As filed with the Securities and Exchange Commission on November 23, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
A. Schulman, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 34-0514850 | |
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(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
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| 3550 West Market Street, Akron, Ohio | 44333 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
A. Schulman, Inc. Executives and Directors Stock Ownership Guidelines Compliance Program
(Full title of the plan)
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David C. Minc Vice President, Chief Legal Officer and Secretary A. Schulman, Inc. 3550 West Market Street, Akron, Ohio 44333 (Name and address of agent for service) |
Copy to:
J. Bret Treier Vorys, Sater, Seymour and Pease LLP 106 South Main Street, Suite 1100 Akron, Ohio 44308 |
(330) 666-3751
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant 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):
| Large accelerated filer | ¨ | Accelerated filer | x | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
Amount to be registered (1) |
Proposed maximum offering price per share (2) |
Proposed maximum aggregate offering price (2) |
Amount of registration fee |
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Common Stock, $1.00 par value |
500,000 | $20.06 | $10,030,000 | $1,149.44 | ||||
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| (1) | Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (this “Registration Statement”) also registers such additional shares of common stock that become available pursuant to the A. Schulman, Inc. Executives and Directors Stock Ownership Guidelines Compliance Program (the “Plan”) in order to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for the purpose of calculating the aggregate offering price and the registration fee pursuant to Rules 457(c) and 457(h) promulgated under the Securities Act and computed on the basis of $20.06, which is the average of the high and low prices for a share of common stock, $1.00 par value, of A. Schulman, Inc. (“A. Schulman”), as reported on the NASDAQ Global Select Market on November 22, 2011. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act. In accordance with the instructions to Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference .
The Commission allows A. Schulman to “incorporate by reference” in this Registration Statement the information in the documents that A. Schulman files with the Commission, which means that important information can be disclosed to you by referring you to those documents. The information incorporated by reference is considered to be a part of this Registration Statement. The following documents, filed by A. Schulman with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof:
| • |
the Annual Report on Form 10-K of A. Schulman for the fiscal year ended August 31, 2011, filed with the Commission on October 26, 2011; |
| • |
the Current Report on Form 8-K filed by A. Schulman with the Commission on October 11, 2011; and |
| • |
the description of A. Schulman’s common stock contained in its Current Report on Form 8-K filed with the Commission on December 22, 2009. |
All documents which may be filed by A. Schulman with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, also shall be deemed to be incorporated herein by reference and to be made a part hereof from the date of filing of such documents. Information furnished to the Commission by A. Schulman under any Current Report on Form 8-K shall not be incorporated by reference into this Registration Statement.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such earlier statement. Any statement so modified or superseded shall 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.
Section 145 of the General Corporation Law of the State of Delaware empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorney fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, for criminal proceedings, had no reasonable cause to believe his conduct was unlawful. A Delaware corporation may indemnify directors, officers, employees and agents in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the person is adjudged to be liable to the corporation in the performance of his duty. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against expenses that such officer or director actually and reasonably incurred.
Article THIRTEENTH of A. Schulman’s Amended and Restated Certificate of Incorporation and Section 1 of Article VI of A. Schulman’s Amended and Restated By-Laws provide that each person who is or was a director, officer, employee or agent of A. Schulman shall be indemnified by A. Schulman against expenses (including, but not limited to, attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any actual or threatened action, suit or proceeding to which he may be made a party by reason of his being, or having been, a director, officer, employee or agent of A. Schulman to the full extent permitted by the Delaware General Corporation Law as then in effect, upon such determination having been made as to his good faith and conduct as is required by the Delaware General Corporation Law as then in effect or, with respect to any criminal action or proceeding, upon such determination that he did not have reasonable cause to believe that his action was unlawful as is required by the Delaware General Corporation Law as then in effect. Section 3 of Article VI of the Amended and Restated By-Laws provides that expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by A. Schulman in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it ultimately shall be determined that he is not entitled to be indemnified by the Registrant.
A. Schulman has purchased and maintains liability insurance policies that insure the Registrant’s directors and officers
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits .
See the Index to Exhibits attached hereto.
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 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 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.
