EX-10.2






Exhibit 10.2




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as
of the 17th day of December, 2008, by and between A. SCHULMAN, INC., a Delaware corporation (the
“Employer” or “Company”), and Paul F. DeSantis (the “Employee”).



     WHEREAS, the Employer and the Board of Directors of the Company desire to provide for the
continued employment of the Employee as a member of the Employer’s management, in the best interest
of the Company and its stockholders. The Employee is willing to commit himself to continue to serve
the Employer, on the terms and conditions herein provided;



     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
the parties hereto agree as follows:



     1. DEFINED TERMS



     The definitions of capitalized terms used in this Agreement (unless stated where first used)
are provided in Section 20 hereof.



     2. EMPLOYMENT



     The Employer hereby agrees to continue to employ Employee as Vice President, Chief Financial
Officer and Treasurer for the Employer, and the Employee hereby accepts such employment on the
terms and conditions herein contained.



     3. DUTIES AND CONDITIONS OF EMPLOYMENT



          3.1 DUTIES. The Employee shall devote his entire business time, attention and energies to the
Employer and shall not engage in any conduct which shall reflect adversely upon the Employer. The
Employee shall perform such duties for the Employer as may be assigned to one in his executive
status and capacity by the Chief Executive Officer of the Company or the Board of the Company. The
Employee shall serve diligently and to the best of his ability.




     During his employment by the Employer, the Employee shall not, without the Company’s prior
written consent, be engaged in any other business activity, whether or not such business activity
is pursued for gain, profit or other pecuniary advantage, except that notwithstanding the
foregoing, he may invest his personal funds for his own account; provided that such investment
shall be passive and not controlling in any such investment and subject to the provisions of
Section 13.2 hereof and provided further that he will not be required to provide any substantial
services on behalf of such enterprise. Notwithstanding the foregoing, the Employee may serve on the
Boards of Directors of other corporations during the Term as long as the Employee notifies the
Employer’s Chief Executive Officer and the Chief Executive Officer determines that such service
will not interfere with the performance of Employee’s duties hereunder.



 









 





          3.2 CONDITIONS. The Employee shall be provided with suitable office space, furnishings,
secretarial and administrative assistance. Without the Employee’s consent, the Employee shall not
be required to report principally to an office located more than five hundred (500) miles from his
principal office at the date of this Agreement, except to the extent the Employee may be required
to report to the Company’s principal office.




     4. TERM OF AGREEMENT; TERMINATION OF EMPLOYMENT; ESCROW DURING DISPUTE



          4.1 TERM OF AGREEMENT. The Employer hereby employs the Employee for a Term commencing as of
January 1, 2009 and ending December 31, 2009 (“Initial Term”); provided, however, at the end of the
Initial Term and any subsequent Extended Term, this Agreement shall automatically be extended for a
term of one (1) year (“Extended Term”) unless either party shall give notice to the other of
non-extension not less than thirty (30) days prior to the expiration of the Initial Term or any
Extended Term; provided, further, however, that if a Change in Control shall have occurred during
the Term of this Agreement, Sections 7 and 8 and 10 through 21 of this Agreement shall continue in
effect until at least the end of the Change-in-Control Protective Period (whether or not the Term
of the Agreement shall have expired for other purposes).




          4.2 TERMINATION OF EMPLOYMENT. The Company may terminate the employment of the Employee for
Cause pursuant to this Agreement. Prior to any Change in Control, the Employee may terminate his
employment pursuant to this Agreement if the Employer fails to make full and timely payments of all
sums provided for in Sections 5 and 6 hereof (subject to Section 7.2 hereof), or otherwise shall
breach its covenants hereunder in any material respect (“Resignation for Cause”). A termination of
employment by the Employee due to Resignation for Cause will entitle the Employee to the same
benefits as if the Employee’s employment was terminated without Cause.




          4.3 ESCROW DURING A TERMINATION DISPUTE. Prior to any Change in Control, if the Employee shall
be terminated for Cause, and, within thirty (30) days of such termination, shall notify the
Employer of his intention to adjudicate such termination as improper, the Employer agrees that it
will deposit with JP Morgan Chase, Cleveland, Ohio, as Escrow Agent the installments of the
Employee’s Base Salary (as provided in Section 5 below) as the same would have become payable but
for such termination. In the event of a final adjudication by a tribunal of competent jurisdiction
that such termination was not for Cause, then the amounts so deposited in escrow, plus any interest
earned by the Escrow Agent thereon, shall be delivered promptly to the Employee. If such
adjudication shall be in favor of the Employer, the Escrow Agent shall return the sums so
deposited, plus such interest, to the Employer.




     The escrowed salary shall not be deemed to be liquidated damages but the Employer shall be
entitled to a credit against any such award to the extent of the sums so delivered to the Employee.



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     5. COMPENSATION



     The Employer agrees to pay to the Employee as compensation for his services hereunder a Base
Salary initially equal to the fixed annual salary currently being paid to the Employee as shown on
the Employer’s employment records, payable in substantially equal weekly, biweekly, bimonthly or
monthly installments, as the case may be, in a manner consistent with the Employer’s payroll
practices. The Base Salary may be discretionarily increased by the Board from time to time as the
Board deems appropriate in its reasonable business judgment. The Base Salary in effect from time
to time shall not be decreased during the Term (except as provided in Section 7.2).



