<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER __, 1999
================================================================================
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MYERS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
OHIO 34-0778636
(State of incorporation) (I.R.S. Employer Identification No.)
1293 S. MAIN STREET, AKRON OHIO 44301
(Address of Principal Executive Offices) (Zip Code)
MYERS INDUSTRIES, INC. 1999 INCENTIVE STOCK PLAN
MYERS INDUSTRIES, INC. 1997 INCENTIVE STOCK PLAN
MYERS INDUSTRIES, INC. AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
GREGORY J. STODNICK,
VICE PRESIDENT-FINANCE
1293 S. MAIN STREET, AKRON OHIO
(330) 253-5592
(Name, address, including zip code, and telephone number, including area code of
agent for service)
CORRESPONDENCE TO:
Kevin C. O'Neil
Brouse McDowell, a Legal Professional Association
500 First National Tower
Akron, Ohio 44308
(330) 434-5207
Calculation of Registration Fee
<TABLE>
<CAPTION>
==========================================================================================================================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per aggregate offering registration fee
share price
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,575,000 Shares $14.00(1) $22,050,000 $6,130
no par value
==========================================================================================================================
</TABLE>
<PAGE> 2
(1) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933 on the
basis of the average of the high and low prices reported in the consolidated
reporting system for the Common Stock of Myers Industries, Inc. (the "Company")
on November 1, 1999.
================================================================================
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required in Part I of the
Registration Statement will be provided to each participant in the Myers
Industries, Inc. 1999 Incentive Stock Plan or the Myers Industries, Inc. 1997
Incentive Stock Plan as required by Rule 428(b)(1). Such documents are not being
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the instructions to Form S-8, but constitute (along with the
documents incorporated by reference into the Registration Statement pursuant to
Item 3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission under the Exchange
Act by the Company (File No. 1-8524) are hereby incorporated by reference into
this Registration Statement:
a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998 filed with the Commission on March 26, 1999;
b) The portions of the Company's Proxy Statement for the Annual
Meeting of Shareholders held April 29, 1999 that have been
incorporated by reference in the Company's Annual Report on
Form 10-K for the year ended December 31, 1998;
c) The Company's Quarterly Reports on Form 10-Q filed with the
Commission on May 17, and August 16, 1999;
d) The Company's Current Reports on Form 8-K filed with the
Commission on February 19 and August 13, 1999;
e) The Company's Current Reports on Form 8-K/A filed with the
Commission on April 20 and June 4, 1999; and
f) The Description of Common Stock Contained in the Company's
Registration Statement On Form 8-A (File No. 1-8524) filed
with the Commission pursuant to Section 12(b) under the
Exchange Act on June 28, 1983 and an amendment updating such
description filed with the Commission on the Company's Current
Report on Form 8-K dated May 19, 1987.
<PAGE> 4
All documents hereafter filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of the Company's Common Stock to be issued
by the Company under the Plan has been passed upon for the Company by its
counsel, Brouse McDowell, a Legal Professional Association ("Brouse McDowell").
Karl S. Hay, a director of the Company, is a shareholder of Brouse McDowell and
Kevin C. O'Neil, the Assistant Secretary of the Company, is a shareholder of
Brouse McDowell. The amount of Messrs. Hay and O'Neil's interest in Brouse
McDowell's fees collected from Myers cannot practically be determined.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Article Sixth of the Amended and Restated Code of
Regulations of the Company, the Company shall indemnify any director or officer
and any former director or officer of the Company and any such director or
officer who is or has served at the request of the Company as a director,
officer or trustee of another corporation, partnership, joint venture, trust or
other enterprise (and his heirs, executors and administrators) against expenses,
including attorney's fees, judgments, fines and amounts paid in settlement,
actually and reasonably incurred by him by reason of the fact that he is or was
such director, officer or trustee in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by applicable law. Article Sixth
further provides that the indemnification provided for therein shall not be
deemed to restrict the right of the Company (i) to indemnify employees, agents
and others to the extent not prohibited by such law, (ii) to purchase and
maintain insurance or furnish similar protection on behalf of or for any person
who is or was a director, officer, employee or agent of the Company, or any
person who is or was serving at the request of the Company as a director,
officer, trustee, employee or agent of another corporation, joint venture,
partnership, trust or other enterprise against any liability asserted against
him or incurred by him in any such capacity or arising out of his status as
such, and (iii) to enter into agreements with persons of the class identified in
clause (ii) above indemnifying them against any and all liabilities (or such
lesser indemnification as may be provided in such agreements) asserted against
or incurred by them in such capacities.
<PAGE> 5
The rights provided in Article Sixth are in addition to any rights
provided by contract or as a matter of law. Ohio Revised Code Section 1701.13(E)
includes indemnification provisions similar to Article Sixth. Section 1701.13(E)
of the Ohio Revised Code provides that a corporation may indemnify or agree to
indemnify any person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, other than an action by or in
the right of the corporation, by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign, nonprofit
or for profit, a limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including attorney's fees,
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, if he had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit, or proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
Section 1701.13(E)(2) further specifies that a corporation may
indemnify or agree to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending, or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor, by reason of the fact that he is or was a director, officer, employee, or
agent of the corporation, or is or was serving at the request of the corporation
as a director, trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited liability
company, or a partnership, joint venture, trust, or other enterprise, against
expenses, including attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of (a) any claim, issue, or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the corporation unless, and only to the extent, that the court of
common pleas or the court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability, but in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses as the court of common pleas or such other court
shall deem proper, and (b) any action or suit in which the only liability
asserted against a director is pursuant to Section 1701.95 of the Ohio Revised
Code concerning unlawful loans, dividends and distribution of assets.
In addition, Section 1701.13(E) requires a corporation to pay any
expenses, including attorney's fees, of a director in defending an action, suit,
or proceeding referred to above as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon receipt of an undertaking
by or on behalf of the director in which he agrees to both (i) repay such amount
if it is
<PAGE> 6
proved by clear and convincing evidence that his action or failure to act
involved an act or omission undertaken with deliberate intent to cause injury to
the corporation or undertaken with reckless disregard for the best interests of
the corporation and (ii) reasonably cooperate with the corporation concerning
the action, suit, or proceeding. Section 1701.13(E) further authorizes a
corporation to enter into contracts regarding indemnification and to purchase
and maintain insurance on behalf of any director, trustee, officer, employee or
agent for any liability asserted against him or arising out of his status as
such. The Company presently has contracts with each of its directors and key
officers and maintains insurance for the benefit of persons entitled to
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the "Exhibit Index."
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) The Company undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
<PAGE> 7
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement; and
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i) and (ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Company pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That for the purpose of determining liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, there unto duly
authorized, in the City of Akron, State of Ohio, on October 28, 1999.
Myers Industries, Inc.
By: /s/ Gregory J. Stodnick
---------------------------------
Gregory J. Stodnick, Vice President-
Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Gregory J. Stodnick Vice President -- Finance and October 28, 1999
- ------------------------------ Chief Financial Officer
Gregory J. Stodnick (Principal Financial and
Accounting Officer)
/s/ Stephen E. Myers President, Chief Executive October 28, 1999
- ------------------------------ Officer and Director
Stephen E. Myers (Principal Executive Officer)
/s/ Keith A. Brown * Director October 28, 1999
- ------------------------------
Keith A. Brown
/s/ Karl S. Hay * Director October 28, 1999
- ------------------------------
Karl S. Hay
/s/ Richard P. Johnston * Director October 28, 1999
- ------------------------------
Richard P. Johnston
/s/ Richard L. Osborne * Director October 28, 1999
- ------------------------------
Richard L. Osborne
/s/ Jon H. Outcalt * Director October 28, 1999
- ------------------------------
Jon H. Outcalt
/s/ Samuel Salem * Director October 28, 1999
- ------------------------------
Samuel Salem
</TABLE>
<PAGE> 9
<TABLE>
<S> <C> <C>
/s/ Edwin P. Schrank * Director October 28, 1999
- ------------------------------
Edwin P. Schrank
/s/ Milton I. Wiskind * Senior Vice President, Secretary October 28, 1999
- ------------------------------ and Director
Milton I. Wiskind
</TABLE>
* The undersigned, by signing his name hereto, does sign and execute this
Registration Statement on behalf of each of the indicated officers and directors
of Myers Industries, Inc. pursuant to a Power of Attorney executed by each such
officer and director and filed with this Registration Statement.
