Filed by Bowne Pure Compliance





Exhibit 10.8




A. SCHULMAN, INC.

AMENDED AND RESTATED

NONQUALIFIED PROFIT SHARING PLAN




ARTICLE I

ESTABLISHMENT AND PURPOSE




1.1 ESTABLISHMENT OF PLAN. A. Schulman, Inc., a Delaware corporation (the “Company”), hereby
establishes a nonqualified profit sharing plan to be known as the “A. Schulman, Inc. Amended and
Restated Nonqualified Profit Sharing Plan” (the “Plan”) as set forth in this document. The Plan
permits the unfunded accrual of benefits to Plan participants.



1.2 PURPOSE OF PLAN. The purpose of the Plan is to promote the long term growth and profitability
of the Company by providing key employees of the Company and its Subsidiaries with the benefits
which they would have received under the Company’s Profit Sharing Plan but for the reduction of the
compensation limit under Code Section 401(a)(17), effective for plan years beginning after December
31, 1993.



ARTICLE II

DEFINITIONS




“Board” means the Board of Directors of the Company.



“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute.



“Committee” means the Compensation Committee of the Board.



“Company” means A. Schulman, Inc. or any successor thereto.



“Fiscal Year” means the Company’s fiscal year beginning September 1 and ending on the following
August 31.



“Grandfathered Amount” means the portion, if any, of a Participant’s account balance under the Plan
that was earned and vested (within the meaning of Section 409A of the Code) under the Plan before
January 1, 2005 and any earnings (whether actual or notional) attributable to such portion of the
Participant’s account and any earnings (whether actual or notional) thereon.



“Participant” means an employee of the Company or any Subsidiary who is designated by the Committee
to participate in the Plan.



“Profit Sharing Plan” means the A. Schulman, Inc. Retirement Plan.



“Section 409A Amount” means the portion, if any, of a Participant’s account balance under the Plan
that is not a Grandfathered Amount.


 


 









 





“Subsidiary” means: (i) with respect to Grandfathered Amounts, a corporation of which the Company
owns, directly or indirectly, at least a majority of the shares having voting power in the election
of directors; and (ii) with respect to Section 409A Amounts, any person with whom the Company would
be considered a single employer under Section 414(b) or (c) of the Code.



“Termination” means a “separation from service” within the meaning of Section 409A of the Code by a
Participant with the Company and all of its Subsidiaries.



ARTICLE III

PARTICIPANTS AND PLAN ACCRUALS




3.1 DESIGNATION OF PARTICIPANTS. The Committee shall meet at least once in each Fiscal Year and
irrevocably specify, before the end of such fiscal year, the name of each employee of the Company
or a Subsidiary who is entitled to participate in the Plan for such Fiscal Year.



3.2 DETERMINATION OF ACCRUALS. The amount to be accrued under the Plan for a Participant for a
Fiscal Year shall be equal to the excess of (i) the product of (x) the Participant’s compensation
for such Fiscal Year (excluding bonuses) multiplied by (y) the percentage determined by the Board
or the Committee for purposes of calculating the Company’s contribution to the Profit Sharing Plan
for such Fiscal Year, OVER (ii) the Company contribution allocated to such Participant under the
Profit Sharing Plan for such Fiscal Year.



3.3 EMPLOYMENT RIGHTS. Nothing in this Plan shall confer any right on an employee to continue in
the employ of the Company or any Subsidiary or shall interfere in any way with the right of the
Company or any Subsidiary to terminate an employee at any time.



ARTICLE IV

VESTING, EARNINGS, FORFEITURES AND DISTRIBUTIONS




4.1 PARTICIPANT ACCOUNTS. The Committee shall cause a memorandum account to be kept in the name
of each Participant.



4.2 VESTING OF ACCOUNTS. A Participant’s account balance shall become vested and non-forfeitable
in accordance with the following schedule:



	 	 	 	 	 
	Years of Employment	 	Percent Vested	 
	 
	 	 	 	 
	Less than 3
	 	 	0	%
	3 but less than 4
	 	 	20	%
	4 but less than 5
	 	 	40	%
	5 but less than 6
	 	 	60	%
	6 but less than 7
	 	 	80	%
	7 or more
	 	 	100	%





 


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“Years of Employment” shall be determined in accordance with applicable provisions of the
Profit Sharing Plan. Notwithstanding the above, a Participant’s account balance shall become 100%
vested upon the Participant’s death while an employee of the Company or disability (as determined
under the Profit Sharing Plan).



