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2019

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-K

☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

FOR THE FISCAL YEAR ENDED December 31, 2020

OR

☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ________ TO ________

COMMISSION FILE NUMBER 001-08524

MYERS INDUSTRIES, INC.

(Exact name of registrant as specified in its charter)

 

OHIO

34-0778636

(State or other jurisdiction of

incorporation or organization)

(IRS Employer Identification Number)

 

1293 S. MAIN STREET, AKRON, OHIO

(Address of Principal Executive Offices)

44301

(Zip Code)

(330) 253-5592

(Telephone Number)

 

Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class

 

Trading Symbol

 

Name of Exchange on Which Registered

Common Stock, without par value

 

MYE

 

New York Stock Exchange

 

Securities Registered Pursuant to Section 12(g) of the Act: None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes  ☐    No  ☒

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes  ☐    No  ☒

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to the filing requirements for the past 90 days.    Yes  ☒    No  ☐

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).    Yes  ☒    No  ☐

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer 

☐

Accelerated filer 

☒

Non-Accelerated filer 

☐

Smaller reporting company 

☐

 

 

Emerging growth company 

☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.   ☐

 

Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.  ☒

 

Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Act).    Yes  ☐    No  ☒

State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the closing sale price on the New York Stock Exchange as of June 30, 2020: $343,897,092

Indicate the number of shares outstanding of registrant’s common stock as of March 5, 2021: 36,008,505 Shares of Common Stock, without par value.

DOCUMENTS INCORPORATED BY REFERENCE:

Portions of the Registrant’s Definitive Proxy Statement for its 2021 Annual Meeting of Stockholders are incorporated by reference in Part III of this Form 10-K.

 

 

 

 

 

 

TABLE OF CONTENTS

 

PART I

 

 

 

ITEM 1. Business

3

 

ITEM 1A. Risk Factors

9

 

ITEM 1B. Unresolved Staff Comments

16

 

ITEM 2. Properties

17

 

ITEM 3. Legal Proceedings

18

 

 

 

PART II

 

 

 

ITEM 5. Market for Registrant’s Common Stock, Related Stockholder Matters and Issuer Purchases of Equity Securities

19

 

ITEM 6. Selected Financial Data

20

 

ITEM 7. Management’s Discussion and Analysis of Results of Operations and Financial Condition

21

 

ITEM 7A. Quantitative and Qualitative Disclosures About Market Risk

26

 

ITEM 8. Financial Statements and Supplementary Data

27

 

Report of Independent Registered Public Accounting Firm

27

 

Consolidated Statements of Operations

29

 

Consolidated Statements of Comprehensive Income (Loss)

30

 

Consolidated Statements of Financial Position

31

 

Consolidated Statements of Shareholders’ Equity

32

 

Consolidated Statements of Cash Flows

33

 

Notes to Consolidated Financial Statements

34

 

ITEM 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

60

 

ITEM 9A. Controls and Procedures

60

 

ITEM 9B. Other Information

62

 

 

 

PART III

 

 

 

ITEM 10. Information about our Directors, Executive Officers and Corporate Governance

62

 

ITEM 11. Executive Compensation

63

 

ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

63

 

ITEM 13. Certain Relationships and Related Transactions, and Director Independence

63

 

ITEM 14. Principal Accounting Fees and Services

63

 

 

 

PART IV

 

 

 

ITEM 15. Exhibits, Financial Statement Schedules

64

 

 

SIGNATURES

67

 

Exhibit 21

 

 

Exhibit 23

 

 

Exhibit 31(a)

 

 

Exhibit 31(b)

 

 

Exhibit 32

 

 

Exhibit 101

 

 

 

 

 

 

 

PART I

ITEM 1.

Business

General Development of Business

Myers Industries, Inc. (the “Company”) was founded in 1933 and is headquartered in Akron, Ohio. The terms “Myers Industries,” “Company,” “we,” “us,” or “our” wherever used herein refer to the Company, unless the context indicates to the contrary. Since its founding, the Company has grown from a small storefront distributing tire service supplies into an international manufacturing and distribution enterprise. In 1971, the Company went public, and the stock is traded on the New York Stock Exchange under the ticker symbol MYE.

The Company is a leader in the manufacturing of plastic reusable material handling containers and pallets, and plastic fuel tanks as well as the largest distributor of tools, equipment and supplies for the tire, wheel and under vehicle service industry in the United States.

As of December 31, 2020, the Company operated fifteen manufacturing facilities, five sales offices, five distribution centers and three distribution branches located throughout North and Central America; and has approximately 2,400 employees.

Serving customers around the world, Myers Industries’ brands provide safety and efficiency solutions to a wide variety of customers in diverse niche markets. Myers Industries’ diverse products and solutions help customers improve shop productivity with point of use inventory, store and transport products more safely and efficiently, improve sustainability through reuse, lower overall material handling costs, improve ergonomics for their labor force, eliminate waste and ultimately increase profitability.  Myers Industries’ employees think and act like owners, implementing long term improvements both internally and for their customers.

The Company’s business strategy is focused on transforming its Material Handling Segment into a high-growth, customer-centric innovator of engineered plastic solutions while continuing to optimize and grow the Distribution Segment. Myers Industries’ long-term plan is comprised of three, three-year horizons, each outlining specific actions to drive profitable revenue growth. Actions during the first horizon are focused on four strategic pillars:

 

•

driving organic growth through sales and commercial excellence, innovation and e-commerce;

 

•

operational excellence through initiatives in purchasing, pricing and selling, general and administrative (“SG&A”) expense optimization;

 

•

complementing our organic growth through bolt on acquisitions that can expand our opportunities in current and adjacent markets; and

 

•

developing a high-performance mindset and culture.

Description of Business

The Company conducts its business activities in two distinct business segments, Material Handling and Distribution, consistent with the manner in which the Company’s Chief Operating Decision Maker evaluates performance and makes resource allocation decisions.

In the Material Handling Segment, the Company designs, manufactures, and markets a variety of plastic and metal products. These range from plastic reusable material handling containers and small parts storage bins to plastic recreational vehicle (“RV”) tanks and parts, marine tanks and parts, portable plastic fuel tanks and water containers, portable marine fuel containers, ammunition containers, storage totes, bulk shipping containers and metal carts and cabinets. The Material Handling Segment conducts operations in the United States and Canada. The Material Handling Segment serves the industrial manufacturing, food processing, retail/wholesale products distribution, agriculture, automotive, recreational vehicles, marine vehicles, healthcare, appliance, bakery, electronics, textiles, consumer markets, among others. Products are sold both directly to end-users and through distributors.

The Distribution Segment is engaged in the distribution of tools, equipment and supplies used for tire, wheel and undervehicle service on passenger, heavy truck and off-road vehicles and the manufacturing of tire repair materials and custom rubber products. The Distribution Segment also manufactures and sells permanent and temporary reflective highway marking tape. The Distribution Segment operates domestically through its sales offices and five regional distribution centers in the United States, and in certain foreign countries through export sales as well as branch operations principally in Central America. The Distribution Segment serves retail and truck tire dealers, commercial auto and truck fleets, auto dealers, general service and repair centers, tire retreaders, and government agencies.

3

 

On November 10, 2020, the Company acquired the assets of Elkhart Plastics, Inc. (“Elkhart Plastics”), a manufacturer of engineered products for the recreational vehicle, marine, agricultural, construction, truck and other industries, which is included in the Company’s Material Handling Segment. Elkhart Plastics’ annual sales are approximately $100 million.

On August 26, 2019, the Company acquired the assets of Tuffy Manufacturing Industries, Inc. (“Tuffy”), a warehouse distributor of tire repair equipment and supplies, which is included in the Company’s Distribution Segment. Tuffy’s annual sales are approximately $20 million.

In December 2017, the Company completed the sale of its subsidiaries Myers do Brasil Embalagens Plasticas Ltda. and Plasticos Novel do Nordeste Ltda. (collectively, the “Brazil Business”) to allow the Company to focus resources on its core businesses and additional growth opportunities. The results of the Brazil Business are classified as discontinued operations under Items 6 and 8 of this report.

In 2015, the Company completed the sale of its Lawn and Garden business to an entity controlled by Wingate Partners V, L.P. (“L&G Buyer”), which is now named HC Companies, Inc. (“HC”). The results for the Lawn and Garden business are also classified as discontinued operations in the Consolidated Statements of Operations under Items 6 and 8 of this report; however, certain matters related to financing and lease guarantees provided by the Company in the transaction are included as part of continuing operations. Refer to Note 6 to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K.

 

4

 

 

The following table summarizes the key attributes of the business segments for the year ended December 31, 2020:

 

Material Handling Segment

 

Net

Sales

 

Key Product Areas

 

Product Brands

 

Key Capabilities &

Services

 

Representative Markets

 

$343.9

•

Plastic Reusable Containers &

•

Akro-Mils®

•

Plastic Rotational Molding

•

Agriculture

 

67%

 

Pallets

•

Jamco®

•

Plastic Injection Molding

•

Automotive

 

 

•

Plastic Storage &

•

Buckhorn®

•

Structural Foam Molding

•

Food Processing

 

 

 

Organizational Products

•

Ameri-Kart®

•

Plastic Blow Molding

•

Food Distribution

 

 

•

Plastic and Metal Carts

•

Scepter®

•

Material Regrind & Recycling

•

Healthcare

 

 

•

Metal Cabinets

•

Elkhart Plastics™

•

Product Design

•

Industrial

 

 

•

Custom Products

 

 

•

Prototyping

•

Manufacturing

 

 

 

 

 

 

•

Product Testing

•

Retail Distribution

 

 

 

 

 

 

•

Material Formulation

•

Wholesale Distribution

 

 

 

 

 

 

•

Plastic Thermoforming

•

Consumer

 

 

 

 

 

 

•

Infrared Welding

•

Recreational Vehicle

 

 

 

 

 

 

•

Metal Forming

•

Marine

 

 

 

 

 

 

•

Stainless Steel Forming

•

Military

 

 

 

 

 

 

•

Powder Coating

•

Custom

 

 

 

 

 

 

 

 

 

 

 

Distribution Segment

 

Net

Sales

 

Key Product Areas

 

Product Brands

 

Key Capabilities &

Services

 

Representative Markets

 

$166.5

•

Tire Valves & Accessories

•

Myers Tire Supply®

•

Broad Sales Coverage

•

Retail Tire Dealers

 

33%

•

Tire Changing &

•

Myers Tire Supply

•

Local Sales

•

Truck Tire Dealers

 

 

 

Balancing Equipment

 

International

•

Five Strategically Placed

•

Auto Dealers

 

 

•

Lifts & Alignment Equipment

•

Patch Rubber Company®

 

Distribution Centers

•

Commercial Auto & Truck

 

 

•

Service Equipment

•

Elrick

•

International Distribution

 

Fleets

 

 

•

Hand Tools

•

Fleetline

•

Personalized Service

•

General Repair & Services

 

 

•

Tire Repair & Retread

•

MTS

•

National Accounts

 

Facilities

 

 

 

Equipment & Supplies

•

Phoenix

•

Product Training

•

Tire Retreaders

 

 

•

Brake, Transmission & Allied

•

Seymoure

•

Repair/Service Training

•

Tire Repair

 

 

 

Service Equipment & Supplies

•

Tuffy

•

New Products/Services

•

Governmental Agencies

 

 

•

Highway Markings

•

Advance Traffic Markings

 

“Speed to Market”

•

Telecommunications

 

 

•

Industrial Rubber

 

 

•

Rubber Mixing

•

Industrial

 

 

•

General Shop Supplies

 

 

•

Rubber Compounding

•

Road Construction

 

 

•

Tire Pressure Monitoring System

 

 

•

Rubber Calendaring

•

Mining

 

 

 

 

 

 

•

Tiered Product Offerings

 

 

 

 


5

 

 

Segments Overview

Material Handling Segment

The Material Handling Segment manufactures highly engineered polymer packaging containers, storage and safety products, and specialty molded parts. The brands within this segment include Buckhorn®, Akro-Mils®, Jamco®, Ameri-Kart®, Elkhart Plastics™ and Scepter®.

Buckhorn’s reusable containers and pallets are used in closed-loop supply chain systems to help customers improve product protection, increase handling efficiencies, reduce freight costs and eliminate solid waste and disposal costs.  Buckhorn offers products to replace costly single use cardboard boxes, wooden pallets, and steel containers. The product line is among the broadest in the industry and includes injection-molded and structural foam-molded constructions.  Buckhorn’s product lines include hand-held containers used for inventory control, order management and transportation of retail goods; collapsible and fixed-wall bulk transport containers for light and heavy-duty tasks; intermediate bulk containers for the storage and transport of food, liquid, powder, and granular products; plastic pallets; and specialty boxes designed for storage of items such as seed. Buckhorn also produces a wide variety of specialty products for niche applications and custom products designed according to exact customer specifications.

Akro-Mils material handling products provide customers everything they need to store, organize and transport a wide range of goods while increasing overall productivity and profitability.  Serving industrial, commercial and consumer markets, Akro-Mils products range from AkroBins® — the industry’s leading small parts bins — to Super-Size AkroBins, metal panel and bin hanging systems, metal storage cabinet and bin systems, wire shelving systems, plastic and metal transport carts and a wide variety of custom storage and transport products. Akro-Mils products deliver storage and organization solutions in a wide variety of applications, from creating assembly line workstations to organizing medical supplies and retail displays. Emphasis is placed on product bundling and customizing systems to create specific storage and organization configurations for customers’ operations.

Jamco Products is well established in industrial and commercial markets with its wide selection of welded steel service carts, platform trucks, mobile work centers, racks and cabinets for plastic bins, safety cabinets, medical cylinder carts and more. Jamco Products’ quality product offering, relationships with industrial distributors and reputation for quality and service complements Myers Industries’ other Material Handling businesses.

Ameri-Kart is an industry leading manufacturer and thermoformer of rotational-molded water, fuel and waste handling tanks, plastic trim and interior parts used in the production of seat components, consoles, and other applications throughout the recreational vehicle, marine, and industrial markets.  In addition to standard marine parts, Ameri-Kart is well respected within the marine market for its patented Enviro-Fill® overfill prevention system (“OPS”) technology and is the industry’s only turnkey provider of an integrated, Environmental Protection Agency (“EPA”)-compliant marine fuel tank and patented Enviro-Fill diurnal system.

Elkhart Plastics, which was acquired in November 2020,  is another industry leading manufacturer of rotational-molded water, fuel and waste handling tanks, plastic trim and parts used in recreational vehicle, marine, agriculture, commercial construction equipment, heavy truck equipment, material handling and more.  Custom plastics are manufactured in lengths up to 160 inches in a variety of shapes and thicknesses.

Scepter is a leading producer of portable plastic fuel containers, portable marine fuel tanks and water containers, ammunition containers and storage totes.  Scepter was the first provider of Jerry Cans to North America which offer safe, reliable transportation and storage of fuel for the consumer market.  Scepter also manufactures a variety of blow molded products for military applications from high quality containers to safely store and transport large caliber ammunition, to military specified portable fuel and water canisters. Scepter's in-house product engineering and state of the art mold capabilities complements Myers Industries’ Material Handling Segment through an increased product offering and global reach.

Distribution Segment

The Distribution Segment includes the Myers Tire Supply®, Myers Tire Supply International, Tuffy Manufacturing and Patch Rubber Company® brands.  Within the Distribution Segment the Company sources and manufactures top of the line products for the tire, wheel and undervehicle service industry.

Myers Tire Supply is the largest U.S. distributor and single source for tire, wheel and undervehicle service tools, equipment and supplies. The Company buys and sells over 10,000 unique items — everything that professionals need to service passenger, truck and off-road tires, wheels and related components. Independent tire dealers, mass merchandisers, commercial auto and truck fleets, auto dealerships, tire retreaders and general repair facilities rely on our broad product selection, rapid availability and personal service to be more productive and profitably grow their businesses. Myers Tire Supply International further distributes these product offerings in Central America, through its branch offices, and to other foreign countries, through its U.S. export business.

6

 

While the needs and composition of our distribution markets constantly change, we adapt and deliver new products and services that are crucial to our customers’ success. The new product pipeline is driven by a thorough understanding of the market and its customers’ needs. Myers Tire Supply in turn works closely with its suppliers to develop innovative products and services to meet these needs.

Patch Rubber Company manufactures one of the most comprehensive lines of tire repair and retreading products in the United States. Service professionals rely on our extensive product selection and quality for safe, cost-effective repairs to passenger, truck and off-road tires. Products include the plug that fills a puncture, the cement that seals the plug, the tire innerliner patch and the final sealing compound. Patch brand repair products maintain a strong position in the tire service markets including sales through the Myers Tire Supply sales network.  Patch Rubber also employs its rubber calendering and compounding expertise to create a diverse portfolio of products outside of the tire repair market, such as permanent and temporary reflective highway marking tape. Our rubber-based tape and symbols provide the durability and brightness that construction professionals demand to replace paint for marking road repair, intersections and hazardous areas.

Raw Materials & Suppliers

The Company purchases substantially all of its raw materials from a wide range of third-party suppliers. These materials are primarily polyethylene, polypropylene, and polystyrene plastic resins, all used within the Material Handling Segment, as well as synthetic and natural rubber. Most raw materials are commodity products and are available from several domestic suppliers. We believe that the loss of any one supplier or group of suppliers would not have a material adverse effect on our business, although there are limited suppliers of certain grades of plastic resins, where the market supply can be temporarily disrupted by an unanticipated loss of capacity from any one such supplier.

Our Distribution Segment purchases substantially all of its components from third-party suppliers and has multiple sources for its products.

Competition

Competition in our Material Handling Segment is substantial and varied in form and size from manufacturers of similar products to those of other products which can be substituted for products produced by the Company. In general, most direct competitors with the Company’s brands are private entities. Myers Industries maintains strong brand presence and market positions in the niche sectors of the markets it serves. The Company does not command substantial, overall market presence in the broad market sectors.

Competition in our Distribution Segment is generally comprised of small companies, regional players and national auto parts chains where product offerings may overlap. Within the overall tire, wheel and undervehicle service market, Myers Industries is the largest U.S. distributor of tools, equipment and supplies offered based on national coverage.

Customer Dependence

In 2020, 2019 and 2018, there were no customers that accounted for more than ten percent of total net sales from continuing operations. Myers Industries serves thousands of customers who demand value through product selection, innovation, quality, delivery and responsive personal service. Our brands foster satisfied, loyal customers who have recognized our performance through numerous supplier quality awards.

Human Capital Management

Myers employees are located throughout North and Central America. Employee levels are managed to align with the pace of business and management believes it has sufficient human capital to operate its business successfully. The Company employed approximately 2,400 people globally in both a full-time and part-time capacity as of December 31, 2020. Of these, approximately 1,900 were employed in the Company’s Material Handling Segment while the Distribution Segment employed approximately 450. The Company’s corporate offices had approximately 50 employees. As of December 31, 2020, the Company had approximately 140 employees represented by a labor union. The collective bargaining agreement between us and the labor union expires June 2022. The Myers employee base provides the foundation for our Company’s success.

Our employees are responsible for upholding our core values, which include but are not limited to working safely and collaboratively, conducting all aspects of business with the highest standards of integrity, leveraging processes and procedures to drive continuous improvement, empowering individuals and teams across the Company, embracing change as we embark on our One Myers strategic vision, attracting and developing diverse talent, and demonstrating servant leadership to drive improvements in the communities where we live and operate.

7

 

Health and Safety

One core value of the Company is the health, safety, and well-being of our employees. The Company has developed a health and safety program that focuses on implementing policies and training programs to ensure all employees can expect workplace safety. The Company’s health and safety strategies are consistently reviewed and updated as changes occur and key metrics are discussed in our Corporate Safety Committee meetings.  The results of these critical safety statistics and metrics are distributed internally. Safety awareness and employee engagement programs have been implemented at the Company’s facilities and are a critical consideration in our town hall meetings.

The COVID-19 pandemic has underscored for us the importance of keeping our employees safe and healthy. In response to the pandemic, the Company has taken actions aligned with the World Health Organization and the Centers for Disease Control and Prevention to protect its workforce so they can more safely and effectively perform their work. Our health and safety focus is evident in our response to the COVID-19 pandemic and includes the following:

 

•

adding work from home flexibility;

 

•

encouraging those who are sick or have symptoms to stay home;

 

•

increasing cleaning protocols across all locations;

 

•

regular communications regarding health and safety protocols and procedures;

 

•

establishing physical distancing and personal protective equipment procedures for employees;

 

•

providing masks and cleaning supplies;

 

•

implementing protocols to address actual and suspected COVID-19 cases and potential exposure; and

 

•

prohibiting all domestic and international non-essential travel for all employees.

We manufacture products which are deemed essential to the critical infrastructure and all production sites have continued operating during the COVID-19 pandemic. As such, we have invested in creating physically safe work environments for our employees.

Diversity and Inclusion

As part of our human capital management initiatives, we are continuing to develop and improve our internal reporting on key talent metrics, including workforce demographics, critical role pipeline data, and diversity hiring analytics. These initiatives align with our goal of creating a positive and dynamic workplace where all employees can flourish. A truly innovative workforce needs to be diverse and leverage the skills and perspectives of a broad range of backgrounds and experiences.

Talent Development

Successful execution of the Company's strategy depends on attracting and retaining highly qualified individuals. The Company believes it is important to reward associates with competitive wages and benefits to recognize professional excellence and career progression. The Company also believes it is important to provide pay and benefits that are competitive and equitable based on its local markets.

The Company believes that having open, honest dialogue with its employees is a key tenet in evolving its culture and keeping it thriving. As a function of this approach, the Company conducts surveys on a periodic basis to measure and report employee engagement and areas of concern. The Company also provides professional development and training opportunities to advance the skills and expertise of Myers’ employees.

Backlog

The backlog of orders for our operations is estimated to have been approximately $39 million at December 31, 2020 and approximately $23 million at December 31, 2019. Generally, our lead time between customer order and product delivery is less than 90 days, and thus our estimated backlog is substantially expected to be delivered within the succeeding three months. During periods of shorter lead times, backlog may not be a meaningful indicator of future sales. Accordingly, we do not believe our backlog data and comparisons thereof, as of different dates, reliably indicate future sales or shipments.

8

 

Available Information

Filings with the SEC.    As a public company, we regularly file reports and proxy statements with the Securities and Exchange Commission (“SEC”), such as:

 

•

annual reports on Form 10-K;

 

•

quarterly reports on Form 10-Q;

 

•

current reports on Form 8-K; and

 

•

proxy statements on Schedule 14A.

The SEC maintains an internet website that contains our reports, proxy and information statements, and our other SEC filings; the address of that site is http://www.sec.gov.

We make our SEC filings available free of charge on our own internet site as soon as reasonably practicable after we have filed with the SEC. Our internet address is http://www.myersindustries.com. The content on the Company’s website is available for informational purposes only and is not incorporated by reference into this Form 10-K.

Our website also contains additional information about our corporate governance policies, including the charters of our standing board committees, as described further under Part II, Item 10 of this Form 10-K. Any of these items are available in print to any shareholder who requests them. Requests should be sent to Corporate Secretary, Myers Industries, Inc., 1293 S. Main Street, Akron, Ohio 44301.

ITEM 1A.

Risk Factors  

This Form 10-K and the information we are incorporating by reference contains “forward-looking statements” within the meaning of the safe harbor provisions of the U.S. Private Securities Litigation Reform Act of 1995, including information regarding the Company’s financial outlook, future plans, objectives, business prospects and anticipated financial performance. You can identify forward-looking statements by words such as “will,” “believe,” “anticipate,” “expect,” “estimate,” “intend,” “plan,” or variations of these words, or similar expressions. These forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on our current beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the future, these statements inherently involve a wide range of inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of our control. The Company’s actual actions, results, and financial condition may differ materially from what is expressed or implied by the forward-looking statements. Specific factors that could cause such a difference include those set forth below and other important factors disclosed previously and from time to time in our other filings with the SEC. Given these factors, as well as other variables that may affect our operating results, you should not rely on forward-looking statements, assume that past financial performance will be a reliable indicator of future performance, nor use historical trends to anticipate results or trends in future periods. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date thereof. We expressly disclaim any obligation or intention to provide updates to the forward-looking statements and the estimates and assumptions associated with them.

Risks and uncertainties that could cause actual results to differ materially from those expressed or implied in the applicable statements include, but are not limited to:

Risks Relating to the COVID-19 Pandemic

The COVID-19 pandemic could negatively affect our business, financial position, results of operations and/or liquidity.

First identified in December 2019, a strain of coronavirus (“COVID-19”) became a global pandemic and has spread rapidly to other areas of the world, including our primary markets. Regulatory actions in response to the COVID-19 pandemic included closure of nonessential businesses and requirements to maintain masking and social distancing to help mitigate the spread of COVID-19. Through the date of this report, the majority of our businesses have been considered essential because they supply food and agricultural, automotive, healthcare, industrial and consumer end markets.  Accordingly, these businesses have continued to operate.  However, we have experienced temporary closures of certain facilities, including two manufacturing facilities of our Ameri-Kart business in the Material Handling segment and our Distribution business in Central America in parts of March and April 2020.  Beyond the impact of these temporary closures, certain of our businesses have been and may continue to be affected by the broader economic effects from the COVID-19 and related regulatory actions, including reduced customer demand for our products. While we have so far been able to source required materials and products at reasonable cost, the pandemic may affect our supply chain in ways that are beyond our control.  We may also incur costs or experience further disruption to comply with new or changing regulations in response to the pandemic.

9

 

The overall magnitude of the COVID-19 pandemic, including the extent of its direct and indirect impact on our business, financial position, results of operations or liquidity continues to be inherently uncertain. Further, the ultimate impact of the COVID-19 pandemic depends on many factors that are not within our control, including, but not limited, to: governmental, business and individuals’ actions that have been and continue to be taken in response to the COVID-19 pandemic; the severity and duration of outbreaks of the virus; the impact of the COVID-19 pandemic and actions taken in response on global and regional economies, travel, and economic activity; the availability of federal, state, local or non-U.S. funding programs; general economic uncertainty in key global markets and financial market volatility; global economic conditions and levels of economic growth; the availability, distribution, effectiveness and community acceptance of vaccines; and the pace of economic recovery, particularly in our end markets, when the COVID-19 pandemic subsides.