Dated: October 28, 1999 /s/ Kevin C. O'Neil
--------------------------------------
Kevin C. O'Neil
Attorney-in-Fact
<PAGE> 10
------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
MYERS INDUSTRIES, INC.
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
---------------
EXHIBITS
---------------
<PAGE> 11
EXHIBIT INDEX
5 Opinion of Brouse McDowell, A Legal Professional Association
10.1 Myers Industries, Inc. 1999 Incentive Stock Plan
10.2 Myers Industries, Inc. 1997 Incentive Stock Plan
23.1 Consent of Brouse McDowell (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney
<PAGE> 1
EXHIBIT 5
[Brouse McDowell Letterhead]
October 28, 1999
Myers Industries, Inc.
1293 South Main Street
Akron, Ohio 44301
Re: Registration on Form S-8 of 1,575,000 Shares of
Common Stock of Myers Industries, Inc.
Gentlemen:
We are acting as counsel to Myers Industries, Inc. (the "Company") in
connection with the issuance and sale by the Company of up to 1,575,000 shares
of its Common Stock (the "Shares") pursuant to the Myers Industries, Inc. 1999
Incentive Stock Plan, the Myers Industries, Inc. 1997 Incentive Stock Plan and
the Myers Industries, Inc. Amended and Restated Employee Stock Purchase Plan
(the "Plans").
We have examined such documents, records and matters of law as we have deemed
necessary for purposes of this opinion, and based thereon we are of the opinion
that the Shares which may be issued and sold pursuant to the Plans have been
duly authorized and, when issued in accordance with the provision of the Plans,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 being filed by the Company with the
Securities and Exchange Commission to effect registration of the Shares under
the Securities Act of 1933.
Very truly yours,
Brouse McDowell, A Legal Professional Association
/s/ Brouse McDowell, A Legal Professional Association
<PAGE> 1
Exhibit 10.1
MYERS INDUSTRIES, INC.
1999 INCENTIVE STOCK PLAN
<PAGE> 2
MYERS INDUSTRIES, INC.
1999 INCENTIVE STOCK PLAN
TABLE OF CONTENTS
I. INTRODUCTION .............................................. 1
1.1 Purpose of the Plan .............................. 1
1.2 Definitions ...................................... 1
II. ADMINISTRATION ............................................ 4
2.1 Administration ................................... 4
2.2 Participation .................................... 4
2.3 Maximum Number of Shares Available ............... 4
2.4 Adjustments ...................................... 5
2.5 Registration Conditions .......................... 5
2.6 Committee Action ................................. 5
III. STOCK OPTIONS ............................................. 6
3.1 Price ............................................ 6
3.2 Period ........................................... 6
3.3 Time of Exercise ................................. 6
3.4 Exercise Procedures .............................. 6
3.5 Payment .......................................... 6
3.6 Special Rule for Incentive Stock Options ......... 6
3.7 Reload Stock Options ............................. 7
3.8 Effect of Leaves of Absence ...................... 7
3.9 Termination of Employment ........................ 7
IV. GENERAL PROVISIONS ........................................ 8
4.1 Amendment and Termination ........................ 8
4.1 Government and Other Regulations ................. 8
4.3 Other Compensation Plans and Programs ............ 9
4.4 Miscellaneous Provisions ......................... 9
4.5 Effective Date ................................... 11
<PAGE> 3
MYERS INDUSTRIES, INC.
1999 INCENTIVE STOCK PLAN
MYERS INDUSTRIES, INC., (the "Company") hereby adopts this 1999
Incentive Stock Plan ("Plan"), effective as of January 1, 1999, but subject to
shareholder approval at the 1999 Annual Shareholders Meeting. The number of
shares of Common Stock approved and reserved under the Plan is One Million
(1,000,000) shares.
I. INTRODUCTION
1.1 PURPOSE OF THE PLAN
Myers Industries, Inc., has established the Plan to further its
long-term financial success by creating the opportunity for key employees of the
Company and its Subsidiaries to receive stock-based compensation whereby they
can share in achieving and sustaining such success. The Plan also provides a
means to attract and retain the executive talent needed to achieve the Company's
long-term growth and profitability objectives.
1.2 DEFINITIONS
When used in the Plan, the following terms shall have the meanings set
forth below.
(a) "Award(s)" shall mean Incentive Stock Options, Non-Qualified Stock
Options or Reload Stock Options granted under the Plan.
(b) "Award Agreement" shall mean an agreement which shall evidence the
particular terms, conditions, rights and duties of the Company and the
Participant with respect to an Award.
(c) "Board" shall mean the Board of Directors of the Company.
(d)(i) "Change of Control" shall mean (A) the attainment of beneficial
ownership by any Person (as defined herein) of capital stock of the Company, the
voting power of which constitutes 30 percent or more of the voting power of all
of the Company's outstanding capital stock; or (B) a change in the composition
of a majority of the Board during any period of two (2) years or less, provided
that in determining such change, any Director whose election has been approved
in advance by at least two-thirds (2/3) of the Directors then in office shall
not be considered a new Director. No sale to underwriters or private placement
of capital stock by the Company, nor any acquisition by the Company, through
merger, purchase of assets or otherwise, effected in whole or in part by
issuance or reissuance of shares of its capital stock, shall constitute a Change
of Control.
(ii) For purposes of determining a Change of Control under the Plan,
the following provisions shall apply:
(A) The term "Person" shall mean any individual,
corporation or other entity.
<PAGE> 4
(B) Any Person shall be deemed to be the beneficial owner
of any shares of capital stock of the Company:
(1) which that Person owns directly, whether or
not of record,
(2) which that Person has the right to acquire
pursuant to any agreement or understanding
or upon exercise of conversion rights,
warrants or options, or otherwise,
(3) which are beneficially owned, directly or
indirectly (including shares deemed owned
through application of Paragraph (B)(2)
above), by an "affiliate" or "associate" (as
defined in the rules of the Securities and
Exchange Commission) of that Person, or
(4) which are beneficially owned, directly or
indirectly (including shares deemed owned
through application of Paragraph (B)(2)
above), by any other Person with which that
Person or his "affiliate" or "associate" has
any agreement, arrangement or understanding
for the purpose of acquiring, holding,
voting or disposing of capital stock of the
Company.
(C) For purposes of determining whether a Person has
acquired beneficial ownership of 30 percent or more
of the Company, the outstanding shares of capital
stock of the Company shall include shares deemed
owned by such Person through application of
Paragraphs (B)(2), (B)(3) and (B)(4) above, but shall
not include any other shares which may be issuable
pursuant to any agreement or upon exercise of
conversion rights, warrants or options, or otherwise,
but which are not actually outstanding.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Committee" shall mean the Compensation Committee of the Board, or
such other committee of the Board which shall be designated by the Board to
administer the Plan. If the Board does not designate the Compensation Committee
as the Committee, the Committee will be composed of two (2) or more persons who
are from time to time appointed to serve by the Board. Each member of the
Committee will be a "non-employee director" within the meaning of Rule 16b-3 of
the Securities Exchange Act or any successor rule, as any such rule may be
amended from time to time, and will also qualify as an "outside director" within
the meaning of Code Section 162(m). A person may be appointed to the Committee
who does not qualify as a "non-employee director" if the Committee adopts and
follows a recusal procedure which qualifies under the Section 16 Rules.