4.3 EARNINGS. At the end of each Fiscal Year, a Participant’s account shall be credited with an
estimated amount (the “Earnings”) equal to the product of (i) the average yield received by such
Participant’s funds in the Profit Sharing Plan for the preceding Fiscal Year, multiplied by (ii)
the Participant’s account balance under this Plan at the beginning of the Fiscal Year. Upon final
determination of the average yields earned by the Profit Sharing Plan for a Fiscal Year, the
Earnings credited to a Participant’s account in respect of such Fiscal Year shall be adjusted
appropriately.



4.4 DISTRIBUTIONS. Payment of a Participant’s vested account balance shall be made: (i) with
respect to Grandfathered Amounts, at the time and in the manner that such Participant (or his or
her designated beneficiary) is entitled to payment under the Profit Sharing Plan; and (ii) with
respect to Section 409A Amounts, subject to Section 4.7, in a lump sum payment within 90 days
following the Participant’s Termination.



4.5 BENEFICIARIES. Each Participant shall have the right to designate one or more beneficiaries
in accordance with the procedures set forth in the Profit Sharing Plan.



4.6 STATUS OF PARTICIPANTS AS UNSECURED CREDITORS. Until a Participant’s account balance becomes
vested, the interest of a Participant (and his or her beneficiaries) is contingent and subject to
forfeiture. To the extent that a Participant’s account balance becomes vested, such Participant
shall have the rights of an unsecured general creditor of the Company. The Company shall not be
required to set aside any assets to meet its payment obligations hereunder, and Participants shall
not have any property interest in any specific assets which are in fact set aside. Nothing in this
Plan shall be deemed to create a trust of any kind or create a fiduciary relationship.



4.7 SIX MONTH DISTRIBUTION DELAY FOR SPECIFIED EMPLOYEES. Notwithstanding anything in this Plan
to the contrary, if a Participant 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
Participant’s Termination and the Participant is entitled to a payment under this Plan that is
required to be delayed pursuant to Section 409A(a)(2)(B)(i) of the Code, then such payment shall
not be paid until the first business day of the seventh month following the date of the
Participant’s Termination (or, if earlier, the date of the Participant’s death).


 


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ARTICLE V

ADMINISTRATION




5.1 RECORDS. The records to be maintained for the Plan shall be maintained by the Company at its
expense and subject to the supervision and control of the Committee. All expenses of
administration of the Plan shall be paid by the Company and shall not be charged against
Participants’ accounts.



5.2 ALIENATION. To the extent permitted by law, the right of any Participant or beneficiary in
any benefit or payment hereunder shall not be subject in any manner to attachment or other legal
process for the debts of such Participant or beneficiary, nor shall any such benefit or payment be
subject to anticipation, alienation, sale, transfer, assignment or encumbrance.



5.3 COMPANY LIABILITY. No member of the Board or the Committee and no officer or employee of the
Company shall be liable to any person for any action taken or omitted in connection with the
administration of this Plan unless attributable to his own fraud or willful misconduct. The
Company shall not be liable to any person for any such action unless attributable to fraud or the
willful misconduct of a director, officer or employee of the Company.



5.4 CLAIMS PROCEDURE. The Committee shall have sole and exclusive authority to make all initial
and final determinations regarding benefits payable hereunder to Participants or their
beneficiaries and to adopt claims and review procedures, application forms and other documents. A
claim for a benefit is made whenever a Participant or beneficiary (the “claimant”) submits a
written application for the benefit to the Committee.



If a claim is wholly or partially denied, the Committee will send the claimant written
notification of the denial within 90 days (45 days for a claim for a benefit because of disability)
of the date on which the claim has been filed. The Committee can extend the 90-day period for
claims (other than for disability benefits) for up to an additional 90 days by sending written
notice of the extension to the claimant before the initial period elapses. The Committee can
extend the 45-day period for a claim for disability benefits for up to an additional 30 days by
sending written notice of the extension to the claimant before the initial period elapses, and the
first 30-day extension period may be extended for an additional 30 days. Any notice of extension
will state the reason for the extension and the date by which a final decision may be expected.