Risks Relating to Our Business and Operations

Significant increase in the cost of raw materials or disruption in the availability of raw materials could adversely affect our financial performance.

Our ability to manage our cost structure can be adversely affected by movements in commodity and other raw material prices. Our primary raw materials include plastic resins, colorants and natural and synthetic rubbers. Plastic resins in particular are subject to substantial short-term price fluctuations, including those arising from supply shortages and changes in the prices of natural gas, crude oil and other petrochemical intermediates from which resins are produced, as well as other factors such as production interruption created by extreme weather conditions. Over the past several years, we have at times experienced rapidly increasing resin prices. The Company’s revenue and profitability may be materially and adversely affected by these price fluctuations.

Market conditions may limit our ability to raise selling prices to offset increases in our raw material input costs. If we are unsuccessful in developing ways to mitigate raw material cost increases, we may not be able to improve productivity or realize our ongoing cost reduction programs sufficiently to help offset the impact of these increased raw material costs. As a result, higher raw material costs could result in declining margins and operating results.

Changes in raw material availability may also occur due to events beyond our control, including natural disasters such as floods, tornadoes, hurricanes and other extreme weather conditions, such as the severe winter storm and freezing conditions in and near Texas in February 2021. Our specific molding technologies and/or product specifications can limit our ability to timely locate alternative suppliers to produce certain products. This can occur when there are limited suppliers of certain grades of plastic resins, where the market supply can be temporarily disrupted by an unanticipated loss of capacity from any one such supplier.

Changes in trade policies could result in new tariffs or other restrictions on products, components or raw materials sourced, directly or indirectly, from foreign countries, which could increase raw material costs and adversely impact profitability. However, as the Company has limited foreign operations and sources much of its raw materials domestically, we do not believe new tariffs would have a material impact on our operations.  We also believe that adverse impacts can be mitigated over time through increases in price or sourcing through an alternate supply chain.

We operate in a very competitive business environment, which could affect our financial condition and results of operations.

Both of our segments participate in markets that are highly competitive. We compete primarily on the basis of product quality and performance, value, and supply chain competency. Our competitive success also depends on our ability to maintain strong brands, customer relationships and the belief that customers will need our solutions to meet their growth requirements. The development and maintenance of such brands requires continuous investment in brand building, marketing initiatives and advertising. The competition that we face in all of our markets — which varies depending on the particular business segment, product lines and customers — may prevent us from achieving sales, product pricing and income goals, which could affect our financial condition and results of operations.

Ongoing industry consolidation continues to create competitors with greater financial and other resources. Competitive pressures may require us to reduce prices and attempt to offset such price reductions with improved operating efficiencies and reduced expenditures, for which options may be limited or unavailable. Additionally, larger competitors may be better positioned to weather prolonged periods of reduced prices, which may incentivize them to reduce prices even when not dictated by market and competitive conditions.

10

 

Our operations depend on our ability to maintain continuous, uninterrupted production at our manufacturing facilities, which are subject to physical and other risks that could disrupt production.

We are subject to inherent risks from our diverse manufacturing and distribution activities, including but not limited to product quality, safety, licensing requirements and other regulatory issues, environmental events, loss or impairment of key manufacturing or distribution sites, disruptions in logistics and transportation services, labor disputes and industrial accidents. While we maintain insurance covering our manufacturing and production facilities, including business interruption insurance, a catastrophic loss of the use of all or a portion of our facilities due to accident, fire, explosion, natural disaster or any other reason, whether short or long-term, could have a material adverse effect on our business, financial condition and results of operations.

Unexpected failures of our equipment, machinery and manufacturing processes may also result in production delays, revenue loss and significant repair costs, as well as injuries to our employees. Any interruption in production capability may require us to make large capital expenditures to remedy the situation, which could have a negative impact on our profitability and cash flows. Our business interruption insurance may not be sufficient to offset the lost revenues or increased costs that we may experience during a disruption of our operations. A temporary or long-term business disruption could result in a permanent loss of customers. If this were to occur, our future sales levels, and therefore our profitability, could be materially adversely affected.

Our future performance depends in part on our ability to develop and market new products if there are changes in technology, regulatory requirements or competitive processes.

Changes in technology, regulatory requirements and competitive processes may render certain of our products obsolete or less attractive. Our performance in the future will depend in part on our ability to develop and market new products that will gain customer acceptance and loyalty, as well as our ability to adapt our product offerings and control our costs to meet changing market conditions. Our operating performance would be adversely affected if we were to incur delays in developing new products or if such products did not gain market acceptance. There can be no assurance that existing or future products will be sufficiently successful to enable us to effectively compete in our markets or, should new product offerings meet with significant customer acceptance, that one or more current or future competitors will not introduce products that render our products noncompetitive.

We may not be successful in protecting our intellectual property rights, including our unpatented proprietary know-how and trade secrets, or in avoiding claims that we infringed on the intellectual property rights of others.

In addition to relying on patent and trademark rights, we rely on unpatented proprietary know-how and trade secrets and employ various methods, including confidentiality agreements with employees and consultants, to protect our know-how and trade secrets. However, these methods and our patents and trademarks may not afford complete protection and there can be no assurance that others will not independently develop the know-how and trade secrets or develop better production methods than us. Further, we may not be able to deter current and former employees, contractors and other parties from breaching confidentiality agreements and misappropriating proprietary information and it is possible that third parties may copy or otherwise obtain and use our information and proprietary technology without authorization or otherwise infringe on our intellectual property rights. Additionally, in the future we may license patents, trademarks, trade secrets and similar proprietary rights to third parties. While we attempt to ensure that our intellectual property and similar proprietary rights are protected when entering into business relationships, third parties may take actions that could materially and adversely affect our rights or the value of our intellectual property, similar proprietary rights or reputation. In the future, we may also rely on litigation to enforce our intellectual property rights and contractual rights and, if not successful, we may not be able to protect the value of our intellectual property. Furthermore, no assurance can be given that we will not be subject to claims asserting the infringement of the intellectual property rights of third parties seeking damages, the payment of royalties or licensing fees and/or injunctions against the sale of our products. Any litigation could be protracted and costly and could have a material adverse effect on our business and results of operations regardless of its outcome.

Our business operations could be adversely affected if we lose key employees or members of our senior management team.

Our success depends to a significant degree upon the continued contributions of our key employees and senior management team. Our senior management team has extensive marketing, sales, manufacturing, finance and engineering experience which we believe is instrumental to our continued success. Our future success will depend, in part, on our ability to attract and retain qualified personnel who have experience in the application of our products and are knowledgeable about our business, markets and products. We cannot assure that we will be able to retain our existing senior management personnel or other key employees or attract additional qualified personnel when needed, and we may modify our management structure from time to time or reduce our overall workforce, which may create marketing, operational and other business risks. The loss of key employees or executive officers in the future could adversely impact our business and operations, including our ability to successfully implement our business strategy, financial plans, expansion of services, marketing and other objectives.

11

 

Risks Relating to the Execution of Our Strategy

Our strategic growth initiatives have inherent risks and may not achieve anticipated benefits.

Our growth initiatives include:

 

•

Internal growth driven by strong brands and new product innovation;

 

•

Development of new, high-growth markets and expansion in existing niche markets;

 

•

Strengthened customer relationships through value-added initiatives and key product partnerships;

 

•

Investments in new technology and processes to reinforce market strength and capabilities in key business groups;

 

•

Consolidation and rationalization activities to further reduce costs and improve productivity within our manufacturing and distribution footprint;

 

•

An opportunistic and disciplined approach to strategic acquisitions to accelerate growth in our market positions; and

 

•

Potential divestitures of businesses with non-strategic products or markets.

While this is a continuous process, all of these activities and initiatives have inherent risks and there remain significant challenges and uncertainties, including economic and general business conditions that could limit our ability to achieve anticipated benefits associated with announced strategic initiatives and affect our financial results. We may not achieve any or all of these goals and are unable to predict whether these initiatives will produce significant revenues or profits.

We may not realize the improved operating results that we anticipate from past acquisitions, including Elkhart Plastics, or from acquisitions we may make in the future and we may experience difficulties in integrating the acquired businesses or may inherit significant liabilities related to such businesses.  

We explore opportunities to acquire businesses that we believe are related to the execution of the Company’s long-term strategies, with a focus on, among other things, alignment with the Company’s existing technologies and competencies, flexible operations, and leadership in niche markets. Some of these acquisitions may be material to us. We expect such acquisitions will produce operating results consistent with our other operations and our strategic goals; however, we may be unable to achieve the benefits expected to be realized from our acquisitions. In addition, we may incur additional costs and our management’s attention may be diverted because of unforeseen expenses, difficulties, complications, delays and other risks inherent in acquiring businesses, including the following:

 

•

We may have difficulty integrating the acquired businesses as planned, which may include integration of systems of internal controls over financial reporting and other financial and administrative functions;

 

•

We may have delays in realizing the benefits of our strategies for an acquired business;

 

•

The increasing demands on our operational systems and integration costs, including diversion of management’s time and attention, may be greater than anticipated;

 

•

We may not be able to retain key employees necessary to continue the operations of an acquired business;

 

•

Acquisition costs may be met with cash or through increased debt, increasing the risk that we will be unable to satisfy current and future financial obligations; and

 

•

Acquired companies may have unknown liabilities that could require us to spend significant amounts of additional capital.

Risks Relating to Economic Conditions and Currency Exchange Rates

Our results of operations and financial condition could be adversely affected by a downturn in the United States economy or global markets.

We operate in a wide range of regions, primarily in North America. Additionally, some of our end markets are cyclical, and some of our products are a capital expense for our customers. Worldwide and regional business and political conditions and overall strength of the worldwide, regional and local economies, including changes in the economic conditions of the broader markets and in our individual niche markets, could have an adverse effect on one or both of our operating segments.

12

 

We derive a portion of our revenues from direct and indirect sales outside the United States and are subject to the risks of doing business in foreign countries.

We currently operate manufacturing, sales and service facilities outside of the United States, particularly in Canada and Central America. For the year ended December 31, 2020, international net sales accounted for approximately 8% of our total net sales. Accordingly, we are subject to risks associated with operations in foreign countries, including:

 

•

Fluctuations in currency exchange rates;

 

•

Limitations on the remittance of dividends and other payments by foreign subsidiaries;

 

•

Limitations on foreign investment;

 

•

Additional costs of compliance with local regulations; and

 

•

In certain countries, higher rates of inflation than in the United States.

In addition, our operations outside the United States are subject to the risk of new and different legal and regulatory requirements in local jurisdictions, potential difficulties in staffing and managing local operations and potentially adverse tax consequences. The costs related to our international operations could adversely affect our operations and financial results in the future.

Risks Relating to Our Debt and Capital Structure

If we are unable to maintain access to credit financing, our business may be adversely affected.

The Company’s ability to make payments on or refinance our indebtedness, fund planned capital expenditures, finance acquisitions and pay dividends depends on our ability to continue to generate sufficient cash flow and retain access to credit financing. This, to some extent, is subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control.

We cannot provide assurance that our business will continue to generate sufficient cash flow from operating activities or that future borrowings will be available to us in amounts sufficient to enable us to service debt, make necessary capital expenditures or fund other liquidity needs. We may need to refinance all or a portion of our indebtedness, on or before maturity. We cannot ensure that we would be able to refinance any of our indebtedness on commercially reasonable terms or at all.

Our current credit facilities require us to maintain specified financial ratios, and our ability to satisfy those requirements may be affected by events beyond our control. A breach of any of those financial ratio covenants or other covenants could result in a default and upon such a default the lenders could elect to declare the applicable outstanding indebtedness immediately due and payable and terminate all commitments to extend further credit. We cannot be sure that our lenders would waive a default or that we could pay the indebtedness in full if it were accelerated.

Equity Ownership Concentration

Based solely on the Schedule 13D/A filed on November 13, 2020, by Mario J. Gabelli, Gabelli Funds, LLC, GAMCO Asset Management Inc., MJG Associates, Inc., Teton Advisors, Inc., Gabelli Foundation, Inc., GGCP, Inc., GAMCO Investors, Inc., Associated Capital Group, Inc. and Gabelli & Company Investment Advisors, Inc., (collectively, the “Gamco Group”), for which the Company disclaims any responsibility for accuracy, the Gamco Group beneficially owned 5,994,771 shares of our common stock, which represented approximately 16.7% of the 35,921,025 shares outstanding at December 31, 2020.

Based solely on the Schedule 13G/A filed on January 25, 2021, by Blackrock, Inc., (“Blackrock”), for which the Company disclaims any responsibility for accuracy, Blackrock beneficially owned 5,582,348 shares of our common stock, which represented approximately 15.5% of the 35,921,025 shares outstanding at December 31, 2020.

Individually or combined, these parties may have sufficient voting power to influence actions requiring the approval of our shareholders.

13

 

Risks Related to Data Privacy and Information Security

Our information technology systems have in the past and may experience an interruption or a breach in security.

We rely on information technology systems to process, transmit and store electronic information and manage and operate our business. Such systems are vulnerable to damage or interruption from natural disasters, power loss, telecommunication failures, computer viruses, computer denial-of-service attacks, unauthorized intrusion, and other events, any of which could interrupt our business operations. While we have implemented security measures designed to prevent and mitigate the risk of breaches, information security risks have generally increased in recent years because of the proliferation of new technologies and the increased sophistication and activities of perpetrators of cybersecurity attacks. A failure in or a breach of security in our information technology systems could expose us, our customers and our suppliers to risks of misuse of confidential information, manipulation and destruction of data, production downtimes and operations disruptions, which in turn could negatively affect our reputation, competitive position, business, results of operations or cash flows. Furthermore, because the techniques used to carry out cybersecurity attacks change frequently and in many instances are not recognized until after they are used against a target, we may be unable to anticipate these changes or implement adequate preventative measures.

Changes in privacy laws, regulations and standards may cause our business to suffer.

Personal privacy and data security have become significant issues in the United States and in many other jurisdictions where we offer our products. The regulatory framework for privacy and security issues worldwide is rapidly evolving and is likely to remain uncertain for the foreseeable future. Federal, state, or foreign government bodies or agencies have in the past adopted and may in the future adopt, laws and regulations affecting data privacy which may require us to incur significant compliance costs. In many jurisdictions, enforcement actions and consequences for noncompliance are rising. Any inability to adequately address privacy and security concerns, even if unfounded, or comply with applicable privacy and data security laws, rules and regulations could result in significant cost and liability to us, damage our reputation, inhibit our sales and adversely affect our business.

Risks Related to Legal, Compliance and Regulatory Matters

Future claims, litigation and regulatory actions could adversely affect our financial condition and our ability to conduct our business.

The nature of our business exposes us, from time to time, to breach of contract, warranty or recall claims, claims for negligence, or product liability, strict liability, personal injury or property damage claims. We strive to ensure that our products comply with applicable government regulatory standards and internal requirements and that our products perform effectively and safely; however, customers from time to time could claim that our products do not meet contractual requirements, and users could be harmed by use or misuse of our products. This could give rise to breach of contract, warranty or recall claims, claims for negligence, product liability, strict liability, personal injury or property damage. Such claims can be expensive to defend or address and may divert the attention of management for significant time periods. While we currently maintain what we believe to be suitable and adequate product liability insurance coverage, such coverage may not be available or adequate in all circumstances and claims may increase the cost of such insurance coverage. In addition, claims may arise related to patent infringement, environmental liabilities, distributor terminations, commercial contracts, antitrust or competition law, employment law and employee benefits issues and other regulatory matters. While we have in place processes and policies to mitigate these risks and to investigate and address such claims as they arise, we cannot predict the underlying costs to defend or resolve such claims.

Current and future environmental and other governmental laws and requirements could adversely affect our financial condition and our ability to conduct our business.

Our operations are subject to federal, state, local and foreign environmental laws and regulations that impose limitations on the discharge of pollutants into the air and water and establish standards for the handling, use, treatment, storage and disposal of, or exposure to, hazardous wastes and other materials and require clean-up of contaminated sites. Some of these laws and regulations require us to obtain permits, which contain terms and conditions that impose limitations on our ability to emit and discharge hazardous materials into the environment and periodically may be subject to modification, renewal and revocation by issuing authorities. Fines, penalties and other civil or criminal sanctions may be imposed for non-compliance with applicable environmental laws and regulations and the failure to have or to comply with the terms and conditions of required permits. Certain environmental laws in the United States, such as the federal Comprehensive Environmental Response, Compensation and Liability act of 1980, as amended, 42 U.S.C. §§ 9601 et seq. (“CERCLA” or “Superfund law”) and similar state laws, impose liability for the cost of investigation or remediation of contaminated sites upon the current or, in some cases, the former site owners or operators (or their predecessor entities) and upon parties who arranged for the disposal of wastes or transported or sent those wastes to an off-site facility for treatment or disposal, regardless of when the release of hazardous substances occurred or the lawfulness of the activities giving rise to the release. Such liability can be imposed without regard to fault and, under certain circumstances, can be joint and several, resulting in one party being held responsible for the entire obligation.

14

 

While we have not been required historically to make significant capital expenditures in order to comply with applicable environmental laws and regulations, we cannot predict with any certainty our future capital expenditure requirements because of continually changing compliance standards and environmental technology. Furthermore, violations or contaminated sites that we do not know about, including contamination caused by prior owners and operators of such sites, or at sites formerly owned or operated by us or our predecessors in connection with discontinued operations, could result in additional compliance or remediation costs or other liabilities, which could be material.

As more fully described in Note 12 to the consolidated financial statements, we are a potentially responsible party (“PRP”) in an environmental proceeding and remediation matter in which substantial amounts may be involved. It is possible that adjustments to reserved expenses will be necessary as new information is obtained, including after EPA approval of the work plan for the remedial investigation and feasibility study (“RI/FS”), which is anticipated to occur in 2021. Estimates of the Company’s liability are based on current facts, laws, regulations and technology. Estimates of the Company’s environmental liabilities are further subject to uncertainties regarding the nature and extent of site contamination, the range of remediation alternatives available, evolving remediation standards, imprecise engineering evaluation and cost estimates, the extent of remedial actions that may be required, the extent of oversight by the EPA, the number and financial condition of other PRPs that may be named as well as the extent of their responsibility for the remediation, and the availability of insurance coverage for these expenses. At this time, we have not accrued for such remediation costs as we are unable to estimate the liability at this time. Additionally, we are party to a consent decree regarding another location pursuant to which we are required to contribute to the costs of the remediation project.

We have limited insurance coverage for potential environmental liabilities associated with historic and current operations and we do not anticipate increasing such coverage in the future. We may also assume significant environmental liabilities in acquisitions. Such costs or liabilities could adversely affect our financial situation and our ability to conduct our business.

Environmental regulations specific to plastic products and containers could adversely affect our ability to conduct our business.

Federal, state, local and foreign governments could enact laws or regulations concerning environmental matters that increase the cost of producing, or otherwise adversely affect the demand for, plastic products. Legislation that would prohibit, tax or restrict the sale or use of certain types of plastic and other containers, and would require diversion of solid wastes such as packaging materials from disposal in landfills, has been or may be introduced in the U.S. Congress, in state legislatures and other legislative bodies. While container legislation has been adopted in a few jurisdictions, similar legislation has been defeated in public referenda in several states, local elections and many state and local legislative sessions. There can be no assurance that future legislation or regulation would not have a material adverse effect on us. Furthermore, a decline in consumer preference for plastic products due to environmental considerations could have a negative effect on our business.

Our insurance coverage may be inadequate to protect against potential hazardous incidents to our business.

We maintain property, business interruption, product liability and casualty insurance coverage, but such insurance may not provide adequate coverage against potential claims, including losses resulting from war risks, terrorist acts, whether domestic or foreign, or product liability claims relating to products we manufacture. Consistent with market conditions in the insurance industry, premiums and deductibles for some of our insurance policies have been increasing and may continue to increase in the future. In some instances, some types of insurance may become available only for reduced amounts of coverage, if at all. In addition, there can be no assurance that our insurers would not challenge coverage for certain claims. If we were to incur a significant liability for which we were not fully insured or that our insurers disputed, it could have a material adverse effect on our financial position, results of operations or cash flows.

Changes in laws and regulations may have an adverse impact on our operations.

Changes in laws and regulations and approvals and decisions of courts, regulators, and governmental bodies on any legal claims known or unknown, could have an adverse effect on the Company’s financial results. Additionally, changes in tax laws, particularly in light of changes in the composition of Congress, or new guidance or directives issued by the U.S. Treasury Department, the IRS, and other standard-setting bodies could impact our future effective tax rate and may result in a material adverse effect on our business, financial condition, results of operations, or cash flows.

Exposure to additional tax liabilities could affect our financial performance.

The Company’s 2017. U.S. Federal tax return is currently under audit by the IRS. The Company regularly assesses the likely outcome of the audit in order to determine the appropriateness of its tax provision, however, there can be no assurance that the Company will accurately predict the outcome of the audit and the amounts ultimately paid upon resolution of the audit could be materially different from the amounts previously included in the Company’s income tax expense and therefore could have a material impact on its tax provision, net income and cash flows.

15

 

General Risk Factors

If we fail to maintain an effective system of internal control over financial reporting, we may not be able to accurately report our financial results. As a result, current and potential shareholders could lose confidence in our financial reporting, which would harm our business and the trading price of our common stock.

Internal control systems are intended to provide reasonable assurance regarding the preparation and fair presentation of published financial statements. Any failure to maintain effective controls or implement required new or improved controls could cause us to fail to meet our periodic reporting obligations or result in material misstatements in our consolidated financial statements, and substantial costs and resources may be required to rectify these internal control deficiencies. If we have an internal control deficiency and our remedial measures are insufficient, material weaknesses or significant deficiencies in our internal control over financial reporting could be discovered or occur in the future, and our consolidated financial statements may contain material misstatements. See Item 9A – Controls and Procedures for further discussion.

Unforeseen events, including natural disasters, unusual or severe weather events and patterns, other public health crises, and other catastrophic events may negatively impact our economic condition.

Future events may occur that would adversely affect our business. Such events may include, but are not limited to, strategic decisions made in response to changes in economic and competitive conditions, the impact of the economic environment on our customer base, a material adverse change in our relationship with significant customers, natural disasters, unusual or severe weather events or patterns, public health crises, or other catastrophic events beyond our control. Any of these events may adversely affect our financial condition and results of operations, whether by disrupting our operations or critical systems, adversely affecting the facilities of our suppliers, or other third-party providers, or customers. Moreover, these types of events could negatively impact customer spending or trends in our end markets in impacted regions or depending upon the severity, globally, which could adversely impact our operating results.

 

 

ITEM 1B.

Unresolved Staff Comments

None.

16

 

ITEM 2.

Properties

The following table sets forth certain information with respect to properties owned by the Company as of December 31, 2020:

 

 

 

Distribution

 

 

 

Location

 

Approximate

Floor Space

(Square Feet)

 

 

Approximate

Land Area

(Acres)

 

 

Use

Akron, Ohio

 

 

129,000

 

 

 

8

 

 

Headquarters and distribution center

Akron, Ohio

 

 

67,000

 

 

 

5

 

 

Administration and warehousing

 

 

 

 

 

 

 

 

 

 

 

 

 

Manufacturing

 

 

 

Miami, Oklahoma

 

 

330,000

 

 

 

16

 

 

Manufacturing and distribution

Springfield, Missouri

 

 

227,000

 

 

 

19

 

 

Manufacturing and distribution

Wadsworth, Ohio

 

 

197,000

 

 

 

23

 

 

Manufacturing and distribution

Bristol, Indiana *

 

 

185,000

 

 

 

12

 

 

Manufacturing and distribution

Roanoke Rapids, North Carolina

 

 

172,000

 

 

 

20

 

 

Manufacturing and distribution

Scarborough, Ontario

 

 

170,000

 

 

 

8

 

 

Manufacturing and distribution

 

* Classified as held for sale at December 31, 2020 and scheduled for consolidation into a new facility in 2021.

 

The following table sets forth certain information with respect to facilities leased by the Company as of December 31, 2020:

 

 

 

Manufacturing & Distribution

 

 

Location

 

Approximate

Floor Space

(Square Feet)

 

 

Expiration Date

of Lease

 

Use

Atlantic, Iowa

 

 

215,000

 

 

October 2023

 

Manufacturing and distribution

Middlebury, Indiana

 

 

212,000

 

 

March 2024

 

Manufacturing and distribution

Cassopolis, Michigan *

 

 

210,000

 

 

December 2021

 

Manufacturing and distribution

South Beloit, Illinois

 

 

120,000

 

 

September 2021

 

Manufacturing and distribution

Ridgefield, Washington

 

 

142,000

 

 

October 2029

 

Manufacturing and distribution

South Bend, Indiana

 

 

102,000

 

 

August 2022

 

Manufacturing and distribution

Elkhart, Indiana

 

 

95,000

 

 

Month to Month

 

Manufacturing and distribution

Littleton, Colorado

 

 

83,000

 

 

December 2024

 

Manufacturing and distribution

Southaven, Mississippi

 

 

56,000

 

 

September 2023

 

Distribution center

Cuyahoga Falls, Ohio

 

 

45,000

 

 

August 2021

 

Distribution center

Salt Lake City, Utah

 

 

30,000

 

 

October 2023

 

Distribution center

Pomona, California

 

 

18,000

 

 

February 2028

 

Sales and distribution center

Milford, Ohio

 

 

12,000

 

 

December 2023

 

Administration and sales

White Pigeon, Michigan

 

 

7,000

 

 

August 2025

 

Manufacturing and distribution

 

* Scheduled for consolidation into a new facility in 2021.

 

The Company also leases facilities for its sales offices and sales branches in the United States and Central America which, in the aggregate, amount to approximately 22,000 square feet of warehouse and office space. All of these locations are used by the Distribution Segment.

