A. Schulman, Inc. 8-A12G
SECURITIES AND EXCHANGE COMMISSION
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
A. SCHULMAN, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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34-0514850 |
(State of incorporation or organization)
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(I.R.S Employer Identification No.) |
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3550 West Market Street, Akron, OH |
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44333 |
(Address of principal executive offices)
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(Zip Code) |
Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class
to be so registered
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Name of each exchange on which each
class is to be registered |
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None
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N/A |
If this Form relates to the registration of a class of securities pursuant to Section 12(b) of
the Exchange Act and is effective pursuant to General Instruction
A.(c), check the following box: o
If this Form relates to the registration of a class of securities pursuant to Section 12(g) of the
Exchange Act and is effective pursuant to General Instruction A.(d),
check the following box: þ
Securities Act registration statement file number to which this Form relates:
Securities to be registered pursuant to Section 12(g) of the Act:
Special Stock Purchase Rights
(Title of class)
TABLE OF CONTENTS
Item 1. Description of Registrants Securities to be Registered
On January 26, 2006, the Board of Directors of A. Schulman, Inc. (the Company) adopted a
Stockholder Rights Plan, providing that one Right shall be attached to each share of common stock,
par value $1.00 per share, of the Company (the Common Stock), as set forth below. The Rights will
be issued on February 9, 2006, to stockholders of record as of the close of business on such date
and will entitle the registered holder to purchase from the Company a unit (a Unit) consisting of
one one-thousandth of a share of Series A Junior Participating Special Stock, no par value (the
Special Stock), at a purchase price of $85.00 per Unit (the Purchase Price), subject to
adjustment. The description and terms of the Rights are set forth in the Rights Agreement (the
Rights Agreement), dated as of January 26, 2006, between the Company and National City Bank, as
Rights Agent (the Rights Agent).
Initially, the Rights will be attached to all certificates representing shares of Common Stock
then outstanding, and no separate Rights certificate will be distributed. The Rights will separate
from the Common Stock upon the earlier of (i) 10 days following a public announcement that a person
or group of affiliated or associated persons (an Acquiring Person) has acquired, or obtained the
right to acquire, beneficial ownership of 20% or more of the outstanding shares of Common Stock
(the Stock Acquisition Date) or (ii) 10 business days following the commencement of a tender
offer or exchange offer that would result in a person or group of affiliated or associated persons
beneficially owning 20% or more of such outstanding shares of Common Stock (the earlier of (i) and
(ii), the Distribution Date). Until the Distribution Date, (i) the Rights will be evidenced by
the Common Stock certificates and will only be transferable with such Common Stock certificates,
(ii) new Common Stock certificates will contain a legend incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any certificates for Common Stock outstanding
will also constitute the transfer of the Rights associated with the Common Stock represented by
such certificate. Except as otherwise may be determined by the Board of Directors, Rights will
only attach to shares of Common Stock issued and outstanding prior to the Distribution Date.
The Rights will not be exercisable prior to the Distribution Date and will expire at the close
of business on February 9, 2012, unless earlier redeemed by the Company as described below. At no
time will the Rights have any voting power.
As soon as practicable after the Distribution Date, separate Rights certificates will be
mailed to holders of record of the Common Stock as of the close of business on the Distribution
Date and, thereafter, the separate Rights certificates alone will represent the Rights. Except as
otherwise may be determined by the Board of Directors, Rights will only attach to shares of Common
Stock issued and outstanding prior to the Distribution Date.
In the event that an Acquiring Person becomes the beneficial owner of 20% or more of the then
outstanding shares of Common Stock, each holder of a Right will thereafter have the right to
receive, upon exercise, shares of Common Stock (or, in certain circumstances, cash, property or
other securities of the Company), having a value equal to two times the Exercise Price of the
Right. The Exercise Price is the Purchase Price times the number of shares of
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Common Stock associated with each Right (initially, one). Notwithstanding any of the
foregoing, following the occurrence of any of the events set forth in this paragraph (the Flip-in
Events), all Rights that are, or (under certain circumstances specified in the Rights Agreement)
were, beneficially owned by any Acquiring Person will be null and void. However, Rights are not
exercisable following the occurrence of any of the Flip-in Events set forth above until such time
as the Rights are no longer redeemable by the Company as set forth below.