The written notification of a denial of a claim should contain the following information:



(a) the specific reason or reasons for the denial;



(b) reference to specific Plan provisions upon which the denial is based;


 


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(c) a description of additional material or information (if any) that would be necessary for
the claim to be approved and an explanation of why the material or information is necessary; and



(d) an explanation of the claim review procedure, including a statement of the claimant’s
right to bring a civil action under Section 502(a) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”), following an adverse benefit determination on review.



If the claimant does not receive notice of the decision on the claim within the initial
decision period following the filing of the claim, or within the additional period if the response
time has been extended, the claimant should consider the claim denied as of the end of the
pertinent period. The denial will be final and binding unless the claimant invokes the claim
review procedure in accordance with the following terms.



If a claim has been denied in whole or in part, the claimant or his or her authorized
representative can submit a written request for a full and fair review of the denial of the claim.
The completed written request for review must be submitted to the Committee within 60 days (180
days for a claim for disability benefits) of the date on which the claimant is notified that the
claim has been denied. The request must contain the following information:



(a) the date on which the claimant’s request for review is filed
with the Board; provided that the date on which the claimant’s request for review is in fact filed
with the Board shall control in the event the date of the actual filing is later than the date
stated by the claimant;



(b) the specific portions of the denial of the claim that the claimant requests the Board to
review;



(c) a statement of the claimant setting forth the basis upon which he or she believes the
Board should reverse its previous denial of the claim and accept the claim as made; and



(d) any written material (offered as exhibits) that the claimant requests the Board to
examine in its consideration of the claimant’s position.



The claimant or the claimant’s authorized representative may review pertinent Plan documents
and request copies of them, free of charge, within the 60-day period (180-day period for a claim
for disability benefits).



The Committee will consider the written request for review in light of any additional
information or comments that have been presented. Within 30 days after filing the written request
for review, the claimant may also request a hearing before a representative of the Committee, which
the claimant or his or her authorized representative may attend. The Company will usually issue a
decision within 60 days (45 days for review of a disability benefit claim) of the date on which the
written request for review is filed; but the review period may be extended by the Committee for up
to an additional 60 days (45 days for review of a disability
benefit claim) by written notice to the claimant before the initial review period elapses. If the
claimant has not received notice of the decision within the initial review period, or within the
additional review period if the response time has been extended, the claimant should consider the
claim denied.


 


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If the claim is denied on review, the decision will cite the specific reasons and the Plan
provisions on which the denial is based. The decision will also state that the claimant or the
claimant’s authorized representative may review pertinent Plan documents and request copies of
them, free of charge.



The decision of the Committee will be final and binding on all affected parties, except that
the claimant will have a right to bring a civil action under Section 502(a) of ERISA following an
adverse benefit determination on review.



5.5 COMPLIANCE WITH SECTION 409A OF THE CODE. It is intended that Section 409A Amounts comply with
Section 409A of the Code and the Treasury Regulations promulgated thereunder, and the Plan will be
interpreted, administered and operated accordingly. Nothing herein shall be construed as an
entitlement to or guarantee of any particular tax treatment to a Participant, and none of the
Company, any of its Subsidiaries, the Board or the Committee shall have any liability with respect
to any failure to comply with the requirements of Section 409A of the Code.



5.6 PAYMENTS UPON INCOME INCLUSION UNDER SECTION 409A OF THE CODE. The Company may accelerate the
time or schedule of a distribution of Section 409A Amounts to a Participant at any time the Plan
fails to meet the requirements of Section 409A of the Code and the Treasury Regulations promulgated
thereunder. Such distribution may not exceed the amount required to be included in income as a
result of the failure to comply with the requirements of Section 409A of the Code and the Treasury
Regulations promulgated thereunder.



ARTICLE VI

EFFECTIVE DATE AND AMENDMENT




6.1 EFFECTIVE DATE. The Plan was effective as of September 1, 1994. Effective December 18, 2008,
the Plan is amended and restated in its entirety for compliance with Section 409A of the Code.



6.2 AMENDMENT AND TERMINATION. The Plan may be amended or terminated by the Board at any time.
Notice of any such action shall be given to each Participant and each beneficiary of a deceased
Participant.


 


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ARTICLE VII

CHANGE IN CONTROL




7.1 CHANGE IN CONTROL.




(a) Notwithstanding any provision hereof to the contrary:




(i) Upon the occurrence of a Change in Control (as defined in Section 7.1(b)
hereof), each Participant’s account balance shall immediately become one hundred percent
(100%) vested and non-forfeitable;




(ii) If a Participant’s employment shall be Terminated for any reason during the
Change-in-Control Protective Period (as defined in Section 7.1(e) hereof), payment of the
Participant’s vested account balance shall be made in a lump sum payment within the
five-day period immediately following such Termination; and




(iii) Following a Change in Control, no termination or amendment of the Plan shall
adversely affect the rights of Participants in and to their respective vested account
balances hereunder.



(b) For purposes of this Plan, 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) any Person (as defined in Section 7.1(d) hereof) is or becomes the Beneficial
Owner (as defined in Section 7.1(c)hereof), directly or indirectly, of securities of the
Company (not including in the securities beneficially owned by such Person any securities
acquired directly from the Company or its affiliates other than in connection with the
acquisition by the Company or its affiliates of a business) representing 25% or more of
either the then outstanding shares of common stock of the Company or the combined voting
power of the Company’s then outstanding securities; or




(ii) the following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the date hereof, constitute the
Board and any new director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on the date hereof or whose appointment,
election or nomination for election was previously so approved; or


 


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(iii) the stockholders of the Company approve a merger or consolidation of the
Company with any other corporation or approve the issuance of voting securities of the
Company in connection with a merger or consolidation of the Company (or any direct or
indirect subsidiary of the Company) pursuant to applicable stock exchange
requirements, other than (A) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in combination with the
ownership of any trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any subsidiary of the Company, at least 75% of the combined voting
power of the voting securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company (or similar
transaction) in which no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities Beneficially
Owned by such Person any securities acquired directly from the Company or its subsidiaries
other than in connection with the acquisition by the Company or its subsidiaries of a
business) representing 25% or more of either the then outstanding shares of common stock
of the Company or the combined voting power of the Company’s then outstanding securities;
or




(iv) the stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or an agreement for the sale or disposition by the Company of
all or substantially all of the Company’s assets, other than a sale or disposition by the
Company of all or substantially all of the Company’s assets to an entity, at least 75% of
the combined voting power of the voting securities of which are owned by stockholders in
substantially the same proportions as their ownership of the Company immediately prior to
such sale.



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 Company 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 Company 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 Plan if, in connection with the Transaction, the Eligible Director participates as
an equity investor in the acquiring entity or any of its affiliates (the ‘Acquiror’). For purposes
of the preceding sentence, the Eligible Director 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 Eligible Director 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
Company into incentive compensation awards of the Acquiror), on terms and conditions substantially
equivalent to those applicable to other executives of the Company 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 Company, or (iii) passive ownership of less than three
percent (3%) of the stock of the Acquiror.


 


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Further, notwithstanding the foregoing, with respect to the application of Section 7.1(a)(ii)
to Section 409A Amounts, a Change of Control shall not be deemed to occur unless the events
constituting a Change of Control also constitute a “change of control event” under Section 409A of
the Code and the Treasury Regulations promulgated thereunder.



(c) For purposes of this Plan, ‘Beneficial Owner’ shall have the meaning set forth in Rule
13d-3 under the Securities Exchange Act of 1934, as amended from time to time (the ‘Exchange Act’).



(d) For purposes of this Plan, ‘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 Company or any of its subsidiaries, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company 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 Company in substantially the
same proportions as their ownership of stock of the Company.



(e) For purposes of this Plan, ‘Change-in-Control Protective Period’ shall mean the period
from the occurrence of a Change in Control until the later of the second anniversary of such Change
in Control or, with respect to Grandfathered Amounts only, if such Change in Control shall be
caused by the stockholder approval of a merger or consolidation described in Section 7.1(b)(iii)
hereof, the second anniversary of the consummation of such merger or consolidation.



	 	 	 	 	 	 	 	 	 
	 	 	A. SCHULMAN, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	/s/ Paul F. DeSantis	 	 
	 	 	 	 	 
	 	 	Print Name: Paul F. DeSantis	 	 
	 

	 	Title:	 	Vice President, Chief
Financial Officer and Treasurer	 	 







 


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