2
<PAGE> 5
(g) "Common Stock" shall mean the common stock of the Company, no par
value per share, and may be either stock previously authorized but unissued, or
stock reacquired by the Company.
(h) "Company" shall mean Myers Industries, Inc., and any successor in a
reorganization or similar transaction.
(i) "Director" shall mean a duly elected member of the Board.
(j) "Disability" shall mean the inability of a Participant to perform
the services normally rendered due to any physical or mental impairment that can
be expected to be of either permanent or indefinite duration, as determined by
the Committee on the basis of appropriate medical evidence, and that results in
the Participant's Termination of Employment; provided, however, that with
respect to any Participant who has entered into an employment agreement with the
Company or any of its Subsidiaries, the term of which has not expired at the
time a determination concerning Disability is to be made, Disability shall have
the meaning attributed to "permanent disability" in such employment agreement.
(k) "Fair Market Value" shall mean with respect to a given day, the
closing sales price of a share of Common Stock, as reported by such responsible
reporting service as the Committee may select, or if there were no transactions
in the Common Stock on such day, then the last preceding day on which
transactions took place. The foregoing notwithstanding, the Committee may
determine the Fair Market Value in such other manner as it may deem more
appropriate for Plan purposes or as is required by applicable laws or
regulations.
(l) "Incentive Stock Option" or "ISO" shall mean a right to purchase
the Company's Common Stock which is intended to comply with the terms and
conditions for an incentive stock option as set forth in Section 422 of the
Code, or such other sections of the Code as may be in effect from time to time.
(m) "Non-Qualified Stock Option" or "NQSO" shall mean a right to
purchase the Company's Common Stock which is not intended to comply with the
terms and conditions for a tax-qualified stock option, as set forth in Section
422 of the Code, or such other sections of the Code as may be in effect from
time to time.
(n) "Participant" shall mean an officer or full-time salaried employee
(including a Director who is also a full-time employee) of the Company or any of
its Subsidiaries who, in the judgment of the Committee, is in a position to make
a positive contribution to the management, growth and success of the Company and
is thus designated by the Committee to receive an Award.
(o) "Plan" shall mean the Company's 1999 Stock Plan, as set forth
herein.
3
<PAGE> 6
(p) "Qualified Director" shall mean a Director who is both an "outside
director" within the meaning of Code Section 162(m) and a "non-employee
director" within the meaning of Rule 16b-3.
(q) "Reload Stock Option" shall mean an option granted to a Participant
who has paid for shares subject to option through the delivery of shares of
Common Stock having an aggregate Fair Market Value as determined on the date of
exercise equal to the option price.
(r) "Retirement" shall mean a Participant's Termination of Employment
by reason of retirement at his normal retirement date, pursuant to and in
accordance with a pension, retirement or similar plan or other regular
retirement practice of the Company or any of its Subsidiaries, or in accordance
with the early retirement provision(s) thereof.
(s) "Securities Act" shall mean the Securities Act of 1933, as amended.
(t) "Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(u) "Subsidiaries" shall mean the majority-owned subsidiaries of the
Company.
(v) "Termination of Employment" shall mean a cessation of the
employee-employer relationship between a Participant and the Company or its
Subsidiaries for any reason.
II. ADMINISTRATION
2.1 ADMINISTRATION
The Plan shall be administered by the Committee, which, subject to the
express provisions of the Plan, shall have full and exclusive authority to
interpret the Plan, to prescribe, amend and rescind rules and regulations
relating to the Plan and to make all other determinations deemed necessary or
advisable in the implementation and administration of the Plan; provided,
however, that subject to the express provisions hereof or unless required by
applicable law or regulation, no action of the Committee shall adversely affect
the terms and conditions of any Award made to, or any rights hereunder or under
any Award Agreement of, any Participant, without such Participant's consent. The
Committee's interpretation and construction of the Plan shall be conclusive and
binding on all persons, including the Company and all Participants.
2.2 PARTICIPATION
The Committee shall, from time to time, make the selection of
Participants and determine the Award or Awards to be granted to each
Participant. In making its determinations, the Committee may take into account
the nature of the services rendered or expected to be rendered by the respective
Participants, their present and potential contributions to the Company's
success, and such other factors as the Committee in its discretion shall deem
relevant.
4
<PAGE> 7
2.3 MAXIMUM NUMBER OF SHARES AVAILABLE
The maximum number of shares which may be granted under the Plan is
five hundred thousand (1,000,000) shares.
No Incentive Stock Options shall be granted after January 1, 2009, or
such other period required under the Code.
2.4 ADJUSTMENTS
In the event of stock dividends, stock splits, recapitalizations,
mergers, consolidations, combinations, exchanges of shares, spin-offs,
liquidations, reclassifications or other similar changes in the capitalization
of the Company, the number of shares of Common Stock available for grant under
this Plan shall be adjusted proportionately or otherwise by the Board and, where
deemed appropriate, the number of shares covered by outstanding stock options
and the option price of outstanding stock options shall be similarly adjusted.
Also, in instances where another corporation or other business entity is
acquired by the Company, and the Company has assumed outstanding employee option
grants under a prior existing plan of the acquired entity, similar adjustments
are permitted at the discretion of the Committee. In the event of any other
change affecting the Common Stock reserved under the Plan, such adjustment, if
any, as may be deemed equitable by the Board, shall be made to give proper
effect to such event.
2.5 REGISTRATION CONDITIONS
Unless issued pursuant to a registration statement under the Securities
Act, no shares shall be issued to a Participant under the Plan unless the
Participant represents to and agrees with the Company that such shares are being
acquired for investment and not with a view to the resale or distribution
thereof, or such other documentation as may be required by the Company unless,
in the opinion of counsel to the Company, such representation, agreement or
documentation is not necessary to comply with the Securities Act.
Any restriction on the resale of shares shall be evidenced by an
appropriate legend on the stock certificate.
The Company shall not be obligated to deliver any Common Stock until it
has been listed on each securities exchange on which the Common Stock may then
be listed or until there has been qualification under or compliance with such
federal or state laws, rules or regulations as the Company may deem applicable.
The Company shall use reasonable efforts to obtain such listing, qualification
and compliance.
5
<PAGE> 8
2.6 COMMITTEE ACTION
The Committee may, through Award Agreements, limit its discretion under
this Plan. To the extent such discretion is not specifically waived in an Award
Agreement, the Committee shall retain such discretion.
III. STOCK OPTIONS
All stock options granted to Participants under the Plan shall be
evidenced by Award Agreements which shall be subject to applicable provisions of
the Plan, and such other provisions as the Committee may adopt, including the
following provisions.
3.1 PRICE
The option price per share of Non-Qualified Stock Options ("NQSOs")
shall be set by the Committee at the time of grant. The option price per share
of Incentive Stock Options ("ISOs") shall not be less than 100 percent of the
Fair Market Value of a share of Common Stock on the date of grant. If a NQSO is
to meet the requirements of Section 162(m) of the Code, it shall be issued at
Fair Market Value.
3.2 PERIOD
An ISO shall not be exercisable for a term longer than ten (10) years
from date of grant. NQSOs shall have a term as established by the Committee.