 

In March 2019, the Company announced plans to consolidate manufacturing operations of its Ameri-Kart Corp. subsidiary, which includes the owned facility in Bristol, Indiana and the leased facility in Cassopolis, Michigan. The Company provided notice to terminate its lease of the Cassopolis, Michigan facility effective December 2021. In December 2019, the Company signed agreements for the 15-year lease of a new Bristol facility and the sale of its existing Bristol facility. The lease of the new Bristol facility and the sale of the existing Bristol facility both become effective when the new facility is substantially complete, which is expected to be in 2021. The new Bristol facility is expected to be approximately 233,000 square feet and to be designed to better meet the Company’s manufacturing and distribution needs.

The Company believes that all of its properties, machinery and equipment generally are well maintained and adequate for the purposes for which they are used.

17

 

ITEM 3.

The Company is a defendant in various lawsuits and a party to various other legal proceedings arising in the ordinary course of business, some of which are covered in whole or in part by insurance. When a loss arising from these matters is probable and can reasonably be estimated, the most likely amount of the estimated probable loss is recorded, or if a range of probable loss can be estimated and no amount within the range is a better estimate than any other amount, the minimum amount in the range is recorded. As additional information becomes available, any potential liability related to these matters is assessed and the estimates revised, if necessary.

Based on currently available information, management believes that the ultimate outcome of these matters, including those described specifically below, will not have a material adverse effect on our financial position, cash flows or overall trends in our results of operations. However, these matters are subject to inherent uncertainties. If new information becomes available or an unfavorable ruling were to occur, there exists the possibility of a material adverse impact on the financial position and results of operations in the period in which such change in estimate occurs or in future periods.

For information relating to the New Idria Mercury Mine EPA matter, the New Almaden Mine environmental matter, and the Scepter patent infringement litigation matter, see Note 12, Contingencies, to the Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

 

18

 

PART II

 

ITEM 5.

Market for Registrant’s Common Stock and Related Stockholder Matters and Issuer Purchases of Equity Securities

The Company’s common stock is traded on the New York Stock Exchange under the symbol MYE. The number of shareholders of record at December 31, 2020 was 939. Dividends for the last two years were:

 

 

 

 

 

 

 

 

 

 

Quarter Ended

 

2020

 

 

2019

 

March 31

 

$

0.135

 

 

$

0.135

 

June 30

 

 

0.135

 

 

 

0.135

 

September 30

 

 

0.135

 

 

 

0.135

 

December 31

 

 

0.135

 

 

 

0.135

 

 

Purchases of equity securities by the issuer

The following table presents information regarding the Company’s stock repurchase plan during the three months ended December 31, 2020.

 

 

 

Total Number of

Shares Purchased

 

 

Average Price Paid

per Share

 

 

Total Number of

Shares Purchased as

Part of the Publicly

Announced Plans or

Programs

 

 

Maximum number

of Shares that may

yet be Purchased

Under the Plans or

Programs (1)

 

10/1/2020 to 10/31/2020

 

 

—

 

 

$

—

 

 

 

5,547,665

 

 

 

2,452,335

 

11/1/2020 to 11/30/2020

 

 

—

 

 

 

—

 

 

 

5,547,665

 

 

 

2,452,335

 

12/1/2020 to 12/31/2020

 

 

—

 

 

 

—

 

 

 

5,547,665

 

 

 

2,452,335

 

 

(1)

On July 11, 2013, the Board authorized the repurchase of up to an additional five million shares of the Company’s common stock. This authorization was in addition to the 2011 Board authorized repurchase of up to five million shares. The Company completed the repurchase of approximately 2.0 million shares in 2011 pursuant to Rule 10b5-1 plans, which were adopted pursuant to the 2011 authorized share repurchase.

 

See Item 12 of this Form 10-K for the Equity Compensation Plan Information Table.      

 

 

19

 

 

Comparison of 5 Year Cumulative Total Return

Assumes Initial Investment of $100

December 31, 2020

The chart below compares the Company’s cumulative total shareholder return for the five years ended December 31, 2020, to that of the Standard & Poor’s 500 Index – Total Return and the Russell 2000 Index. In all cases, the information is presented on a dividend-reinvested basis and assumes investment of $100 on December 31, 2015.

 

 

 

2015

 

 

2016

 

 

2017

 

 

2018

 

 

2019

 

 

2020

 

Myers Industries Inc.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annual Return %

 

 

 

 

 

11.74

 

 

 

40.72

 

 

 

(20.39

)

 

 

13.84

 

 

 

29.33

 

Cum $

 

100.00

 

 

 

111.74

 

 

 

157.25

 

 

 

125.19

 

 

 

142.52

 

 

 

184.31

 

S&P 500 Index - Total Return

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annual Return %

 

 

 

 

 

11.96

 

 

 

21.83

 

 

 

(4.38

)

 

 

31.49

 

 

 

18.40

 

Cum $

 

100.00

 

 

 

111.96

 

 

 

136.40

 

 

 

130.42

 

 

 

171.49

 

 

 

203.04

 

Russell 2000 Index

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annual Return %

 

 

 

 

 

21.31

 

 

 

14.65

 

 

 

(11.01

)

 

 

25.52

 

 

 

19.96

 

Cum $

 

100.00

 

 

 

121.31

 

 

 

139.08

 

 

 

123.76

 

 

 

155.35

 

 

 

186.36

 

 

ITEM 6.

Selected Financial Data

 

Not applicable.

20

 

ITEM 7.

Management’s Discussion and Analysis of Results of Operations and Financial Condition

Executive Overview

The Company conducts its business activities in two distinct segments: The Material Handling Segment and the Distribution Segment. The Brazil Business, which was sold in December 2017, is classified as discontinued operations in all periods presented.

The Company designs, manufactures, and markets a variety of plastic and rubber products. The Material Handling Segment manufactures products that range from plastic reusable material handling containers and small parts storage bins to plastic OEM parts, custom plastic products, consumer fuel containers, military water containers as well as ammunition packaging and shipping containers. The Distribution Segment is engaged in the distribution of tools, equipment and supplies used for tire, wheel and under vehicle service on passenger, heavy truck and off-road vehicles, as well as the manufacturing of tire repair and retreading products.

The Company’s results of operations for the year ended December 31, 2020 are discussed below.  However, the Company’s past results of operations may not reflect its future operating trends. In March 2020, the COVID-19 pandemic began to affect the U.S. economy and has created additional uncertainty for the Company’s operations.  Regulatory actions in response to COVID-19 have varied across jurisdictions and have included closure of nonessential businesses. The duration and extent of these measures is unknown, including possible reimplementation of any measures that have been removed or relaxed. Through the date of this report, most of the Company’s businesses are considered essential because they supply food and agricultural, automotive, healthcare, industrial and consumer end markets.  Accordingly, those businesses have continued to operate.  Throughout the year, the Company has experienced temporary closures of certain facilities as a result of the pandemic, including certain manufacturing facilities in the Material Handling Segment and our Distribution business in Central America, in parts of March and April 2020.  Beyond the impact of these temporary closures, some of our businesses have been and may continue to be affected by the broader economic effects from COVID-19 and related regulatory actions, including customer demand for our products.  The Company believes it is well-positioned to manage through this uncertainty as it has a strong balance sheet with sufficient liquidity and borrowing capacity as well as a diverse product offering and customer base.

Results of Operations: 2020 Compared with 2019

Net Sales:

 

(dollars in thousands)

 

Year Ended December 31,

 

 

 

 

 

 

 

 

 

Segment

 

2020

 

 

2019

 

 

Change

 

 

% Change

 

Material Handling

 

$

343,884

 

 

$

356,407

 

 

$

(12,523

)

 

 

(4

)%

Distribution

 

$

166,544

 

 

$

159,349

 

 

$

7,195

 

 

 

5

%

Inter-company elimination

 

$

(59

)

 

$

(58

)

 

$

(1

)

 

 

 

 

Total net sales

 

$

510,369

 

 

$

515,698

 

 

$

(5,329

)

 

 

(1

)%

 

Net sales for the year ended December 31, 2020 were $510.4 million, a decrease of $5.3 million or 1% compared to the prior year. Net sales were negatively impacted by lower volume of $25.5 million, lower pricing of $4.2 million, and the effect of unfavorable currency translation of $0.3 million, which was primarily within the Material Handling Segment. These declines were partially offset by $11.8 million of incremental sales from the Elkhart Plastics acquisition on November 10, 2020 and $12.9 million of incremental sales related to the Tuffy acquisition on August 26, 2019. Elkhart Plastics’ annual sales are approximately $100 million and Tuffy’s annual sales are approximately $20 million.

Net sales in the Material Handling Segment decreased $12.5 million or 4% for the year ended December 31, 2020 compared to the prior year. The decrease in net sales was due to lower volume of $19.8 million, lower pricing of $4.2 million, and the effect of unfavorable currency translation of $0.3 million. The lower volume was primarily due to declines in the vehicle market, food and beverage market and the industrial market and was partially offset by higher volume in the consumer market driven by higher levels of hurricane and wildfire activity.  The lower volumes were primarily the result of the economic impacts of COVID-19 during the first half of the year. This decrease was partially offset by $11.8 million of incremental sales due to the Elkhart Plastics acquisition on November 10, 2020.

Net sales in the Distribution Segment increased $7.2 million or 5% in the year ended December 31, 2020 compared to the prior year, primarily the result of $12.9 million of incremental sales due to the August 26, 2019 Tuffy acquisition partly offset by $5.7 million of lower volume, which occurred primarily as a result of the impacts of COVID-19 on travel patterns and other economic effects in the first half of the year.

21

 

Cost of Sales & Gross Profit:

 

 

 

Year Ended December 31,

 

 

 

 

 

 

 

 

 

(dollars in thousands)

 

2020

 

 

2019

 

 

Change

 

 

% Change

 

Cost of sales

 

$

338,409

 

 

$

344,386

 

 

$

(5,977

)

 

 

(2

)%

Gross profit

 

$

171,960

 

 

$

171,312

 

 

$

648

 

 

 

0

%

Gross profit as a percentage of sales

 

 

33.7

%

 

 

33.2

%

 

 

 

 

 

 

 

 

 

Gross profit margin increased to 33.7% for the year ended December 31, 2020 compared to 33.2% for the same period in 2019, primarily due to lower commodity raw material costs offsetting the effect of lower volumes. Cost of sales in 2019 included a $3.5 million charge for estimated replacement costs of certain defective boxes as discussed in Note 9 to the consolidated financial statements. In the first quarter of 2021, the Company announced an 8 percent price increase in response to rapidly rising raw material costs, primarily resin. This is expected to primarily impact the Material Handling Segment.

 

Selling, General and Administrative Expenses:

 

 

 

Year Ended December 31,

 

 

 

 

 

 

 

 

 

(dollars in thousands)

 

2020

 

 

2019

 

 

Change

 

 

% Change

 

SG&A expenses

 

$

130,331

 

 

$

133,130

 

 

$

(2,799

)

 

 

(2

)%

SG&A expenses as a percentage of sales

 

 

25.5

%

 

 

25.8

%

 

 

 

 

 

 

 

 

 

Selling, general and administrative (“SG&A”) expenses for the year ended December 31, 2020 were $130.3 million, a decrease of $2.8 million or 2% compared to the prior year. SG&A expenses in 2020 included a $2.4 million charge related to executive severance, of which $0.6 million related to stock compensation acceleration. SG&A expenses in 2019 included the reversal of $2.0 million of stock compensation expense related to the forfeiture of stock awards due to the resignation of the CEO in 2019 and $0.9 million of restructuring costs incurred in the prior year related to the implementation of the Distribution Transformation Plan that did not reoccur in 2020. Year-over-year comparisons were also affected by lower charges related to the environmental contingencies of $3.5 million discussed in Note 12, lower travel expenses of $2.3 million, lower freight of $1.3 million, lower depreciation and amortization of $2.9 million and savings from the Distribution Transformation Plan, that were partly offset by $2.0 million of incremental SG&A from the November 10, 2020 Elkhart Plastics acquisition and $2.4 million of incremental SG&A from the August 26, 2019 Tuffy acquisition.

Restructuring:

As discussed in Note 8 to the consolidated financial statements, the Company has implemented various restructuring programs.

In the Material Handling Segment, the Ameri-Kart Plan involves consolidation of two manufacturing facilities into a single new manufacturing facility and is expected to be substantially completed in 2021. In connection with this plan, the Company plans to commence a new facility lease once construction of the new facility is substantially completed, as described in Note 16 to the consolidated financial statements. Although construction has commenced, no restructuring costs were incurred during the years ended December 31, 2020 or 2019 related to the Ameri-Kart Plan. As previously announced, the Company expects annualized benefits of approximately $1.5 million upon completion.

The Distribution Transformation Plan was announced during the first quarter of 2019 and was substantially completed by the end of 2019. No costs were incurred during the year ended December 31, 2020. Restructuring costs of $0.9 million were incurred during the year ended December 31, 2019.

Impairment Charges:

 

During the first quarter of 2019, the Company recognized a $0.9 million impairment charge in connection with classifying a previously closed facility as held for sale, as discussed in Note 4 to the consolidated financial statements. The facility was sold in the second quarter of 2019.

Other (Income) Expenses:

During the year ended December 31, 2020, the Company recorded a pre-tax gain of $11.9 million related to the sale to HC of the fully-reserved promissory notes and related accrued interest receivable in exchange for $1.2 million and the release from a lease guarantee with a carrying value of $10.7 million related to one of HC’s facilities as discussed in Note 6 to the consolidated financial statements.

22

 

Net Interest Expense:

 

 

 

Year Ended December 31,

 

 

 

 

 

 

 

 

 

(dollars in thousands)

 

2020

 

 

2019

 

 

Change

 

 

% Change

 

Net interest expense

 

$

4,688

 

 

$

4,083

 

 

$

605

 

 

 

15

%

Average outstanding borrowings, net

 

$

78,000

 

 

$

78,000

 

 

$

—

 

 

 

0

%

Weighted-average borrowing rate

 

 

6.28

%

 

 

6.27

%

 

 

 

 

 

 

 

 

 

Net interest expense for the year ended December 31, 2020 was $4.7 million compared to $4.1 million during 2019. The higher net interest expense was due primarily to lower interest income in the current year.

Income Taxes:

 

 

 

Year Ended December 31,

 

(dollars in thousands)

 

2020

 

 

2019

 

Income from continuing operations before income taxes

 

$

48,862

 

 

$

33,183

 

Income tax expense

 

$

12,093

 

 

$

8,968

 

Effective tax rate

 

 

24.7

%

 

 

27.0

%

 

The effective tax rate was 24.7% for the year ended December 31, 2020 compared to 27.0% in the prior year. The decrease in the effective tax rate was primarily the result of lower non-deductible expenses and the reduction of an unrecognized tax benefit due to a lapse in the related statute of limitations.

Financial Condition & Liquidity and Capital Resources

The Company’s primary sources of liquidity are cash on hand, cash generated from operations and availability under the Loan Agreement (defined below). At December 31, 2020, the Company had $28.3 million of cash, $194.2 million available under the Loan Agreement and outstanding debt with face value of $78.0 million. Based on this liquidity and borrowing capacity, the Company believes it is well-positioned to manage through the uncertainty caused by COVID-19. The Company believes that cash on hand, cash flows from operations and available capacity under its Amended Loan Agreement will be sufficient to meet expected business requirements including capital expenditures, dividends, working capital, debt service, and to fund future growth, including selective acquisitions.

Operating Activities

Cash provided by operating activities from continuing operations was $46.5 million and $47.0 million for the years ended December 31, 2020 and 2019, respectively. The decrease in cash provided by continuing operations of $0.5 million during the year ended December 31, 2020 compared to 2019 was primarily due to lower net sales in the first half of 2020, partly offset by higher volume of sales in the second half of 2020 due to hurricane and wildfire activity and its effects on working capital, particularly on increases in accounts receivable and inventory balances as of December 31, 2020.

Net cash provided by operating activities of discontinued operations was $7.3 million in 2019 and resulted from the remaining receipt of the tax benefit from the worthless stock deduction related to the sale of the Brazil Business in 2017.

Investing Activities

Net cash used by investing activities of continuing operations was $75.6 million for the year ended December 31, 2020 compared to cash used of $20.8 million for the year ended December 31, 2019. In 2020, the Company paid $62.6 million to acquire Elkhart Plastics, paid the working capital adjustment of $0.7 million related to the 2019 acquisition of Tuffy and received proceeds from the sale of notes receivable of $1.2 million. In 2019, the Company paid $18.0 million to acquire Tuffy and received proceeds from the sale of fixed assets of $7.5 million, substantially all of which related to the sale of two buildings. Capital expenditures were $13.4 million and $10.3 million for the years ended December 31, 2020 and 2019, respectively. See Notes 3, 4 and 6 to the consolidated financial statements for further discussion of these items.

Financing Activities

The Company used cash to pay dividends of $19.4 million and $19.3 million in 2020 and 2019, respectively. Other proceeds from the issuance of common stock relate primarily to exercises of stock options issued under the stock incentive plans as described in Note 10 to the consolidated financial statements.

23

 

Credit Sources

In March 2017, the Company entered into a Fifth Amended and Restated Loan Agreement (the “Loan Agreement”).  The Loan Agreement amended the pre-existing senior revolving credit facility’s borrowing limit to $200 million, inclusive of letters of credit, and extended the maturity date from December 2018 to March 2022. As of December 31, 2020, the Company had $194.2 million available under the Loan Agreement after $5.8 million of letters of credit issued related to insurance and other financing contracts in the ordinary course of business, including the $2 million provided to the EPA as discussed in Note 12 to the consolidated financial statements. Borrowings under the Loan Agreement bear interest at the LIBOR rate, prime rate, federal funds effective rate, the Canadian deposit offered rate, or the euro currency reference rate depending on the type of loan requested by the Company, plus the applicable margin as set forth in the Loan Agreement.

At December 31, 2020, $78 million face value of Senior Unsecured Notes are outstanding. The series of four notes range in face value from $11 million to $40 million, with interest rates ranging from 4.67% to 5.45%, payable semiannually, and maturing between January 15, 2021 and 2026. The $40 million note of these Senior Unsecured Notes matured January 15, 2021. In January 2021, the Company repaid the $40 million note using cash on hand and borrowing under the Loan Agreement. See further detail in Note 13 to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K.

As of December 31, 2020, the Company was in compliance with all of its debt covenants. The most restrictive financial covenants for all of the Company’s debt are an interest coverage ratio (defined as earnings before interest, taxes, depreciation and amortization, as adjusted, divided by interest expense) and a leverage ratio (defined as total debt divided by earnings before interest, taxes, depreciation and amortization, as adjusted). The ratios as of and for the period ended December 31, 2020 are:

 

 

 

Required Level

 

Actual Level

 

Interest Coverage Ratio

 

3.00 to 1 (minimum)

 

 

15.38

 

Leverage Ratio

 

3.25 to 1 (maximum)

 

 

1.11

 

 

Critical Accounting Policies and Estimates

The discussion and analysis of the Company’s financial condition and results of operations are based on the accompanying consolidated financial statements, which are prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). As indicated in the Summary of Significant Accounting Policies included in the Notes to Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K, the amount of assets, liabilities, revenue and expenses reported are affected by estimates and judgments that are necessary to comply with U.S. GAAP. The Company bases its estimates on prior experience and other assumptions that they consider reasonable to their circumstances. The Company believes the following matters may involve a high degree of judgment and complexity.

Contingencies — In the ordinary course of business, the Company is involved in various legal proceedings and contingencies. When a loss arising from these matters is probable and can reasonably be estimated, the most likely amount of the estimated probable loss is recorded, or if a range of probable loss can be estimated and no amount within the range is a better estimate than any other amount, the minimum amount in the range is recorded. Disclosure of contingent losses is also provided when there is a reasonable possibility that the ultimate loss could exceed the recorded provision or if such probable loss cannot be reasonably estimated.  As additional information becomes available, any potential liability related to these contingent matters is assessed and the estimates are revised, if necessary. The actual resolution of these contingencies may differ from these estimates, and it is possible that future earnings could be affected by changes in estimated outcomes of these contingencies. If a contingency were settled for an amount greater than our estimate, a future charge to income would result. Likewise, if a contingency were settled for an amount that is less than our estimate, a future credit to income would result. See disclosure of contingencies in Note 12 to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K.

Income Taxes — In the ordinary course of business there is inherent uncertainty in quantifying certain income tax positions. The Company evaluates uncertain tax positions for all years subject to examination based upon management’s evaluations of the facts, circumstances and information available at the reporting date. Income tax positions must meet a more-likely-than-not recognition threshold at the reporting date to be recognized. The Company recognizes potential accrued interest and penalties related to unrecognized tax benefits as a component of income tax expense.

24

 

As discussed further in Notes 6 and 14 to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K, the Company made judgements for tax positions in connection with its December 2017 divestiture of its Brazil Business. In connection with this divestiture, the Company incurred a capital loss of $9.5 million on its investment in the Myers do Brazil business and recorded a deferred tax asset of $2.0 million for this capital loss carryforward. A valuation allowance of $2.0 million is recorded against this deferred tax asset as the recovery of the asset is not more likely than not. The Company also recorded tax benefits within its discontinued operations of approximately $14.3 million through 2018 that were generated as a result of a worthless stock deduction for the Novel do Nordeste business included in this divestiture. Although management believes that the worthless stock deduction is valid, there can be no assurance that the 2017 IRS audit will not challenge it and, if challenged, that the Company will prevail.

Business Combinations – The Company uses the acquisition method of accounting to allocate costs of acquired businesses to the assets acquired and liabilities assumed based on their estimated fair values at the dates of acquisition. The excess costs of acquired businesses over the fair values of the assets acquired and liabilities assumed are recognized as goodwill. The valuations of the acquired assets and liabilities will impact the determination of future operating results. Determining the fair value of assets acquired and liabilities assumed requires management’s judgment and often involves the use of significant estimates and assumptions, including assumptions with respect to future cash inflows and outflows, revenue growth rates, discount rates, customer attrition rates, royalty rates, asset lives, contributory asset charges, and market multiples, among other items. The Company determines the fair values of intangible assets acquired generally in consultation with third-party valuation advisors. See disclosure of acquisitions in Note 3 to the consolidated financial statements included in Item 8 of this Annual Report on Form 10-K.

Recent Accounting Pronouncements

Information regarding the recent accounting pronouncements is contained in the Summary of Significant Accounting Policies footnote of the Notes to Consolidated Financial Statements included in Item 8 of this Annual Report on Form 10-K.

 

 

25

 

 

ITEM 7A.

Quantitative and Qualitative Disclosures About Market Risk

Market Risk and Derivative Financial Instruments

Interest Rate Risk

The Company has certain financing arrangements that require interest payments based on floating interest rates. The Company’s financial results are subject to changes in the market rate of interest. At present, the Company has not entered into any interest rate swaps or other derivative instruments to fix the interest rate on any portion of its financing arrangements with floating rates. As of December 31, 2020, the Company has no borrowings outstanding under its floating rate debt.

Foreign Currency Exchange Risk

Some of the Company’s subsidiaries operate in foreign countries and their financial results are subject to exchange rate movements. The Company has operations in Canada with foreign currency exposure, primarily due to sales made from businesses in Canada to customers in the United States (“U.S.”). These sales are denominated in U.S. dollars. The Company has a systematic program to limit its exposure to fluctuations in exchange rates related to certain assets and liabilities of its operations in Canada that are denominated in U.S. dollars. The net exposure generally is less than $1 million. The foreign currency contracts and arrangements created under this program are not designated as hedged items under Financial Accounting Standards Board (“FASB”) Accounting Standard Codification (“ASC”) 815, Derivatives and Hedging, and accordingly, the changes in the fair value of the foreign currency arrangements, which have been immaterial, are recorded in the Consolidated Statement of Operations. The Company’s foreign currency arrangements are typically three months or less and are settled before the end of a reporting period. At December 31, 2020, the Company had no foreign currency arrangements or contracts in place.

Commodity Price Risk

The Company uses certain commodities, primarily plastic resins and natural rubber, in its manufacturing processes. The cost of operations can be affected as the market for these commodities changes. The Company currently has no derivative contracts to hedge this risk; however, the Company also has no significant obligations to purchase fixed quantities of such commodities in future periods. Significant future increases in the cost of these commodities or other adverse changes in the general economic environment could have a material adverse impact on the Company’s financial position, results of operations or cash flows.

 

 

 

26

 

 

ITEM 8.

Financial Statements and Supplementary Data

Report of Independent Registered Public Accounting Firm

To the Shareholders and the Board of Directors of Myers Industries, Inc. and Subsidiaries

Opinion on the Financial Statements

We have audited the accompanying consolidated statements of financial position of Myers Industries, Inc. and Subsidiaries (the Company) as of December 31, 2020 and 2019, and the related consolidated statements of operations, comprehensive income (loss), shareholders' equity and cash flows for each of the three years in the period ended December 31, 2020, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Company at December 31, 2020 and 2019, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2020, in conformity with U.S. generally accepted accounting principles.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated March 11, 2021 expressed an unqualified opinion thereon.

Basis for Opinion

These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.

Critical Audit Matters

The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.

 

 

 

New Idria Mercury Mine (New Idria Mine) Environmental Liability

Description of the matter

 

As discussed in Note 12 of the consolidated financial statements, in 2015, the U.S. Environmental Protection Agency (“EPA”) informed a subsidiary of the Company, that it considers it to be a potentially responsible party (“PRP”) in connection with the New Idria Mine. At December 31, 2020, the Company has recorded liabilities of $7.2 million for the estimated cost to execute the Remedial Investigation/Feasibility Study (“RI/FS”) work plan provided by the EPA associated with the New Idria mine. The Company has not accrued for remediation costs associated with this site because the amount of such costs or a range of possible costs cannot be reasonably estimated at this time. The Company believes it has insurance coverage that applies to the New Idria Mine, which could offset a portion of these costs. As of December 31, 2020, the Company has not recognized potential recovery in its consolidated financial statements.

