8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) March 27, 2018                         

A. SCHULMAN, INC.

(Exact name of registrant as specified in its charter)

Delaware	0-7459	34-0514850
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

3637 Ridgewood Road, Fairlawn, Ohio	44333
(Address of principal executive offices)	(Zip Code)

(330) 666-3751

(Registrant’s telephone number, including area code)

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

þSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 5.02Departure Of Directors Or Certain Officers; Election Of Directors; Appointment Of Certain Officers; Compensatory Arrangements Of Certain Officers.

On March 27, 2018, A. Schulman, Inc. (the “Company”) entered into an Amendment of Employment Agreement with Joseph M. Gingo, the Company’s Chief Executive Officer, President and Chairman (the “Gingo Amendment”), which amended the employment agreement originally entered into as of September 22, 2016 by and between the Company and Mr. Gingo (the “Gingo Agreement”). The Gingo Amendment extends the end of the term of the Gingo Agreement from the original expiration date of August 31, 2018 to the earlier of August 31, 2019 or the date that is thirty (30) days after the closing date of the transaction contemplated by that certain Agreement and Plan of Merger by and among the Company, LyondellBasell Industries N.V., a naamloze vennootschap (a public limited liability company) formed under the laws of The Netherlands (“LyondellBasell”), and LYB Americas Holdco Inc., a Delaware corporation, dated as of February 15, 2018 (the “Merger”). All other terms and conditions of the Gingo Agreement remain in full force and effect. A copy of the Gingo Amendment is filed as Exhibit 10.1 hereto and incorporated by reference herein.

Also on March 27, 2018, John W. Richardson, the Company’s Executive Vice President and Chief Financial Officer, provided the Company with written notice that, pursuant to the terms of the Employment Agreement entered into as of September 30, 2016 by and between the Company and Mr. Richardson (the “Richardson Agreement”), he was extending the end of the term of the Richardson Agreement from the original expiration date of October 31, 2018 to October 31, 2019. All other terms and conditions of the Richardson Agreement remain in full force and effect.

Also on March 27, 2018, the Company commenced entering into amendments of each Change in Control Agreement, dated September 22, 2016 (the “CIC Agreement”), between the Company and its executive officers other than Messrs. Gingo and Richardson, including each of its named executive officers other than Mr. Gingo and Mr. Richardson, to extend the end of the term of each CIC Agreement from the original expiration date of December 31, 2018 to December 31, 2019 and to add, as a condition to receipt of certain benefits set forth in the CIC Agreement, the execution and delivery to the Company of a written release of claims (the “CIC Amendment”). All other terms and conditions of each CIC Agreement remain in full force and effect. A copy of the form of the CIC Amendment is filed as Exhibit 10.2 hereto and incorporated by reference herein.

*****

Forward-Looking Statements

This Current Report on Form 8-K is made in reliance upon the safe harbor of the Private Securities Litigation Reform Act of 1995, including, without limitation, the statements made concerning the Company’s intent to consummate the Merger. As a general matter, forward-looking statements are those focused upon anticipated events or trends, expectations, and beliefs relating to matters that are not historical in nature. Forward-looking statements can be identified by the fact that they do not relate strictly to historic or current facts and relate to future events and expectations. Forward-looking statements contain such words as “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” “forecast,” “foresee,” “likely,” “may,” “should,” “goal,” “target,” “might,” “will,” “could,” “predict,” “continue,” and other words and terms of similar meaning in connection with any discussion of future operating or financial performance. Such forward-looking statements are subject to uncertainties and factors relating to the Company’s operations and business environment, all of which are difficult to predict and many of which are beyond the control of the Company. Among others, the following uncertainties and other factors could cause actual results to differ from those set forth in the forward-looking statements: (i) the risk that the Merger may not be consummated

in a timely manner, if at all; (ii) the risk that the definitive Merger Agreement may be terminated in circumstances that require the Company to pay a termination fee of $50 million; (iii) risks related to the diversion of management’s attention from the Company’s ongoing business operations; (iv) the effect of the announcement of the Merger on the Company’s business relationships (including, without limitation, customers and suppliers), operating results and business generally; (v) risks related to obtaining the requisite consents to the Merger, including, without limitation, the receipt of approval from the Company’s stockholders, the timing (including possible delays) and receipt of regulatory clearance and CFIUS approval from governmental authorities (including any conditions, limitations or restrictions placed on these approvals) and the risk that one or more governmental authority may deny any such approval; and (vi) the conditions of the capital markets during the period covered by the forward-looking statements. Further risks that could cause actual results to differ materially from those matters expressed in or implied by such forward-looking statements are set forth under “Risk Factors” in the Company’s Annual Report on Form 10-K for the fiscal year ended August 31, 2017, its subsequent quarterly reports on Form 10-Q, and in the Company’s preliminary proxy statement, dated March 26, 2018, that the Company filed with the Securities and Exchange Commission (the “SEC”) in connection with the Merger. The list of factors presented here is, and the list of factors presented in the Company’s other SEC filings should not be considered to be a complete statement of all potential risks and uncertainties. In addition, risks and uncertainties not presently known to the Company or that it believes to be immaterial also may adversely affect the Company. Should any known or unknown risks or uncertainties develop into actual events, or underlying assumptions prove inaccurate, these developments could have material adverse effects on the Company’s business, financial condition and results of operations. The Company is under no obligation, and expressly disclaims any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events or otherwise. Persons reading this communication are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof.