     It is understood and agreed that the Employee’s compensation may not be limited to his Base
Salary and that the Employee may receive an annual bonus (“Bonus”) in an amount, if any, determined
annually by the Employer. During the Initial Term, Employee will be eligible to participate in an
annual bonus plan at a target based on 50% of Base Salary.



     The Employee shall also participate in employee compensation and benefit plans available
generally to executives of the Employer (including, without limitation, any tax-qualified profit
sharing plan, nonqualified profit sharing plan, life insurance plan and health insurance plan) on a
level appropriate to his position and shall receive the employee fringe benefits available
generally to executives of the Employer (including, without limitation, cellular telephone/pager,
laptop computer and printer) in accordance with Employer policies.



     6. EXPENSES



     The Employee is authorized to incur reasonable expenses for promoting the business of the
Employer, including expenses for entertainment, travel and similar items. The Employer shall
reimburse the Employee in accordance with the Employer’s policy for all such expenses upon the
presentation by the Employee, from time to time, of an itemized account of such expenditures.



     7. PRE-TERMINATION COMPENSATION; DISABILITY



          7.1 NORMAL PRE-TERMINATION COMPENSATION. If the Employee’s employment shall be terminated for
any reason during the Term (or, if later, prior to the end of the Change-in-Control Protective
Period), the Employer shall pay the Employee’s Base Salary to the Employee through the Date of
Termination at the rate in effect at the time the Notice of Termination is given (subject to
Section 7.2 hereof) within thirty (30) days following the Date of Termination, together with all
compensation and benefits payable to the Employee through the Date of Termination under the terms
of any compensation or benefit plan, program or arrangement maintained by the Employer during such
period. Subject to Sections 8, 9, 10 and 11 hereof, after completing the expense reimbursements
required by Section 6 hereof and making the payments and providing the benefits required by this
Section 7, the Employer shall have no further obligations to the Employee under this Agreement.




          7.2 DISABILITY ADJUSTMENT TO BASE SALARY PAYMENTS. During the Term (or, if later, at any time
prior to the end of the Change-in-Control Protective Period),




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during any period that the Employee is Disabled (but in no event for more than twenty-four
(24) months) (the “Disability Period”), the Employer shall pay only sixty percent (60%) of the
Employee’s Base Salary to the Employee at the rate in effect at the commencement of any such
Disability Period (less amounts, if any, payable to the Employee at or prior to the time of any
such Base Salary payment under disability benefit plans of the Employer or under the Social
Security disability insurance program). After six (6) months of Disability, the Employer shall have
the right to terminate the Employee’s employment pursuant to this Agreement and all Base Salary
payments shall cease; provided, however, that the sixty percent (60%) payments pursuant to the
foregoing sentence shall continue for the Disability Period. All payments made pursuant to this
Section 7.2 shall be made in accordance with the regular payroll practices of the Employer. Except
to the extent provided in this Section 7.2, all Base Salary payments to the Employee shall be
abated during the Disability Period. Subject to Sections 8, 9, 10 and 11 hereof, after completing
the expense reimbursements required by Section 6 hereof and making the payments and providing the
benefits required by this Section 7, the Employer shall have no further obligations to the Employee
under this Agreement.




     8. NORMAL POST-TERMINATION PAYMENTS; CONTINUATION PAY; TERMINATION PAY; PROMPT PAYMENT



     Whenever used in this Agreement, the word “terminate” or “termination” in connection with the
Employee’s employment shall mean the Employee’s “separation from service,” within the meaning of
section 409A of the Code and Treasury Regulation section 1.409A-1(h), from the Employer and any
person with whom the Employer would be considered a single employer under sections 414(b) and (c)
of the Code.



          8.1 NORMAL POST-TERMINATION PAYMENTS. If the Employee’s employment shall be terminated for any
reason during the Term of this Agreement (or, if later, prior to the end of the Change-in-Control
Protective Period), the Employer shall pay the Employee’s normal post-termination compensation and
benefits to the Employee as such payments become due. Such post-termination compensation and
benefits shall be determined under, and paid in accordance with, the Employer’s retirement,
insurance and other compensation or benefit plans, programs and arrangements (other than this
Agreement).




          8.2 CONTINUATION PAY; TERMINATION PAY. Notwithstanding anything to the contrary in Section
7.2, 9.1 or 10.1(A) hereof, if the laws governing this Agreement shall require that the Employer
continue to pay or otherwise compensate the Employee for any period of time following termination
of the Employee’s employment (“Continuation Pay”) or if such laws require certain amounts of
severance pay, termination compensation or the like (collectively, “Termination Pay”), then to the
fullest extent permitted by law any payments to the Employee pursuant to Section 7.2, 9.1 or
10.1(A) hereof shall be included in the calculation of Continuation Pay and Termination Pay and
such payments shall be deducted from the amount of Continuation Pay or Termination Pay due the
Employee.




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          8.3 TIME OF PAYMENT.




               (A) Any payments due under Section 5, 6, 7 or 9 hereof or this Section 8 shall be made as
specified in such sections and shall be made to the Employee or in accordance with Section 14.2
hereof, as the case may be.



               (B) Notwithstanding anything in this Agreement to the contrary, if the Employee is a
“specified employee,” within the meaning of section 409A of the Code and as determined under the
Company’s policy for determining specified employees, on the Date of Termination, all payments
under this Agreement that are subject to section 409A of the Code and become payable in connection
with the Employee’s termination shall not be paid (or commence to be paid) until the first business
day of the seventh month following the Date of Termination (or, if earlier, the Employee’s death).
The first payment that can be made shall include the cumulative amount of any amounts that could
not be paid during such postponement period.