3.3 TIME OF EXERCISE
The Committee may prescribe the timing of the exercise of the stock
option and any minimums and installment provisions and may accelerate the time
at which a stock option becomes exercisable, provided that with respect to ISOs,
no such acceleration shall result in a violation of Section 3.6.
3.4 EXERCISE PROCEDURES
A stock option, or portion thereof, shall be exercised by delivery of a
written notice of exercise to the Company and payment of the full price of the
shares being purchased.
3.5 PAYMENT
The price of an exercised stock option, or portion thereof, may be paid
pursuant to Section 4.4(k).
6
<PAGE> 9
3.6 SPECIAL RULE FOR INCENTIVE STOCK OPTIONS
If the aggregate Fair Market Value of Common Stock with respect to
which ISOs are exercisable for the first time by a Participant during any
calendar year (under this Plan and all other plans of the Company and its
Subsidiaries) exceeds One Hundred Thousand Dollars ($100,000), such ISOs shall
be treated as NQSOs to the extent of the excess. In applying the foregoing
limitation, ISOs shall be taken into account in the order in which they were
granted, and the Fair Market Value of Common Stock subject to such ISOs shall be
determined as of the date of grant. If such limit is exceeded in any calendar
year, the Company shall have the right to designate which shares of Common Stock
purchased pursuant to such ISOs shall be treated as having been acquired by the
Participant pursuant to an ISO.
3.7 RELOAD STOCK OPTIONS
A Reload Stock Option may be granted by the Committee in an Award
Agreement. If a reload option is granted and a stock option is exercised while
the Participant is employed by the Company and the Participant pays for the
shares subject to option through the delivery of Common Stock having an
aggregate Fair Market Value as determined on the date of exercise equal to the
option price, the Participant will be granted a Reload Stock Option on the date
of such exercise. The Award shall equal the number of whole shares of Common
Stock used to pay the purchase price, and the exercise price of the Reload Stock
Option shall equal the Fair Market Value of the Common Stock on the date of
grant. If the Company withholds shares of Common Stock to cover applicable
income and employment taxes related to the exercise of an option, then the Award
shall equal the number of whole shares of Common Stock used to pay the purchase
price less the number of shares withheld.
Subject to the provisions of this Plan, the Reload Stock Option may be
exercised between its date of grant and the date of expiration of an option.
Shares of stock acquired upon the exercise of a Reload Stock Option are
restricted from sale for two (2) years. A Reload Stock Option shall be evidenced
by an Award Agreement containing such other terms and conditions as the
Committee approves. No Reload Stock Option shall be granted with respect to a
stock option exercised after the Participant's Retirement, Disability, death or
other Termination of Employment.
3.8 EFFECT OF LEAVES OF ABSENCE
It shall not be considered a Termination of Employment when a
Participant is placed by the Company or any of its Subsidiaries on military
leave, sick leave or other bona fide leave of absence. In case of such leave of
absence, the employment relationship for Plan purposes shall be continued until
the later of the date when such leave of absence equals ninety (90) days or when
the Participant's right to reemployment with the Company or any of its
Subsidiaries shall no longer be guaranteed either by statute or contract.
7
<PAGE> 10
3.9 TERMINATION OF EMPLOYMENT
Termination of Employment for Specific Reasons. In the event the
employment of a Participant is terminated for resignation, retirement,
Disability or death, any outstanding Option granted pursuant to the Plan and any
rights thereunder shall be exercisable by the Participant (or in the case of a
deceased Participant by his legal representative) only to the extent of the
accrued right to exercise such Option at the date of such termination. An
employee will not be deemed terminated for leaves of absence related to illness
or military leave. The Committee may, in its sole direction, permit the exercise
of all or any portion of the Option not otherwise exercisable and may provide
that all or some portion of the Option shall not terminate upon or by virtue of
such employment termination.
To the extent that any such Option is exercisable at termination or, as
the result of Committee approval, becomes exercisable at termination, the Option
will remain exercisable for the earlier of the expiration date of the Option, or
the following time periods beginning after the event which gives rise to the
basis for termination: (a) resignation or retirement, three (3) months; (b)
Disability, twelve (12) months; and (c) death, six (6) months.
If at any time the Committee determines that a Participant has
committed an act adverse to the interests of the Company, including but not
limited to acts in competition with the Company or otherwise adverse to or not
in the best interests of the Company, the Committee may rescind the right of the
Participant to exercise all or part of any Options then held, whether vested or
unvested, said Options thereupon becoming null, void and of no effect.
Termination of Employment for Other Reasons. If the employment of the
Participant shall terminate for any reason other than one of those specified
above, the rights under any then outstanding Option granted pursuant to the Plan
which, pursuant to the terms of the Option Agreement between the Participant and
the Company, is exercisable as of the date of such termination, shall terminate
upon the expiration date of the Option or three (3) months after such date of
termination of employment, whichever first occurs. In its sole discretion, the
Committee may extend the three (3) months up to twelve (12) months, but in no
event beyond the expiration date of the Option. In the event of a Change of
Control, the Committee in the case of Employee Options, may, in their sole
discretion, provide that all outstanding Options shall become immediately
exercisable. All Director Stock Options shall become immediately exercisable.
IV. GENERAL PROVISIONS
4.1 AMENDMENT AND TERMINATION
The Board may, at any time and from time to time, suspend or terminate
the Plan in whole or amend it from time to time in such respects as the Board
may deem appropriate, subject, however, to the regulatory requirements of
Section 16(b) of the Securities Exchange Act and the requirements of the Code.
8
<PAGE> 11
4.2 GOVERNMENT AND OTHER REGULATIONS
The obligation of the Company to issue Awards under the Plan shall be
subject to all applicable laws, rules and regulations, and to such approvals by
any government agencies as may be required.
4.3 OTHER COMPENSATION PLANS AND PROGRAMS
The Plan shall not be deemed to preclude the implementation by the
Company and its Subsidiaries of other compensation plans or programs which may
be in effect from time to time.
4.4 FOREIGN PARTICIPANTS
The Committee may, in its sole discretion without amending the Plan,
modify any option grants awarded hereunder to Participants who are foreign
nationals or employed outside the United States to recognize differences in
laws, rules, regulations or customs of such foreign jurisdictions with respect
to tax, securities, currency, employee benefit or other matters.
4.5 MISCELLANEOUS PROVISIONS
(a) NO RIGHT TO CONTINUE EMPLOYMENT. Nothing in the Plan or in any
Award or Award Agreement confers upon any Participant the right to continue in
the employ of the Company or its Subsidiaries or interferes with or restricts in
any way the rights of the Company or its Subsidiaries to discharge any
Participant at any time for any reason whatsoever, with or without cause.
(b) NON-TRANSFERABILITY. No right or interest of any Participant in any
Award under the Plan shall be (i) assignable or transferable, except by will or
the laws of descent and distribution or a valid beneficiary designation made in
accordance with procedures established by the Committee, or (ii) liable for, or
subject to, any lien, obligation or liability. An ISO may be exercised only by
the Participant during his lifetime, by his estate or by the person who acquires
the right to exercise such option by bequest or inheritance.
(c) DESIGNATION OF BENEFICIARY. A Participant, in accordance with
procedures established by the Committee, may designate a person or persons to
receive, in the event of the Participant's death, (i) any payments with respect
to which the Participant would then be entitled, and (ii) the right to continue
to participate in the Plan to the extent of such Participant's outstanding
Awards. Such designation shall be made upon forms supplied by and delivered to
the Company and may be revoked in writing.
(d) WITHHOLDING TAXES. The Company's obligation to deliver shares of
Common Stock or cash upon the exercise of stock options granted will be subject
to the satisfaction by the Participant of all applicable federal, state and
local income tax and employment tax withholding requirements. The Committee (or
plan administrator) may, in its discretion and in accordance with
9
<PAGE> 12
any applicable tax or securities laws (including the applicable safe-harbor
provisions of Securities and Exchange Commission Rule 16b-3), provide any or all
holders of NQSOs under the Plan, with the right to use shares of the Company's
Common Stock in satisfaction of all or part of the federal, state and local
income tax and employment tax liabilities incurred by such holders in connection
with the exercise of their options or the vesting of their shares (the "Taxes").
Such right may be provided to any such option holder in either or both of the
following formats:
(i) STOCK WITHHOLDING. The holder of the NQSO may be provided with
the election to have the Company withhold, from the shares of
Common Stock otherwise issuable upon the exercise of such
NQSO, a portion of those shares with an aggregate fair market
value not to exceed one hundred percent (100%) of the
applicable Taxes.
(ii) STOCK DELIVERY. The holder of the NQSO may be provided with
the election to deliver to the Company, at the time the NQSO
is exercised, one (1) or more shares of Common Stock
previously acquired by such individual (other than in
connection with the option exercise triggering the Taxes) with
an aggregate fair market value equal to the designated
percentage (up to 100% as specified by the option holder) of
the Taxes incurred in connection with such option exercise.
(e) PLAN EXPENSES. Any expenses of administering the Plan shall be
borne by the Company.
(f) CONSTRUCTION OF PLAN. The interpretation of the Plan and the
application of any rules implemented hereunder shall be determined solely in
accordance with the laws of the State of Ohio.
(g) UNFUNDED PLAN. The Plan shall be unfunded, and the Company shall
not be required to segregate any assets which may at any time be represented by
Awards. Any liability of the Company to any person with respect to an Award
under this Plan shall be based solely upon any obligations which may be created
by this Plan; no such obligation of the Company shall be deemed to be secured by
any pledge or other encumbrance on any property of the Company.
(h) BENEFIT PLAN COMPUTATIONS. Any benefits received or amounts paid to
a Participant with respect to any Award granted under the Plan shall not have
any effect on the level of benefits provided to or received by any Participant,
or the Participant's estate or beneficiary, as part of any employee benefit plan
(other than the Plan) of the Company.
(i) PRONOUNS, SINGULAR AND PLURAL. The masculine may be read as
feminine, the singular as plural and the plural as singular as necessary to give
effect to the Plan.
(j) MAXIMUM ANNUAL GRANT. In no event shall any one individual
participating in the Plan, be granted stock options for more than one and
one-half percent (1.5%) of the total outstanding shares of Common Stock of the
Company, in the aggregate, in any calendar year.
10
<PAGE> 13
(k) PAYMENT. The exercise price will be payable in one of the
alternative forms specified below:
(i) full payment in cash or check made payable to the
Company's order; or
(ii) full payment in shares of Common Stock held for the
requisite period necessary to avoid a charge to the
Company's reported earnings and valued at fair market
value on the Exercise Date (as such term is defined
below); or
(iii) full payment in a combination of shares of Common
Stock held for the requisite period necessary to
avoid a charge to the Company's reported earnings and
valued at fair market value on the Exercise Date and
cash or check payable to the Company's order; or
(iv) full payment through a sale and remittance procedure
pursuant to which the Participant will provide
irrevocable written directives to a designated
brokerage firm to effect the immediate sale of the
purchased shares and remit to the Company, out of the
sale proceeds available on the settlement date,
sufficient funds to cover the aggregate exercise
price payable for the purchased shares and shall
concurrently provide written instructions to the
Company to deliver the certificates for the purchased
shares directly to such brokerage firm in order to
complete the sale transaction.
For purposes of this subsection, the "Exercise Date" will be the date
on which written notice of the option exercise is delivered to the Company, and
the fair market value per share of Common Stock on any relevant date shall be
determined in accordance with the provisions of the Plan. Except to the extent
the sale and remittance procedure specified above is utilized for the exercise
of the option, payment of the option price for the purchased shares must
accompany the exercise notice.
4.6 EFFECTIVE DATE
The Plan will become effective as of January 1, 1999, upon approval by
shareholders of the Company. The Plan and all outstanding Awards shall remain in
effect until all outstanding Awards have been exercised, expired or canceled.
11
<PAGE> 1
Exhibit 10.2
MYERS INDUSTRIES, INC.
1997 INCENTIVE STOCK PLAN
<PAGE> 2
MYERS INDUSTRIES, INC.
1997 INCENTIVE STOCK PLAN
TABLE OF CONTENTS
I. INTRODUCTION ........................................... 1
1.1 Purpose of the Plan ........................... 1
1.2 Definitions ................................... 1
II. ADMINISTRATION ......................................... 4
2.1 Administration ................................ 4
2.2 Participation ................................. 4
2.3 Maximum Number of Shares Available ............ 4
2.4 Adjustments ................................... 5
2.5 Registration Conditions ....................... 5
2.6 Committee Action .............................. 5
III. STOCK OPTIONS .......................................... 6
3.1 Price ......................................... 6
3.2 Period ........................................ 6
3.3 Time of Exercise .............................. 6
3.4 Exercise Procedures ........................... 6
3.5 Payment ....................................... 6
3.6 Special Rule for Incentive Stock Options ...... 6
3.7 Reload Stock Options .......................... 7
3.8 Effect of Leaves of Absence ................... 7
3.9 Termination of Employment ..................... 7
IV. GENERAL PROVISIONS ..................................... 8
4.1 Amendment and Termination ..................... 8
4.1 Government and Other Regulations .............. 8
4.3 Other Compensation Plans and Programs ......... 9
4.4 Miscellaneous Provisions ...................... 9
4.5 Effective Date ................................ 11
<PAGE> 3
MYERS INDUSTRIES, INC.
1997 INCENTIVE STOCK PLAN
MYERS INDUSTRIES, INC., (the "Company") hereby adopts this 1997
Incentive Stock Plan ("Plan"), effective as of January 1, 1997, but subject to
shareholder approval at the 1997 Annual Shareholders Meeting. The number of
shares of Common Stock approved and reserved under the Plan is five hundred
thousand (500,000) shares.
I. INTRODUCTION
1.1 PURPOSE OF THE PLAN
Myers Industries, Inc., has established the Plan to further its
long-term financial success by creating the opportunity for key employees of the
Company and its Subsidiaries to receive stock-based compensation whereby they
can share in achieving and sustaining such success. The Plan also provides a
means to attract and retain the executive talent needed to achieve the Company's
long-term growth and profitability objectives.
1.2 DEFINITIONS
When used in the Plan, the following terms shall have the meanings set
forth below.
(a) "Award(s)" shall mean Incentive Stock Options, Non-Qualified Stock
Options or Reload Stock Options granted under the Plan.
(b) "Award Agreement" shall mean an agreement which shall evidence the
particular terms, conditions, rights and duties of the Company and the
Participant with respect to an Award.
(c) "Board" shall mean the Board of Directors of the Company.
(d)(i) "Change of Control" shall mean (A) the attainment of beneficial
ownership by any Person (as defined herein) of capital stock of the Company, the
voting power of which constitutes 30 percent or more of the voting power of all
of the Company's outstanding capital stock; or (B) a change in the composition
of a majority of the Board during any period of two (2) years or less, provided
that in determining such change, any Director whose election has been approved
in advance by at least two-thirds (2/3) of the Directors then in office shall
not be considered a new Director. No sale to underwriters or private placement
of capital stock by the Company, nor any acquisition by the Company, through
merger, purchase of assets or otherwise, effected in whole or in part by
issuance or reissuance of shares of its capital stock, shall constitute a Change
of Control.
(ii) For purposes of determining a Change of Control under the Plan,
the following provisions shall apply:
(A) The term "Person" shall mean any individual,
corporation or other entity.
<PAGE> 4
(B) Any Person shall be deemed to be the beneficial owner
of any shares of capital stock of the Company:
(1) which that Person owns directly, whether or
not of record,
(2) which that Person has the right to acquire
pursuant to any agreement or understanding
or upon exercise of conversion rights,
warrants or options, or otherwise,
(3) which are beneficially owned, directly or
indirectly (including shares deemed owned
through application of Paragraph (B)(2)
above), by an "affiliate" or "associate" (as
defined in the rules of the Securities and
Exchange Commission) of that Person, or
(4) which are beneficially owned, directly or
indirectly (including shares deemed owned
through application of Paragraph (B)(2)
above), by any other Person with which that
Person or his "affiliate" or "associate" has
any agreement, arrangement or understanding
for the purpose of acquiring, holding,
voting or disposing of capital stock of the
Company.
(C) For purposes of determining whether a Person has
acquired beneficial ownership of 30 percent or more
of the Company, the outstanding shares of capital
stock of the Company shall include shares deemed
owned by such Person through application of
Paragraphs (B)(2), (B)(3) and (B)(4) above, but shall
not include any other shares which may be issuable
pursuant to any agreement or upon exercise of
conversion rights, warrants or options, or otherwise,
but which are not actually outstanding.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Committee" shall mean the Compensation Committee of the Board, or
such other committee of the Board which shall be designated by the Board to
administer the Plan. If the Board does not designate the Compensation Committee
as the Committee, the Committee will be composed of two (2) or more persons who
are from time to time appointed to serve by the Board. Each member of the
Committee will be a "non-employee director" within the meaning of Rule 16b-3 of
the Securities Exchange Act or any successor rule, as any such rule may be
amended from time to time, and will also qualify as an "outside director" within
the meaning of Code Section 162(m). A person may be appointed to the Committee
who does not qualify as a "non-employee director" if the Committee adopts and
follows a recusal procedure which qualifies under the Section 16 Rules.
2
<PAGE> 5
(g) "Common Stock" shall mean the common stock of the Company, no par
value per share, and may be either stock previously authorized but unissued, or
stock reacquired by the Company.
(h) "Company" shall mean Myers Industries, Inc., and any successor in a
reorganization or similar transaction.
(i) "Director" shall mean a duly elected member of the Board.
(j) "Disability" shall mean the inability of a Participant to perform
the services normally rendered due to any physical or mental impairment that can
be expected to be of either permanent or indefinite duration, as determined by
the Committee on the basis of appropriate medical evidence, and that results in
the Participant's Termination of Employment; provided, however, that with
respect to any Participant who has entered into an employment agreement with the
Company or any of its Subsidiaries, the term of which has not expired at the
time a determination concerning Disability is to be made, Disability shall have
the meaning attributed to "permanent disability" in such employment agreement.
(k) "Fair Market Value" shall mean with respect to a given day, the
closing sales price of a share of Common Stock, as reported by such responsible
reporting service as the Committee may select, or if there were no transactions
in the Common Stock on such day, then the last preceding day on which
transactions took place. The foregoing notwithstanding, the Committee may
determine the Fair Market Value in such other manner as it may deem more
appropriate for Plan purposes or as is required by applicable laws or
regulations.
(l) "Incentive Stock Option" or "ISO" shall mean a right to purchase
the Company's Common Stock which is intended to comply with the terms and
conditions for an incentive stock option as set forth in Section 422 of the
Code, or such other sections of the Code as may be in effect from time to time.
(m) "Non-Qualified Stock Option" or "NQSO" shall mean a right to
purchase the Company's Common Stock which is not intended to comply with the
terms and conditions for a tax-qualified stock option, as set forth in Section
422 of the Code, or such other sections of the Code as may be in effect from
time to time.
(n) "Participant" shall mean an officer or full-time salaried employee
(including a Director who is also a full-time employee) of the Company or any of
its Subsidiaries who, in the judgment of the Committee, is in a position to make
a positive contribution to the management, growth and success of the Company and
is thus designated by the Committee to receive an Award.
(o) "Plan" shall mean the Company's 1997 Stock Plan, as set forth
herein.
3
<PAGE> 6
(p) "Qualified Director" shall mean a Director who is both an "outside
director" within the meaning of Code Section 162(m) and a "non-employee
director" within the meaning of Rule 16b-3.
(q) "Reload Stock Option" shall mean an option granted to a Participant
who has paid for shares subject to option through the delivery of shares of
Common Stock having an aggregate Fair Market Value as determined on the date of
exercise equal to the option price.
(r) "Retirement" shall mean a Participant's Termination of Employment
by reason of retirement at his normal retirement date, pursuant to and in
accordance with a pension, retirement or similar plan or other regular
retirement practice of the Company or any of its Subsidiaries, or in accordance
with the early retirement provision(s) thereof.
(s) "Securities Act" shall mean the Securities Act of 1933, as amended.
(t) "Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(u) "Subsidiaries" shall mean the majority-owned subsidiaries of the
Company.
(v) "Termination of Employment" shall mean a cessation of the
employee-employer relationship between a Participant and the Company or its
Subsidiaries for any reason.
II. ADMINISTRATION
2.1 ADMINISTRATION
The Plan shall be administered by the Committee, which, subject to the
express provisions of the Plan, shall have full and exclusive authority to
interpret the Plan, to prescribe, amend and rescind rules and regulations
relating to the Plan and to make all other determinations deemed necessary or
advisable in the implementation and administration of the Plan; provided,
however, that subject to the express provisions hereof or unless required by
applicable law or regulation, no action of the Committee shall adversely affect
the terms and conditions of any Award made to, or any rights hereunder or under
any Award Agreement of, any Participant, without such Participant's consent. The
Committee's interpretation and construction of the Plan shall be conclusive and
binding on all persons, including the Company and all Participants.
2.2 PARTICIPATION
The Committee shall, from time to time, make the selection of
Participants and determine the Award or Awards to be granted to each
Participant. In making its determinations, the Committee may take into account
the nature of the services rendered or expected to be rendered by the respective
Participants, their present and potential contributions to the Company's
success, and such other factors as the Committee in its discretion shall deem
relevant.
4
<PAGE> 7
2.3 MAXIMUM NUMBER OF SHARES AVAILABLE
The maximum number of shares which may be granted under the Plan is
five hundred thousand (500,000) shares.
No Incentive Stock Options shall be granted after January 1, 2007, or
such other period required under the Code.
2.4 ADJUSTMENTS
In the event of stock dividends, stock splits, recapitalizations,
mergers, consolidations, combinations, exchanges of shares, spin-offs,
liquidations, reclassifications or other similar changes in the capitalization
of the Company, the number of shares of Common Stock available for grant under
this Plan shall be adjusted proportionately or otherwise by the Board and, where
deemed appropriate, the number of shares covered by outstanding stock options
and the option price of outstanding stock options shall be similarly adjusted.
Also, in instances where another corporation or other business entity is
acquired by the Company, and the Company has assumed outstanding employee option
grants under a prior existing plan of the acquired entity, similar adjustments
are permitted at the discretion of the Committee. In the event of any other
change affecting the Common Stock reserved under the Plan, such adjustment, if
any, as may be deemed equitable by the Board, shall be made to give proper
effect to such event.
2.5 REGISTRATION CONDITIONS
Unless issued pursuant to a registration statement under the Securities
Act, no shares shall be issued to a Participant under the Plan unless the
Participant represents to and agrees with the Company that such shares are being
acquired for investment and not with a view to the resale or distribution
thereof, or such other documentation as may be required by the Company unless,
in the opinion of counsel to the Company, such representation, agreement or
documentation is not necessary to comply with the Securities Act.