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 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 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 Act and will be governed by the final adjudication of such issue.
[SIGNATURE PAGE TO IMMEDIATELY FOLLOW]
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 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Akron, State of Ohio, on November 23, 2011.
| A. Schulman, Inc. | ||
| By: |
/s/ David C. Minc |
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| David C. Minc, | ||
| Vice President, Chief Legal Officer and Secretary | ||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on November 23, 2011.
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Signature |
Title |
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/s/ Joseph M. Gingo |
Chairman, President, Chief Executive Officer and Director | |||
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Joseph M. Gingo |
(Principal Executive Officer) | |||
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/s/ Joseph J. Levanduski |
Vice President, Chief Financial Officer and Treasurer | |||
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Joseph J. Levanduski |
(Principal Financial Officer) | |||
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/s/ Donald B. McMillan |
Chief Accounting Officer and Corporate Controller | |||
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Donald B. McMillan |
(Principal Accounting Officer) | |||
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/s/ Eugene R. Allspach* |
Director | |||
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Eugene R. Allspach |
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/s/ Gregory T. Barmore* |
Director | |||
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Gregory T. Barmore |
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/s/ David G. Birney* |
Director | |||
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David G. Birney |
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/s/ Howard R. Curd* |
Director | |||
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Howard R. Curd |
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/s/ Michael A. McManus, Jr.* |
Director | |||
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Michael A. McManus, Jr. |
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/s/ Lee D. Meyer* |
Director | |||
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Lee D. Meyer |
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/s/ James A. Mitarotonda* |
Director | |||
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James A. Mitarotonda* |
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/s/ Ernest J. Novak, Jr.* |
Director | |||
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Ernest J. Novak, Jr. |
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/s/ Irvin D. Reid* |
Director | |||
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Irvin D. Reid |
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/s/ John B. Yasinsky* |
Director | |||
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John B. Yasinsky |
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| * | The undersigned, by signing his name hereto, does hereby sign this Registration Statement on Form S-8 on behalf of each of the directors of A. Schulman identified above pursuant to Powers of Attorney executed by the directors identified above, which Powers of Attorney are filed with this Registration Statement on Form S-8 as Exhibit 24.1. |
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/s/ David C. Minc |
Attorney-in-Fact | |||
| David C. Minc |
EXHIBIT INDEX
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Exhibit Number |
Description |
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| 5.1 | Opinion of Vorys, Sater, Seymour and Pease LLP as to the legality of the securities being registered (filed herewith). | |
| 23.1 | Consent of PricewaterhouseCoopers, independent registered public accounting firm for A. Schulman, Inc. (filed herewith). | |
| 23.2 | Consent of Vorys, Sater, Seymour and Pease LLP (included as part of its opinion filed as Exhibit 5.1). | |
| 24.1 | Power of Attorney (filed herewith). | |
| 99.1 | A. Schulman, Inc. Executives and Directors Stock Ownership Guidelines Compliance Program (filed herewith). | |
Exhibit 5.1
November 23, 2011
Board of Directors
A. Schulman, Inc.
3550 West Market Street
Akron, Ohio 44333
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as counsel to A. Schulman, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 filed by the Company under the Securities Act of 1933, as amended (the “Act”), with the Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration Statement”), relating to the proposed issuance of up to 500,000 shares of common stock, $1.00 par value (the “Shares”), of the Company pursuant to the A. Schulman, Inc. Executives and Directors Stock Ownership Guidelines Compliance Program (the “Plan”).
In connection with rendering this opinion, we have examined, to the extent deemed necessary, originals or copies, the authenticity of which has been established to our satisfaction, of: (i) the Registration Statement; (ii) the Plan; (iii) the certificate of incorporation of the Company, as currently in effect; (iv) the bylaws of the Company, as currently in effect; and (v) the resolutions adopted by the Board of the Company relating to the approval of the Plan and the issuance of the Shares as contemplated thereunder. In addition, we have examined such authorities of law and other documents and matters as we have deemed necessary or appropriate for purposes of this opinion. We have also relied upon such oral or written statements and representations of officers and other representatives of the Company and examined such certificates of public officials and authorities of law as we have deemed relevant as a basis for this opinion.