     9. POST-TERMINATION PAYMENTS UPON TERMINATION (PRIOR TO A CHANGE IN CONTROL) BY DEATH OR BY
THE EMPLOYER WITHOUT CAUSE



          9.1 DEATH BENEFIT. If the Employee’s employment shall be terminated by death during the Term
and prior to a Change in Control, then, in addition to the compensation and benefits provided by
Sections 7.1 and 8 hereof, within ninety (90) days following the Employee’s death, the Employer
shall pay a lump sum amount equal to sixty percent (60%) of the Base Salary for twenty-four (24)
months in accordance with Section 14.2.




          9.2 TERMINATION BY THE EMPLOYER WITHOUT CAUSE. If the Employer shall terminate the Employee’s
employment during the Initial Term or any Extended Term and prior to a Change in Control, without
Cause (and not for Disability or in connection with the Employee’s death), the Employer shall pay
the Employee commencing within sixty (60) days following termination, in consideration of
Employee’s obligations under Section 13.2, and only if those obligations continue to be met during
this payment period: (a) his Base Salary for a period of one (1) year in accordance with
Employer’s regular payroll practices; and (b) a bonus payment in a lump sum equal to one-half (1/2)
times the average annual Bonus paid to the Employee during the most recent five (5) calendar years
of the Employee’s employment by the Company or such shorter period during which Employee has been
employed, if less than five (5) years.




     10. SEVERANCE PAYMENTS; EXCISE TAX GROSS-UP



          10.1 SEVERANCE PAYMENTS. The Employer shall pay the Employee the payments described in this
Section 10.1 (the “Severance Payments”) upon the termination of the Employee’s employment following
a Change in Control and prior to the end of the Change-in-Control Protective Period, in addition to
any payments and benefits to which the Employee is entitled under Sections 5, 6, 7 and 8.1 hereof,
unless such termination is (i) by the Employer for Cause, (ii) by reason of death or Disability, or
(iii) by the Employee without Good Reason. For purposes of this Agreement, the Employee’s
employment shall be deemed to have been terminated by the Employer without Cause following a Change
in Control or by the Employee with Good Reason following a Change in Control, as the case may be,
if (i) the Employee’s




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employment is terminated without Cause prior to a Change in Control and such termination was
at the request or direction of a Person who has entered into an agreement with the Employer the
consummation of which would constitute a Change in Control, (ii) the Employee terminates his
employment with Good Reason prior to a Change in Control and the circumstance or event which
constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Employee’s
employment is terminated by the Employer without Cause prior to a Change in Control (but following
a Potential Change in Control) and such termination is otherwise in connection with or in
anticipation of a Change in Control which actually occurs. For purposes of any determination
regarding the applicability of the immediately preceding sentence, any position taken by the
Employee shall be presumed to be correct unless the Employer establishes to the Committee by clear
and convincing evidence that such position is not correct.




               (A) In lieu of any further salary payments to the Employee for periods subsequent to the Date
of Termination and in lieu of any severance benefit otherwise payable to the Employee, the Employer
shall pay to the Employee a lump sum severance payment, in cash, equal to three (3) times the sum
of (i) the higher of the Employee’s Base Salary in effect immediately prior to the occurrence of
the event or circumstance upon which the Notice of Termination is based or the Employee’s Base
Salary in effect immediately prior to the Change in Control, and (ii) the higher of the annual
Bonus earned by the Employee in respect of the Employer’s fiscal year immediately preceding that in
which the Date of Termination occurs, or the average annual Bonus so earned in respect of the three
fiscal years immediately preceding that in which the Change in Control occurs. One-third of this
lump sum severance payment shall be in consideration of Employee’s obligations under Section 13.2.



               (B) Notwithstanding any provision of any annual incentive plan to the contrary, the Employer
shall pay to the Employee a lump sum amount, in cash, equal to the sum of (i) any annual incentive
compensation which has been allocated or awarded to the Employee for a completed fiscal year
preceding the Date of Termination and which, as of the Date of Termination, is contingent only upon
the continued employment of the Employee to a subsequent date, and (ii) a pro rata portion to the
Date of Termination of a deemed annual bonus for the Employer’s fiscal year in which the Date of
Termination occurs, calculated by multiplying (i) the higher of the annual Bonus earned by the
Employee with respect to the immediately preceding fiscal year or the average annual Bonus earned
by the Employee with respect to the immediately preceding three fiscal years of the Employer by
(ii) the fraction obtained by dividing the number of days in the fiscal year of the Employer in
which termination occurs up to and including the Date of Termination by 365.



               (C) For the thirty-six (36) month period immediately following the Date of Termination, the
Employer shall arrange to provide the Employee with life, disability, accident and health insurance
benefits substantially similar to those which the Employee is receiving immediately prior to the
Notice of Termination (without giving effect to any amendment to such benefits made subsequent to a
Change in Control, which amendment adversely affects in any manner the Employee’s entitlement to or
the amount of such benefits); PROVIDED, HOWEVER, that, unless the Employee consents to a different
method, such health insurance benefits shall be provided through a third-party insurer. Benefits
otherwise receivable by the Employee pursuant to this Section 10.1(C) shall be reduced to the
extent comparable benefits are actually received by or made available to the Employee without cost
during the thirty-six (36)



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month period following the Employee’s termination of employment (and any such benefits
actually received by or made available to the Employee shall be reported to the Employer by the
Employee). Notwithstanding the foregoing, any benefits or payments provided under this Section
10.1(C) shall be subject to the following: (i) the amount of expenses eligible for reimbursement
or benefits provided under this Section 10.1(C) during any taxable year of the Employee may not
affect the expenses eligible for reimbursement or the benefits to be provided to the Employee in
any other taxable year; (ii) the reimbursement of an eligible expense must be made on or before the
last day of the Employee’s taxable year following the taxable year in which the expense was
incurred; and (iii) the right to reimbursement or such benefits may not be subject to liquidation
or exchange for another benefit.