The Merger is subject to certain conditions precedent, including regulatory approvals, CFIUS approval and approval from the Company’s stockholders. The Company cannot provide any assurance that the proposed Merger will be completed, nor can it give assurances as to the terms on which such Merger will be consummated.

Additional Information and Where to Find It

This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval. This communication may be deemed to be solicitation material in respect of the proposed Merger between the Company and LyondellBasell. In connection with the proposed Merger, the Company has filed with the SEC a proxy statement, the definitive version of which will be sent or provided to the Company’s stockholders, and other documents relevant to the proposed Merger. THE COMPANY’S STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO ANY DOCUMENTS INCORPORATED BY REFERENCE THEREIN) AND OTHER RELEVANT DOCUMENTS IN CONNECTION WITH THE TRANSACTION THAT THE COMPANY WILL FILE WITH THE SEC (INCLUDING THE DEFINITIVE PROXY STATEMENT) WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES TO THE TRANSACTION. Stockholders and investors will be able to obtain free copies of the proxy statement and other relevant materials (when they become available) and other documents filed by the Company at the SEC’s web site at www.sec.gov. Copies of the proxy statement (when they become available) and the filings that will be incorporated by reference therein may also be obtained, without charge, from the Company’s website, www.ir.aschulman.com, or by contacting the Company’s Investor Relations at 330-668-7346 or jennifer.beeman@aschulman.com.

Participants in the Solicitation

The Company, its directors and certain of its executive officers and employees may be deemed, under SEC rules, to be participants in the solicitation of proxies from the Company’s investors and security holders in connection with the proposed Merger. Information about the Company’s directors and executive officers is set forth in the Company’s proxy statement for its 2017 Annual Meeting of Stockholders and the Company’s Annual Report on Form 10-K for the fiscal year ended August 31, 2017. Additional information regarding the interests of participants in the solicitation of proxies in connection with the proposed transaction is included in the Company’s preliminary proxy statement and other documents relevant to the proposed Merger filed with the SEC in connection with the proposed Merger. These documents may be obtained for free (when they become available) as described above.

Item 9.01Financial Statements And Exhibits.

(d)  Exhibits.

Exhibit Number	Description
10.1	Amendment of Employment Agreement entered into March 27, 2018 by and between A. Schulman, Inc. and Joseph M. Gingo.
10.2	Form of Amendment of Change-in-Control Agreement with Executive Officers.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

A. Schulman, Inc.

By:/s/ Andrean Horton

Andrean Horton, Executive Vice President & Chief Legal Officer

Date: March 28, 2018

EX-10.1

EXHIBIT 10.1

AMENDMENT OF EMPLOYMENT AGREEMENT

This Amendment (the “Amendment”) to the Employment Agreement entered into as of September 22, 2016 (the “Agreement”) by and between A. Schulman, Inc., a Delaware corporation (the “Employer” or “Company”) and Joseph M. Gingo (the “Employee”), is made and entered into this 27th day of March, 2018.

WHEREAS, pursuant to Section 4.1 of the Agreement the Term of the Agreement is contemplated to end on August 31, 2018;

WHEREAS, pursuant to Section 4.1, the Company may, by providing written notice to Employee at least ninety (90) days prior to August 31, 2018, extend the Term for one additional year to August 31, 2019 (“Extension”); and

WHEREAS, the Company entered into that certain Agreement and Plan of Merger by and among the Company, LyondellBasell Industries N.V., a naamloze vennootschap (a public limited liability company) formed under the laws of The Netherlands, and LYB Americas Holdco Inc., a Delaware corporation, dated as of February 15, 2018 (the “Merger Agreement”); and

WHEREAS, Schedule 6.01(b)(vi)(3) of the Merger Agreement contemplates that the Company shall be permitted to extend the term of the Agreement until the date that is thirty (30) days following the closing of the Merger Agreement; and

WHEREAS, the Company and Employer desire to so extend the term of the Agreement;

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.Term of Agreement. Section 4.1 of the Agreement shall be deleted in its entirety and replaced with the following:

4.1 TERM OF AGREEMENT. The "Term" for this Agreement shall commence on September 22, 2016 and shall end on the earlier of (i) August 31, 2019; or (ii) the date that is thirty (30) days following the Closing Date, as defined in the Merger Agreement. Nothing in this Agreement shall amend, modify or alter compensation paid or awards settled to the Employee prior to the commencement of the Term.