In our examinations of the aforesaid documents and in rendering the opinion set forth below, we have assumed, without independent investigation or examination: (i) the genuineness of all signatures; (ii) the legal capacity of all individuals who have executed and delivered any of the aforesaid documents; (iii) the authenticity and completeness of all documents submitted to us as originals; (iv) the conformity to original documents of all documents submitted to us as copies; and (v) the authenticity of the originals of such latter documents.
We have relied solely upon the examinations and inquiries recited herein, and, except for the examinations and inquiries recited herein, we have not undertaken any independent investigation to determine the existence or absence of any facts, and no inference as to our knowledge concerning such facts should be drawn.
Based upon and subject to the foregoing and the further qualifications and limitations set forth below, as of the date hereof, we are of the opinion that the Shares to be registered under the Act pursuant to the Registration Statement for issuance and delivery pursuant to the Plan have been duly authorized by all necessary corporate action of the Company and that, when the Registration Statement has become effective under the Act and the Shares proposed to be issued pursuant to the Registration Statement have been issued and delivered as contemplated under the terms of the Plan, such Shares will be validly issued, fully paid and non-assessable.
This opinion is limited to the substantive laws and legal interpretations under the Delaware General Corporation Law and the federal law of the United States in effect, and the facts and circumstances existing, on the date hereof, and we express no opinion as to the laws of any other jurisdiction and we assume no obligation to revise or supplement this opinion should any such law or legal interpretation be changed by legislative action, judicial interpretation or otherwise or should there be any change in such facts or circumstances.
This opinion is furnished by us solely for the benefit of the Company in connection with the Registration Statement and may not be relied upon or used by any other person or for any other purpose. Notwithstanding the foregoing, we consent to the filing of this opinion as an exhibit to the Registration. By giving such consent, we do
not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
Except in connection with the Registration Statement as aforesaid, no portion of this opinion may be quoted or otherwise used by any person without our prior written consent.
| Very truly yours, |
| /s/ Vorys, Sater, Seymour and Pease LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated October 26, 2011 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in A. Schulman, Inc.’s Annual Report on Form 10-K for the year ended August 31, 2011.
/s/ PricewaterhouseCoopers LLP
Cleveland, Ohio
November 23 2011
Exhibit 24.1
Limited Power of Attorney
Registration Statement on Form S-8
KNOW ALL MEN BY THESE PRESENTS , that the undersigned directors/officers of A. Schulman, Inc., a Delaware corporation, which is about to file with the Securities and Exchange Commission, Washington, D.C., under the provisions of the Securities Act of 1933, as amended, a Registration Statement on Form S-8 for the registration of certain of its common shares for offering and sale pursuant to the A. Schulman, Inc. Executives and Directors Stock Ownership Guidelines Compliance Program , hereby constitutes and appoints Joseph M. Gingo, Joseph J. Levanduski and David C. Minc , and each of them, as his true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign such Registration Statement and any and all amendments and documents related thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and grants unto each of said attorneys-in-fact and agents, and substitute or substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, and hereby ratifies and confirms all things that each of said attorneys-in-fact and agents, or either of them or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, we have hereunto set our hands effective as of the 22th day of November, 2011.
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/s/ Joseph M. Gingo |
/s/ Joseph J. Levanduski |
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Joseph M. Gingo Chairman, President, Chief Executive Officer and Director (Principal Executive Officer) |
Joseph J. Levanduski Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) |
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/s/ Donald B. McMillan |
/s/ Eugene R. Allspach |
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Donald B. McMillan Chief Accounting Officer and Corporate Controller (Principal Accounting Officer) |
Eugene R. Allspach Director |
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/s/ Gregory T. Barmore |
/s/ David G. Birney |
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Gregory T. Barmore Director |
David G. Birney Director |
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/s/ Howard R. Curd |
/s/ Michael A. McManus, Jr. |
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Howard R. Curd Director |
Michael A. McManus, Jr. Director |
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/s/ James A. Mitarotonda |
/s/ Lee D. Meyer |
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James A. Mitarotonda Director |
Lee D. Meyer Director |
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/s/ Dr. Irvin D. Reid |
/s/ Ernest J. Novak, Jr. |
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Dr. Irvin D. Reid Director |