 

Auditing the determination of the amount of the environmental liability involved a high degree of subjectivity as estimates performed by the Company’s consultants that impact the determination of the environmental liability were based on assumptions unique to the affected site and subject to various laws and regulations governing the protection of the applicable environment.

27

 

How we addressed the matter in our audit

 

We obtained an understanding, evaluated the design and tested the operating effectiveness of the Company’s controls over the determination of the New Idria Mine environmental liability. Our audit procedures included, among others, testing controls over management’s review of the estimated costs to perform the RI/FS, past claims costs provided by the EPA, and management’s controls over the completeness and accuracy of the calculated environmental liability.

 

To test the environmental liability, we performed audit procedures that included, among others, assessing methodologies used by the Company and testing the significant assumptions discussed above, as well as the underlying costs and other estimates used by the Company in its development of these assumptions. For example, we, with the assistance of our environmental specialists, compared the significant assumptions used by management to historical data and trends, including historical costs for work previously completed by the EPA and trends for cost of RI/FS work performed in similar areas for similar sized sites, as well as notifications or decisions from regulatory agencies.  In addition, we evaluated management’s third-party consultants who assisted with the development of these assumptions.  Our audit procedures also included making inquiries of internal general counsel, obtaining internal general counsel’s representation, and obtaining letters from external counsel associated with the New Idria Mine.  We assessed the adequacy of the disclosures in the consolidated financial statements related to the New Idria Mine.

 

 

Valuation of Intangible Assets for Elkhart Acquisition

Description of the matter

 

As described in Note 3 of the consolidated financial statements, during 2020, the Company completed the acquisition of certain assets and liabilities of Elkhart Plastics (“Elkhart”) for total purchase consideration of approximately $64.2 million. The acquisition was accounted for under the acquisition method of accounting and accordingly tangible and intangible assets acquired and liabilities assumed were recorded based on the respective estimated fair values.

 

Auditing the Company's accounting for its acquisition of Elkhart was complex due to the significant estimation required by management to determine the fair value of intangible assets, primarily related to trade names and customer relationships of $5.8 million and $10.2 million, respectively. The significant estimation was primarily due to the subjectivity of assumptions used by management to measure the fair value of the intangible assets and the sensitivity of the respective fair values to the significant underlying assumptions. The Company used a discounted cash flow model to measure the intangible assets acquired. The significant assumptions used to estimate the value of the intangible assets included discount rates and certain assumptions that form the basis of the forecasted results (e.g., revenue growth rates, royalty rates, and customer attrition rates). These significant assumptions are forward looking and could be affected by future economic and market conditions.

 

How we addressed the matter in our audit

 

We obtained an understanding, evaluated the design and tested the operating effectiveness of controls over the Company’s accounting for the recognition and measurement of the intangible assets. This included testing controls over management’s review of the fair value methodology and significant assumptions used to develop the estimates of fair value for those intangible assets.

To test the estimated fair values of the acquired intangible assets, our audit procedures included, among others, assessing the appropriateness of the valuation methodology and testing the significant assumptions discussed above and the underlying data used by the Company. We involved our valuation specialists in assessing the fair value methodology applied and evaluating certain significant assumptions. When evaluating the significant assumptions used to determine the fair value of the acquired intangible assets, we performed sensitivity analyses over assumptions used and compared the assumptions to the past performance of Elkhart, peer companies within the industry, market data and expected industry trends. We also assessed the appropriateness of the disclosures in the consolidated financial statements related to the acquisition.

/s/ Ernst & Young LLP

 

We have served as the Company’s auditor since 2011.

 

Akron, Ohio

March 11, 2021

28

 

 

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Consolidated Statements of Operations

For the Years Ended December 31, 2020, 2019, and 2018

(Dollars in thousands, except per share data)

 

 

For the Year Ended December 31,

 

 

2020

 

 

2019

 

 

2018

 

Net sales

$

510,369

 

 

$

515,698

 

 

$

566,735

 

Cost of sales

 

338,409

 

 

 

344,386

 

 

 

387,442

 

Gross profit

 

171,960

 

 

 

171,312

 

 

 

179,293

 

Selling expenses

 

56,322

 

 

 

56,350

 

 

 

59,503

 

General and administrative expenses

 

74,009

 

 

 

76,780

 

 

 

79,832

 

 

 

130,331

 

 

 

133,130

 

 

 

139,335

 

(Gain) loss on disposal of fixed assets

 

3

 

 

 

—

 

 

 

(8

)

Impairment charges

 

—

 

 

 

916

 

 

 

308

 

Other (income) expenses

 

(11,924

)

 

 

—

 

 

 

33,331

 

Operating income

 

53,550

 

 

 

37,266

 

 

 

6,327

 

Interest income

 

(209

)

 

 

(808

)

 

 

(1,221

)

Interest expense

 

4,897

 

 

 

4,891

 

 

 

6,159

 

Interest expense, net

 

4,688

 

 

 

4,083

 

 

 

4,938

 

Income from continuing operations before income taxes

 

48,862

 

 

 

33,183

 

 

 

1,389

 

Income tax expense

 

12,093

 

 

 

8,968

 

 

 

3,037

 

Income (loss) from continuing operations

 

36,769

 

 

 

24,215

 

 

 

(1,648

)

Income (loss) from discontinued operations, net of income tax

 

—

 

 

 

118

 

 

 

(1,701

)

Net income (loss)

$

36,769

 

 

$

24,333

 

 

$

(3,349

)

Income (loss) per common share from continuing operations:

 

 

 

 

 

 

 

 

 

 

 

Basic

$

1.03

 

 

$

0.68

 

 

$

(0.05

)

Diluted

$

1.02

 

 

$

0.68

 

 

$

(0.05

)

Income (loss) per common share from discontinued operations:

 

 

 

 

 

 

 

 

 

 

 

Basic

$

—

 

 

$

—

 

 

$

(0.05

)

Diluted

$

—

 

 

$

—

 

 

$

(0.05

)

Net income (loss) per common share:

 

 

 

 

 

 

 

 

 

 

 

Basic

$

1.03

 

 

$

0.68

 

 

$

(0.10

)

Diluted

$

1.02

 

 

$

0.68

 

 

$

(0.10

)

Dividends declared per share

$

0.54

 

 

$

0.54

 

 

$

0.54

 

 

The accompanying notes are an integral part of these statements.

 

 

29

 

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Consolidated Statements of Comprehensive Income (Loss)

For the Years Ended December 31, 2020, 2019, and 2018

(Dollars in thousands)

 

 

 

For the Year Ended December 31,

 

 

 

2020

 

 

2019

 

 

2018

 

Net income (loss)

 

$

36,769

 

 

$

24,333

 

 

$

(3,349

)

Other comprehensive income (loss):

 

 

 

 

 

 

 

 

 

 

 

 

Adoption of ASU 2018-02

 

 

—

 

 

 

—

 

 

 

(315

)

Foreign currency translation adjustment

 

 

628

 

 

 

1,649

 

 

 

(3,501

)

Pension liability, net of tax expense (benefit) of ($18), $94 and $25, respectively

 

 

(52

)

 

 

282

 

 

 

77

 

Total other comprehensive income (loss)

 

 

576

 

 

 

1,931

 

 

 

(3,739

)

Comprehensive income (loss)

 

$

37,345

 

 

$

26,264

 

 

$

(7,088

)

 

The accompanying notes are an integral part of these statements.

 

30

 

 

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Consolidated Statements of Financial Position

As of December 31, 2020 and 2019

(Dollars in thousands)

 

 

 

December 31,

 

 

December 31,

 

 

 

2020

 

 

2019

 

Assets

 

 

 

 

 

 

 

 

Current Assets

 

 

 

 

 

 

 

 

Cash

 

$

28,301

 

 

$

75,527

 

Accounts receivable, less allowances of $3,278 and $1,945, respectively

 

 

83,701

 

 

 

62,279

 

Income tax receivable

 

 

1,049

 

 

 

142

 

Inventories, net

 

 

65,919

 

 

 

44,260

 

Prepaid expenses and other current assets

 

 

4,760

 

 

 

2,834

 

Total Current Assets

 

 

183,730

 

 

 

185,042

 

Property, plant, and equipment, net

 

 

73,953

 

 

 

54,964

 

Right of use asset - operating leases

 

 

18,390

 

 

 

5,901

 

Goodwill

 

 

79,256

 

 

 

66,774

 

Intangible assets, net

 

 

41,038

 

 

 

30,754

 

Deferred income taxes

 

 

84

 

 

 

5,807

 

Other

 

 

3,564

 

 

 

3,897

 

Total Assets

 

$

400,015

 

 

$

353,139

 

 

 

 

 

 

 

 

 

 

Liabilities and Shareholders’ Equity

 

 

 

 

 

 

 

 

Current Liabilities

 

 

 

 

 

 

 

 

Accounts payable

 

$

61,150

 

 

$

46,867

 

Accrued employee compensation

 

 

14,499

 

 

 

12,488

 

Accrued taxes payable, other than income taxes

 

 

2,524

 

 

 

1,104

 

Accrued interest

 

 

1,785

 

 

 

1,785

 

Other current liabilities

 

 

17,936

 

 

 

18,324

 

Operating lease liability - short-term

 

 

4,359

 

 

 

2,057

 

Long-term debt - current portion

 

 

39,994

 

 

 

—

 

Total Current Liabilities

 

 

142,247

 

 

 

82,625

 

Long-term debt

 

 

37,582

 

 

 

77,176

 

Operating lease liability - long-term

 

 

13,755

 

 

 

4,074

 

Other liabilities

 

 

14,373

 

 

 

22,582

 

Deferred income taxes

 

 

2,958

 

 

 

—

 

Commitments and contingencies

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shareholders’ Equity

 

 

 

 

 

 

 

 

Serial Preferred Shares (authorized 1,000,000 shares; none issued and outstanding)

 

 

—

 

 

 

—

 

Common Shares, without par value (authorized 60,000,000 shares;

   outstanding 35,921,025 and 35,710,934; net of treasury shares

   of 6,631,432 and 6,841,523, respectively)

 

 

21,939

 

 

 

21,785

 

Additional paid-in capital

 

 

300,852

 

 

 

296,363

 

Accumulated other comprehensive loss

 

 

(15,773

)

 

 

(16,349

)

Retained deficit

 

 

(117,918

)

 

 

(135,117

)

Total Shareholders’ Equity

 

 

189,100

 

 

 

166,682

 

Total Liabilities and Shareholders’ Equity

 

$

400,015

 

 

$

353,139

 

 

The accompanying notes are an integral part of these statements.

 

31

 

 

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Consolidated Statements of Shareholders’ Equity

For the Years Ended December 31, 2020, 2019 and 2018

(Dollars in thousands, except per share data)

 

 

 

Common Shares

 

 

Additional

Paid-In

 

 

Accumulated

Other

Comprehensive

 

 

Retained

 

 

Total

Shareholders'

 

 

 

Number

 

 

Amount

 

 

Capital

 

 

Income (Loss)

 

 

Deficit

 

 

Equity

 

Balance at January 1, 2018

 

 

30,495,737

 

 

$

18,547

 

 

$

209,253

 

 

$

(14,541

)

 

$

(119,507

)

 

$

93,752

 

Net loss

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(3,349

)

 

 

(3,349

)

Adoption of ASU 2018-02

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(315

)

 

 

315

 

 

 

—

 

Issuances under option plans

 

 

191,169

 

 

 

117

 

 

 

2,618

 

 

 

—

 

 

 

—

 

 

 

2,735

 

Dividend reinvestment plan

 

 

5,712

 

 

 

4

 

 

 

114

 

 

 

—

 

 

 

—

 

 

 

118

 

Restricted stock vested

 

 

120,142

 

 

 

73

 

 

 

(73

)

 

 

—

 

 

 

—

 

 

 

—

 

Stock compensation expense

 

 

—

 

 

 

—

 

 

 

4,644

 

 

 

—

 

 

 

—

 

 

 

4,644

 

Shares withheld for employee taxes on

   equity awards

 

 

(38,639

)

 

 

—

 

 

 

(714

)

 

 

—

 

 

 

—

 

 

 

(714

)

Foreign currency translation adjustment

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(3,501

)

 

 

—

 

 

 

(3,501

)

Declared dividends - $0.54 per share

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(18,646

)

 

 

(18,646

)

Pension liability, net of tax of $25

 

 

—

 

 

 

—

 

 

 

—

 

 

 

77

 

 

 

—

 

 

 

77

 

Shares issued in public offering, net of

   equity issuance costs

 

 

4,600,000

 

 

 

2,806

 

 

 

76,716

 

 

 

—

 

 

 

—

 

 

 

79,522

 

Balance at December 31, 2018

 

 

35,374,121

 

 

 

21,547

 

 

 

292,558

 

 

 

(18,280

)

 

 

(141,187

)

 

 

154,638

 

Net income

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

24,333

 

 

 

24,333

 

Adoption of ASU 2016-02

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

905

 

 

 

905

 

Issuances under option plans

 

 

240,499

 

 

 

146

 

 

 

3,061

 

 

 

—

 

 

 

—

 

 

 

3,207

 

Dividend reinvestment plan

 

 

7,619

 

 

 

5

 

 

 

124

 

 

 

—

 

 

 

—

 

 

 

129

 

Restricted stock vested

 

 

142,580

 

 

 

87

 

 

 

(87

)

 

 

—

 

 

 

—

 

 

 

—

 

Stock compensation expense

 

 

—

 

 

 

—

 

 

 

1,715

 

 

 

—

 

 

 

—

 

 

 

1,715

 

Shares withheld for employee taxes on

   equity awards

 

 

(53,885

)

 

 

—

 

 

 

(1,008

)

 

 

—

 

 

 

—

 

 

 

(1,008

)

Foreign currency translation adjustment

 

 

—

 

 

 

—

 

 

 

—

 

 

 

1,649

 

 

 

—

 

 

 

1,649

 

Declared dividends - $0.54 per share

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(19,168

)

 

 

(19,168

)

Pension liability, net of tax of $94

 

 

—

 

 

 

—

 

 

 

—

 

 

 

282

 

 

 

—

 

 

 

282

 

Balance at December 31, 2019

 

 

35,710,934

 

 

 

21,785

 

 

 

296,363

 

 

 

(16,349

)

 

 

(135,117

)

 

 

166,682

 

Net income

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

36,769

 

 

 

36,769

 

Issuances under option plans

 

 

127,049

 

 

 

77

 

 

 

1,554

 

 

 

—

 

 

 

—

 

 

 

1,631

 

Dividend reinvestment plan

 

 

7,668

 

 

 

5

 

 

 

96

 

 

 

—

 

 

 

—

 

 

 

101

 

Restricted stock vested

 

 

118,686

 

 

 

72

 

 

 

(72

)

 

 

—

 

 

 

—

 

 

 

—

 

Stock compensation expense

 

 

—

 

 

 

—

 

 

 

3,534

 

 

 

—

 

 

 

—

 

 

 

3,534

 

Shares withheld for employee taxes on

   equity awards

 

 

(43,312

)

 

 

—

 

 

 

(623

)

 

 

—

 

 

 

—

 

 

 

(623

)

Foreign currency translation adjustment

 

 

—

 

 

 

—

 

 

 

—

 

 

 

628

 

 

 

—

 

 

 

628

 

Declared dividends - $0.54 per share

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(19,570

)

 

 

(19,570

)

Pension liability, net of tax of ($18)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(52

)

 

 

—

 

 

 

(52

)

Balance at December 31, 2020

 

 

35,921,025

 

 

$

21,939

 

 

$

300,852

 

 

$

(15,773

)

 

$

(117,918

)

 

$

189,100

 

 

The accompanying notes are an integral part of these statements.

 

 

32

 

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Consolidated Statements of Cash Flows

For the Years Ended December 31, 2020, 2019 and 2018

(Dollars in thousands)

 

 

 

For the Year Ended December 31,

 

 

 

2020

 

 

2019

 

 

2018

 

Cash Flows From Operating Activities

 

 

 

 

 

 

 

 

 

 

 

 

Net income (loss)

 

$

36,769

 

 

$

24,333

 

 

$

(3,349

)

Income (loss) from discontinued operations, net of income taxes

 

 

—

 

 

 

118

 

 

 

(1,701

)

Income (loss) from continuing operations

 

 

36,769

 

 

 

24,215

 

 

 

(1,648

)

Adjustments to reconcile income (loss) from continuing operations to net cash

   provided by (used for) operating activities

 

 

 

 

 

 

 

 

 

 

 

 

Depreciation

 

 

14,257

 

 

 

15,120

 

 

 

17,638

 

Amortization

 

 

6,673

 

 

 

8,463

 

 

 

8,485

 

Accelerated depreciation associated with restructuring activities

 

 

—

 

 

 

—

 

 

 

16

 

Non-cash stock-based compensation expense

 

 

3,534

 

 

 

1,715

 

 

 

4,257

 

Loss (gain) on disposal of fixed assets

 

 

3

 

 

 

—

 

 

 

(8

)

Gain on sale of notes receivable

 

 

(11,924

)

 

 

—

 

 

 

—

 

Provision for loss on notes receivable

 

 

—

 

 

 

—

 

 

 

23,008

 

Lease guarantee contingency

 

 

—

 

 

 

—

 

 

 

10,323

 

Deferred taxes

 

 

8,732

 

 

 

(922

)

 

 

(9,450

)

Interest income accrued on note receivable

 

 

—

 

 

 

—

 

 

 

(361

)

Impairment charges

 

 

—

 

 

 

916

 

 

 

308

 

Other

 

 

1,421

 

 

 

583

 

 

 

457

 

Payments on long-term performance based compensation

 

 

—

 

 

 

(413

)

 

 

(1,249

)

Other long-term liabilities

 

 

2,804

 

 

 

3,578

 

 

 

180

 

Cash flows provided by (used for) working capital

 

 

 

 

 

 

 

 

 

 

 

 

Accounts receivable

 

 

(11,589

)

 

 

12,479

 

 

 

4,927

 

Inventories

 

 

(7,868

)

 

 

2,222

 

 

 

3,151

 

Prepaid expenses and other current assets

 

 

(969

)

 

 

(243

)

 

 

(353

)

Accounts payable and accrued expenses

 

 

4,664

 

 

 

(20,687

)

 

 

713

 

Net cash provided by (used for) operating activities - continuing operations

 

 

46,507

 

 

 

47,026

 

 

 

60,394

 

Net cash provided by (used for) operating activities - discontinued operations

 

 

—

 

 

 

7,297

 

 

 

858

 

Net cash provided by (used for) operating activities

 

 

46,507

 

 

 

54,323

 

 

 

61,252

 

Cash Flows From Investing Activities

 

 

 

 

 

 

 

 

 

 

 

 

Capital expenditures

 

 

(13,421

)

 

 

(10,294

)

 

 

(5,123

)

Acquisition of business

 

 

(63,334

)

 

 

(18,000

)

 

 

—

 

Proceeds from sale of property, plant and equipment

 

 

2

 

 

 

7,537

 

 

 

2,633

 

Proceeds on sale of notes receivable

 

 

1,200

 

 

 

—

 

 

 

—

 

Net cash provided by (used for) investing activities - continuing operations

 

 

(75,553

)

 

 

(20,757

)

 

 

(2,490

)

Net cash provided by (used for) investing activities - discontinued operations

 

 

—

 

 

 

—

 

 

 

—

 

Net cash provided by (used for) investing activities

 

 

(75,553

)

 

 

(20,757

)

 

 

(2,490

)

Cash Flows From Financing Activities

 

 

 

 

 

 

 

 

 

 

 

 

Net repayments of credit facility

 

 

—

 

 

 

—

 

 

 

(74,557

)

Cash dividends paid

 

 

(19,425

)

 

 

(19,316

)

 

 

(17,862

)

Proceeds from issuance of common stock

 

 

1,732

 

 

 

3,336

 

 

 

2,853

 

Proceeds from public offering of common stock, net of equity issuance costs

 

 

—

 

 

 

—

 

 

 

79,522

 

Shares withheld for employee taxes on equity awards

 

 

(623

)

 

 

(1,008

)

 

 

(714

)

Net cash provided by (used for) financing activities - continuing operations

 

 

(18,316

)

 

 

(16,988

)

 

 

(10,758

)

Net cash provided by (used for) financing activities - discontinued operations

 

 

—

 

 

 

—

 

 

 

—

 

Net cash provided by (used for) financing activities

 

 

(18,316

)

 

 

(16,988

)

 

 

(10,758

)

Foreign exchange rate effect on cash

 

 

136

 

 

 

55

 

 

 

(289

)

Net (decrease) increase in cash

 

 

(47,226

)

 

 

16,633

 

 

 

47,715

 

Cash and restricted cash at January 1

 

 

75,527

 

 

 

58,894

 

 

 

11,179

 

Cash and restricted cash at December 31

 

$

28,301

 

 

$

75,527

 

 

$

58,894

 

Supplemental Disclosures of Cash Flow Information

 

 

 

 

 

 

 

 

 

 

 

 

Cash paid during the year for:

 

 

 

 

 

 

 

 

 

 

 

 

Interest

 

$

4,505

 

 

$

4,657

 

 

$

6,236

 

Income taxes

 

$

5,355

 

 

$

11,437

 

 

$

5,539

 

 

The accompanying notes are an integral part of these statements.

 

 

33

 

 

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements

(Dollars in thousands, except where otherwise indicated)

1.  Summary of Significant Accounting Policies

Basis of Presentation

The consolidated financial statements include the accounts of Myers Industries, Inc. and all wholly owned subsidiaries (collectively, the “Company”). All intercompany accounts and transactions have been eliminated in consolidation. All subsidiaries that are not wholly owned and are not included in the consolidated operating results of the Company are immaterial investments which have been accounted for under the equity or cost method. The preparation of financial statements in conformity with U.S. generally accepted accounting principles (“GAAP”) requires management to make estimates and assumptions that affect the timing and amount of assets, liabilities, equity, revenues, and expenses recorded and disclosed. Actual results could differ from those estimates.

During the fourth quarter of 2017, the Company completed the sale of certain subsidiaries in Brazil. As further discussed in Note 6, the results of operations and cash flows of these subsidiaries have been classified as discontinued operations in the consolidated financial statements for all periods presented.

Accounting Standards Adopted

In March 2020, the FASB issued ASU 2020-04, Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting. This ASU provides optional guidance for a limited period of time to ease the potential burden in accounting for (or recognizing the effects of) reference rate reform on financial reporting due to the cessation of the London Interbank Offered Rate (“LIBOR”). The amendments in this update are effective for the Company as of March 12, 2020 through December 31, 2022. The Company adopted this standard effective March 12, 2020. The adoption of this standard had no effect on the year ended December 31, 2020, and its future impact will depend on the manner in which the Company and its lenders ultimately address the removal of LIBOR as it relates to the Loan Agreement described in Note 13.

In August 2018, the FASB issued ASU 2018-15, Intangibles – Goodwill and Other – Internal-Use Software (Subtopic 350-40). This ASU aligns the requirements for capitalizing implementation costs incurred in a hosting arrangement that is a service contract with the requirements for capitalizing implementation costs incurred to develop or obtain internal-use software (and hosting arrangements that include an internal-use software license). The Company adopted this standard effective January 1, 2020 and the adoption of this standard did not have a material impact on its consolidated financial statements.

In August 2018, the FASB issued ASU 2018-14, Compensation – Retirement Benefits – Defined Benefit Plans – General (Subtopic 715-20). This ASU modifies the disclosure requirements for employers that sponsor defined benefit pension or other postretirement plans. For the Company, the ASU is effective retrospectively beginning with the 2020 annual financial statements, but is not applicable to its interim financial statements. The Company adopted this standard effective January 1, 2020 and the adoption of this standard did not have a material impact on its annual consolidated financial statements.

In August 2018, the FASB issued ASU 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework – Changes to the Disclosure Requirements for Fair Value Measurement. This ASU modifies the disclosure requirements on fair value measurements by removing, modifying, or adding certain disclosures. Certain disclosures in this ASU are required to be applied on a retrospective basis and others on a prospective basis. The Company adopted this standard effective January 1, 2020 and the adoption of this standard did not have a material impact on its consolidated financial statements.

In January 2017, the FASB issued ASU 2017-04, Intangibles - Goodwill and Other (Topic 350) - Simplifying the Test for Goodwill Impairment.  This ASU eliminates Step 2 of the goodwill impairment test and requires goodwill impairment to be measured as the amount by which a reporting unit’s carrying amount exceeds its fair value, not to exceed the carrying amount of its goodwill. The Company adopted this standard effective January 1, 2020 and the adoption of this standard did not have a material impact on its consolidated financial statements.

In June 2016, the FASB issued ASU 2016-13, Financial Instruments – Credit Losses: Measurement of Credit Losses on Financial Instruments, which introduces new guidance for the accounting for credit losses on instruments.  The new guidance introduces an approach based on expected losses to estimate credit losses on certain types of financial instruments. The Company adopted the new guidance effective January 1, 2020. Adoption of the new standard resulted in changes to the Company’s accounting policy and disclosures related to its allowance for expected credit losses for accounts receivable. The impact of adopting this standard on its consolidated financial statements was not material and no cumulative transition adjustment was required.

34

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

Accounting Standards Not Yet Adopted

In December 2019, the FASB issued ASU 2019-12, Income Taxes (Topic 740): Simplifying the Accounting for Income Taxes. This ASU is intended to simplify the accounting for income taxes by removing certain exceptions to the general principles in Topic 740 and by clarifying and amending existing guidance to improve consistent application. For the Company, this ASU is effective beginning with the first quarter of 2021. Early adoption is permitted. Certain amendments within this ASU are required to be applied on a retrospective basis, certain other amendments are required to be applied on a modified retrospective basis and all other amendments on a prospective basis. Adoption of this guidance is not expected to have a material impact on the consolidated financial statements.

Translation of Foreign Currencies

All asset and liability accounts of consolidated foreign subsidiaries are translated at the current exchange rate as of the end of the accounting period and income statement items are translated monthly at an average currency exchange rate for the period. The resulting foreign currency translation adjustment is recorded in other comprehensive income (loss) as a separate component of shareholders’ equity.

Fair Value Measurement

Fair value is the price to hypothetically sell an asset or transfer a liability in an orderly manner in the principal market for that asset or liability. Accounting standards prioritize the use of observable inputs in measuring fair value. The level of a fair value measurement is determined entirely by the lowest level input that is significant to the measurement. The three levels are (from highest to lowest):

 

Level 1:

Unadjusted quoted prices in active markets for identical assets or liabilities.

 

Level 2:

Unadjusted quoted prices in active markets for similar assets or liabilities, unadjusted quoted prices for identical similar assets or liabilities in markets that are not active or inputs that are observable either directly or indirectly.

 

Level 3:

Unobservable inputs for which there is little or no market data or which reflect the entity’s own assumptions.

The Company has financial instruments, including cash, accounts receivable, accounts payable and accrued expenses. The fair value of these financial instruments approximates carrying value due to the nature and relative short maturity of these assets and liabilities.

The fair value of debt under the Company’s Loan Agreement, as defined in Note 13, approximates carrying value due to the floating rates and relative short maturity (less than 90 days) of the revolving borrowings under this agreement. The fair value of the Company’s fixed rate senior unsecured notes was estimated using market observable inputs for the Company’s comparable peers with public debt, including quoted prices in active markets and interest rate measurements which are considered Level 2 inputs. At December 31, 2020 and 2019, the aggregate fair value of the Company’s outstanding fixed rate senior unsecured notes was estimated at $80.9 million and $79.0 million, respectively.

The purchase price allocations associated with the November 10, 2020 acquisition of Elkhart Plastics, Inc. and the August 26, 2019 acquisition of Tuffy Manufacturing Industries, Inc., as described in Note 3, required fair value measurements using unobservable inputs which are considered Level 3 inputs. The fair value of the acquired intangible assets was determined using an income approach.

Concentration of Credit Risk

Financial instruments that potentially subject the Company to concentration of credit risk primarily consist of trade accounts receivable. The concentration of accounts receivable credit risk is generally limited based on the Company’s diversified operations, with customers spread across many industries and countries. In 2020, there were no customers that accounted for more than ten percent of net sales. Outside of the United States, only customers located in Canada, which account for approximately 4.8% of net sales, are significant to the Company’s operations.

35

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

Allowance for Credit Losses

Management has established certain requirements that customers must meet before credit is extended. The financial condition of customers is continually monitored and collateral is usually not required. The Company evaluates the collectability of accounts receivable based on a combination of factors. The Company reviews historical trends for credit loss as well as current economic conditions in determining an estimate for its allowance for credit losses. Additionally, in circumstances where the Company is aware of a specific customer’s inability to meet its financial obligations, a specific allowance for credit losses is recorded against amounts due to reduce the net recognized receivable to the amount the Company reasonably expects will be collected. Expense related to bad debts was approximately $1.4 million, $0.6 million and $0.7 million for 2020, 2019 and 2018, respectively, and is recorded within selling expenses in the Consolidated Statements of Operations. Deductions from the allowance for doubtful accounts, net of recoveries, were approximately $0.4 million, $0.3 million and $0.5 million for 2020, 2019 and 2018, respectively.

Changes in the allowance for credit losses for the year ended December 31, 2020 were as follows:

 

 

 

2020

 

Balance at January 1

 

$

1,356

 

Provision for expected credit loss, net of recoveries

 

 

1,418

 

Write-offs and other

 

 

(439

)

Balance at December 31

 

$

2,335

 

 

Inventories

Inventories are valued at the lower of cost or market for last-in, first-out (“LIFO”) inventory and lower of cost or net realizable value for first-in, first-out (“FIFO”) inventory. Approximately 40 percent of our inventories are valued using the LIFO method of determining cost. All other inventories are valued at the FIFO method of determining cost.

 

Inventories at December 31 consist of the following:

 

 

 

December 31,

 

 

December 31,

 

 

 

2020

 

 

2019

 

Finished and in-process products

 

$

42,304

 

 

$

32,537

 

Raw materials and supplies

 

 

23,615

 

 

 

11,723

 

 

 

$

65,919

 

 

$

44,260

 

 

If the FIFO method of inventory cost valuation had been used exclusively by the Company, inventories would have been $4.7 million and $4.4 million higher than reported at December 31, 2020 and 2019, respectively. Cost of sales decreased by $0.1 million, $0.7 million and $0.5 million in 2020, 2019 and 2018, respectively, as a result of the liquidation of LIFO inventories.

Property, Plant and Equipment

Property, plant and equipment are carried at cost less accumulated depreciation and amortization. The Company provides for depreciation and amortization on the basis of the straight-line method over the estimated useful lives of the assets as follows:

 

Buildings

20 to 40 years

Machinery and equipment

3 to 10 years

Leasehold improvements

5 to 10 years

36

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

The Company’s property, plant and equipment by major asset class at December 31 consists of:

 

 

 

December 31,

 

 

December 31,

 

 

 

2020

 

 

2019

 

Land

 

$

6,717

 

 

$

6,622

 

Buildings and leasehold improvements

 

 

45,897

 

 

 

43,803

 

Machinery and equipment

 

 

279,574

 

 

 

252,384

 

 

 

 

332,188

 

 

 

302,809

 

Less allowances for depreciation and amortization

 

 

(258,235

)

 

 

(247,845

)

 

 

$

73,953

 

 

$

54,964

 

 

Long-Lived Assets

The Company reviews its long-lived assets and identifiable intangible assets with finite lives for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Determination of potential impairment related to assets to be held and used is based upon undiscounted future cash flows resulting from the use and ultimate disposition of the asset and related asset group. For assets held for sale, the amount of potential impairment may be based upon appraisal of the asset, estimated market value of similar assets or estimated cash flow from the disposition of the asset. Refer to Note 4 for discussion of impairment charges.

Accumulated Other Comprehensive Income (Loss)

Changes in accumulated other comprehensive income (loss) were as follows:

 

 

 

Foreign

Currency

 

 

Defined Benefit

Pension Plans

 

 

Total

 

Balance at January 1, 2018

 

$

(12,750

)

 

$

(1,791

)

 

$

(14,541

)

Other comprehensive income (loss) before reclassifications

 

 

(3,501

)

 

 

14

 

 

 

(3,487

)

Amounts reclassified from accumulated other comprehensive income, net

   of tax of ($21) (1)

 

 

—

 

 

 

63

 

 

 

63

 

Reclassification of stranded tax effects to retained earnings(2)

 

 

—

 

 

 

(315

)

 

 

(315

)

Net current-period other comprehensive income (loss)

 

 

(3,501

)

 

 

(238

)

 

 

(3,739

)

Balance at December 31, 2018

 

 

(16,251

)

 

 

(2,029

)

 

 

(18,280

)

Other comprehensive income (loss) before reclassifications

 

 

1,649

 

 

 

209

 

 

 

1,858

 

Amounts reclassified from accumulated other comprehensive income, net

   of tax of ($24) (1)

 

 

—

 

 

 

73

 

 

 

73

 

Net current-period other comprehensive income (loss)

 

 

1,649

 

 

 

282

 

 

 

1,931

 

Balance at December 31, 2019

 

 

(14,602

)

 

 

(1,747

)

 

 

(16,349

)

Other comprehensive income (loss) before reclassifications

 

 

628

 

 

 

(113

)

 

 

515

 

Amounts reclassified from accumulated other comprehensive income, net

   of tax of ($20) (1)

 

 

—

 

 

 

61

 

 

 

61

 

Net current-period other comprehensive income (loss)

 

 

628

 

 

 

(52

)

 

 

576

 

Balance at December 31, 2020

 

$

(13,974

)

 

$

(1,799

)

 

$

(15,773

)

 

(1)

The accumulated other comprehensive income (loss) components related to defined benefit pension plans are included in the computation of net periodic pension cost. See Note 15, Retirement Plans for additional details.

(2)

Reclassification of stranded tax effects resulting from the Tax Act to retained earnings due to the adoption of ASU 2018-02 during the first quarter of 2018.

37

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

Stock Based Compensation

The Company has stock incentive plans that provide for the granting of stock-based compensation to employees and directors. Shares issued for option exercises, restricted stock units and performance units may be either from authorized, but unissued shares or treasury shares. For equity-classified awards, the fair value is determined on the date of the grant and not remeasured. The fair value of restricted stock units and performance units are determined using the closing price of the Company’s common stock on the grant date (Level 1 measurement). The fair value of options is determined using a binomial lattice option pricing model as further described in Note 10, which uses market-based inputs (Level 2 measurement). Expense for all stock-based awards is recognized on a straight-line basis over the requisite service period, which is generally equivalent to the vesting term. Forfeitures result in reversal of previously recognized expenses for unvested shares and are recognized in the period in which the forfeiture occurs.

 

Income Taxes

Income taxes are accounted for under the liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those differences are expected to be received or settled. Any effect on deferred tax assets and liabilities from a change in tax rates is recognized in income in the period the change is enacted.

Deferred tax assets are reduced by a valuation allowance, if based on all available evidence, it is more likely than not that the deferred tax asset will not be realized. The Company evaluates the recovery of its deferred tax assets by assessing the adequacy of future expected taxable income from all sources, including reversal of taxable temporary differences, forecasted operating earnings and available tax planning strategies. These sources of income inherently rely heavily on estimates.

In the ordinary course of business there is inherent uncertainty in quantifying certain income tax positions. The Company evaluates uncertain tax positions for all years subject to examination based upon management’s evaluations of the facts, circumstances and information available at the reporting date. Income tax positions must meet a more-likely-than-not recognition threshold at the reporting date to be recognized. The Company recognizes potential accrued interest and penalties related to unrecognized tax benefits as a component of income tax expense.

Cash and Cash Equivalents

The Company considers all highly liquid instruments purchased with a maturity of three months or less to be cash equivalents. Cash equivalents are stated at cost, which approximates market value.

Cash flows used in investing activities excluded $1.6 million, $0.6 million and $1.1 million of accrued, but unpaid, capital expenditures in 2020, 2019 and 2018, respectively.

 

2.  Revenue Recognition

The Company’s revenue by major market is as follows:

 

 

 

 

For the Year Ended December 31, 2020

 

 

 

Material

Handling

 

 

Distribution

 

 

Inter-company

 

 

Consolidated

 

Consumer

 

$

92,301

 

 

$

—

 

 

$

—

 

 

$

92,301

 

Vehicle

 

 

77,085

 

 

 

—

 

 

 

—

 

 

 

77,085

 

Food and beverage

 

 

54,752

 

 

 

—

 

 

 

—

 

 

 

54,752

 

Industrial

 

 

119,746

 

 

 

—

 

 

 

(59

)

 

 

119,687

 

Auto aftermarket

 

 

—

 

 

 

166,544

 

 

 

—

 

 

 

166,544

 

Total net sales

 

$

343,884

 

 

$

166,544

 

 

$

(59

)

 

$

510,369

 

38

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

 

 

 

For the Year Ended December 31, 2019

 

 

 

Material

Handling

 

 

Distribution

 

 

Inter-company

 

 

Consolidated

 

Consumer

 

$

71,272

 

 

$

—

 

 

$

—

 

 

$

71,272

 

Vehicle

 

 

82,768

 

 

 

—

 

 

 

—

 

 

 

82,768

 

Food and beverage

 

 

68,416

 

 

 

—

 

 

 

—

 

 

 

68,416

 

Industrial

 

 

133,951

 

 

 

—

 

 

 

(58

)

 

 

133,893

 

Auto aftermarket

 

 

—

 

 

 

159,349

 

 

 

—

 

 

 

159,349

 

Total net sales

 

$

356,407

 

 

$

159,349

 

 

$

(58

)

 

$

515,698

 

 

 

 

For the Year Ended December 31, 2018

 

 

 

Material

Handling

 

 

Distribution

 

 

Inter-company

 

 

Consolidated

 

Consumer

 

$

78,174

 

 

$

—

 

 

$

—

 

 

$

78,174

 

Vehicle

 

 

95,247

 

 

 

—

 

 

 

—

 

 

 

95,247

 

Food and beverage

 

 

101,610

 

 

 

—

 

 

 

—

 

 

 

101,610

 

Industrial

 

 

142,168

 

 

 

—

 

 

 

(100

)

 

 

142,068

 

Auto aftermarket

 

 

—

 

 

 

149,636

 

 

 

—

 

 

 

149,636

 

Total net sales

 

$

417,199

 

 

$

149,636

 

 

$

(100

)

 

$

566,735

 

 

Revenue is recognized when obligations under the terms of a contract with customers are satisfied. In both the Distribution and Material Handling segments, this generally occurs with the transfer of control of the Company’s products.  This transfer of control may occur at either the time of shipment from a Company facility, or at the time of delivery to a designated customer location. Obligations under contracts with customers are typically fulfilled within 90 days of receiving a purchase order from a customer, and generally no other future obligations are required to be performed.  The Company generally does not enter into any long-term contracts with customers greater than one year.  Based on the nature of the Company’s products and customer contracts, the Company has not recorded any deferred revenue, with the exception of cash advances or deposits received from customers prior to transfer of control of the product. These advances are typically fulfilled within the 90 day time frame mentioned above.

 

Revenue is measured as the amount of consideration the Company expects to receive in exchange for transferring the products.  Certain contracts with customers include variable consideration, such as rebates or discounts.  The Company recognizes estimates of this variable consideration each period, primarily based on the most likely level of consideration to be paid to the customer under the specific terms of the underlying programs.  While the Company’s contracts with customers do not generally include explicit rights to return product, the Company will in practice allow returns in the normal course of business and as part of the customer relationship.  Thus, the Company estimates the expected returns each period based on an analysis of historical experience.  For certain businesses where physical recovery of the product from returns occurs, the Company records an estimated right to return asset from such recovery, based on the approximate cost of the product.

Amounts included in the Consolidated Statements of Financial Position related to revenue recognition include:

 

 

 

December 31,

 

 

December 31,

 

 

Statement of Financial

Position

 

 

2020

 

 

2019

 

 

Classification

Returns, discounts and other allowances

 

$

(943

)

 

$

(589

)

 

Accounts receivable

Right of return asset

 

$

357

 

 

$

312

 

 

Inventories, net

Customer deposits

 

$

(195

)

 

$

(269

)

 

Other current liabilities

Accrued rebates

 

$

(2,712

)

 

$

(2,349

)

 

Other current liabilities

 

39

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

Sales, value added, and other taxes the Company collects concurrent with revenue from customers are excluded from net sales.  The Company has elected to recognize the cost for shipments to customers when control over products has transferred to the customer.  Costs for shipments to customers are classified as selling expenses for the Company’s manufacturing businesses and as cost of sales for the Company’s distribution business in the accompanying Consolidated Statements of Operations. The Company incurred costs for shipments to customers of approximately $7.1 million, $8.4 million and $9.7 million in selling expenses for the years ended December 31, 2020, 2019 and 2018, respectively, and $6.4 million, $5.9 million, and $5.7 million in cost of sales for the years ended December 31, 2020, 2019 and 2018, respectively.

Based on the short term nature of contracts described above, the Company does not incur significant contract acquisition costs. These costs, as well as other incidental items that are immaterial in the context of the contract, are recognized as expense as incurred.

3.  Acquisitions

Elkhart Plastics

On November 10, 2020, the Company acquired the assets of Elkhart Plastics, a manufacturer of engineered products for the RV, marine, agricultural, construction, truck and other industries, which is included in the Company’s Material Handling Segment. The Elkhart Plastics acquisition aligns with the Company’s long-term strategic plan to transform the Company into a high-growth, customer-centric innovator of value-added engineered plastic solutions. The purchase price for the acquisition was $64.2 million, which includes a preliminary estimated working capital adjustment of $1.6 million subject to further adjustment based on the final working capital. The Company funded the acquisition using available cash.

The acquisition of Elkhart Plastics was accounted for using the acquisition method, whereby all of the assets acquired and liabilities assumed were recognized at their fair value on the acquisition date, with any excess of the purchase price over the estimated fair value recorded as goodwill. The following table summarized the allocation of the purchase price based on the estimated fair value of assets acquired and liabilities assumed based on their preliminary estimated fair values at the acquisition date, which are subject to adjustment. The purchase accounting will be finalized within one year from the acquisition date.

 

Assets acquired:

 

 

 

Accounts receivable

$

12,026

 

Inventories

 

13,639

 

Prepaid expenses

 

960

 

Other assets - long term

 

34

 

Property, plant and equipment

 

18,038

 

Right of use asset - operating leases

 

13,757

 

Intangible assets

 

16,627

 

Goodwill

 

12,312

 

Assets acquired

$

87,393

 

 

 

 

 

Liabilities assumed:

 

 

 

Accounts payable

$

5,603

 

Accrued expenses

 

4,320

 

Operating lease liability - short term

 

2,390

 

Operating lease liability - long term

 

10,867

 

Total liabilities assumed

 

23,180

 

 

 

 

 

Net acquisition cost

$

64,213

 

 

The goodwill represents the future economic benefits arising from other assets acquired that could not be individually and separately recognized, and the Company expects that the goodwill recognized for the acquisition will be deductible for tax purposes.

40

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

The intangible assets included above consist of the following:

 

 

Fair Value

 

 

Weighted Average

Estimated

Useful Life

Customer relationships

 

$

10,210

 

 

18.0 years

Trade name

 

 

5,817

 

 

10.0 years

Non-competition agreements

 

 

600

 

 

5.0 years

Total amortizable intangible assets

 

$

16,627

 

 

 

Tuffy

On August 26, 2019, the Company acquired the assets of Tuffy, a warehouse distributor of tire repair equipment and supplies, which is included in the Company’s Distribution Segment. The Tuffy acquisition aligns with the Company’s strategy to grow in key niche markets and focus on strategic account customers. The purchase price for the acquisition was $18.7 million, which includes a working capital adjustment of $0.7 million that was paid in 2020. The Company funded the acquisition using available cash.

The acquisition of Tuffy was accounted for using the acquisition method, whereby all of the assets acquired and liabilities assumed were recognized at their fair value on the acquisition date, with any excess of the purchase price over the estimated fair value recorded as goodwill. The following table summarizes the allocation of the purchase price based on the estimated fair value of assets acquired and liabilities assumed based on the estimated fair values at the acquisition date.

 

Assets acquired:

 

 

 

Accounts receivable

$

2,105

 

Inventories

 

2,719

 

Prepaid expenses

 

43

 

Property, plant and equipment

 

124

 

Right of use asset - operating leases

 

229

 

Intangible assets

 

8,400

 

Goodwill

 

7,143

 

Assets acquired

$

20,763

 

 

 

 

 

Liabilities assumed:

 

 

 

Accounts payable

$

1,675

 

Accrued expenses

 

143

 

Operating lease liability - short term

 

112

 

Operating lease liability - long term

 

117

 

Total liabilities assumed

 

2,047

 

 

 

 

 

Net acquisition cost

$

18,716

 

 

The goodwill represents the future economic benefits arising from other assets acquired that could not be individually and separately recognized, and the Company expects that the goodwill recognized for the acquisition will be deductible for tax purposes.

The intangible assets included above consist of the following:

 

 

 

Fair Value

 

 

Weighted Average

Estimated

Useful Life

Customer relationships

 

$

7,300

 

 

7.3 years

Trade name

 

 

500

 

 

5.0 years

Non-competition agreements

 

 

600

 

 

5.0 years

Total amortizable intangible assets

 

$

8,400

 

 

 

 

 

41

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

4.  Assets Held for Sale

As of December 31, 2020 and 2019, a building with a carrying value of $1.9 million was classified as held for sale and is included in Other Assets. During 2019, the Company sold two buildings, which had previously been held for sale, for total net proceeds of $7.4 million. These buildings were in the Material Handling Segment. During 2018, the Company sold one building, which had previously been held for sale, for total net proceeds of $2.3 million. This building was in the Distribution Segment.

When a facility meets held for sale classification criteria, it is also evaluated for impairment by comparing its carrying value to its estimated fair value less estimated costs to sell. Estimated fair value of these buildings was based on third party offers, which are Level 2 inputs. No impairment related to assets held for sale was recognized in the year ended December 31, 2020. Impairment charges of $0.9 million and $0.3 million were recorded during the years ended December 31, 2019 and 2018, respectively, in connection with a building meeting the held for sale criteria.

 

5.  Goodwill and Intangible Assets

The Company tests goodwill and indefinite-lived intangible assets for impairment annually and between annual tests if impairment indicators are present. Such indicators may include, but are not limited to, significant changes in economic and competitive conditions, the impact of the economic environment on the Company’s customer base or its businesses, or a material negative change in its relationships with significant customers.    

The Company’s annual goodwill impairment assessment as of October 1 for all of its reporting units found no impairment in continuing operations in 2020, 2019 or 2018. During 2020, management performed a qualitative assessment for all of its reporting units. After considering changes to assumptions used in the most recent quantitative annual testing for each reporting unit, including macroeconomic conditions, industry and market considerations, overall financial performance, the magnitude of the excess of fair value over the carrying amount of each reporting unit as determined in the most recent quantitative annual testing, and other factors, management concluded that it was not more likely than not that the fair values of the reporting units were less than their respective carrying values and, therefore, did not perform a quantitative analysis in 2020. A qualitative analysis was also performed at October 1, 2019 and 2018. 

The changes in the carrying amount of goodwill for the years ended December 31, 2020 and 2019 were as follows:

 

 

 

Distribution

 

 

Material

Handling

 

 

Total

 

January 1, 2019

 

$

505

 

 

$

58,563

 

 

$

59,068

 

Acquisition

 

 

7,211

 

 

 

—

 

 

 

7,211

 

Foreign currency translation

 

 

—

 

 

 

495

 

 

 

495

 

December 31, 2019

 

$

7,716

 

 

$

59,058

 

 

$

66,774

 

Acquisition

 

 

—

 

 

 

12,312

 

 

 

12,312

 

Purchase accounting adjustment

 

 

(68

)

 

 

—

 

 

 

(68

)

Foreign currency translation

 

 

—

 

 

 

238

 

 

 

238

 

December 31, 2020

 

$

7,648

 

 

$

71,608

 

 

$

79,256

 

 

Intangible assets were established in connection with acquisitions. These intangible assets, other than goodwill and certain indefinite lived trade names, are amortized over their estimated useful lives. The Company performed an annual impairment assessment for the indefinite lived trade names as of October 1, 2020, 2019 and 2018. In performing this assessment, the Company uses an income approach, based primarily on Level 3 inputs, to estimate the fair value of the trade name. An impairment charge would be recorded if the carrying value of the trade name exceeds the estimated fair value at the date of assessment. Refer to Note 3 for the intangible assets acquired through the Elkhart Plastics acquisition during 2020 and the Tuffy acquisition during 2019.

42

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

Intangible assets at December 31, 2020 and 2019 consisted of the following:

 

 

 

 

 

 

 

2020

 

 

2019

 

 

 

Weighted Average

Remaining Useful

Life (years)

 

 

Gross

 

 

Accumulated

Amortization

 

 

Net

 

 

Gross

 

 

Accumulated

Amortization

 

 

Net

 

Trade names - indefinite lived

 

 

 

 

 

$

9,782

 

 

$

—

 

 

$

9,782

 

 

$

9,782

 

 

$

—

 

 

$

9,782

 

Trade names

 

 

9.3

 

 

 

6,397

 

 

 

(270

)

 

 

6,127

 

 

 

580

 

 

 

(84

)

 

 

496

 

Customer relationships

 

 

12.9

 

 

 

58,266

 

 

 

(42,243

)

 

 

16,023

 

 

 

47,656

 

 

 

(38,096

)

 

 

9,560

 

Technology

 

 

3.6

 

 

 

24,980

 

 

 

(16,897

)

 

 

8,083

 

 

 

24,980

 

 

 

(14,624

)

 

 

10,356

 

Non-competition agreements

 

 

4.3

 

 

 

1,200

 

 

 

(177

)

 

 

1,023

 

 

 

600

 

 

 

(40

)

 

 

560

 

Patents

 

 

—

 

 

 

11,730

 

 

 

(11,730

)

 

 

—

 

 

 

11,730

 

 

 

(11,730

)

 

 

—

 

 

 

 

 

 

 

$

112,355

 

 

$

(71,317

)

 

$

41,038

 

 

$

95,328

 

 

$

(64,574

)

 

$

30,754

 

 

Intangible amortization expense was $6,273, $8,077 and $8,099 in 2020, 2019 and 2018, respectively. Estimated annual amortization expense for intangible assets with finite lives for the next five years is: $4,823 in 2021; $4,823 in 2022; $4,823 in 2023; $3,635 in 2024 and $2,082 in 2025.

 

6.  Disposal of Businesses

Myers Holdings Brasil, Ltda

In 2017, the Company, collectively with its wholly owned subsidiary, Myers Holdings Brasil, Ltda. (“Holdings”), completed the sale of Brazil Business, to Novel Holdings – Eireli (“Buyer”), an entity controlled by a member of the Brazil Business’ management team. Pursuant to the terms of the Quota Purchase Agreement by and among the Company, Holdings and Buyer (the “Purchase Agreement”), the Buyer paid a purchase price of one U.S. Dollar to the Company and assumed all liabilities and obligations of the Brazil Business, whether arising prior to or after the closing of the transaction. There are no additional amounts due, or to be settled, under the terms of the Purchase Agreement with the Buyer. The Company recorded a loss on the sale of the Brazil Business during the fourth quarter of 2017 of $35.0 million, which included $1.2 million of cash held by the Brazil Business and approximately $0.3 million of costs to sell. In addition, the Company recorded a U.S. tax benefit of approximately $15 million in 2017 as a result of a worthless stock deduction related to the Company’s investment in the Brazil Business. As a result of the Company’s U.S. Federal income tax filings in 2018, the Company reduced this estimated tax benefit by $0.7 million and recognized this adjustment within net loss from discontinued operations.