          10.2 EXCISE TAX GROSS-UP.




               (A) Notwithstanding any other provisions of this Agreement, in the event that any payment,
benefit or right paid or distributed, or treated as paid or distributed, to or for the benefit of
the Employee in connection with a Change in Control or termination of the Employee’s employment
(whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with
the Employer, any Person whose actions result in a Change in Control or any Person affiliated with
the Employer or such Person) (each such payment, benefit and right, including any Severance
Payment, being hereinafter referred to as a “Payment” and, collectively, “Payments”) is subject to
the excise tax imposed by section 4999 of the Code (the “Excise Tax”), then the Employee shall be
entitled to receive an additional payment (a “Gross-Up Payment”) equal to the Excise Tax imposed
upon the Payments.



               (B) Subject to the provisions of Section 10.2(C), all determinations under this Section 10.2,
including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be
made by a certified public accounting firm which was, immediately before the Change in Control, the
Employer’s certified public accounting firm (the “Accounting Firm”). The Accounting Firm shall
provide detailed supporting calculations to both the Employer and the Employee within ten (10)
business days after receipt of notice from the Employer or the Employee that there has been a
Payment, or such earlier time as is requested by the Employer. All fees and expenses of the
Accounting Firm shall be borne solely by the Employer. The initial Gross-Up Payment determined
pursuant to this Section 10.2(B) shall be paid by the Employer to the Employee within five (5) days
after it receives the Accounting Firm’s determination. Any determination by the Accounting Firm
shall be binding on the Employer and the Employee. Notwithstanding the foregoing, as a result of
uncertainty in applying section 4999 of the Code, it is possible that the Employer will not have
made Gross-Up Payments that it should have made hereunder (an “Underpayment”). If the Employer
exhausts its remedies pursuant to Section 10.2(C) and the Employee thereafter is required to pay
any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, inform the
Employer and the Employee of the Underpayment in writing, and, within five (5) days of receiving
such written report, the Employer shall pay the amount of such Underpayment to the Employee.



               (C) The Employee shall notify the Employer in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Employer of the Gross-Up Payment.
Such notification shall be given as soon as practicable but not later than five (5) business days
after the Employee is informed in writing of such claim and shall apprise the Employer of the
nature of such claim and the date on which such claim is required to be paid.



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The Employee shall not pay such claim before the expiration of thirty (30) days following the
date on which he gives such notice to the Employer (or such shorter period ending on the date that
any payment of taxes with respect to such is due). If the Employer notifies the Employee in
writing before the expiration of such thirty (30) day period that it desires to contest such claim,
the Employee shall (i) give the Employer any information reasonably requested by the Employer
relating to such claim, and (ii) take such action in connection with contesting such claim as the
Employer shall reasonably request in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an attorney selected by the Employer,
provided that the Employer shall pay directly all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and shall indemnify and hold the Employee
harmless, on an after-tax basis, for any tax, including interest and penalties, imposed as a result
of such representation and payment of costs and expenses. The Employer shall control all
proceedings in connection with such contest and may, at its sole option, either direct the Employee
to pay the tax claimed and sue for a refund or to contest the claim in any permissible manner, and
the Employee agrees to prosecute such contest to a determination before any appropriate
administrative tribunal or court, as the Employer shall determine; provided, that if the Employer
directs the Employee to pay such claim and sue for a refund, the Employer shall advance the amount
of such payment to the Employee, on an interest-free basis, and shall indemnify and hold the
Employee harmless, on an after-tax basis, from any tax, including interest or penalties, imposed
with respect to such advance. The Employer’s control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder, and the Employee shall be
entitled to settle or contest any other issue.




               (D) If, after the Employee receives an advance by the Employer pursuant to Section 10.2(C),
the Employee becomes entitled to receive a refund claimed pursuant to such Section 10.2(C), the
Employee shall (subject to the Employer’s complying with the requirements of such Section 10.2(C))
promptly pay to the Employer the amount of such refund (together with any interest thereon, after
taxes applicable thereto). If, after the Employee receives an amount advanced by the Employer
pursuant to Section 10.2(C), a determination is made that the Employee shall not be entitled to any
refund claimed pursuant to such Section 10.2(C), and the Employer does not notify the Employee in
writing of its intent to contest such denial of refund before the expiration of thirty (30) days
after such determination, the Employee shall not be required to repay such advance, and the amount
of such advance shall offset, to the extent thereof, the amount of the required Gross-Up Payment.



               (E) Notwithstanding anything in this Section 10.2 to the contrary, any Gross-Up Payment under
this Section 10.2 shall be made by December 31 of the calendar year immediately following the
calendar year in which the Employee remits the related Excise Tax.



          10.3 Except as provided in Section 8.3 hereof, the payments provided in Sections 10.1(A) and
(B) hereof shall be made within sixty (60) days following the later of (A) the Date of Termination
or (B) the Change in Control.