Ernest J. Novak, Jr. Director |
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/s/ John B. Yasinsky |
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John B. Yasinsky Director |
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Exhibit 99.1
A. SCHULMAN, INC.
EXECUTIVES AND DIRECTORS STOCK OWNERSHIP GUIDELINES
COMPLIANCE PROGRAM
ARTICLE I
PURPOSE
The purposes of the A. Schulman, Inc. Executives and Directors Stock Ownership Guidelines Compliance Program (the “Program”) are to provide executive-level employees (each, an “Executive”) of A. Schulman, Inc. (the “Company”) and its affiliates and directors of the Company (each a “Director”) with a convenient method to acquire the Company’s common stock, par value $1.00 per share (the “Shares”), at Fair Market Value (as defined below) and an additional mechanism to comply with the Company’s stock ownership guidelines.
ARTICLE II
PARTICIPATION
| 2.1 | Participation . An Executive or Director may become a “Participant” in this Program by completing and returning an election form in the form attached as Exhibit A (for Executives) or Exhibit B (for Directors) to the Program Administrator described in Article IV. The election form shall relate to each 12 month period ending August 31 for Executives and December 31 for Directors (each, a “Program Year”). |
| 2.2 | Election Amount. On the Election Form, the Participant will direct the Company or an affiliate, as applicable, to withhold, as applicable, a percentage of the after-tax annual incentive compensation award payable to the Executive or a percentage of each quarterly cash retainer payable to the Director with respect to such Program Year (the “Election Amount”) and have the Program Administrator convert the Election Amount into Shares as described in Article III. |
| 2.3 | Timing of Election. An Election Form may be completed during any open window during the Program Year in which the annual incentive compensation or cash retainer, as the case may be, to which the election relates will be paid. Once completed, the Election Form may be amended or revoked only with the consent of the Company and in accordance with Rule 10b5-1 of the Securities Exchange Act of 1934, as amended. |
| 2.4 | Effect of Termination. If an Executive terminates employment with the Company or an affiliate, or a Director resigns or otherwise is no longer a Director of the Company prior to the date on which the annual incentive compensation award or the date on which any quarterly cash retainer for the Program Year is paid, all elections made under this Program will terminate immediately and no Shares will be purchased for any annual incentive compensation award or cash retainer, as the case may be, paid following the date of termination. |
ARTICLE III
PURCHASE OF SHARES
| 3.1 | Purchase of Shares. On the date on which annual incentive compensation awards are paid for the Program Year or each date on which quarterly cash retainers are paid for the Program Year (each, a “Purchase Date”), the Program Administrator will deliver a number of Shares on behalf of each Participant determined by dividing the Participant’s Election Amount by the Fair Market Value of a Share on the Purchase Date and crediting the resulting number of whole and fractional Shares to the Participant’s Account (as defined below). For purposes of this Program, the “Fair Market Value” of a Share shall be the reported closing price of a Share on the relevant date. |
| 3.2 | Source of Shares. Shares deliverable pursuant to this Program may consist of treasury Shares, authorized but unissued Shares not reserved for any other purpose, or Shares purchased by the Program Administrator or an authorized agent in a private transaction or on the open market. |
| 3.3 | Delivery of Shares. The Program Administrator will establish an account (the “Account”) on behalf of each Participant in the Program and credit Shares delivered under the Program to the Account until issued to the Participant or transferred as directed by the Participant. |
| 3.4 | Expenses. The Company does not anticipate that any brokerage, service or other fees will be incurred as a result of the purchase, issuance or transfer of the Shares acquired under this Program. However, to the extent that such fees are incurred, the Company may elect to require that Participants be responsible for their payment and Participants will be responsible for the payment beginning with the first Program Year after the Company notifies the Participants of this election. |
| 3.5 | Rights. Participants will be entitled to payment of any dividends or distributions paid, and exercise all voting and other rights, with respect to Shares held in the Participant’s Account. Participants may elect to receive dividends in cash or direct the Program Administrator to use dividends to acquire additional Shares based on the Fair Market Value of a Share on the date of acquisition. An election to have dividends paid with respect to Shares during any Program Year used to acquire additional Shares must be made on an Election Form in accordance with Section 2.3. |
ARTICLE IV
ADMINISTRATION
The Company is responsible for administering the Program and shall have all powers appropriate and necessary to that purpose, including the selection of a person or entity to administer the Program (the “Program Administrator”). The Company has the final power to determine all questions of policy and expediency that may arise in the administration of the Program. The Company may delegate its administrative authority to the Program Administrator. In carrying out its duties, the Company or the Program Administrator may correct any defect, supply any
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omission, or reconcile any inconsistency in the Program or in any agreement entered into hereunder. The determination of the Company or the Program Administrator as to any disputed question arising under the Program, including questions of construction and interpretation, shall be final, binding, non-appealable and conclusive upon all Participants.