2.No Further Amendment. Except as otherwise amended hereby, all terms and conditions of the Agreement shall remain in full force and effect.

[Signature page follows]

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year first above written.

EMPLOYER:

A. Schulman, Inc.

By: /s/ Andreas Guenther

Its: Chief Human Resources Officer

EMPLOYEE:

/s/ Joseph M. Gingo

Joseph M. Gingo

EX-10.2

EXHIBIT 10.2

AMENDMENT OF CHANGE IN CONTROL AGREEMENT

This Amendment (the “Amendment”) to the Change in Control Agreement dated September 22, 2016 (the “Agreement”) is made as of this ____ day of March, 2018 between A. Schulman, Inc., a Delaware corporation (the “Corporation”) and _________________________ (“Employee”).

RECITALS

A.Employee and the Corporation entered into the Agreement, pursuant to which Employee was provided with certain severance benefits in the event Employee’s employment with the Corporation terminates in connection with a Change in Control as defined in the Agreement under the terms and conditions set forth in the Agreement;

B.Pursuant to Section 2 of the Agreement, the term of the Agreement will end on December 31, 2018;

C.Section 6.2 of the Agreement contemplates that the Agreement may be amended at any time by written agreement between Employee and the Corporation;

D.The Corporation entered into that certain Agreement and Plan of Merger by and among the Corporation, LyondellBasell Industries N.V., a naamloze vennootschap (a public limited liability company) formed under the laws of The Netherlands, and LYB Americas Holdco Inc., a Delaware corporation, dated as of February 15, 2018 (the “Merger Agreement”);

E.Schedule 6.01(b)(vi)(1) of the disclosure letter to the Merger Agreement contemplates that the Corporation shall be permitted to extend the term of the Agreement until December 31, 2019; and

F.Employee and the Corporation desire to amend the Agreement to extend the term until December 31, 2019, and in connection therewith to include a release as additional consideration.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.Amendment of Section 2. The paragraph contained in Section 2 of the Agreement shall be deleted in its entirety and replaced by the following paragraph:

Subject to Sections 1.5, 5.3 and 6.3, the term of this Agreement shall commence on the Effective Date and end on December 31, 2019 (the “Expiration Date”).

2.Amendment of section 4.1 (c): Paragraph 4.1(c) shall be replaced by the following:

(c)A lump sum cash payment, which shall be paid in the first payroll period after the 60th calendar day following Employee’ date of Termination, provided the Release set forth in 4.3(e) below has become effective and irrevocable, equal to the sum of: (i) two hundred percent (200%) of the Employee’s base salary for the calendar year immediately preceding the year in which the date of Termination occurs; plus (ii) two hundred percent (200%) of the Employee’s annual target bonus for the fiscal year in which the date of Termination occurs.

3.Amendment of Section 4.3. The following paragraph shall be added as Section 4.3(e):

(e)In consideration of, and as a pre-condition to, receipt of any of the payments or benefits set forth in this Section 4 (with the exception those provided in 4.1(a) and 4.1(b)), Employee shall execute and deliver to Employer a written release in a form acceptable to Employer in a manner compliant with the respective requirements for release of claims under the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, and the Employee Retirement Income Security Act of 1974, pursuant to which Employee shall fully and forever surrender, release, acquit and discharge the Employer, and its principals, stockholders, directors, officers, agents, administrators, insurers, subsidiaries, affiliates, employees, successors, assigns, related entities, and legal representatives, personally and in their representative capacities, and each of them (collectively, “Released Parties”), of and from any and all claims for costs of attorneys’ fees, expenses, compensation, and all losses, demands and damage of whatsoever nature or kind in law or in equity, whether known or unknown, including without limitation those claims arising out of, under, or by reason of Employee’s employment with the Employer or any of the Companies, Employee’s relationship with the Employer or any of the Companies and/or any termination of Employee’s employment relationship and any and all claims which were or could have been asserted in any charge, complaint, or related lawsuit. Notwithstanding the foregoing, no such release shall constitute a waiver of, or in any manner restrict or limit: (i) the Employee’s rights of indemnification relating to his or her status as an officer of the Employer, whether arising under Delaware law, contractually, or under Employer’s insurance coverage, or (ii) Employee’s rights as a shareholder, except that Employee waives any right to engage in any litigation as a shareholder, whether as a class action participant or on a derivative basis, based on alleged acts or omissions during his or her employment.

4.No Further Amendment. Except as otherwise amended hereby, all terms and conditions of the Agreement shall remain in full force and effect.

[Signature page follows]

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year first above written.

CORPORATION:

A. Schulman, Inc.

By:

Its:

EMPLOYEE:

Signed:

Name:

Date: