Delaware | 0-7459 | 34-0514850 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
( IRS Employer Identification No.) |
3550 West Market Street, Akron, Ohio | 44333 | |
(Address of principal executive offices) | (Zip Code) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-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)) |
The Gingo Amendments | |||
| The Gingo Agreement has been modified to provide for an automatic one-year extension of the term of Mr. Gingos employment with the Company until December 31, 2011, provided that neither the Company nor Mr. Gingo provides notice of non-extension prior to October 1, 2009. | ||
| The Gingo Agreement has been expanded to provide the Company with non-competition/non-solicitation protection for a period of one year under all possible termination scenarios. As part of this non-competition/non-solicitation expansion, certain amounts previously payable to Mr. Gingo under certain termination scenarios have been allocated as consideration for his expanded non-competition/non-solicitation obligations. | ||
| The Gingo Amendments confirm that, effective November 1, 2008, Mr. Gingos annual base salary is set at $775,000.00. | ||
| The Gingo Amendments confirm that Mr. Gingos annual bonus plan award leverage range shall be from 0 to 200% of target. Such amendment was implemented in order to conform the Gingo Agreement to the terms of the 2009 Bonus Plan and to make the Gingo Agreement consistent with the leverage range that is applicable to other executive officers of the Company. | ||
| The effective date of the Gingo Amendments is January 1, 2009. | ||
| The Gingo Amendments provide certain other amendments and modifications to the terms of the Gingo Agreement in order to comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and the final regulations issued thereunder. |
The Amended DeSantis Agreement | |||
| Pursuant to the Amended DeSantis Agreement, the term of Mr. DeSantis employment with the Company has been modified. The term of the Amended DeSantis Agreement commences January 1, 2009 and ends on December 31, 2009 (the Initial Term); provided, however, at the end of the Initial Term and any subsequent Extended Term, the Amended DeSantis Agreement shall automatically be extended for a term of one year (an Extended Term), unless either Mr. DeSantis or the Company provides notice of non-extension not less than 30 days prior to the expiration of the Initial or an Extended Term. Under the terms of Mr. DeSantis prior employment agreement with the Company, the term of Mr. DeSantis employment consisted of a three-year evergreen term. | ||
| The non-competition/non-solicitation provisions covering Mr. DeSantis have been expanded to provide the Company with non-competition/non-solicitation protection for a period of one year under all possible termination scenarios. As part of this non-competition/non-solicitation expansion, certain amounts previously payable to Mr. DeSantis under certain termination scenarios have been allocated as consideration for his expanded non-competition/non-solicitation obligations. | ||
| The Amended DeSantis Agreement provides Mr. DeSantis with a partial excise tax gross-up payment upon termination. In the event that any payment, benefit or right to be paid or distributed, in connection with a change-in-control or termination, is subject to an excise tax imposed by Sections 280G and 4999 of the Code, the Company shall provide Mr. DeSantis with an excise tax gross-up payment equal to the amount of such excise tax imposed. The Company has agreed to provide Mr. DeSantis with this tax gross-up benefit as compensation for the following: (1) the shortened contractual term provided in the Amended DeSantis Agreement; and (2) the expanded non-competition/non-solicitation obligations provided in the Amended DeSantis Agreement. Additionally, in extending tax-gross up benefits to Mr. DeSantis, the Company sought to align the tax benefits provided to Mr. DeSantis with those provided to Mr. Gingo. | ||
| The Amended DeSantis Agreement provides numerous other amendments and modifications to Mr. DeSantis prior employment agreement in order to comply with the provisions of Section 409A of the Code, and the final regulations issued thereunder. |
Exhibit Number | Description | |
10.1
|
First Amendment to Employment Agreement of Joseph M. Gingo, dated December 17, 2008. | |
10.2
|
Amended and Restated Employment Agreement of Paul F. DeSantis, dated December 17, 2008. |
A. Schulman, Inc. |
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By: | /s/ David C. Minc | |||
David C. Minc | ||||
Vice President, General Counsel and Secretary | ||||