so amended, is further amended by deleting paragraph (iii) of subsection (d) and by inserting the following in its place, effective as of January 28, 2013:
(iii) Notwithstanding the foregoing, for any month in any Plan Year during which an Eligible Eagle LC Employee is receiving Accident and Sickness Benefits, such person’s Eligible LC DC Program Compensation for such period of disability shall be calculated as if the Eligible Eagle LC Employee had received 100% of the Eligible LC DC Program Monthly Wages used to determine the Accident and Sickness Benefits whether or not the Eligible Eagle LC Employee is receiving a benefit equal to 100% of such amounts as of the day when the Accident and Sickness Benefits began.
9.
Section 2.2 of Appendix II, as so amended, is further amended by deleting subsection (e) and inserting in its place the following, effective as of January 28, 2013:
(e) Eligible LC DC Program Monthly Wages shall mean an Eligible Eagle LC Employee’s straight time hourly base rate as of the first day of the month in question multiplied by 173.3, excluding amounts described in Section 2.2(d)(iii) of this Appendix II. This definition is used to determine Eligible LC DC Program Compensation for an Eligible Eagle LC Employee receiving Accident and Sickness Benefits.
10.
Section 2.2 of Appendix II, as so amended, is further amended by deleting subsection (f) and inserting in its place the following, effective as of January 28, 2013:
(f) Eligible LC DC Program Wages means, for each month of a Plan Year, such Eligible Eagle LC Employee’s straight time hourly base wage rate in effect as of the first day of the month with respect to which Eligible LC DC Program Wages are being determined multiplied by 173.3, excluding amounts described in Section 2.2(d)(iii) of this Appendix II. For Eligible Eagle LC Employees who are not being paid an hourly base rate as of the first day of the month, the hourly base rate shall be calculated using the hourly base rate applicable on the last day actively at work.
11.
Section 2.2 of Appendix II, as so amended, is further amended by deleting subsection (i) and inserting in its place the following, effective as of January 28, 2013:
(i) Short-Term Disability Benefits means benefits under Eagle’s Accident and Sickness Plan or any similar plan sponsored by Eagle.
12.
Section 2.4 of Appendix II is amended by deleting subsection (b) and inserting in its place the following, effective as of January 28, 2013:
(b) Eligibility to Receive Allocation. The contribution described in Section 2.4(a) of this Appendix II shall be made for an Eligible Eagle LC Employee for a month if such Eligible Eagle LC Employee:
(i) Receives credit for at least one Hour of Service with respect to that month,
(ii) Is receiving Short-Term Disability Benefits during the month in question;
(iii) Is on layoff status or on an approved leave of absence for that month; provided, however, that contributions for such an Eligible Eagle LC Employee shall continue for no more than 12 months of approved leave or layoff status;
(iv) Terminates employment with the Employer during such month (whether due to Retirement or otherwise); or
(v) Becomes entitled to payment of benefits under an Employer-sponsored severance plan or program during the month.
13.
Section 2.4 of Appendix II of the Plan, as so amended, is further amended by redesignating subsection (e) as subsection (f) and by inserting a new subsection (e) as follows:
(e) Transferring Employees. In the case of a person (i) who becomes an Eligible Eagle LC Employee during the course of a Plan Year as a result of a transfer of employment to Eagle from a unit of the Controlled Group that is participating in the Axiall Corporation 401(k) Retirement Savings Plan, and (ii) who would have been eligible to receive a contribution under Section 3.1(a) of the Axiall 401(k) Plan if the Eligible Eagle LC Employee had remained an employee of the other unit of the Controlled Group until the end of the Plan Year in question, then such Eligible DC Program Salaried Employee shall receive an additional contribution under this Plan for that Plan Year only equal to the amount that the individual would have received under Section 3.1(a) of the Axiall 401(k) Plan if the individual had remained an employee of such other unit until December 31 of the Plan Year in question; such additional contribution shall be calculated in accordance with the provisions of the Axiall 401(k) Plan, but shall only take into account “Eligible Compensation” (as defined in Section 3.1(a)(v)(C) of the Axiall 401(k) Plan) paid to the individual in the Plan Year in question prior to the date of the individual’s transfer of employment to Eagle from the other unit of the Controlled Group.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Post-Effective Amendment No. 1 to Form S-8 No. 333-188811) pertaining to the Eagle US 2 LLC Employee Savings Plan for Salaried Employees and the Eagle US 2 LLC Employee Savings Plan for Certain Collective Bargaining Employees of Axiall Corporation of our reports dated February 28, 2014, with respect to the consolidated financial statements of Axiall Corporation and the effectiveness of internal control over financial reporting of Axiall Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2013, filed with the Securities and Exchange Commission.
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/s/ Ernst & Young LLP |
Atlanta, Georgia
May 29, 2014
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Amendment No. 1 to Registration Statement No. 333-188811 on Form S-8 of our report dated May 14, 2013 related to the financial statements of the PPG Chlor-alkali and Derivatives Business as of December 31, 2012 and 2011 and for each of the three years in the period ended December 31, 2012 (which report expresses an unqualified opinion and includes explanatory paragraphs regarding the allocations of certain costs from PPG Industries, Inc. and the merger of the PPG Chlor-alkali and Derivatives Business with a subsidiary of Georgia Gulf Corporation subsequent to December 31, 2012).
/s/ DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
May 29, 2014