          At the time that payments are made under this Section, the Employer shall provide the Employee
with a written statement setting forth the manner in which such payments were calculated and the
basis for such calculations including, without limitation, any opinions or other advice the
Employer has received from outside counsel, auditors or consultants (and any such opinions or
advice which are in writing shall be attached to the statement).




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          10.4 The Employer also shall pay to the Employee all legal fees and expenses incurred by the
Employee (i) in disputing in good faith any issue relating to the termination of the Employee’s
employment following a Change in Control and prior to the end of the Change-in-Control Protective
Period, (ii) in seeking in good faith to obtain or enforce any benefit or right provided by this
Agreement, or (iii) in connection with any tax audit or proceeding to the extent attributable to
the application of section 4999 of the Code to any payment or benefit provided hereunder. Such
payments shall be made within five (5) business days after delivery of the Employee’s written
requests for payment accompanied with such evidence of fees and expenses incurred as the Employer
reasonably may require.




          10.5 In consideration of, and as a pre-condition to, receipt of any of the payments or
benefits set forth in this Section 10 or under Section 9 hereof, Employee shall execute and deliver
to Employer a written release no later than thirty (30) days after the event of termination, in a
manner compliant with the respective requirements for release of claims under the Age
Discrimination in Employment Act and the Older Workers Benefit Protection Act, 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, the Employee’s rights of indemnification relating to his status as an officer of
the Employer, whether arising under Delaware law, contractually, or under Employer’s insurance
coverage.




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     11. TERMINATION PROCEDURES



          11.1 NOTICE OF TERMINATION. During the Term (and, if longer, until the end of the
Change-in-Control Protective Period), any purported termination of the Employee’s employment (other
than by reason of death) shall be communicated by written Notice of Termination from one party
hereto to the other party hereto in accordance with Section 15 hereof. For purposes of this
Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the Employee’s employment
under the provision so indicated. Further, with respect to any purported termination of the
Employee’s employment after a Change in Control and prior to the end of the Change-in-Control
Protective Period, a Notice of Termination for Cause is required to include a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters (3/4) of the entire membership
of the Board at a meeting of the Board which was called and held for the purpose of considering
such termination (after reasonable notice to the Employee and an opportunity for the Employee,
together with the Employee’s counsel, to be heard before the Board) finding that, in the good faith
opinion of the Board, the Employee was guilty of conduct set forth in clause (i) or (ii) of the
definition of Cause herein, and specifying the particulars thereof in detail.




          11.2 DATE OF TERMINATION. “Date of Termination,” with respect to any purported termination of
the Employee’s employment during the Term (and, if longer, prior to the end of the
Change-in-Control Protective Period), shall mean the date of the Employee’s “separation from
service” within the meaning of section 409A of the Code and Treasury Regulation section
1.409A-1(h). Any Notice of Termination relating to a termination for Disability shall be provided
thirty (30) days prior to the Date of Termination (provided that the Employee shall not have
returned to the full-time performance of the Employee’s duties during such thirty (30) day period).
Any Notice of Termination relating to the termination of the Employee’s employment by the Employer
for any other reason shall be provided not less than thirty (30) days prior to the Date of
Termination (except in the case of a termination for Cause). Any Notice of Termination relating to
the termination of the Employee’s employment by the Employee for any other reason shall be provided
not less than fifteen (15) days nor more than sixty (60) days prior to the Date of Termination.




     12. NO MITIGATION



     The Employer agrees that, if the Employee’s employment with the Employer terminates following
a Change in Control and prior to the end of the Change-in-Control Protective Period, the Employee
is not required to seek other employment or to attempt in any way to reduce any amounts payable to
the Employee by the Employer pursuant to Section 10 hereof. Further, the amount of any payment or
benefit provided for in this Agreement (other than Section 10.1(C) hereof) shall not be reduced by
any compensation earned by the Employee as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by the Employee to the
Employer, or otherwise.



     13. CONFIDENTIALITY; NON-COMPETITION AND NON-SOLICITATION



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          13.1 CONFIDENTIALITY. The Companies’ methods, plans for doing business, processes, pricing,
compounds, customers and supplies are vital to the Companies and, to the extent not made public by
the Companies, constitute confidential information subject to the Companies’ proprietary rights
therein. The Employee covenants and agrees that during the Term and at all times thereafter, the
Employee will not, directly or indirectly, make known, divulge, furnish, make available or use,
otherwise than in the regular course of the Employee’s employment by the Employer, any invention,
product, process, apparatus or design of any of the Companies, or any knowledge or information in
respect thereof (including, but not limited to, business methods and techniques), or any other
confidential or so-called “insider” information of any of the Companies. This covenant shall apply
without regard to the time or circumstances of any termination of the Employee’s employment.




          13.2 NON-COMPETITION AND NON-SOLICITATION. The Employee covenants and agrees that during the
period of one (1) year following any termination of the Employee’s employment, the Employee will
not, directly or indirectly, either as an individual for the Employee’s own account or as an
investor, or other participant in, or as an employee, agent, or representative of, any other
business enterprise:





          (i) solicit, employ, entice, take away or interfere with, or attempt to solicit, employ,
entice, take away or interfere with, any employee of the Employer or the Companies; or




          (ii) engage or participate in or finance, aid or be connected with any enterprise which
competes with the business of the Companies, or any of them.



     The geographical limitations of the foregoing shall include any country in which the Companies
or any of them shall be doing business as of such date of such termination.