The Company agreed to be the guarantor under a factoring arrangement between the Buyer and Banco Alfa de Investimento S.A. until December 31, 2019 for up to $7 million, in the event the Buyer was unable to meet its obligations under this arrangement. The Company also held a first lien against certain machinery and equipment, exercisable only upon default by the Buyer under the guarantee. Based on the nature of the guarantee, as well as the existence of the lien, the Company estimated the fair value of the guarantee was immaterial (based primarily on Level 3 inputs), and did not record a liability and was ultimately not required to make any payments related to this guarantee. This guarantee also created a variable interest in the Brazil Business until its expiration on December 31, 2019. However, based on the terms of the transaction and the fact that the Company had no management involvement or voting interests in the Brazil Business following the sale, the Company did not have any power to direct the significant activities of the Brazil Business, and was not the primary beneficiary.

Lawn and Garden Business

In 2015, the Company sold its Lawn and Garden business to the L&G Buyer, which later became HC. The terms of the sale included promissory notes form HC. Due to uncertainty of collection, a provision for expected loss of $23.0 million was recorded within continuing operations to Other (income) expenses during the third quarter of 2018 to fully impair the notes and corresponding interest receivable. The Company also ceased recognizing interest income following the recording of the provision. Prior to the impairment, interest income recognized on the notes receivable was $1.0 million during the year ended December 31, 2018, based on the stated interest rate.

In addition, approximately $8.6 million of the purchase price related to the Lawn and Garden sale was placed in escrow, of which $7.4 million was released to the Company in the second quarter of 2018, pursuant to the terms of a settlement. The Company recorded a pre-tax charge of $1.2 million to discontinued operations in 2018 for the reduction in the escrow receivable.

43

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

Also, in connection with the sale of the Lawn and Garden business, the Company became a guarantor for any remaining rent payments under one of HC’s facility leases expiring in September 2025. Annual rent for the facility is approximately $2 million. Due to the financial risk associated with HC, the Company assessed its range of potential obligations under the lease guarantee and recorded a liability and related pre-tax charge of $10.3 million within continuing operations to Other (income) expenses during the third quarter of 2018. The carrying value of the lease contingency as of December 31, 2019 was $10.7 million, which represented the initial liability recorded plus accretion and was included in Other liabilities.

In January 2020, the Company sold to HC the fully-reserved promissory notes and related accrued interest receivable in exchange for $1.2 million and the release from the lease guarantee resulting in an $11.9 million pre-tax gain.

Summarized selected financial information for discontinued operations for the years ended December 31, 2019 and 2018 are presented in the following table:

 

 

 

 

 

For the Year Ended December 31,

 

 

 

 

 

 

2019

 

 

2018

 

Selling, general, and administrative

 

 

 

 

$

—

 

 

$

1,348

 

Interest income, net

 

 

 

 

 

(174

)

 

 

—

 

Income (loss) from discontinued operations before income tax

 

 

 

 

 

174

 

 

 

(1,348

)

Income tax expense

 

 

 

 

 

56

 

 

 

353

 

Income (loss) from discontinued operations, net of income tax

 

 

 

 

$

118

 

 

$

(1,701

)

 

 

Net cash flows provided by discontinued operations in 2019 and 2018 primarily related to the receipt of the tax benefit from a worthless stock deduction, which was recognized as part of the sale of the Brazil Business. Net cash flows from discontinued operations in 2018 were also partially offset by the payment of expenses related to the sale of the Brazil Business and the payment of the settlement with the L&G Buyer noted above.

 

7.  Net Income (Loss) Per Common Share

Net income (loss) per common share, as shown on the accompanying Consolidated Statements of Operations, is determined on the basis of the weighted average number of common shares outstanding during the periods as follows:

 

 

 

For the Year Ended December 31,

 

 

 

2020

 

 

2019

 

 

2018

 

Weighted average common shares outstanding basic

 

 

35,785,798

 

 

 

35,491,958

 

 

 

33,426,855

 

Dilutive effect of stock options and restricted stock

 

 

130,832

 

 

 

161,189

 

 

 

—

 

Weighted average common shares outstanding diluted

 

 

35,916,630

 

 

 

35,653,147

 

 

 

33,426,855

 

 

Options to purchase 462,332 and 470,185 shares of common stock that were outstanding at December 31, 2020 and 2019, respectively, were not included in the computation of diluted earnings per share as the exercise prices of these options was greater than the average market price of common shares, and were therefore anti-dilutive. Due to the net loss for the year ended December 31, 2018, diluted weighted-average shares outstanding are equal to basic weighted-average shares outstanding because the effect of all equity awards is anti-dilutive.

44

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

8.  Restructuring

In March 2019, the Company committed to implementing a restructuring plan involving its Ameri-Kart Corp. subsidiary (“Ameri-Kart”) that operates within the Material Handling Segment. The Company plans to consolidate manufacturing operations currently conducted at Ameri-Kart’s Cassopolis, Michigan and Bristol, Indiana facilities with expanded operations in a new facility in Bristol, Indiana (the “Ameri-Kart Plan”). In December 2019, the Company entered into an agreement where a new manufacturing and distribution facility in Bristol, Indiana will be constructed, and when substantially complete, the Company will lease that new facility and sell its existing facility in Bristol, Indiana. The Company also provided advance notice to terminate the lease of its Cassopolis, Michigan facility effective December 31, 2021. The Ameri-Kart Plan is expected to be substantially completed in 2021 and total restructuring costs expected to be incurred are approximately $1.1 million, primarily related to equipment relocation and facility shut down costs. No costs were incurred related to the Ameri-Kart Plan during the years ended December 31, 2020 and 2019. See further discussion of the new facility lease in Note 16.

In March 2019, the Company also committed to implementing transformation initiatives within the Company’s Distribution Segment (the “Distribution Transformation Plan”) that are intended to increase sales force effectiveness, reduce costs and improve contribution margins. The Company realigned its Distribution Segment’s commercial sales structure, which included the elimination of certain sales and administrative positions, and put into place plans to expand its e-commerce platform. All actions under the Distribution Transformation Plan were completed by the end of 2019. During 2019, restructuring charges related to the Distribution Transformation Plan totaled $0.9 million.

In March 2017, the Company announced a restructuring plan to improve its organizational structure and operational efficiency within the Material Handling Segment (the “Material Handling Plan”), which primarily related to facility shutdowns and associated activities. All actions under the Material Handling Plan were substantially completed by the end of 2017. The Company incurred $0.1 million of restructuring charges associated with the Material Handling Plan during 2018.

There were no restructuring charges recorded in the year ended December 31, 2020. The restructuring charges noted above recognized in the years ended 2019 and 2018 are presented in the Consolidated Statements of Operations as follows:  

 

 

 

2019

 

 

2018

 

Segment

 

Cost of

Sales

 

 

SG&A

 

 

Total

 

 

Cost of

sales

 

 

SG&A

 

 

Total

 

Distribution

 

$

—

 

 

$

865

 

 

$

865

 

 

$

—

 

 

$

—

 

 

$

—

 

Material Handling

 

 

—

 

 

 

—

 

 

 

—

 

 

 

119

 

 

 

—

 

 

 

119

 

Total

 

$

—

 

 

$

865

 

 

$

865

 

 

$

119

 

 

$

—

 

 

$

119

 

 

The table below summarizes restructuring activity for the year ended December 31, 2019:

 

 

 

Employee

Reduction

 

 

Total

 

Balance at January 1, 2019

 

$

30

 

 

$

30

 

Charges to expense

 

 

865

 

 

 

865

 

Cash payments

 

 

(895

)

 

 

(895

)

Balance at December 31, 2019

 

$

—

 

 

$

—

 

 

 

45

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

9.  Other Liabilities

The balance of Other current liabilities is comprised of the following:

 

 

 

December 31,

 

 

December 31,

 

 

 

2020

 

 

2019

 

Customer deposits and accrued rebates

 

$

2,907

 

 

$

2,618

 

Dividends payable

 

 

5,251

 

 

 

5,114

 

Accrued litigation, claims and professional fees

 

 

306

 

 

 

479

 

Current portion of environmental reserves

 

 

1,433

 

 

 

1,533

 

Accrued product replacement costs

 

 

578

 

 

 

1,835

 

Other accrued expenses

 

 

7,461

 

 

 

6,745

 

 

 

$

17,936

 

 

$

18,324

 

 

In August 2019, a manufacturing defect was identified for certain boxes produced within the Material Handling segment in May and June 2019. Certain of the affected boxes require replacement. The total range of cost to replace these boxes is estimated to be $3.5 million to $4.0 million. In the year ended December 31, 2019, $3.5 million of estimated costs were recorded related to this matter, of which $0.6 million and $1.8 million remains accrued as of December 31, 2020 and 2019, respectively, and is included within Other current liabilities on the Consolidated Statements of Financial Position.

 

The balance of Other liabilities (long-term) is comprised of the following:

 

 

 

December 31,

 

 

December 31,

 

 

 

2020

 

 

2019

 

Lease guarantee contingency

 

$

—

 

 

$

10,724

 

Environmental reserves

 

 

7,266

 

 

 

6,658

 

Supplemental executive retirement plan liability

 

 

1,510

 

 

 

1,776

 

Pension liability

 

 

941

 

 

 

956

 

Other long-term liabilities

 

 

4,656

 

 

 

2,468

 

 

 

$

14,373

 

 

$

22,582

 

 

10.  Stock Compensation

The Company’s Amended and Restated 2017 Incentive Stock Plan (the “2017 Plan”) authorizes the Compensation Committee of the Board of Directors to issue up to 5,126,950 shares of various stock awards including stock options, performance-based restricted stock units, restricted stock units and other forms of equity-based awards to key employees and directors. Options granted and outstanding vest over the requisite service period and expire ten years from the date of grant. The following tables summarize stock option activity in the past three years.

Stock compensation expense was approximately $3,534, $1,715 and $4,257 for the years ended December 31, 2020, 2019 and 2018, respectively, and are included in general and administrative expenses. During 2019, the Company reversed previously recognized compensation expense of $2,031 related to the resignation of the Company’s President and Chief Executive Officer effective October 25, 2019. Total unrecognized compensation cost related to non-vested share-based compensation arrangements at December 31, 2020 was approximately $4,129 which will be recognized over the next three years, as such compensation is earned.

There were no options granted in 2020. Options granted in 2019 and 2018 were as follows:

 

Year

 

Options

 

 

Exercise

Price

 

2019

 

 

235,474

 

 

$

18.54

 

2018

 

 

255,072

 

 

$

21.30

 

 

46

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

Options exercised in 2020, 2019 and 2018 were as follows:

 

Year

 

Options

 

 

Exercise

Price

2020

 

 

97,779

 

 

$10.10 to $18.69

2019

 

 

221,695

 

 

$11.62 to $14.30

2018

 

 

191,169

 

 

$9.97 to $20.93

 

In addition, options totaling 81,944, 268,545 and 86,411 expired or were forfeited during the years ended December 31, 2020, 2019 and 2018, respectively.

Options outstanding and exercisable at December 31, 2020, 2019 and 2018 were as follows:

 

Year

 

Outstanding

 

 

Range of Exercise

Prices

 

Exercisable

 

 

Weighted Average

Exercise Price

 

2020

 

 

531,170

 

 

$11.62 to $21.30

 

 

460,341

 

 

$

17.94

 

2019

 

 

710,893

 

 

$10.10 to $21.30

 

 

486,382

 

 

$

17.31

 

2018

 

 

965,659

 

 

$10.10 to $21.30

 

 

521,202

 

 

$

16.08

 

 

The fair value of options granted is estimated using an option pricing model based on the assumptions set forth in the following table. The Company uses historical data to estimate employee exercise and departure behavior. The risk free interest rate is based on the U.S. Treasury yield curve in effect at the time of grant and through the expected term. The dividend yield rate is based on the Company’s historical dividend yield. The expected volatility is derived from historical volatility of the Company’s shares and those of similar companies measured against the market as a whole. The Company used the binomial lattice option pricing model based on the assumptions set forth in the following table.

 

  

 

2019

 

 

2018

 

Risk free interest rate

 

 

2.70

%

 

 

2.90

%

Expected dividend yield

 

 

2.76

%

 

 

2.50

%

Expected life of award (years)

 

 

6.17

 

 

 

4.00

 

Expected volatility

 

 

44.89

%

 

 

42.50

%

Fair value per option

 

$

5.78

 

 

$

6.30

 

 

The following table provides a summary of stock option activity for the period ended December 31, 2020:

 

 

 

Shares

 

 

Average

Exercise

Price

 

 

Weighted

Average

Life (in Years)

 

Outstanding at December 31, 2019

 

 

710,893

 

 

$

17.75

 

 

 

 

 

Options granted

 

 

—

 

 

 

—

 

 

 

 

 

Options exercised

 

 

(97,779

)

 

 

13.67

 

 

 

 

 

Canceled or forfeited

 

 

(81,944

)

 

 

20.42

 

 

 

 

 

Expired

 

 

—

 

 

 

—

 

 

 

 

 

Outstanding at December 31, 2020

 

 

531,170

 

 

 

18.09

 

 

 

4.99

 

Exercisable at December 31, 2020

 

 

460,341

 

 

$

17.94

 

 

 

4.53

 

 

The intrinsic value of a stock option is the amount by which the market value of the underlying stock exceeds the exercise price of the option. The intrinsic value of stock options exercised in 2020, 2019 and 2018 was $459, $732 and $1,745, respectively.

47

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

The following table provides a summary of restricted stock units, including performance-based restricted stock units, and restricted stock activity for the year ended December 31, 2020:

 

 

 

Shares

 

 

Average

Grant-Date

Fair Value

 

Unvested shares at December 31, 2019

 

 

269,267

 

 

 

 

 

Granted

 

 

489,922

 

 

$

11.87

 

Vested

 

 

(135,262

)

 

$

16.62

 

Forfeited

 

 

(104,502

)

 

$

13.76

 

Unvested shares at December 31, 2020

 

 

519,425

 

 

 

 

 

 

Restricted stock units are rights to receive shares of common stock, subject to forfeiture and other restrictions, which vest over a one or three year period. Restricted stock units are considered to be non-vested shares under the accounting guidance for share-based payment and are not reflected as issued and outstanding shares until the restrictions lapse. At that time, the shares are released to the grantee and the Company records the issuance of the shares. Restricted stock awards are valued based on the market price of the underlying shares on the grant date. Compensation expense is recognized on a straight-line basis over the requisite service period. At December 31, 2020, restricted stock awards had vesting periods through October 2023.

Included in the December 31, 2020 unvested shares are 264,318 performance-based restricted stock units. The fair value of these awards is calculated using the market price of the underlying common stock on the date of grant. In determining fair value per share, the Company does not take into account performance-based vesting requirements. For these awards, the performance-based vesting requirements determines the number of shares that ultimately vest, which can vary from 0% to 200% of target depending on the level of achievement of established performance criteria. Compensation expense is recognized over the requisite service period subject to adjustment based on the probable number of shares expected to vest under the performance condition.

11.  Equity

In May 2018, the Company completed a public offering of 4,600,000 shares of its common stock at a price to the public of $18.50 per share. The net proceeds from the offering were approximately $79.5 million, after deducting underwriting discounts and commissions and $0.5 million of offering expenses paid by the Company. The Company used a portion of the net proceeds received from the offering to repay a portion of its outstanding debt during the second quarter of 2018.

 

12.  Contingencies

The Company is a defendant in various lawsuits and a party to various other legal proceedings arising in the ordinary course of business, some of which are covered in whole or in part by insurance. When a loss arising from these matters is probable and can reasonably be estimated, the most likely amount of the estimated probable loss is recorded, or if a range of probable loss can be estimated and no amount within the range is a better estimate than any other amount, the minimum amount in the range is recorded. As additional information becomes available, any potential liability related to these matters is assessed and the estimates revised, if necessary.

Based on current available information, management believes that the ultimate outcome of these matters, including those described below, will not have a material adverse effect on our financial position, cash flows or overall trends in our results of operations. However, these matters are subject to inherent uncertainties, and unfavorable rulings could occur. If an unfavorable ruling were to occur, there exists the possibility of a material adverse impact on the financial position and results of operations of the period in which the ruling occurs, or in future periods.

48

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

New Idria Mercury Mine

In September 2015, the EPA informed a subsidiary of the Company, Buckhorn, Inc. (“Buckhorn”) via a notice letter and related documents (the “Notice Letter”) that it considers Buckhorn to be a PRP in connection with the New Idria Mercury Mine site (“New Idria Mine”).  New Idria Mining & Chemical Company (“NIMCC”), which owned and/or operated the New Idria Mine through 1976, was merged into Buckhorn Metal Products Inc. in 1981, which was subsequently acquired by Myers Industries in 1987.  As a result of the EPA Notice Letter, Buckhorn and the Company engaged in negotiations with the EPA with respect to a draft Administrative Order of Consent (“AOC”) proposed by the EPA for the RI/FS to determine the extent of remediation necessary and the screening of alternatives.

During the fourth quarter of 2018, the Company and the EPA finalized the AOC and related Statement of Work (“SOW”) with regards to the New Idria Mine. The AOC is effective as of November 27, 2018, the date that it was executed by the EPA. The AOC and accompanying SOW document the terms, conditions and procedures for the Company’s performance of the RI/FS. In addition, the AOC required the Company to provide $2 million of financial assurance to the EPA to secure its performance during the estimated life of the RI/FS.  In January 2019, the Company provided a letter of credit to satisfy this assurance requirement. The AOC also includes provisions for payment by the Company of the EPA’s costs of oversight of the RI/FS, including a prepayment in the amount of $0.2 million, which was paid in January 2019.

A draft work plan for the RI/FS, in accordance with the AOC and related SOW, was submitted to the EPA for review and approval in July 2019. Upon preparation of the draft work plan for the RI/FS, the Company received preliminary estimates from its consultants for the cost of the execution of the work plan. Based on these preliminary estimates, the Company recognized additional expense of $4.0 million during the year ended December 31, 2019. These preliminary estimates will continue to be refined through the finalization and approval of the draft work plan, which is anticipated to occur in 2021. The Company believes it has insurance coverage that applies to the New Idria Mine and thus may be able to recover a portion of the estimated costs; however, as of December 31, 2020, the Company has not recognized potential recovery in its consolidated financial statements.

As part of the Notice Letter, the EPA also made a claim for approximately $1.6 million in past costs for actions it claims it has taken in connection with the New Idria Mine from 1993 through February 2014. While the Company is evaluating this past cost claim and may challenge portions of it, in 2015 the Company recognized an expense of $1.3 million related to the claim. In December 2020, the EPA updated its claim to include past costs incurred from March 2014 through June 2020. As a result, the Company recognized additional expense of $0.5 million during the fourth quarter of 2020.

Since October 2011, when New Idria was added to the Superfund National Priorities List by the EPA, the Company has recognized $10.4 million of costs, of which approximately $3.2 million has been paid through December 31, 2020. These costs are comprised primarily of estimates to perform the RI/FS, negotiation of the AOC, identification of possible insurance resources and other PRPs, EPA oversight fees, past cost claims made by the EPA, periodic monitoring, and responses to unilateral administrative orders issued by the EPA. Expenses of $0.5 million, $4.0 million, and $0.2 million were recorded in the years ended December 31, 2020, 2019 and 2018, respectively, in general and administrative expenses.  As of December 31, 2020 and 2019, the Company had a total reserve of $7.2 million and $6.7 million, respectively, related to the New Idria Mine.  As of December 31, 2020, $1.1 million is classified in Other Current Liabilities and $6.1 million is classified in Other Liabilities (long-term) on the Consolidated Statements of Financial Position.

It is possible that adjustments to the aforementioned reserves will be necessary as new information is obtained, including after finalization and EPA approval of the work plan for the RI/FS. Estimates of the Company’s liability are based on current facts, laws, regulations and technology. Estimates of the Company’s environmental liabilities are further subject to uncertainties regarding the nature and extent of site contamination, the range of remediation alternatives available, evolving remediation standards, imprecise engineering evaluation and cost estimates, the extent of remedial actions that may be required, the extent of oversight by the EPA, and the number and financial condition of other PRPs that may be named as well as the extent of their responsibility for the remediation.

At this time, the Company has not accrued for remediation costs in connection with this site as it has been unable to estimate the liability, given the circumstances referred to above, including the fact that the final remediation strategy has not yet been determined.

49

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

New Almaden Mine (formerly referred to as Guadalupe River Watershed)

A number of parties, including the Company and its subsidiary, Buckhorn (as successor to NIMCC), were alleged by trustee agencies of the United States and the State of California to be responsible for natural resource damages due to environmental contamination of areas comprising the historical New Almaden mercury mines located in the Guadalupe River Watershed region in Santa Clara County, California (“County”). In 2005, Buckhorn and the Company, without admitting liability or chain of ownership of NIMCC, resolved the trustees’ claim against them through a consent decree that required them to contribute financially to the implementation by the County of an environmentally beneficial project within the impacted area.  Buckhorn and the Company negotiated an agreement with the County whereby Buckhorn and the Company agreed to reimburse one-half of the County’s costs of implementing the project. The latest estimates received in 2016 from the County provided for an expanded scope and revised the estimate of costs for implementing the project to between $3.3 million and $4.4 million.  The Company completed a detailed review of the support provided by the County for the revised estimate, and as a result, recognized additional expense of $1.2 million in 2016.  As of December 31, 2020 and 2019, the Company has a total reserve of $1.5 million related to the New Almaden Mine. As of December 31, 2020, $0.3 million is classified in Other Current Liabilities and $1.2 million is classified in Other Liabilities (long-term) on the Consolidated Statements of Financial Position. All charges related to this claim have been recorded within general and administrative expenses.

The project has not yet been implemented, though significant work on design and planning has been performed. The Company is awaiting notice from Santa Clara County on the expected timing of fieldwork to commence.  As work on the project occurs, it is possible that adjustments to the aforementioned reserves will be necessary to reflect new information.  In addition, the Company may have claims against and defenses to claims by the County under the 2005 agreement that could reduce or offset its obligation for reimbursement of some of these potential additional costs. The Company will closely monitor this matter and will continue to assess its reserves as additional information becomes available.

Patent Infringement

On December 11, 2018, No Spill Inc. filed suit against Scepter Manufacturing LLC and Scepter Corporation in the United States District Court for the District of Kansas asserting infringement of two patents, breach of contract, and trade dress claims in relation to plastic gasoline containers Scepter manufactures and sells in the United States. Scepter Canada, Inc. was later added in a second amended complaint. On November 15, 2019 the court dismissed Scepter Corporation from the action. A full schedule in the case has not yet issued. The Scepter companies intend to defend themselves vigorously in this matter. On December 28, 2019, Scepter Canada, Inc. filed petitions for inter partes review (“IPR”) of the two patents asserted by No Spill, Inc. in the District of Kansas litigation. The U.S. Patent & Trademark Office (“USPTO”) instituted one IPR and denied the other. For the instituted IPR, a final decision on the validity of the patent is expected by July 2021. Due to the inherent uncertainties of litigation, the Company cannot accurately predict the ultimate outcome of this matter, and is unable at this time to determine whether the outcome of the litigation will have a material impact on its results of operations, financial condition, or cash flows. Accordingly, the Company has not recorded any reserves for this matter.

 

13.  Long-Term Debt and Loan Agreements

Long-term debt at December 31, 2020 and 2019 consisted of the following:

 

 

 

December 31,

 

 

December 31,

 

 

 

2020

 

 

2019

 

Loan Agreement

 

$

—

 

 

$

—

 

4.67% Senior Unsecured Notes due January 15, 2021

 

 

40,000

 

 

 

40,000

 

5.25% Senior Unsecured Notes due January 15, 2024

 

 

11,000

 

 

 

11,000

 

5.30% Senior Unsecured Notes due January 15, 2024

 

 

15,000

 

 

 

15,000

 

5.45% Senior Unsecured Notes due January 15, 2026

 

 

12,000

 

 

 

12,000

 

 

 

 

78,000

 

 

 

78,000

 

Less unamortized deferred financing costs

 

 

424

 

 

 

824

 

 

 

 

77,576

 

 

 

77,176

 

Less current portion long-term debt

 

 

39,994

 

 

 

—

 

Long-term debt

 

$

37,582

 

 

$

77,176

 

 

50

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

In March 2017, the Company entered into the Loan Agreement, which amended the pre-existing senior revolving credit facility’s borrowing limit to $200 million, inclusive of letters of credit, and extended the maturity date from December 2018 to March 2022. As of December 31, 2020, the Company had $194.2 million available under the Loan Agreement after $5.8 million of letters of credit issued related to insurance and other financing contracts in the ordinary course of business, including the $2 million provided to the EPA as discussed in Note 12. Borrowings under the Loan Agreement bear interest at the LIBOR rate, prime rate, federal funds effective rate, the Canadian deposit offered rate, or the euro currency reference rate depending on the type of loan requested by the Company, plus the applicable margin as set forth in the Loan Agreement.

The Company also holds Senior Unsecured Notes with face values ranging from $11 million to $40 million, interest rates ranging from 4.67% to 5.45%, payable semiannually, and maturing between January 2021 and January 2026. In January 2021, the Company repaid the $40 million note due on January 15, 2021 using cash on hand and borrowings under the Loan Agreement.

Amortization expense of the deferred financing costs was $400, $386, and $386 for the years ended December 31, 2020, 2019 and 2018, respectively, and is included in interest expense.

The weighted average interest rate on borrowings under the Company’s loan agreements were 6.28% for 2020, 6.27% for 2019, and 5.75% for 2018, which includes a quarterly facility fee on the used and unused portion, as well as amortization of deferred financing costs.

As of December 31, 2020, the Company was in compliance with all of its debt covenants associated with its Loan Agreement and Notes. The most restrictive financial covenants for all of the Company’s debt are an interest coverage ratio (defined as earnings before interest, taxes, depreciation and amortization, as adjusted, divided by interest expense) and a leverage ratio (defined as total debt divided by earnings before interest, taxes, depreciation and amortization, as adjusted). The ratios as of December 31, 2020 are shown in the following table:

 

 

 

Required Level

 

Actual Level

 

Interest Coverage Ratio

 

3.00 to 1 (minimum)

 

 

15.38

 

Leverage Ratio

 

3.25 to 1 (maximum)

 

 

1.11

 

 

 

14.  Income Taxes

The effective tax rate from continuing operations was 24.7%, 27.0% and 218.7% in 2020, 2019 and 2018, respectively. A reconciliation of the federal statutory income tax rate to the Company’s effective tax rate is as follows:

 

 

 

Percent of Income before

Income Taxes

 

 

 

2020

 

 

2019

 

 

2018

 

Statutory federal income tax rate

 

 

21.0

%

 

 

21.0

%

 

 

21.0

%

State income taxes - net of federal tax benefit

 

 

3.3

 

 

 

5.2

 

 

 

42.5

 

Foreign tax rate differential

 

 

0.3

 

 

 

—

 

 

 

3.9

 

Non-deductible expenses

 

 

0.7

 

 

 

1.0

 

 

 

93.8

 

Impact of tax law changes

 

 

—

 

 

 

—

 

 

 

22.1

 

Changes in unrecognized tax benefits

 

 

(0.8

)

 

 

0.4

 

 

 

42.9

 

Foreign tax incentives

 

 

—

 

 

 

(0.4

)

 

 

(3.1

)

Other

 

 

0.2

 

 

 

(0.2

)

 

 

(4.4

)

Effective tax rate for the year

 

 

24.7

%

 

 

27.0

%

 

 

218.7

%

 

Income (loss) from continuing operations before income taxes was attributable to the following sources:

 

 

 

2020

 

 

2019

 

 

2018

 

United States

 

$

45,070

 

 

$

33,612

 

 

$

419

 

Foreign

 

 

3,792

 

 

 

(429

)

 

 

970

 

Totals

 

$

48,862

 

 

$

33,183

 

 

$

1,389

 

 

51

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

Income tax expense (benefit) from continuing operations consisted of the following:

 

 

 

2020

 

 

2019

 

 

2018

 

 

 

Current

 

 

Deferred

 

 

Current

 

 

Deferred

 

 

Current

 

 

Deferred

 

Federal

 

$

957

 

 

$

8,702

 

 

$

7,270

 

 

$

(447

)

 

$

9,694

 

 

$

(7,910

)

Foreign

 

 

1,390

 

 

 

(326

)

 

 

497

 

 

 

(538

)

 

 

1,218

 

 

 

(718

)

State and local

 

 

1,014

 

 

 

356

 

 

 

2,123

 

 

 

63

 

 

 

1,575

 

 

 

(822

)

 

 

$

3,361

 

 

$

8,732

 

 

$

9,890

 

 

$

(922

)

 

$

12,487

 

 

$

(9,450

)

 

On December 22, 2017, the United States enacted the Tax Act. Effective January 1, 2018, the Tax Act established a corporate income tax rate of 21%, replacing the former 35% rate, and created a territorial tax system rather than a worldwide system, which generally eliminated the U.S. federal income tax on dividends from foreign subsidiaries. The transition to the territorial system included a one-time deemed repatriation transition tax (“Transition Tax”) on certain foreign earnings previously untaxed in the United States. Based on the finalized accounting and preparation of the Company’s 2017 U.S. Federal Tax Return, the Company recorded a reduction of income tax expense of $0.3 million for the year ended December 31, 2018 to reflect adjustments to the previously recognized provisional amounts under the Tax Act. In addition, in 2018 the Company recorded income tax expense of $0.6 million associated with an uncertain tax position related to the calculation of the Transition Tax included in the 2017 return.

During 2018, the Company recorded a provision and related deferred tax liability of $0.6 million related primarily to the earnings of the Company’s subsidiary in Guatemala, which were deemed by management to no longer be permanently reinvested. The earnings and profits for all foreign subsidiaries had been previously included in the calculation of the Transition Tax, and thus, should there be a repatriation of earnings from any other foreign subsidiaries in future periods, the Company expects to be subject to only foreign withholding tax. Management does not currently anticipate a repatriation of earnings from any other foreign subsidiaries, except as provided above, as these earnings are deemed to be permanently reinvested.

Significant components of the Company’s deferred taxes as of December 31, 2020 and 2019 are as follows:

 

 

 

2020

 

 

2019

 

Deferred income tax assets

 

 

 

 

 

 

 

 

Compensation accruals

 

$

2,446

 

 

$

2,268

 

Inventory valuation

 

 

2,647

 

 

 

873

 

Allowance for uncollectible accounts

 

 

497

 

 

 

290

 

Provision for loss on note receivable

 

 

—

 

 

 

5,031

 

Non-deductible accruals

 

 

3,419

 

 

 

5,370

 

Operating lease liability

 

 

3,804

 

 

 

1,288

 

Non-deductible intangibles

 

 

1,669

 

 

 

1,862

 

State deferred taxes

 

 

451

 

 

 

730

 

Capital loss carryforwards

 

 

1,982

 

 

 

1,982

 

Net operating loss carryforwards

 

 

34

 

 

 

—

 

 

 

 

16,949

 

 

 

19,694

 

Valuation allowance

 

 

(1,982

)

 

 

(1,982

)

 

 

 

14,967

 

 

 

17,712

 

Deferred income tax liabilities

 

 

 

 

 

 

 

 

Property, plant and equipment

 

 

7,925

 

 

 

4,867

 

Tax-deductible goodwill

 

 

4,623

 

 

 

4,862

 

Right of use asset - operating leases

 

 

3,759

 

 

 

1,239

 

Other

 

 

1,534

 

 

 

937

 

 

 

 

17,841

 

 

 

11,905

 

Net deferred income tax (liability) asset

 

$

(2,874

)

 

$

5,807

 

 

Deferred tax assets are reduced by a valuation allowance, if based on all available evidence, it is more likely than not that the deferred tax asset will not be realized. Available evidence includes the reversal of existing taxable temporary differences, future taxable income exclusive of temporary differences, taxable income in carryback years and tax planning strategies.

52

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

As further discussed in Note 6, the Company sold its investments in certain Brazilian subsidiaries in December 2017. In connection with this divestiture, the Company incurred a capital loss of $9.5 million on its investment in the Myers do Brazil business and recorded a deferred tax asset of $2.0 million for this capital loss carryforward. A valuation allowance of $2.0 million is recorded against this deferred tax asset as the recovery of the asset is not more likely than not.

In 2017, the Company also recorded a tax benefit of approximately $15 million generated as a result of a worthless stock deduction for the Novel do Nordeste business included in the divestiture of the Brazil Business. Although management believes that the worthless stock deduction is valid, there can be no assurance that the IRS will not challenge it and, if challenged, that the Company will prevail. As a result of the Company’s U.S. Federal income tax filings in 2018, the Company reduced this estimated tax benefit by $0.7 million and recognized this adjustment within net loss from discontinued operations in the year ended December 31, 2018.

The following table summarizes the activity related to the Company’s unrecognized tax benefits:

 

 

 

2020

 

 

2019

 

 

2018

 

Balance at January 1

 

$

1,098

 

 

$

955

 

 

$

359

 

Increases related to previous year tax positions

 

 

59

 

 

 

143

 

 

 

596

 

Reductions due to lapse of applicable statute of limitations

 

 

(383

)

 

 

—

 

 

 

—

 

Balance at December 31

 

$

774

 

 

$

1,098

 

 

$

955

 

 

The total amount of gross unrecognized tax benefits that would reduce the Company’s effective tax rate was $0.8 million, $1.1 million and $1.0 million at December 31, 2020, 2019 and 2018, respectively.  

The Company and its subsidiaries file U.S. Federal, state and local, and non-U.S. income tax returns. As of December 31, 2020, the Company is no longer subject to U.S. Federal examinations by tax authorities for tax years before 2015. The Company’s 2017 U.S. Federal tax return is currently under audit by the Internal Revenue Service (“IRS”). The IRS began the examination of the worthless stock deduction discussed above in the year ending December 31, 2019, and there have been no changes resulting from this audit as of December 31, 2020. The Company is subject to state and local examinations for tax years of 2015 through 2019. In addition, the Company is subject to non-U.S. income tax examinations for tax years of 2015 through 2019.

15.  Retirement Plans

The Company and certain of its subsidiaries have pension and profit sharing plans covering substantially all of their employees. The Company’s defined benefit pension plan, The Pension Agreement between Akro-Mils and United Steelworkers of America Local No. 1761-02, (the “Plan”) provides benefits primarily based upon a fixed amount for each year of service. The Plan was frozen in 2007, and no benefits for service have accumulated after this date.

Net periodic pension cost of the Plan for the years ended December 31, 2020, 2019 and 2018 was as follows:

 

 

 

For the Year Ended December 31,

 

 

 

2020

 

 

2019

 

 

2018

 

Interest cost

 

$

191

 

 

$

242

 

 

$

224

 

Expected return on assets

 

 

(206

)

 

 

(184

)

 

 

(317

)

Amortization of net loss

 

 

81

 

 

 

97

 

 

 

84

 

Net periodic pension cost

 

$

66

 

 

$

155

 

 

$

(9

)

 

53

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

The reconciliation of changes in the Plan’s projected benefit obligations and assets are as follows:

 

 

 

December 31,

 

 

 

2020

 

 

2019

 

Change in benefit obligation:

 

 

 

 

 

 

 

 

Projected benefit obligation at beginning of year

 

$

6,339

 

 

$

5,944

 

Interest cost

 

 

191

 

 

 

242

 

Actuarial loss

 

 

567

 

 

 

510

 

Benefits paid

 

 

(348

)

 

 

(357

)

Projected benefit obligation at end of year

 

$

6,749

 

 

$

6,339

 

Change in plan assets:

 

 

 

 

 

 

 

 

Fair value of plan assets at beginning of year

 

$

5,383

 

 

$

4,737

 

Actual return on plan assets

 

 

623

 

 

 

972

 

Company contributions

 

 

150

 

 

 

31

 

Benefits paid

 

 

(348

)

 

 

(357

)

Fair value of plan assets at end of year

 

$

5,808

 

 

$

5,383

 

Funded status

 

$

(941

)

 

$

(956

)

 

The Plan’s funded status shown above is included in Other Liabilities in the Company’s Consolidated Statements of Financial Position at December 31, 2020 and 2019. The Company expects to make a contribution to the plan of $112 in 2021. Because the Plan has been frozen, the accumulated benefit obligation is equal to the projected benefit obligation. The actuarial losses incurred during the years ended December 31, 2020 and 2019 were a result of the decrease in the discount rate for benefit obligations between years.

 

The assumptions used to determine the Plan’s net periodic benefit cost and benefit obligations are as follows:

 

 

 

December 31,

 

 

 

2020

 

 

2019

 

 

2018

 

Discount rate for net periodic pension cost

 

 

3.10

%

 

 

4.20

%

 

 

3.50

%

Discount rate for benefit obligations

 

 

2.30

%

 

 

3.10

%

 

 

4.20

%

Expected long-term return of plan assets

 

 

6.25

%

 

 

7.00

%

 

 

7.50

%

 

The expected long-term rate of return is based on the long-term expected returns for the investment mix consistent with the Plan’s current asset allocation and investment policy. In 2018, the Plan’s asset allocation and investment policy transitioned from a total-return strategy to a liability-driven strategy, which increased the allocation of fixed income investments that are managed to match the duration of the underlying pension liability. The assumed discount rates represent long-term high-quality corporate bond rates commensurate with the liability duration of the Plan.

 

The fair value of Plan assets at December 31, 2020 and 2019 consist of mutual funds valued at $3,396 and $2,829, respectively, and pooled separate accounts valued at $2,412 and $2,554, respectively. All of the Plan asset values are categorized as Level 1. Mutual fund values are determined based on period end, closing quoted prices in active markets. The pooled separate accounts are measured at net asset value, which is made readily available to investors. Each of the pooled separate accounts invest in multiple fixed securities and provide for daily redemptions by the plan with no advance notice requirements, and have redemption prices that are also determined by the fund’s net asset value per unit with no redemption fees.

The weighted average asset allocations for the Plan at December 31, 2020 and 2019 were as follows:

 

 

 

December 31,

 

 

 

2020

 

 

2019

 

U.S. equities securities

 

 

58

%

 

 

53

%

U.S. debt securities

 

 

42

%

 

 

47

%

 

 

 

100

%

 

 

100

%

 

54

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

Benefit payments projected for the Plan are as follows:

 

2021

 

$

360

 

2022

 

 

360

 

2023

 

 

360

 

2024

 

 

370

 

2025

 

 

370

 

2026-2030

 

 

1,840

 

 

The Myers Industries Profit Sharing and 401(k) Plan is maintained for the Company’s U.S. based employees, not covered under defined benefit plans, who have met eligibility service requirements. The Company recognized expense related to the 401(k) employer matching contribution in the amount of $2,689, $2,500 and $2,216 in 2020, 2019 and 2018, respectively.

In addition, the Company has a Supplemental Executive Retirement Plan (“SERP”) to provide certain former senior executives with retirement benefits in addition to amounts payable under the 401(k) plan. Expense related to the SERP was approximately $110, $174 and $33 for the years ended December 2020, 2019 and 2018, respectively. The SERP liability was based on the discounted present value of expected future benefit payments using a discount rate of 2.3% at December 31, 2020 and 3.1% at December 31, 2019. The SERP liability was approximately $1,892 and $2,200 at December 31, 2020 and 2019, respectively, and is included in Accrued Employee Compensation and Other Liabilities on the accompanying Consolidated Statements of Financial Position. The SERP is unfunded.

16.  Leases

The Company determines if an arrangement is a lease at inception. The Company has leases for manufacturing facilities, distribution centers, warehouses, office space and equipment, with remaining lease terms of one to nine years. Certain of these leases include options to extend the lease for up to five years, and some include options to terminate the lease early. Leases with an initial term of 12 months or less are not recorded on the Consolidated Statements of Financial Position; the Company recognizes lease expense for these short-term leases on a straight-line basis over the lease term. Operating leases with an initial term greater than 12 months are included in Right of use asset – operating leases (“ROU assets”), Operating lease liability – short term, and Operating lease liability – long term in the Consolidated Statements of Financial Position.

The ROU assets represent the right to use an underlying asset for the lease term and the lease liabilities represent the obligation to make lease payments. ROU assets and lease liabilities are recognized at commencement date based on the present value of the lease payments over the lease term. When leases do not provide an implicit rate, the Company’s incremental borrowing rate is used, which is then applied at the portfolio level, based on the information available at commencement date in determining the present value of lease payments. The Company has also elected not to separate lease and non-lease components. The lease terms include options to extend or terminate the lease when it is reasonably certain that the Company will exercise that option. Lease expense is recognized on a straight-line basis over the lease term.

Amounts included in the Consolidated Statements of Financial Position related to leases include:

 

 

 

December 31,

 

 

December 31,

 

 

 

2020

 

 

2019

 

Right of use asset - operating leases

 

$

18,390

 

 

$

5,901

 

 

 

 

 

 

 

 

 

 

Operating lease liability - short-term

 

$

4,359

 

 

$

2,057

 

Operating lease liability - long-term

 

 

13,755

 

 

 

4,074

 

Total operating lease liabilities

 

$

18,114

 

 

$

6,131

 

 

55

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

The components of lease expense include:

 

 

 

 

 

For the Year Ended December 31,

 

Lease Cost

 

Classification

 

2020

 

 

2019

 

 

2018

 

Operating lease cost (1)

 

Cost of sales

 

$

2,008

 

 

$

1,744

 

 

$

1,696

 

Operating lease cost (1)

 

Selling, general and administrative expenses

 

 

1,729

 

 

 

1,741

 

 

 

1,616

 

Total lease cost

 

 

 

$

3,737

 

 

$

3,485

 

 

$

3,312

 

 

(1)

Includes short-term leases and variable lease costs, which are immaterial

Supplemental cash flow information related to leases was as follows:

 

 

 

For the Year Ended December 31,

 

Supplemental Cash Flow Information

 

2020

 

 

2019

 

Cash paid for amounts included in the measurement of lease liabilities:

 

 

 

 

 

 

 

 

Operating cash flows from operating leases

 

$

2,683

 

 

$

2,428

 

Right-of-use assets obtained in exchange for new lease liabilities:

 

 

 

 

 

 

 

 

Operating leases

 

$

1,116

 

 

$

2,083

 

 

Lease Term and Discount Rate

 

December 31, 2020

 

 

December 31, 2019

 

Weighted-average remaining lease term (years):

 

 

 

 

 

 

 

 

Operating leases

 

 

5.66

 

 

 

4.23

 

Weighted-average discount rate:

 

 

 

 

 

 

 

 

Operating leases

 

 

3.7

%

 

 

5.0

%

 

Maturity of Lease Liabilities - As of December 31, 2020

 

Operating Leases

 

2021

 

$

4,938

 

2022

 

 

4,013

 

2023

 

 

3,415

 

2024

 

 

2,052

 

2025

 

 

1,261

 

After 2025

 

 

4,345

 

Total lease payments

 

 

20,024

 

Less: interest

 

 

(1,910

)

Present value of lease liabilities

 

$

18,114

 

 

In December 2019, the Company entered into an agreement where a new manufacturing and distribution facility in Bristol, Indiana will be constructed, and when it is substantially complete, the Company will lease that new facility and sell its existing facility in Bristol, Indiana. As described in Note 8, this agreement was in connection with the Ameri-Kart Plan, which includes facility consolidation for this business within the Material Handling Segment. This lease is not included in the tables disclosed above because it has not yet commenced; it commences when the facility is substantially complete, which is expected to be in 2021. Upon commencement, the lease has an initial term of fifteen years with base annual rent of approximately $0.8 million during the first year. Inclusive of scheduled increases the total expected future minimum lease payments during the initial term of the lease is approximately $13.5 million, but may vary depending on the actual cost of certain construction activities. At commencement of this lease, the Company expects assets and liabilities within the Consolidated Statements of Financial Position to each increase by approximately $9 million.

 

In February 2018, the Company completed a sale-leaseback transaction for its distribution center in Pomona, California for a net purchase price of $2.3 million. Simultaneous with the closing of the sale, the Company entered into a ten-year operating lease arrangement with base annual rent of approximately $0.1 million during the first year, followed by annual increases of 3% through the remainder of the lease period. The Company realized a gain on the sale of $2.0 million, of which $0.7 million was recognized at the time of the sale. The remaining $1.3 million was recognized ratably over the term of the lease at approximately $0.1 million per year, until the January 1, 2019 adoption of ASU 2016-02. This facility is included in the Company’s Distribution Segment.

56

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

In February 2021, the Company extended two of its leases in its Material Handling Segment to go through 2031. As a result of this extension, the Company expects an increase in its right of use asset and corresponding lease liability of approximately $3.5 million.

17.  Industry Segments

The Company manages its business under two operating segments, Material Handling and Distribution, consistent with the manner in which our Chief Operating Decision Maker evaluates performance and makes resource allocation decisions. None of the reportable segments include operating segments that have been aggregated.  These segments contain individual business components that have been combined on the basis of common management, customers, products, production processes and other economic characteristics. The Company accounts for intersegment sales and transfers at cost plus a specified mark-up.

The Material Handling Segment manufactures a broad selection of plastic reusable containers, pallets, small parts bins, bulk shipping containers, storage and organization products and rotationally-molded plastic tanks for water, fuel and waste handling. This segment conducts its primary operations in the United States and Canada. Markets served include industrial manufacturing, food processing, retail/wholesale products distribution, agriculture, automotive, recreational vehicles, marine vehicles, healthcare, appliance, bakery, electronics, textiles, consumer, and others. Products are sold both directly to end-users and through distributors. The acquisition of Elkhart Plastics, described in Note 3, is included in the Material Handling Segment.

The Distribution Segment is engaged in the distribution of equipment, tools, and supplies used for tire servicing and automotive undervehicle repair and the manufacture of tire repair and retreading products. The product line includes categories such as tire valves and accessories, tire changing and balancing equipment, lifts and alignment equipment, service equipment and tools, and tire repair/retread supplies. The Distribution Segment also manufactures and sells certain traffic markings, including reflective highway marking tape. The Distribution Segment operates domestically through its sales offices and five regional distribution centers in the United States, and in certain foreign countries through export sales. In addition, the Distribution Segment operates directly in certain foreign markets, principally Central America, through foreign branch operations. Markets served include retail and truck tire dealers, commercial auto and truck fleets, auto dealers, general service and repair centers, tire retreaders, and government agencies. The acquisition of Tuffy, described in Note 3, is included in the Distribution Segment.

Total sales from foreign business units were approximately $39.8 million, $42.0 million, and $50.6 million for the years ended December 31, 2020, 2019 and 2018, respectively. Total export sales to countries outside the U.S. were approximately $17.7 million, $23.6 million, and $19.6 million for the years ended December 31, 2020, 2019 and 2018, respectively. Sales made to customers in Canada accounted for approximately 4.8%, 4.7% and 4.1% of total net sales in 2020, 2019 and 2018, respectively. There are no other individual foreign countries for which sales are material. Long-lived assets in foreign countries, primarily in Canada, consisted of property, plant and equipment, and were approximately $11.8 million and $13.2 million at December 31, 2020 and 2019, respectively.

57

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

 

 

2020

 

 

2019

 

 

2018

 

Net Sales

 

 

 

 

 

 

 

 

 

 

 

Material Handling

$

343,884

 

 

$

356,407

 

 

$

417,199

 

Distribution

 

166,544

 

 

 

159,349

 

 

 

149,636

 

Inter-company sales

 

(59

)

 

 

(58

)

 

 

(100

)

Total net sales

$

510,369

 

 

$

515,698

 

 

$

566,735

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating income

 

 

 

 

 

 

 

 

 

 

 

Material Handling

$

55,072

 

 

$

53,144

 

 

$

57,948

 

Distribution

 

12,157

 

 

 

10,076

 

 

 

7,441

 

Corporate (1)

 

(13,679

)

 

 

(25,954

)

 

 

(59,062

)

Total operating income

 

53,550

 

 

 

37,266

 

 

 

6,327

 

Interest expense, net

 

(4,688

)

 

 

(4,083

)

 

 

(4,938

)

Income from continuing operations before income taxes

$

48,862

 

 

$

33,183

 

 

$

1,389

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Assets

 

 

 

 

 

 

 

 

 

 

 

Material Handling

$

292,596

 

 

$

193,751

 

 

$

229,962

 

Distribution

 

80,708

 

 

 

75,338

 

 

 

48,575

 

Corporate (2)

 

26,711

 

 

 

84,050

 

 

 

70,108

 

Total assets

$

400,015

 

 

$

353,139

 

 

$

348,645

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital Additions, Net

 

 

 

 

 

 

 

 

 

 

 

Material Handling

$

12,207

 

 

$

8,835

 

 

$

4,500

 

Distribution

 

931

 

 

 

1,396

 

 

 

587

 

Corporate

 

283

 

 

 

63

 

 

 

36

 

Total capital additions, net

$

13,421

 

 

$

10,294

 

 

$

5,123

 

 

 

 

 

 

 

 

 

 

 

 

 

Depreciation and Amortization

 

 

 

 

 

 

 

 

 

 

 

Material Handling

$

17,834

 

 

$

21,282

 

 

$

24,159

 

Distribution

 

2,300

 

 

 

1,501

 

 

 

1,169

 

Corporate

 

796

 

 

 

800

 

 

 

811

 

Total depreciation and amortization

$

20,930

 

 

$

23,583

 

 

$

26,139

 

 

(1) Corporate results include the impacts of the write-off of the balance of the HC notes receivable and related accrued interest as well as recording the lease guarantee liability in 2018 and the recorded gain related to the sale of the HC notes receivable and the release of the lease guarantee in 2020 as discussed in Note 6.

(2) The decrease in Corporate assets is primarily due to cash paid for the acquisition of Elkhart Plastics as discussed in Note 3.

58

MYERS INDUSTRIES, INC. AND SUBSIDIARIES

Notes to Consolidated Financial Statements - (Continued)

(Dollars in thousands, except where otherwise indicated)

 

18.  Summarized Quarterly Results of Operations (Unaudited)

 

Quarter Ended 2020

 

March 31

 

 

June 30

 

 

September 30

 

 

December 31

 

 

Total

 

Net sales

 

$

122,250

 

 

$

118,394

 

 

$

132,258

 

 

$

137,467

 

 

$

510,369

 

Gross profit

 

 

42,483

 

 

 

42,573

 

 

 

47,067

 

 

 

39,837

 

 

 

171,960

 

Operating income

 

 

23,298

 

 

 

12,256

 

 

 

13,140

 

 

 

4,856

 

 

 

53,550

 

Income from continuing operations

 

 

16,726

 

 

 

8,368

 

 

 

8,685

 

 

 

2,990

 

 

 

36,769

 

Income (loss) from discontinued operations, net

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

Net income

 

 

16,726

 

 

 

8,368

 

 

 

8,685

 

 

 

2,990

 

 

 

36,769

 

Income per common share from continuing operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic*

 

$

0.47

 

 

$

0.23

 

 

$

0.24

 

 

$

0.08

 

 

$

1.03

 

Diluted*

 

$

0.47

 

 

$

0.23

 

 

$

0.24

 

 

$

0.08

 

 

$

1.02

 

Income (loss) per common share from discontinued

   operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic*

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

Diluted*

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

Net income per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic*

 

$

0.47

 

 

$

0.23

 

 

$

0.24

 

 

$

0.08

 

 

$

1.03

 

Diluted*

 

$

0.47

 

 

$

0.23

 

 

$

0.24

 

 

$

0.08

 

 

$

1.02

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Quarter Ended 2019

 

March 31

 

 

June 30

 

 

September 30

 

 

December 31

 

 

Total

 

Net sales

 

$

139,115

 

 

$

134,285

 

 

$

125,480

 

 

$

116,818

 

 

$

515,698

 

Gross profit

 

 

45,559

 

 

 

46,936

 

 

 

39,586

 

 

 

39,231

 

 

 

171,312

 

Operating income

 

 

10,218

 

 

 

10,182

 

 

 

8,060

 

 

 

8,806

 

 

 

37,266

 

Income from continuing operations

 

 

6,643

 

 

 

6,606

 

 

 

5,219

 

 

 

5,747

 

 

 

24,215

 

Income (loss) from discontinued operations, net

 

 

127

 

 

 

—

 

 

 

—

 

 

 

(9

)

 

 

118

 

Net income

 

$

6,770

 

 

$

6,606

 

 

$

5,219

 

 

$

5,738

 

 

 

24,333

 

Income per common share from continuing

   operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic*

 

$

0.19

 

 

$

0.19

 

 

$

0.15

 

 

$

0.16

 

 

$

0.68

 

Diluted*

 

$

0.19

 

 

$

0.18

 

 

$

0.15

 

 

$

0.16

 

 

$

0.68

 

Income (loss) per common share from discontinued

   operations:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic*

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

Diluted*

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

Net income per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic*

 

$

0.19

 

 

$

0.19

 

 

$

0.15

 

 

$

0.16

 

 

$

0.68

 

Diluted*

 

$

0.19

 

 

$

0.18

 

 

$

0.15

 

 

$

0.16

 

 

$

0.68

 

 

 

*

The sum of the earnings per share for the four quarters in a year does not necessarily equal the total year earnings per share due to the computation of weighted shares outstanding during each respective period.