In the event that following the Stock Acquisition Date, (i) the Company engages in a merger or
business combination transaction in which the Company is not the surviving corporation, (ii) the
Company engages in a merger or business combination transaction in which the Company is the
surviving corporation and the Common Stock of the Company is changed or exchanged, or (iii) 50% or
more of the Companys assets or earning power is sold or transferred, each holder of a Right
(except Rights which have previously been voided as set forth above) shall thereafter have the
right to receive, upon exercise of the Right, common stock of the acquiring company having a value
equal to two times the Exercise Price of the Right.
The Purchase Price payable, and the number of Units of Special Stock or other securities or
property issuable upon exercise of the Rights, are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Special Stock, (ii) if holders of the Special Stock are granted certain
rights or warrants to subscribe for Special Stock or convertible securities at less than the
current market price of the Special Stock, or (iii) upon the distribution to holders of the Special
Stock of evidences of indebtedness or assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred to above).
With certain exceptions, no adjustments in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price. No fractional Units will be
issued and, in lieu thereof, an adjustment in cash will be made based on the market price of the
Special Stock on the last trading date prior to the date of exercise.
At any time until 10 days following the Stock Acquisition Date, the Company may redeem the
Rights in whole, but not in part, at a price of $0.01 per Right. Immediately upon the action of the
Board of Directors ordering redemption of the Rights, the Rights will terminate and the only right
of a holder of a Right will be to receive the $0.01 redemption price.
Until a Right is exercised, the holder thereof, in such capacity, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be taxable to stockholders or to the
Company, stockholders may, depending upon the circumstances, recognize taxable income in the event
that the Rights become exercisable for Common Stock of the Company (or other consideration) as set
forth above.
A committee of the Companys Board of Directors comprised of independent directors selected by
the Board of Directors (the TIDE Committee) will meet not less than once every three years to
review the terms and conditions of the Rights Agreement, including whether the termination or
modification of the Rights Agreement is in the best interest of the Company and
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its stockholders,
and to make a recommendation to the Board of Directors based upon its review. The first meeting of
the TIDE Committee will take place no later than February 9, 2009.
Other than those provisions relating to the principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the Board of Directors of the Company prior to
the Distribution Date. After the Distribution Date, the provisions of the Rights Agreement may be
amended by the Board in order to cure any ambiguity, to make changes which do not adversely affect
the interests of holders of Rights (excluding the interest of any Acquiring Person), or to shorten
or lengthen any time period under the Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption shall be made at such time as the Rights are not
redeemable.
The Rights have certain anti-takeover effects. The Rights will cause substantial dilution to a
person or group that attempts to acquire the Company in certain circumstances. Accordingly, the
existence of the Rights may deter certain acquirors from making takeover proposals or tender
offers. However, the Rights are not intended to prevent a takeover, but rather are designed to
enhance the ability of the Board of Directors to negotiate with a potential acquiror on behalf of
all of the stockholders.
The Rights Agreement between the Company and the Rights Agent specifying the terms of the
Rights, which includes as Exhibit B the Form of Rights Certificate, is attached hereto as Exhibit 1
and is incorporated herein by reference. The foregoing description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights Agreement.
CERTIFICATE OF INCORPORATION AND BY-LAW PROVISIONS
Certain of the provisions of the Restated Certificate of Incorporation and By-Laws of the
Company, each as amended to date, may have the effect of delaying or deferring a change in control
of the Company. These provisions operate with respect to extraordinary corporate transactions such
as a merger, reorganization, tender offer, sale or transfer of substantially all of the Companys
assets, and liquidation, and certain of the provisions operate with respect to other transactions,
as well. These provisions include (i) a classified board, (ii) restrictions on the rights of
stockholders to remove directors, (iii) prohibitions against stockholders calling a special meeting
of stockholders or acting by unanimous written consent in lieu of a meeting, (iv) requirements for
advance notice of stockholder nominations to the Board of Directors and business to be conducted at
annual meetings and (vi) restrictions on the ability to amend certain provisions of the Restated
Certificate of Incorporation and By-Laws.
CLASSIFIED BOARD. The Restated Certificate of Incorporation calls for three classes of directors,
each class serving three-year terms and being of as equal size as possible. Only one class of
directors is to be elected each year.