          13.3 The Employee acknowledges that the covenants contained in this Section 13 are of the
essence of this Agreement and said covenants shall be construed as independent of any other
provisions of this Agreement. Recognizing the irreparable nature of the injury that could result
from the Employee’s violation of any of the covenants and agreement to be performed and/or observed
by the Employee pursuant to the provisions of this Section 13, and that damages would be inadequate
compensation, it is agreed that any violations by the Employee of the provisions of this Section
13, shall be the proper subject for immediate injunctive and other equitable relief to the
Employer.




     14. SUCCESSORS; BINDING AGREEMENT



          14.1 In addition to any obligations imposed by law upon any successor to the Employer, the
Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or assets of the Employer to
expressly assume and agree to perform this Agreement in the same manner and to the same extent that
the Employer would be required to perform it if no such succession had taken place. Failure of the
Employer to obtain such assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle the Employee to terminate the Employee’s
employment for Good Reason after a Change in Control.




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Except as provided in this Section 14.1, this Agreement shall not be assignable by either
party without the written consent of the other party hereto.




          14.2 This Agreement shall inure to the benefit of and be enforceable by the Employee’s
personal or legal representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Employee shall die while any amount would still be payable to the
Employee hereunder (other than amounts which, by their terms, terminate upon the death of the
Employee) if the Employee had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Employee’s estate.




     15. NOTICES



     For purposes of this Agreement, notices and all other communications provided for in the
Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed
by United States registered mail, return receipt requested, postage prepaid, addressed, if to the
Employee, to the address shown for the Employee in the personnel records of the Employer and, if to
the Employer, to the address set forth below, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of change of address
shall be effective only upon actual receipt:


To the Employer:



Cathy Brown, Director of Human Resources

A. Schulman, Inc.

P.O. Box 1710

Akron, Ohio 44309-1710



With a copy to:



J. Bret Treier

Vorys, Sater, Seymour and Pease LLP

106 South Main Street, Suite 1100

Akron, Ohio 44308




     16. MISCELLANEOUS



     No provision of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by the Employee and such officer as
may be specifically designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. This Agreement supersedes
any other agreements or representations, oral or otherwise, express or implied, with respect to the
subject matter hereof which have been made by either party, except as expressly set forth in this
Agreement. The validity, interpretation, construction and performance of this Agreement shall be
governed by the laws of the State of Ohio. All references



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to sections of the Exchange Act or the Code shall be deemed also to refer to any successor
provisions to such sections. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law and any additional withholding to
which the Employee has agreed. The obligations of the Employer and the Employee under this
Agreement which by their nature may require (partial or total) performance after the expiration of
the Term or the Change-in-Control Protective Period (including, without limitation, those under
Sections 5 through 11 and Section 13 hereof) shall survive such expiration.



     17. VALIDITY



     The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which shall remain in full
force and effect.



     18. COUNTERPARTS



     This Agreement may be executed in several counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same instrument.



     19. SETTLEMENT OF DISPUTES AFTER CHANGE IN CONTROL; ARBITRATION



     After a Change in Control and prior to the end of the Change-in-Control Protective Period, all
claims by the Employee for benefits under this Agreement shall be directed to and determined by the
Committee and shall be in writing. Any denial by the Committee of a claim for benefits under this
Agreement shall be delivered to the Employee in writing and shall set forth the specific reasons
for the denial and the specific provisions of this Agreement relied upon. The Committee shall
afford a reasonable opportunity to the Employee for a review of the decision denying a claim and
shall further allow the Employee to appeal to the Committee a decision of the Committee within
sixty (60) days after notification by the Committee that the Employee’s claim has been denied. Any
further dispute or controversy arising under or in connection with this Agreement shall be settled
exclusively by arbitration in Akron, Ohio, in accordance with the rules of the American Arbitration
Association with respect to employment disputes then in effect. Judgment may be entered on the
arbitrator’s award in any court having jurisdiction. Notwithstanding any provision of this
Agreement to the contrary, the Employee shall be entitled to seek specific performance of the
Employee’s right to be paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement.



     20. DEFINITIONS



     For purposes of this Agreement, the following terms shall have the meanings indicated below:



     (A) “Accounting Firm” shall have the meaning stated in Section 10.2(B) hereof.



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     (B) “Beneficial Owner” shall have the meaning set forth in Rule 13d-3 under the Exchange Act.



     (C) “Board” shall mean the Board of Directors of the Employer.



     (D) “Cause” for termination by the Employer of the Employee’s employment shall mean the
following:




          (i) any act of fraud, embezzlement, misappropriation or conversion by the Executive of
the assets or business opportunities of the Employer;




          (ii) conviction of the Employee of (or plea by the Executive of guilty to) a felony (or
a misdemeanor that originally was charged as a felony but was reduced to a misdemeanor as
part of a plea bargain);




          (iii) intentional and repeated material violations by the Employee of the Employer’s
written policies or procedures or intentional and material breach of any contract with or
violation of any legal obligation owed to the Employer provided that a breach or violation
shall be considered intentional and material only if the Employee fails to cure to the best
of the Employee’s ability such breach within thirty (30) days after delivery to the Employee
of a written notice from the Board specifying such breach; or




          (iv) willful engagement in gross misconduct or intentional misrepresentation that is
materially and demonstrably injurious to the Employer, provided that such breach is not
cured within thirty (30) days after delivery to the Employee of a written notice requesting
cure.