ARTICLE V
AMENDMENT AND TERMINATION
The Company may amend, suspend or terminate the Program any time without the consent of any Participant. Upon the termination of the Program, the Company may elect to terminate any election with respect to annual incentive compensation awards or cash retainers that have not yet been paid or Shares that have not been purchased at the time of termination and instead pay the Election Amount in cash. Upon the amendment, suspension or termination of the Program, the Company may require that Participants assume responsibility for the payment of any fees or other charges required by the Program Administrator in connection with their Accounts.
ARTICLE VI
MISCELLANEOUS
| 6.1 | Non-Transferability . Rights to purchase Shares granted under the Program may not be pledged, assigned or transferred by a Participant. Once delivered, Shares held in a Participant’s Account may be held only in the name of that Participant and may not be held in joint tenancy or otherwise. Such Shares may be transferred by the Participant, subject to compliance with the Company’s Global Insider Trading Policy. |
| 6.2 | No Right to Service . Neither the adoption of the Program nor the ability of any Participant to acquire Shares hereunder shall confer upon the Participant any right to continued service with the Company or any affiliate or interfere with the right of the Company or any affiliate to terminate the employment or other service of the Participant, with or without cause, which right is expressly reserved. |
| 6.3 | No Mandate of or Limitation on Compensation . Nothing in the Program is to be construed to mandate or limit the right of the Company or any affiliate to establish other plans or to pay compensation to Participants, in cash or property, in a manner not expressly authorized under the Program. |
| 6.4 | Compliance with Securities Laws . No Shares shall be purchased or delivered pursuant to the Program unless the purchase and/or delivery of such Shares complies with all applicable provisions of law, including without limitation, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated under each, and the requirements of any stock exchange or quotation system on which the Shares are listed or quoted. The Company shall cause such legends to be placed on certificates evidencing Shares issued under the Program, as may be required by federal and applicable state securities laws. |
| 6.5 | Status. This Program is not intended to be a qualified employee stock purchase plan within the meaning of Section 423 of the Internal Revenue Code of 1986, as amended. |
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| 6.6 | Governing Law. The Program shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to conflicts of laws principles. |
| 6.7 | Headings. Headings and subheadings in this document are inserted for convenience of reference only. They constitute no part of this Program. |
| 6.8 | No Withholding of Taxes. Shares delivered under this Program are acquired by the Company on behalf of Participants on an after-tax basis and not on a pre-tax basis or through deferral. The Election Amount for Executives is the percentage of the annual incentive compensation elected to be converted into Shares, after applicable withholdings. Directors are solely responsible for paying any taxes due on their quarterly cash retainers, whether or not converted into and delivered in the form of Shares. Neither the Company nor any affiliate, as applicable, shall withhold any taxes from the value of any Shares delivered under this Program. |
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A. SCHULMAN, INC.
EXECUTIVES AND DIRECTORS STOCK OWNERSHIP GUIDELINES
COMPLIANCE PROGRAM
ELECTION FORM FOR EXECUTIVES
(PROGRAM YEAR ENDED AUGUST 31, 2011)
By completing this Election Form for Executives (this “Election Form”), I elect to have the after-tax portion of my annual incentive compensation payable with respect to the period ended August 31, 2011 (“FY 2011 Bonus”) delivered in the form of Shares as described in the A. Schulman, Inc. Executives and Directors Stock Ownership Guidelines Compliance Program (the “Program”). My election shall remain in effect until changed or revoked. Any capitalized terms not otherwise defined in this Election Form will have the meanings given to them in the Program.
| 1. | Information |
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| Participant Name | Date of Birth |
Address
| 2. | Elections |
Subject to the terms of this Election Form and the Program:
| a. | Election Amount |
I hereby direct that, in lieu of receiving this amount in cash, the following percentage of my after-tax FY 2011 Bonus be delivered in the form of Shares: %.
| b. | Dividends |
Until changed or revoked as described in the Program, I hereby elect to have any dividends payable with respect to Shares in my Account:
Be paid to me in cash
Be used to acquire additional Shares
| 3. | Acknowledgements |
By signing below, I understand that:
A-1
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The percentage of my FY 2011 Bonus I elect to have delivered in the form of Shares is less any taxes required to be withheld by the Company or an affiliate and no Shares are being acquired on a pre-tax basis or through deferral. |
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The number of Shares delivered to me with respect to my FY 2011 Bonus will be determined by dividing the dollar value of Election Amount by the Fair Market Value of a Share on the Purchase Date. |
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Shares delivered will be credited to an Account established by the Program Administrator on my behalf. |
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I will be entitled to all dividends and distributions payable, and exercise voting rights, with respect to Shares held in my Account. |
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If I elect to have dividends payable with respect to Shares held in my Account used to acquire additional Shares, the number of Shares I will acquire will be determined by dividing the amount of dividends by the Fair Market Value of a Share on the date of acquisition. |
*****
Return this signed and completed Election Form to:
A. Schulman, Inc.
Attention: Rand Torgler
3550 West Market Street
Akron, Ohio 44333
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A-2
A. SCHULMAN, INC.
EXECUTIVES AND DIRECTORS STOCK OWNERSHIP GUIDELINES
COMPLIANCE PROGRAM
ELECTION FORM FOR DIRECTORS
(FISCAL YEAR ENDED AUGUST 31, 20 )
By completing this Election Form (this “Election Form”), I elect to have a portion of my each quarterly cash retainer payable with respect to the period ending December 31, 20 (“CY 20 Retainer”) delivered in the form of Shares as described in the A. Schulman, Inc. Executives and Directors Stock Ownership Guidelines Program (the “Program”). My election shall remain in effect until changed or revoked. Any capitalized terms not otherwise defined in this Election Form will have the meanings given to them in the Program.
| 1. | Information |
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| Participant Name | Date of Birth |
Address
| 2. | Elections |
Subject to the terms of this Election Form and the Program:
| a. | Election Amount |
I hereby direct that, in lieu of receiving this amount in cash, the following percentage of each quarterly CY 20 Retainer be delivered in the form of Shares: %.
| b. | Dividends |
Until changed or revoked as described in the Program, I hereby elect to have any dividends payable with respect to Shares in my Account:
Be paid to me in cash
Be used to acquire additional Shares
| 3. | Acknowledgements |
By signing below, I understand that:
B-1
| • |
The number of Shares delivered to me will be determined by dividing the dollar value of Election Amount by the Fair Market Value of a Share on the Purchase Date. |
| • |
Shares delivered will be credited to an Account established by the Program Administrator on my behalf. |
| • |
I will be entitled to all dividends and distributions payable, and exercise voting rights, with respect to Shares held in my Account. |
| • |
If I elect to have dividends payable with respect to Shares held in my Account used to acquire additional Shares, the number of Shares I will acquire will be determined by dividing the amount of dividends by the Fair Market Value of a Share on the date of acquisition. |
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Shares are delivered under the Program on an after-tax basis and I am solely responsible for paying any taxes due on percentage of my CY 20 Retainer that is delivered in the form of Shares. |
*****
Return this signed and completed Election Form to:
A. Schulman, Inc.
Attention: Rand Torgler
3550 West Market Street
Akron, Ohio 44333
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B-2