sv8
As filed
with the Securities and Exchange Commission on January 15, 2010
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)
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DELAWARE
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34-0514850 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
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3550 West Market Street, Akron, Ohio
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44333 |
(Address of Principal Executive Offices)
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(Zip Code) |
A. Schulman, Inc. 2009 Employee Stock Purchase Plan
(Full title of the plan)
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David C. Minc, Esq.
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Copy to: |
Vice President, Chief Legal Officer and Secretary
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J. Bret Treier, Esq. |
A. Schulman, Inc.
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Vorys, Sater, Seymour and Pease LLP |
3550 West Market Street
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106 South Main Street, Suite 1100 |
Akron, Ohio 44333
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Akron, Ohio 44308 |
(Name and address of agent for service) |
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(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):
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Amount |
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Proposed maximum |
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Proposed maximum |
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Amount of |
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Title of securities |
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to be |
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offering price |
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aggregate offering |
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registration |
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to be registered |
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registered |
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per share (2) |
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price (2) |
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fee |
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Common Stock, $1.00 par value |
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250,000 |
(1) |
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$ |
22.94 |
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5,735,000 |
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$ |
408.90 |
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(1) |
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Pursuant to Rule 416(c) under the Securities Act of 1933, as amended
(the Securities Act), this Registration Statement on Form S-8 also
registers such additional shares of Common Stock that becomes
available pursuant to the A. Schulman, Inc. 2009 Employee Stock
Purchase Plan in order to prevent dilution resulting from stock
splits, stock dividends or similar transactions. |
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(2) |
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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
$22.94, which is the average of the high and low prices for a share of
common stock of A. Schulman, Inc., as reported on the NASDAQ Global
Select Market on January 13, 2010. |
TABLE OF CONTENTS
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 A. Schulman, Inc. 2009 Employee Stock Purchase Plan as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (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 on Form S-8
(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, Inc. (the Registrant) to incorporate by reference in
this Registration Statement the information in the documents that the Registrant 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 the Registrant 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:
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the Annual Report on Form 10-K of the Registrant for the fiscal year ended August 31,
2009, filed with the Commission on October 26, 2009; |
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the Quarterly Report on Form 10-Q of the Registrant for the quarterly period ended
November 30, 2009, filed with the Commission on January 6, 2010; |
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the Current Reports on Form 8-K filed by the Registrant with the Commission on September
2, 2009, October 19, 2009, October 30, 2009, December 3, 2009, December 10, 2009, December
22, 2009, and January 7, 2010; and |
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the description of the Registrants common stock, $1.00 par value (the Common Stock),
contained in the Registrants Current Report on Form 8-K filed by the Registrant with the
Commission on December 22, 2009. |
All documents which may be filed by the Registrant with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange 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
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documents. Information furnished to the Commission by the Registrant 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 corporations 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 the Amended and Restated Certificate of Incorporation and Section 1 of
Article VI of the Amended and Restated By-Laws of the Registrant provide that each person who is or
was a director, officer, employee or agent of the Registrant shall be indemnified by the Registrant
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 the Registrant to the full extent permitted by the
Delaware General Corporation Law as then in
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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 the Registrant 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.
The Registrant has purchased and maintains liability insurance policies that insure the
Registrants directors and officers against certain liabilities that might be incurred by reason of
their positions as directors and officers.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See
the Index to Exhibits attached hereto and beginning on page 8.
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;
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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 Registrants 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
provisions described in Item 6 of this Part II, 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]
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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
January 15, 2010.
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A. Schulman, Inc.
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By: |
/s/ Joseph M. Gingo
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Joseph M. Gingo, Chairman, President and |
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Chief Executive Officer |
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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 January 15, 2010.
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Signature |
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Title |
/s/ Joseph M. Gingo
Joseph M. Gingo |
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Chairman, President, Chief Executive Officer
and Director
(Principal Executive Officer) |
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/s/ Paul F. DeSantis
Paul F. DeSantis |
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Vice President, Chief Financial Officer and
Treasurer
(Principal Financial Officer and Principal
Accounting Officer) |
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Director |
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Director |
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Director |
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Michael A. McManus, Jr. |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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Director |
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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 the Registrant 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/ Joseph M. Gingo
Joseph M. Gingo |
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Attorney-in-Fact |
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EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
4.1 |
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Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference from Exhibit 3(a) to the Registrants
Annual Report on Form 10-K for the fiscal year ended August 31, 2009
filed with the Commission on October 26, 2009). |
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4.2 |
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Amended and Restated By-laws of the Registrant (incorporated by
reference from Exhibit 3.2 to the Registrants Current Report on
Form 8-K filed with the Commission on October 19, 2009). |
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5.1 |
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Opinion of Vorys, Sater, Seymour and Pease LLP as to the legality of
the securities being registered (filed herewith). |
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23.1 |
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Consent of PricewaterhouseCoopers LLP, independent registered public
accounting firm for the Registrant (filed herewith). |
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23.2 |
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Consent of Vorys, Sater, Seymour and Pease LLP (included as part of
its opinion filed as Exhibit 5.1). |
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24.1 |
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Power of Attorney (filed herewith). |
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99.1 |
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A. Schulman, Inc. 2099 Employee Stock Purchase Plan (filed herewith). |
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