     For purposes of the above definition, no act or failure to act, on Employee’s part shall be
deemed “willful” unless done, or omitted to be done, by the Employee not in good faith and without
reasonable belief that the Employee’s act or failure to act, was in the best interest of the
Employer. In the event of a dispute concerning the application of the definition of Cause, no
claim by the Employer that Cause exists shall be given effect unless the Employer establishes to
the Committee by clear and convincing evidence that Cause exists.



     (E) A “Change in Control” shall be deemed to have occurred if the event set forth in any one
of the following paragraphs shall have occurred:




          (i) the acquisition by any person (as defined under section 409A of the Code), or more
than one person acting as a group (as defined under section 409A of the Code), of stock of
the Company that, together with the stock of the Company held by such person or group,
constitutes more than fifty percent (50%) of the total fair market value or total voting
power of the stock of the Company;




          (ii) the acquisition by any person, or more than one person acting as a group, within
any twelve (12) month period, of stock of the Company possessing thirty percent (30%) or
more of the total voting power of the stock of the Company;



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          (iii) a majority of the members of the Board is replaced during any twelve (12) month
period by directors whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or election; or




          (iv) the acquisition by any person, or more than one person acting as a group, within
any twelve (12) month period, of assets from the Company that have a total gross fair market
value equal to or more than forty percent (40%) of the total gross fair market value of all
of the assets of the Company immediately prior to such acquisition or acquisitions.



     This definition of Change in Control shall be interpreted in a manner that is consistent with
the definition of “change in control event” under section 409A of the Code and the Treasury
Regulations promulgated thereunder.



     Notwithstanding the foregoing, no “Change in Control” shall be deemed to have occurred if
there is consummated any transaction or series of integrated transactions immediately following
which the record holders of the common stock of the Employer immediately prior to such transaction
or series of transactions continue to have substantially the same proportionate ownership in an
entity which owns all or substantially all of the assets of the Employer immediately following such
transaction or series of transactions.



     Further, notwithstanding the foregoing, any event or transaction which would otherwise
constitute a Change in Control (a “Transaction”) shall not constitute a Change in Control for
purposes of this Agreement if, in connection with the Transaction, the Employee participates as an
equity investor in the acquiring entity or any of its affiliates (the “Acquiror”). For purposes of
the preceding sentence, the Employee shall not be deemed to have participated as an equity investor
in the Acquiror by virtue of (i) obtaining beneficial ownership of any equity interest in the
Acquiror as a result of the grant to the Employee of an incentive compensation award under one or
more incentive plans of the Acquiror (including, but not limited to, the conversion in connection
with the Transaction of incentive compensation awards of the Employer into incentive compensation
awards of the Acquiror), on terms and conditions substantially equivalent to those applicable to
other executives of the Employer immediately prior to the Transaction, after taking into account
normal differences attributable to job responsibilities, title and similar matters, (ii) obtaining
beneficial ownership of any equity interest in the Acquiror on terms and conditions substantially
equivalent to those obtained in the Transaction by all other stockholders of the Employer, or (iii)
passive ownership of less than three percent (3%) of the stock of the Acquiror.



     (F) “Change-in-Control Protective Period” shall mean the period from the occurrence of a
Change in Control until the second anniversary of such Change in Control.



     (G) “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     (H) “Committee” shall mean (i) the individuals (not fewer than three in number) who,
immediately prior to a Potential Change in Control, constitute the Compensation Committee of the
Board, plus (ii) in the event that fewer than three individuals are available from the group



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specified in clause (i) above for any reason, such individuals as may be appointed by the
individual or individuals so available (including for this purpose any individual or individuals
previously so appointed under this clause (ii)); provided, however, that the maximum number of
individuals constituting the Committee shall not exceed five.



     (I) “Companies” shall mean, collectively, the Employer and each entity which is now and
hereafter shall become a subsidiary of, or a parent of, the Employer, together with their
respective successors and assigns.



     (J) “Continuation Pay” shall mean those payments so described in Section 8.2 hereof.



     (K) “Date of Termination” shall have the meaning stated in Section 11.2 hereof.



     (L) “Disability” or “Disabled” shall mean: (i) the Employee is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or can be expected to last for a continuous period of not
less than twelve (12) months; or (ii) the Employee is, by reason of any medically determinable
physical or mental impairment that can be expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months, receiving income replacement benefits
for a period of not less than three (3) months under an accident and health plan covering employees
of the Employer; or (iii) the Employee is determined to be totally disabled by the Social Security
Administration or the Railroad Retirement Board.



     (M) “Disability Period” shall have the meaning stated in Section 7.2 hereof.



     (N) “Employee” shall mean the individual named in the first paragraph of this Agreement.



     (O) “Employer” shall mean A. Schulman, Inc. and, except in determining under Section 20(E)
hereof whether or not any Change in Control of the Employer has occurred, any successor to its
business and/or assets which assumes and agrees to perform this Agreement by operation of law, or
otherwise.



     (P) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.



     (Q) “Excise Tax” shall have the meaning stated in Section 10.2(A) hereof.