Any restriction on the resale of shares shall be evidenced by an
appropriate legend on the stock certificate.
The Company shall not be obligated to deliver any Common Stock until it
has been listed on each securities exchange on which the Common Stock may then
be listed or until there has been qualification under or compliance with such
federal or state laws, rules or regulations as the Company may deem applicable.
The Company shall use reasonable efforts to obtain such listing, qualification
and compliance.
5
<PAGE> 8
2.6 COMMITTEE ACTION
The Committee may, through Award Agreements, limit its discretion under
this Plan. To the extent such discretion is not specifically waived in an Award
Agreement, the Committee shall retain such discretion.
III. STOCK OPTIONS
All stock options granted to Participants under the Plan shall be
evidenced by Award Agreements which shall be subject to applicable provisions of
the Plan, and such other provisions as the Committee may adopt, including the
following provisions.
3.1 PRICE
The option price per share of Non-Qualified Stock Options ("NQSOs")
shall be set by the Committee at the time of grant. The option price per share
of Incentive Stock Options ("ISOs") shall not be less than 100 percent of the
Fair Market Value of a share of Common Stock on the date of grant. If a NQSO is
to meet the requirements of Section 162(m) of the Code, it shall be issued at
Fair Market Value.
3.2 PERIOD
An ISO shall not be exercisable for a term longer than ten (10) years
from date of grant. NQSOs shall have a term as established by the Committee.
3.3 TIME OF EXERCISE
The Committee may prescribe the timing of the exercise of the stock
option and any minimums and installment provisions and may accelerate the time
at which a stock option becomes exercisable, provided that with respect to ISOs,
no such acceleration shall result in a violation of Section 3.6.
3.4 EXERCISE PROCEDURES
A stock option, or portion thereof, shall be exercised by delivery of a
written notice of exercise to the Company and payment of the full price of the
shares being purchased.
3.5 PAYMENT
The price of an exercised stock option, or portion thereof, may be paid
pursuant to Section 4.4(k).
6
<PAGE> 9
3.6 SPECIAL RULE FOR INCENTIVE STOCK OPTIONS
If the aggregate Fair Market Value of Common Stock with respect to
which ISOs are exercisable for the first time by a Participant during any
calendar year (under this Plan and all other plans of the Company and its
Subsidiaries) exceeds One Hundred Thousand Dollars ($100,000), such ISOs shall
be treated as NQSOs to the extent of the excess. In applying the foregoing
limitation, ISOs shall be taken into account in the order in which they were
granted, and the Fair Market Value of Common Stock subject to such ISOs shall be
determined as of the date of grant. If such limit is exceeded in any calendar
year, the Company shall have the right to designate which shares of Common Stock
purchased pursuant to such ISOs shall be treated as having been acquired by the
Participant pursuant to an ISO.
3.7 RELOAD STOCK OPTIONS
A Reload Stock Option may be granted by the Committee in an Award
Agreement. If a reload option is granted and a stock option is exercised while
the Participant is employed by the Company and the Participant pays for the
shares subject to option through the delivery of Common Stock having an
aggregate Fair Market Value as determined on the date of exercise equal to the
option price, the Participant will be granted a Reload Stock Option on the date
of such exercise. The Award shall equal the number of whole shares of Common
Stock used to pay the purchase price, and the exercise price of the Reload Stock
Option shall equal the Fair Market Value of the Common Stock on the date of
grant. If the Company withholds shares of Common Stock to cover applicable
income and employment taxes related to the exercise of an option, then the Award
shall equal the number of whole shares of Common Stock used to pay the purchase
price less the number of shares withheld.
Subject to the provisions of this Plan, the Reload Stock Option may be
exercised between its date of grant and the date of expiration of an option.
Shares of stock acquired upon the exercise of a Reload Stock Option are
restricted from sale for two (2) years. A Reload Stock Option shall be evidenced
by an Award Agreement containing such other terms and conditions as the
Committee approves. No Reload Stock Option shall be granted with respect to a
stock option exercised after the Participant's Retirement, Disability, death or
other Termination of Employment.
3.8 EFFECT OF LEAVES OF ABSENCE
It shall not be considered a Termination of Employment when a
Participant is placed by the Company or any of its Subsidiaries on military
leave, sick leave or other bona fide leave of absence. In case of such leave of
absence, the employment relationship for Plan purposes shall be continued until
the later of the date when such leave of absence equals ninety (90) days or when
the Participant's right to reemployment with the Company or any of its
Subsidiaries shall no longer be guaranteed either by statute or contract.
7
<PAGE> 10
3.9 TERMINATION OF EMPLOYMENT
In the event of Termination of Employment, the following provisions
shall apply with respect to ISOs and NQSOs unless waived by the Committee, or as
otherwise specifically provided in the Award Agreement.
(a) TERMINATION DUE TO DEATH, DISABILITY OR RETIREMENT. NQSOs and
ISOs shall be exercisable for a period equal to the lesser of
five (5) years or the remaining option term; provided,
however, that if the Participant elects to exercise his ISOs
(i) later than three (3) months after the date of his
Termination of Employment due to Retirement or (ii) twelve
(12) months after the date of his Termination of Employment
due to Disability, such ISOs shall be treated as NQSOs under
the Code for purposes of calculating the federal income tax
applicable as a result of the exercise of such ISOs and the
subsequent disposition of the acquired shares.
(b) OTHER TERMINATION. If a Participant's employment with the
Company or any of its Subsidiaries is terminated for any
reason other than death, Disability or Retirement, all Awards
under this Plan shall be immediately canceled, except that if
the termination is by the Company or any of its Subsidiaries
or for any reason other than misconduct or misfeasance, the
Participant shall have thirty (30) days thereafter within
which to exercise his options to the extent that the options
are otherwise exercisable immediately prior to such
termination; and further, if such termination is attributable
to a Change of Control, such Award shall not be canceled but
shall continue as though the Participant remained in the
employ of the Company or any of its Subsidiaries during the
remaining option term of the Award.
(c) LIMITATIONS ON EXERCISE. Notwithstanding the foregoing, the
Committee may rescind the right to exercise stock options
following Termination of Employment if the Participant has
been found to be directly or indirectly engaged in any
activity which is in competition with the Company or any of
its Subsidiaries or is otherwise adverse to, or not in the
best interest of, the Company or any of its Subsidiaries.
Further, no option agreement for ISOs may extend their
exercise period beyond the time allowed by the Code.
IV. GENERAL PROVISIONS
4.1 AMENDMENT AND TERMINATION
The Board may, at any time and from time to time, suspend or terminate
the Plan in whole or amend it from time to time in such respects as the Board
may deem appropriate, subject, however, to the regulatory requirements of
Section 16(b) of the Securities Exchange Act and the requirements of the Code.
8
<PAGE> 11
4.2 GOVERNMENT AND OTHER REGULATIONS
The obligation of the Company to issue Awards under the Plan shall be
subject to all applicable laws, rules and regulations, and to such approvals by
any government agencies as may be required.
4.3 OTHER COMPENSATION PLANS AND PROGRAMS
The Plan shall not be deemed to preclude the implementation by the
Company and its Subsidiaries of other compensation plans or programs which may
be in effect from time to time.
4.4 MISCELLANEOUS PROVISIONS
(a) NO RIGHT TO CONTINUE EMPLOYMENT. Nothing in the Plan or in any
Award or Award Agreement confers upon any Participant the right to continue in
the employ of the Company or its Subsidiaries or interferes with or restricts in
any way the rights of the Company or its Subsidiaries to discharge any
Participant at any time for any reason whatsoever, with or without cause.