REMOVAL OF DIRECTORS/VACANCIES. The Restated Certificate of Incorporation provides that a director
may be removed from office only for cause, and only upon the vote of the holders of at least 80%
of the voting power of the outstanding shares of Common Stock of the Company entitled to vote
generally in the election of directors. Vacancies in the Board of
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Directors
and newly created directorships may be filled only by a majority of directors then in office or by a sole remaining
director.
LIMITATIONS ON STOCKHOLDER MEETINGS. The Restated Certificate of Incorporation also provides that
any action required or permitted to be taken by the stockholders of the Company may be effected
only at an annual or special meeting of stockholders, and prohibits stockholders action by written
consent in lieu of a meeting. The Restated Certificate of Incorporation and the Companys By-Laws
provide that special meetings of stockholders may be called only by the president of the Company
or at the direction of the Board of Directors pursuant to a resolution adopted by a majority of the
directors then in office.
ADVANCE NOTICE PROVISIONS FOR STOCKHOLDER PROPOSALS AND DIRECTOR NOMINATIONS. The By-Laws
establish an advance notice procedure for the nomination, other than by or at the direction of the
Board of Directors, of candidates for election as directors as well as for other stockholder
proposals to be considered at annual meetings of stockholders. In general, notice of intent to
nominate a director or raise business at such meetings must be received by the Company not less
than 60 nor more than 90 days prior to the anniversary of the previous years annual meeting, and
must contain certain specified information concerning the person to be nominated or the matters to
be brought before the meeting and concerning the stockholder submitting the proposal.
AMENDMENTS. The Companys Restated Certificate of Incorporation and By-Laws require the approval
of the holders of at least 80% of the Common Stock to amend certain provisions thereof, unless
approved by a vote of two thirds of the directors then in office. Such provisions include those
discussed above, other than those relating to advance notice for stockholder business and
nominations to the Board. These requirements will prevent a stockholder with less than the
specified number of shares of Common Stock from avoiding the requirements of the provisions
discussed above by simply repealing such provisions.
The foregoing description does not purport to be complete and is qualified in its entirety by
reference to the Companys Restated Certificate of Incorporation and By-Laws, each as amended to
date, incorporated herein by reference as Exhibits 2 and 3, respectively.
Item 2. Exhibits
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Exhibit No. |
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Description of Document |
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1 |
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Rights Agreement, dated as of January 26, 2006, between the Company and the Rights
Agent, which includes as Exhibit B thereto the Form of Rights Certificate. |
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2 |
(a) |
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Restated Certificate of Incorporation dated April 6, 1984 (incorporated by reference to
Exhibit 3(a) to the Companys Form 10-K for fiscal year ended August 31, 1990). |
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2 |
(b) |
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Certificate of Amendment of Certificate of Incorporation dated December 12, 1985. |
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2 |
(c) |
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Certificate of Amendment of Certificate of Incorporation dated January 9, 1987
(incorporated by reference to Exhibit 3(b) to the Companys Form 10-K for fiscal year ended
August 31, 1994). |
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2 |
(d) |
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Certificate of Amendment of Certificate of Incorporation dated December 10, 1987
(incorporated by reference to Exhibit 3(c) to the Companys Form 10-K for fiscal year ended
August 31, 1991). |
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2 |
(e) |
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Certificate of Amendment of Certificate of Incorporation dated December 6, 1990
(incorporated by reference to Exhibit 3(d) to the Companys Form 10-K for fiscal year ended
August 31, 1991). |
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2 |
(f) |
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Certificate of Amendment of Certificate of Incorporation dated December 9, 1993. |
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2 |
(g) |
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Certificate of Amendment of Certificate of Incorporation dated December 8, 2005. |
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3 |
(a) |
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By-Laws dated December 8, 1983 (incorporated by reference to Exhibit 3(c) to the
Companys Form 10-K for fiscal year ended August 31, 1990). |
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3 |
(b) |
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Amendment to By-Laws dated October 20, 1986 (incorporated by reference to Exhibit 3(f)
to the Companys Form 10-K for fiscal year ended August 31, 1991). |
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3 |
(c) |
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Amendment to By-Laws dated January 11, 1996 (incorporated by reference to Exhibit 3.3
to the Companys Current Report on Form 8-K dated January 15, 1996). |
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the
Registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
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A.
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SCHULMAN, INC. |
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Date: January 27, 2006
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By:
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/s/ Robert A. Stefanko
Robert A. Stefanko
Executive Vice President
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