     (R) “Good Reason” for termination by the Employee of the Employee’s employment shall mean the
occurrence (without the Employee’s express prior written consent) after any Change in Control, or
after any Potential Change in Control and prior to the end of the Change in Control Protective
Period, of any one of the following acts by the Employer, or failures by the Employer to act,
unless, in the case of any act or failure to act described in paragraph (i), (v), (vi) or (vii)
below, such act or failure to act is corrected prior to the Date of Termination specified in the
Notice of Termination given in respect thereof:



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     (i) the assignment to the Employee of any duties inconsistent with the Employee’s
status as an executive officer of the Employer or a substantial adverse alteration in the
nature or status of the Employee’s responsibilities from those in effect immediately prior
to the Change in Control (other than any such alteration primarily attributable to the fact
that the Employer may no longer be a public company);




     (ii) a reduction by the Employer in the Employee’s annual base salary as in effect on
the date hereof or as the same may be increased from time to time except for
across-the-board salary reductions similarly affecting all executives of the Employer and
all executives of any Person in control of the Employer;




     (iii) the relocation of the Employer’s principal executive offices to a location more
than fifty (50) miles from the location of such offices immediately prior to the Change in
Control or the Employer’s requiring the Employee to be based anywhere other than the
Employer’s principal executive offices except for required travel on the Employer’s business
to an extent substantially consistent with the Employee’s present business travel
obligations;




     (iv) the failure by the Employer, without the Employee’s consent, to pay to the
Employee any portion of the Employee’s current compensation, or to pay to the Employee any
portion of an installment of deferred compensation under any deferred compensation program
of the Employer, within seven (7) days of the date such compensation is due;




     (v) the failure by the Employer to continue in effect any compensation plan in which
the Employee participates immediately prior to the Change in Control which is material to
the Employee’s total compensation, including but not limited to the Employer’s 2006
Incentive Plan and Nonqualified Profit Sharing Plan or any substitute plans adopted prior to
the Change in Control, unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the failure by the Employer to
continue the Employee’s participation therein (or in such substitute or alternative plan) on
a basis not materially less favorable, both in terms of the amount of benefits provided and
the level of the Employee’s participation relative to other participants, as existed at the
time of the Change in Control;




     (vi) the failure by the Employer to continue to provide the Employee with benefits
substantially similar to those enjoyed by the Employee under any of the Employer’s pension,
life insurance, medical, health and accident, or disability plans in which the Employee was
participating at the time of the Change in Control, the taking of any action by the Employer
which would directly or indirectly materially reduce any of such benefits or deprive the
Employee of any material fringe benefit enjoyed by the Employee at the time of the Change in
Control, or the failure by the Employer to provide the Employee with the number of paid
vacation days to which the Employee is entitled on the basis of years of service with the
Employer in accordance with the Employer’s normal vacation policy in effect at the time of
the Change in Control; or



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     (vii) any purported termination of the Employee’s employment which is not effected
pursuant to a Notice of Termination satisfying the requirements of Section 11.1 hereof; for
purposes of this Agreement, no such purported termination shall be effective.



     The Employee’s right to terminate the Employee’s employment for Good Reason shall not be
affected by the Employee’s incapacity due to physical or mental illness. The Employee’s continued
employment shall not constitute consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason hereunder.



     For purposes of any determination regarding the existence of Good Reason, any claim by the
Employee that Good Reason exists shall be presumed to be correct unless the Employer establishes to
the Committee by clear and convincing evidence that Good Reason does not exist.



     (S) “Gross-Up Payment” shall have the meaning stated in Section 10.2(A) hereof.



     (T) “Notice of Termination” shall have the meaning stated in Section 11.1 hereof.



     (U) “Payment” and “Payments” shall have the meaning stated in Section 10.2(A) hereof.



     (V) “Person” shall have the meaning given in Section 3(a) (9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the
Employer or any of its subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Employer or any of its subsidiaries, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the stockholders of the Employer in substantially the same proportions
as their ownership of stock of the Employer.



     (W) “Potential Change in Control” shall be deemed to have occurred if the event set forth in
any one of the following paragraphs shall have occurred:




     (i) the Employer enters into an agreement, the consummation of which would result in
the occurrence of a Change in Control;




     (ii) the Employer or any Person publicly announces an intention to take or to consider
taking actions which, if consummated, would constitute a Change in Control;




     (iii) any Person becomes the Beneficial Owner, directly or indirectly, of securities of
the Employer representing 15% or more of either the then outstanding shares of common stock
of the Employer or the combined voting power of the Employer’s then outstanding securities;
or




     (iv) the Board adopts a resolution to the effect that, for purposes of this Agreement,
a Potential Change in Control has occurred.



     (X) “Severance Payments” shall mean those payments described in Section 10.1 hereof.



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     (Y) “Term” shall mean the Initial Term and any Extended Term as described in Section 4.1
hereof.



     (Z) “Termination Pay” shall mean those payments so described in Section 8.2 hereof.



     (AA) “Underpayment” shall have the meaning stated in Section 10.2(B) hereof.



     21. SECTION 409A OF THE CODE



     It is intended that this Agreement comply with section 409A of the Code and the Treasury
Regulations promulgated thereunder (and any subsequent notices or guidance issued by the Internal
Revenue Service), and this Agreement will be interpreted, administered and operated accordingly.
Nothing herein shall be construed as an entitlement to or guarantee of any particular tax treatment
to the Employee.



     IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed (the
corporate signatory by the respective officer duly authorized) as of the day and year first above
written.



	 	 	 	 	 	 	 	 	 
	EMPLOYEE:	 	 	 	EMPLOYER:	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Paul F. DeSantis	 	 	 	A. Schulman, Inc.	 	 
	 


	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 
	Name: Paul F. DeSantis

	 	 	 	By:
	 	/s/ Joseph M. Gingo
 

Joseph M. Gingo
	 	 







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