(b) NON-TRANSFERABILITY. No right or interest of any Participant in any
Award under the Plan shall be (i) assignable or transferable, except by will or
the laws of descent and distribution or a valid beneficiary designation made in
accordance with procedures established by the Committee, or (ii) liable for, or
subject to, any lien, obligation or liability. An ISO may be exercised only by
the Participant during his lifetime, by his estate or by the person who acquires
the right to exercise such option by bequest or inheritance.
(c) DESIGNATION OF BENEFICIARY. A Participant, in accordance with
procedures established by the Committee, may designate a person or persons to
receive, in the event of the Participant's death, (i) any payments with respect
to which the Participant would then be entitled, and (ii) the right to continue
to participate in the Plan to the extent of such Participant's outstanding
Awards. Such designation shall be made upon forms supplied by and delivered to
the Company and may be revoked in writing.
(d) WITHHOLDING TAXES. The Company's obligation to deliver shares of
Common Stock or cash upon the exercise of stock options granted will be subject
to the satisfaction by the Participant of all applicable federal, state and
local income tax and employment tax withholding requirements. The Committee (or
plan administrator) may, in its discretion and in accordance with any applicable
tax or securities laws (including the applicable safe-harbor provisions of
Securities and Exchange Commission Rule 16b-3), provide any or all holders of
NQSOs under the Plan, with the right to use shares of the Company's Common Stock
in satisfaction of all or part of the federal, state and local income tax and
employment tax liabilities incurred by such holders in connection with the
exercise of their options or the vesting of their shares (the "Taxes"). Such
right may be provided to any such option holder in either or both of the
following formats:
9
<PAGE> 12
(i) STOCK WITHHOLDING. The holder of the NQSO may be provided with
the election to have the Company withhold, from the shares of
Common Stock otherwise issuable upon the exercise of such
NQSO, a portion of those shares with an aggregate fair market
value not to exceed one hundred percent (100%) of the
applicable Taxes.
(ii) STOCK DELIVERY. The holder of the NQSO may be provided with
the election to deliver to the Company, at the time the NQSO
is exercised, one (1) or more shares of Common Stock
previously acquired by such individual (other than in
connection with the option exercise triggering the Taxes) with
an aggregate fair market value equal to the designated
percentage (up to 100% as specified by the option holder) of
the Taxes incurred in connection with such option exercise.
(e) PLAN EXPENSES. Any expenses of administering the Plan shall be
borne by the Company.
(f) CONSTRUCTION OF PLAN. The interpretation of the Plan and the
application of any rules implemented hereunder shall be determined solely in
accordance with the laws of the State of Ohio.
(g) UNFUNDED PLAN. The Plan shall be unfunded, and the Company shall
not be required to segregate any assets which may at any time be represented by
Awards. Any liability of the Company to any person with respect to an Award
under this Plan shall be based solely upon any obligations which may be created
by this Plan; no such obligation of the Company shall be deemed to be secured by
any pledge or other encumbrance on any property of the Company.
(h) BENEFIT PLAN COMPUTATIONS. Any benefits received or amounts paid to
a Participant with respect to any Award granted under the Plan shall not have
any effect on the level of benefits provided to or received by any Participant,
or the Participant's estate or beneficiary, as part of any employee benefit plan
(other than the Plan) of the Company.
(i) PRONOUNS, SINGULAR AND PLURAL. The masculine may be read as
feminine, the singular as plural and the plural as singular as necessary to give
effect to the Plan.
(j) MAXIMUM ANNUAL GRANT. In no event shall any one individual
participating in the Plan, be granted stock options for more than one and
one-half percent (1.5%) of the total outstanding shares of Common Stock of the
Company, in the aggregate, in any calendar year.
(k) PAYMENT. The exercise price will be payable in one of the
alternative forms specified below:
(i) full payment in cash or check made payable to the
Company's order; or
(ii) full payment in shares of Common Stock held for the
requisite period necessary to avoid a charge to the
Company's reported earnings and valued at fair market
value on the Exercise Date (as such term is defined
below); or
10
<PAGE> 13
(iii) full payment in a combination of shares of Common
Stock held for the requisite period necessary to
avoid a charge to the Company's reported earnings and
valued at fair market value on the Exercise Date and
cash or check payable to the Company's order; or
(iv) full payment through a sale and remittance procedure
pursuant to which the Participant will provide
irrevocable written directives to a designated
brokerage firm to effect the immediate sale of the
purchased shares and remit to the Company, out of the
sale proceeds available on the settlement date,
sufficient funds to cover the aggregate exercise
price payable for the purchased shares and shall
concurrently provide written instructions to the
Company to deliver the certificates for the purchased
shares directly to such brokerage firm in order to
complete the sale transaction.
For purposes of this subsection, the "Exercise Date" will be the date
on which written notice of the option exercise is delivered to the Company, and
the fair market value per share of Common Stock on any relevant date shall be
determined in accordance with the provisions of the Plan. Except to the extent
the sale and remittance procedure specified above is utilized for the exercise
of the option, payment of the option price for the purchased shares must
accompany the exercise notice.
4.5 EFFECTIVE DATE
The Plan will become effective as of January 1, 1997, upon approval by
shareholders of the Company. The Plan and all outstanding Awards shall remain in
effect until all outstanding Awards have been exercised, expired or canceled.
11
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
reports dated February 9, 1999, included in Myers Industries, Inc.'s 1998 Annual
Report on Form 10-K for the year ended December 31, 1998 and to all references
to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Cleveland, Ohio
November 4, 1999
<PAGE> 1
EXHIBIT 24
MYERS INDUSTRIES, INC.
LIMITED POWER OF ATTORNEY
REGISTRATION STATEMENTS ON FORM S-8
The undersigned directors and officers of Myers Industries, Inc. (the
"Company") hereby constitute and appoint Gregory J. Stodnick, and/or Kevin C.
O'Neil, and each of them, with full power of substitution and resubstitution, as
attorneys or attorney of the undersigned, to execute and file under the
Securities Act of 1933 a Registration Statement on Form S-8 to register certain
shares of the Company's Common Stock, and any and all amendments and exhibits to
the foregoing Registration Statement and any and all applications or other
documents to be filed with the Securities and Exchange Commission, the American
Stock Exchange and any state securities agencies pertaining to such Registration
Statement, with full power and authority to do and perform any and all acts and
things whatsoever necessary, appropriate or desirable to be done in the
premises, or in the name, place and stead of the said directors and officers,
hereby ratifying and approving the acts of said attorneys and any of them and
any such substitute.
Effective the 28th day of October, 1999, unless otherwise indicated
below.
<TABLE>
<CAPTION>
Name Title
- ---- -----
<S> <C>
/s/ Gregory J. Stodnick Vice President - Finance and Chief Financial Officer
- ------------------------------------ (Principal Financial and Accounting Officer)
Gregory J. Stodnick
/s/ Stephen E. Myers President, Chief Executive Officer and Director
- ------------------------------------ (Principal Executive Officer)
Stephen E. Myers
/s/ Keith A. Brown Director
- ------------------------------------
Keith A. Brown
/s/Karl S. Hay Director
- ------------------------------------
Karl S. Hay
/s/ Richard P. Johnston Director
- ------------------------------------
Richard P. Johnston
/s/ Richard L. Osborne Director
- ------------------------------------
Richard L. Osborne
/s/ Jon H. Outcalt Director
- ------------------------------------
Jon H. Outcalt
/s/ Samuel Salem Director
- ------------------------------------
Samuel Salem
/s/ Edwin P. Schrank Director
- ------------------------------------
Edwin P. Schrank
/s/ Milton I. Wiskind Director
- ------------------------------------
Milton I. Wiskind
</TABLE>