 

 

59

 

 

ITEM 9.

CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.

None.

ITEM 9A.

CONTROLS AND PROCEDURES

Evaluation of Disclosure Controls and Procedures

The Company maintains disclosure controls and procedures, as defined under Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended, that are designed to ensure that information required to be disclosed in the Company’s reports under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms and that such information is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure.

The Company carries out a variety of on-going procedures, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and Interim Chief Financial Officer, to evaluate the effectiveness of the design and operation of the Company’s disclosure controls and procedures. Based on the foregoing, the Company’s Chief Executive Officer and Interim Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective as of December 31, 2020.

Management’s report on internal control over financial reporting, and the report of the independent registered public accounting firm on internal control over financial reporting are titled “Management’s Annual Assessment of and Report on Internal Control Over Financial Reporting” and “Report of Independent Registered Public Accounting Firm,” respectively, and are included herein.

Changes in Internal Control Over Financial Reporting

There have been no changes in our internal control over financial reporting during the period covered by this report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

Management’s Annual Assessment of and Report on Internal Control Over Financial Reporting

Management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Exchange Act Rule 13a-15(f). The Company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America.

Because of its inherent limitation, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Under the supervision and with the participation of management, including the Chief Executive Officer and Interim Chief Financial Officer, the Company conducted an evaluation of the effectiveness of the Company’s internal control over financial reporting based on the framework in “Internal Control – Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework). Based on this assessment, management concluded that the Company maintained effective internal control over financial reporting as of December 31, 2020.

On November 10, 2020, the Company acquired the assets of Elkhart Plastics as described more fully in Note 3 to the consolidated financial statements. Elkhart Plastics represented approximately 23% of the Company’s consolidated total assets at December 31, 2020 and approximately 2% of the Company’s consolidated net sales for the year ended December 31, 2020. As permitted by the Securities and Exchange Commission, management has elected to exclude Elkhart Plastics from its assessment of internal control over financial reporting as of December 31, 2020.

The effectiveness of the Company’s internal control over financial reporting as of December 31, 2020 has been audited by Ernst & Young LLP, an independent registered public accounting firm, as stated in their report included herein.

 

Michael P. McGaugh

Daniel W. Hoehn

President and

Interim Chief Financial Officer

Chief Executive Officer

 

60

 

 

Report of Independent Registered Public Accounting Firm

To the Shareholders and the Board of Directors of Myers Industries, Inc. and Subsidiaries

 

Opinion on Internal Control over Financial Reporting

 

We have audited Myers Industries, Inc. and Subsidiaries’ internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Myers Industries, Inc. and Subsidiaries (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on the COSO criteria.

 

As indicated in the accompanying Management’s Annual Assessment of and Report on Internal Control Over Financial Reporting, management’s assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the internal controls of Elkhart Plastics (Elkhart), which is included in the 2020 consolidated financial statements of the Company and constituted approximately 23% of consolidated total assets as of December 31, 2020 and approximately 2% of consolidated net sales for the year then ended. Our audit of internal control over financial reporting of the Company also did not include an evaluation of the internal control over financial reporting of Elkhart.

 

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated statements of financial position of the Company as of December 31, 2020 and 2019, and the related consolidated statements of operations, comprehensive income (loss), shareholders’ equity and cash flows for each of the three years in the period ended December 31, 2020 and the related notes and our report dated March 11, 2021 expressed an unqualified opinion thereon.

 

Basis for Opinion

 

The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Annual Assessment of and Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.

 

Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

 

Definition and Limitations of Internal Control Over Financial Reporting

 

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ Ernst & Young LLP

Akron, Ohio

March 11, 2021

61

 

ITEM 9B.

Other Information.

None.

 

PART III

 

 

ITEM 10.

Information about our Directors, Executive Officers and Corporate Governance

Set forth below is certain information concerning the executive officers of the Registrant as of March 1, 2021. Executive officers are appointed annually by the Board of Directors.

 

Name

 

Age

 

Title

Michael P. McGaugh

 

47

 

President and Chief Executive Officer

Daniel W. Hoehn

 

42

 

Interim Chief Financial Officer

Andrean R. Horton

 

46

 

Executive Vice President, Chief Legal Officer and Secretary

Sonal P. Robinson

 

52

 

Executive Vice President, Finance

Thomas P. Harmon

 

60

 

Senior Vice President, Human Resources

 

Mr. McGaugh, President and Chief Executive Officer, was appointed to his current position on April 6, 2020. Prior to joining the Company, he served as Executive Vice President and Chief Operating Officer of BMC Stock Holdings, Inc. Prior to that, Mr. McGaugh served in various leadership roles with The Dow Chemical Company, including Global General Manager, Dow Building Solutions; Global General Manager, Growth & Innovation Business Portfolio; and Global Director and leader of the Integration Management Office.

Mr. Hoehn, Interim Chief Financial Officer, was appointed to his current position on September 18, 2020. Previously, he served as Vice President and Corporate Controller since joining the Company on August 13, 2019. Prior to joining the Company, Mr. Hoehn served as Vice President, Controller and Chief Accounting Officer of Babcock & Wilcox Enterprises, Inc. Prior to that, Mr. Hoehn held various finance leadership roles with Chiquita Brands International, Inc., including Vice President, Controller.  

Ms. Horton, Executive Vice President, Chief Legal Officer and Secretary, was appointed to her current position on October 8, 2018. She also served as Interim President and Chief Executive Officer from October 25, 2019 until April 6, 2020. Previously, Ms. Horton was with A. Schulman, Inc., where she held various legal positions, including Executive Vice President, Chief Legal Officer and Secretary.  Prior to that, Ms. Horton held various leadership roles, including Vice President, Legal & Regulatory Compliance, with YRC Worldwide, Inc. and General Counsel & Corporate Secretary, at The Bartech Group, Inc.

Ms. Robinson, Executive Vice President, Finance, was appointed to her position effective February 1, 2021. She most recently previously served as Vice President and Treasurer of The J.M. Smucker Company (“Smucker”) from 2016 through 2020. Ms. Robinson’s prior roles during her 27-year tenure at Smucker included Vice President, Finance for the U.S. Retail Coffee segment and Vice President, Investor Relations.

Mr. Harmon, Senior Vice President, Human Resources, was appointed to his current position on October 21, 2020. Previously, Mr. Harmon served as Vice President and Chief Human Resources Officer of the Company from September 30, 2019 until July 10, 2020. Mr. Harmon served as Senior Vice President and Chief Human Resources Officer of Perdue Farms from that date until he rejoined the Company. Prior to September 30, 2019, Mr. Harmon was with Gryphon Investors where he was Managing Director, Human Resources.  Prior to that, Mr. Harmon held HR leadership positions with Dawn Food Products, Armstrong World Industries and Pfizer.

For information about the directors of the Company, see the sections titled “Proposal No. 1 – Election of Directors”, “Nominees,” “Corporate Governance Guidelines,” “Corporate Governance and Compensation Practices,” “Board and Committee Independence,” “Board Committees and Meetings,” “Committee Charters and Policies,” and “Shareholder Nomination Process” of the Company’s Proxy Statement filed with the Securities and Exchange Commission for the Company’s annual meeting of shareholders to be held on April 29, 2021 (“Proxy Statement”), which is incorporated herein by reference.

Each member of the Company’s Audit Committee is financially literate and independent as defined under the Company’s Independence Criteria Policy and the independence standards set by the New York Stock Exchange. The Board has identified Robert A. Stefanko, Jane Scaccetti, F. Jack Liebau, Jr. and Lori Lutey as “Audit Committee Financial Experts.”

Disclosures by the Company with respect to compliance with Section 16(a) appears under the section entitled “Section 16(a) Beneficial Ownership Reporting Compliance” in the Proxy Statement, and is incorporated herein by reference.

62

 

Our Board of Directors has adopted Charters for each of the Audit Committee, the Compensation Committee, and the Nominating and Governance Committee as well as Corporate Governance Guidelines as contemplated by the applicable sections of the New York Stock Exchange Listed Company Manual.

In accordance with the requirements of Section 303A.10 of the New York Stock Exchange Listed Company Manual, the Board of Directors has also adopted a Code of Ethics and Business Conduct for our employees and members of our Board of Directors. We will satisfy any disclosure requirement under Item 5.05 of Form 8-K regarding an amendment to, or waiver from, any provision of this Code with respect to our executive officers or directors by disclosing the nature of that amendment or waiver.

The text of each of our Board Committee Charters, our Corporate Guidelines, the Code of Ethics and Business Conduct, and other governance policies, is posted on our website on the “Corporate Governance” page accessed from the page titled “Investor Relations.” For further information about our Code of Ethics and Business Conduct, see the section titled “Corporate Governance and Compensation Practices” of our Proxy Statement, which is incorporated herein by reference.

 

 

ITEM 11.

Executive Compensation

See the sections titled “Compensation Discussion and Analysis,” “Employment Arrangements Including Change in Control,” “Risk Assessment of Compensation Practices,” “CEO Pay Ratio,” “Compensation Committee Interlocks and Insider Participation,” and “Compensation Committee Report on Executive Compensation” of the Proxy Statement, which are incorporated herein by reference.

 

ITEM 12.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

See the sections titled “Security Ownership of Certain Beneficial Owners and Management,” and “Proposal No. 1 - Election of Directors” of the Proxy Statement, which are incorporated herein by reference.

 

 

 

(A)

 

 

(B)

 

 

(C)

 

Plan Category

 

Number of Securities

to be Issued Upon

Exercise of

Outstanding Options,

Warrants and Rights

 

 

Weighted-average

Exercise Price of

Outstanding Options,

Warrants and Rights

 

 

Number of Securities

Remaining Available for

Future Issuance Under

Equity Compensation

Plans (Excluding

Securities Reflected in

Column (A))

 

Equity Compensation Plans Approved by Security Holders

 

 

1,050,595

 

(1)

$

18.09

 

(2)

 

678,364

 

Equity Compensation Plans Not Approved by Security Holders

 

–0–

 

 

–0–

 

 

–0–

 

Total

 

 

1,050,595

 

 

 

 

 

 

 

678,364

 

 

(1)

This information is as of December 31, 2020 and includes outstanding stock option and restricted stock unit awards, including performance-based restricted stock unit awards, granted under the 2017 Incentive Stock Plan.

(2)

Represents the weighted average exercise price of outstanding stock options and does not take into account outstanding restricted stock unit awards, which do not have an exercise price.

 

 

ITEM 13.

See the sections titled “Policies and Procedures with Respect to Related Party Transactions” and “Corporate Governance Guidelines,” “Corporate Governance and Compensation Practices” and “Board and Committee Independence” of the Proxy Statement, which are incorporated herein by reference.

 

 

ITEM 14.

Principal Accounting Fees and Services

Required information regarding fees paid to and services provided by the Company’s independent registered public accounting firm and the pre-approval policies and procedures of the Audit Committee of the Company’s Board of Directors is set forth under the section titled “Matters Relating to the Independent Registered Public Accounting Firm” of the Proxy Statement, which is incorporated herein by reference.

63

 

PART IV

 

 

ITEM 15.

Exhibits, Financial Statement Schedules

 

The following consolidated financial statements of the Registrant appear in Part II of this Report:

15.

(A)(1) Financial Statements

Consolidated Financial Statements of Myers Industries, Inc. and Subsidiaries

 

•

Report of Independent Registered Public Accounting Firm

 

•

Consolidated Statements of Operations For The Years Ended December 31, 2020, 2019 and 2018

 

•

Consolidated Statements of Comprehensive Income (Loss) For the Years Ended December 31, 2020, 2019 and 2018

 

•

Consolidated Statements of Financial Position As of December 31, 2020 and 2019

 

•

Consolidated Statements of Shareholders’ Equity For The Years Ended December 31, 2020, 2019 and 2018

 

•

Consolidated Statements of Cash Flows For The Years Ended December 31, 2020, 2019 and 2018

 

•

Notes to Consolidated Financial Statements

15.

(A)(2) Financial Statement Schedules

All schedules are omitted because they are inapplicable, not required, or because the information is included in the consolidated financial statements or notes thereto which appear in Part II of this Report.

15.

(A)(3) Exhibits

EXHIBIT INDEX

 

2(a)

Amended and Restated Asset Purchase Agreement, dated as of February 17, 2015, among Myers Industries, Inc., MYE Canada Operations, Inc., and the HC Companies, Inc. Reference is made to Exhibit 2.1 to Form 8-K filed with the Commission on February 18, 2015.**

3(a)

Myers Industries, Inc. Amended and Restated Articles of Incorporation. Reference is made to Exhibit 3(a) to Form 10-K filed with the Commission on March 16, 2005.

3(b)

Myers Industries, Inc. Amended and Restated Code of Regulations, as amended. Reference is made to Exhibit 3.1 to Form 8-K filed with the Commission on December 8, 2020.

4

Description of Capital Stock (filed herewith)

10(a)

Myers Industries, Inc. Employee Stock Purchase Plan. Reference is made to Exhibit 99.1 to Form S-8 filed with the Commission on November 21, 2018.

10(b)

Form of Indemnification Agreement for Directors and Officers. Reference is made to Exhibit 10.1 to Form 10-Q filed with the Commission on May 1, 2009.

10(c)

Myers Industries, Inc. Amended and Restated Dividend Reinvestment and Stock Purchase Plan. Reference is made to Exhibit 99 to Post-Effective Amendment No. 2 to Form S-3 filed with the Commission on March 19, 2004.

10(d)

Performance Bonus Plan of Myers Industries, Inc. Reference is made to Exhibit 10.1 to Form 8-K filed with the Commission on April 30, 2013.*

10(e)

Note Purchase Agreement between Myers Industries, Inc. and the Note Purchasers, dated October 22, 2013, regarding the issuance of $40,000,000 of 4.67% Series A Senior Notes due January 15, 2021, $11,000,000 of 5.25% Series B Senior Notes due January 15, 2024, $29,000,000 of 5.30% Series C Senior Notes due January 15, 2024, and $20,000,000 of 5.45% Series D Senior Notes due January 15, 2026. Reference is made to Exhibit 4.1 to Form 8-K filed with the Commission on October 24, 2013.

10(f)

First Amendment to the Note Purchase Agreement between Myers Industries, Inc. and the Note Purchasers, regarding the issuance of $40,000,000 of 4.67% Series A Senior Notes due January 15, 2021, $11,000,000 of 5.25% Series B Senior Notes due January 15, 2024, $29,000,000 of 5.30% Series C Senior Notes due January 15, 2024, and $20,000,000 of 5.45% Series D Senior Notes due January 15, 2026, dated July 21, 2015. Reference is made to Exhibit 10.1 to Form 8-K filed with the Commission on July 23, 2015.

10(g)

Fourth Amended and Restated Loan Agreement among Myers Industries, Inc., MYE Canada Operations, Inc., the lenders party thereto, and JPMorgan Chase Bank, National Association, as Agent, dated December 13, 2013. Reference is made to Exhibit 10.1 to Form 8-K filed with the Commission on December 17, 2013.

10(h)

First Amendment to Fourth Amended and Restated Loan Agreement among Myers Industries, Inc., the foreign subsidiary borrowers, the lenders party thereto, and JPMorgan Chase Bank, National Association, as Agent, dated May 30, 2014. Reference is made to Exhibit 10.1 to Form 8-K filed with the Commission on June 4, 2014.

64

 

10(i)

Second Amendment to Fourth Amended and Restated Loan Agreement among Myers Industries, Inc., the foreign subsidiary borrowers, the lenders party thereto, and JPMorgan Chase Bank, National Association, as Agent, dated May 19, 2015. Reference is made to Exhibit 10.1 to Form 8-K filed with the Commission on May 26, 2015.

10(j)

Non-Competition and Confidentiality Agreement between Myers Industries, Inc. and Michael P. McGaugh dated April 6, 2020. Reference is made to Exhibit 10.2 to the Form 8-K filed with the Commission on March 16, 2020.*

10(k)

Severance Agreement between the Company and Kevin Brackman entered into December 13, 2018 effective December 11, 2018. Reference is made to Exhibit 10.1 to Form 8-K/A filed with the Commission on December 18, 2018.*

10(l)

Non-Disclosure and Non-Competition Agreement between the Company and Kevin Brackman entered into January 22, 2015.* Reference is made to Exhibit 10(m) to Form 10-K filed with the Commission on March 6, 2020.

10(m)

Non-Competition and Confidentiality Agreement between the Company and Andrean Horton entered into October 8, 2018.*  Reference is made to Exhibit 10(o) to Form 10-K filed with the Commission on March 6, 2020.

10(n)

Non-Competition and Confidentiality Agreement between the Company and Thomas Harmon entered into October 21, 2020.* (filed herewith)

10(o)

Fifth Amended and Restated Loan Agreement, dated March 8, 2017, among Myers Industries, Inc., MYE Canada Operations Inc., Scepter Canada Inc. and the other foreign subsidiary borrowers, the lenders and JPMorgan Chase Bank, National Association, as administrative agent. Reference is made to Exhibit 10.1 to Form 8-K filed with the Commission on March 9, 2017.

10(p)

Second Amendment to the Note Purchase Agreement among the Subsidiary Guarantors identified therein and each of the institutions which is a signatory thereto, dated March 8, 2017. Reference is made to Exhibit 10.2 to Form 8-K filed with the Commission on March 9, 2017.

10(q)

Form of Director Stock Award Agreement under the Amended and Restated 2017 Incentive Stock Plan. Reference is made to Exhibit 10(ac) to Form 10-K filed with the Commission on March 8, 2019.

10(r)

Form of 2018 Option Award Agreement under the Amended and Restated 2017 Incentive Stock Plan of Myers Industries, Inc. Reference is made to Exhibit 10(ai) to Form 10-K filed with the Commission on March 9, 2018.

10(s)

Form of 2018 Restricted Stock Unit Award Agreement under the Amended and Restated 2017 Incentive Stock Plan of Myers Industries, Inc. Reference is made to Exhibit 10(aj) to Form 10-K filed with the Commission on March 9, 2018.

10(t)

Form of 2018 Performance Stock Unit Award Agreement under the Amended and Restated 2017 Incentive Stock Plan of Myers Industries, Inc. Reference is made to Exhibit 10(an) to Form 10-K filed with the Commission on March 9, 2018.

10(u)

Amended and Restated 2017 Stock Incentive Plan of Myers Industries, Inc.* Reference is made to Exhibit 10(ao) to Form 10-K filed with the Commission on March 9, 2018.

10(v)

Form of 2019 Option Award Agreement under the Amended and Restated 2017 Incentive Stock Plan of Myers Industries, Inc.* Reference is made to Exhibit 10.1 to Form 10-Q filed with the Commission on May 8, 2019.

10(w)

Form of 2019 Restricted Stock Unit Award Agreement under the Amended and Restated 2017 Incentive Stock Plan of Myers Industries, Inc.* Reference is made to Exhibit 10.2 to Form 10-Q filed with the Commission on May 8, 2019.

10(x)

Form of 2019 Performance Stock Unit Award Agreement under the Amended and Restated 2017 Incentive Stock Plan of Myers Industries, Inc.* Reference is made to Exhibit 10.3 to Form 10-Q filed with the Commission on May 8, 2019.

10(y)

Administrative Settlement Agreement and Order on Consent For Remedial Investigation/Feasibility Study, effective November 27, 2018, by and between the United States Environmental Protection Agency and Buckhorn, Inc. Reference is made to Exhibit 10.1 to Form 8-K filed with the Commission on December 13, 2018.

10(z)

Executive Nonqualified Excess Plan effective January 1, 2018* Reference is made to Exhibit 10(ai) to Form 10-K filed with the Commission on March 8, 2019.

10(aa)

Form of 2020 Restricted Stock Unit Award Agreement under the Amended and Restated 2017 Incentive Stock Plan of Myers Industries, Inc.* Reference is made to Exhibit 10(a) to Form 10-Q filed with the Commission on July 30, 2020.

10(ab)

Form of 2020 Performance Stock Unit Award Agreement under the Amended and Restated 2017 Incentive Stock Plan of Myers Industries, Inc.* Reference is made to Exhibit 10(b) to Form 10-Q filed with the Commission on July 30, 2020.

10(ac)

Myers Industries, Inc. Senior Officer Severance Plan (as amended). * (filed herewith)

10(ad)

Form of Notice Award of Executive Retention Cash Bonuses.* Reference is made to Exhibit 10.1 to Form 8-K filed with the Commission on October 18, 2019.

10(ae)

Form of Stock Unit Retention Award Agreement.* Reference is made to Exhibit 10.2 to Form 8-K filed with the Commission on October 18, 2019.

10(af)

Asset Purchase Agreement dated November 10, 2020 by and among Myers Industries Indiana LLC, Elkhart Plastics, Inc., Elkhart Plastics International, Ltd., Elkhart Plastics of Iowa, Inc., and Elkhart Plastics of Michigan, Inc. *** (filed herewith)

14

Myers Industries, Inc. Code of Ethics and Business Conduct. Reference is made to Exhibit 14.1 to Form 8-K filed with the Commission on March 6, 2017.

65

 

21

List of Direct and Indirect Subsidiaries, and Operating Divisions, of Myers Industries, Inc.

23

Consent of Independent Registered Public Accounting Firm.

31(a)

Certification of Michael P. McGaugh, President and Chief Executive Officer of Myers Industries, Inc., pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

31(b)

Certification of Daniel W. Hoehn, Interim Chief Financial Officer of Myers Industries, Inc., pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

32

Certifications of Michael P. McGaugh, President and Chief Executive Officer, and Daniel W. Hoehn, Interim Chief Financial Officer, of Myers Industries, Inc. pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

101

The following financial information from Myers Industries, Inc. Annual Report on Form 10-K for the year ended December 31, 2020, formatted in inline XBRL includes: (i) Consolidated Statements of Financial Position (ii) Consolidated Statements of Operations, (iii) Consolidated Statements of Comprehensive Income (Loss), (iv) Consolidated Statements of Cash Flows, (v) Consolidated Statements of Shareholders' Equity, and (vi) the Notes to Consolidated Financial Statements.

104

Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101).

 

*

Indicates executive compensation plan or arrangement.

**

Pursuant to Item 601(b)(2) of Regulation S-K, certain exhibits and schedules have been omitted from this filing. The registrant agrees to furnish the Commission on a supplemental basis a copy of any omitted exhibit or schedule.

***

Pursuant to Item 601(b)(10) of Regulation S-K, certain exhibits and schedules have been omitted from this filing. The registrant agrees to furnish the Commission on a supplemental basis a copy of any omitted provisions, exhibit or schedule.

66

 

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

MYERS INDUSTRIES, INC.

 

/s/ Daniel W. Hoehn

Daniel W. Hoehn

Interim Chief Financial Officer

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

 

SIGNATURE

 

TITLE

 

DATE

 

 

 

 

 

/s/ Michael P. McGaugh

 

President, Chief Executive Officer and Director (Principal Executive Officer)

 

March 11, 2021

MICHAEL P. MCGAUGH

 

 

 

 

 

 

 

 

 

/s/ Daniel W. Hoehn

 

Interim Chief Financial Officer (Principal Financial and Accounting Officer)

 

March 11, 2021

DANIEL W. HOEHN

 

 

 

 

 

 

 

 

 

/s/ Yvette Dapremont Bright

 

Director

 

March 11, 2021

YVETTE DAPREMONT BRIGHT

 

 

 

 

 

 

 

 

 

/s/ Sarah R. Coffin

 

Director

 

March 11, 2021

SARAH R. COFFIN

 

 

 

 

 

 

 

 

 

/s/ Ron DeFeo

 

Director

 

March 11, 2021

RON DEFEO

 

 

 

 

 

 

 

 

 

/s/ William A. Foley

 

Director

 

March 11, 2021

WILLIAM A. FOLEY

 

 

 

 

 

 

 

 

 

/s/ Jeffrey Kramer

 

Director

 

March 11, 2021

JEFFREY KRAMER

 

 

 

 

 

 

 

 

 

/s/ F. Jack Liebau, Jr.

 

Director

 

March 11, 2021

F. JACK LIEBAU, JR.

 

 

 

 

 

 

 

 

 

/s/ Bruce M. Lisman

 

Director

 

March 11, 2021

BRUCE M. LISMAN

 

 

 

 

 

 

 

 

 

/s/ Lori Lutey

 

Director

 

March 11, 2021

LORI LUTEY

 

 

 

 

 

 

 

 

 

/s/ Jane Scaccetti

 

Director

 

March 11, 2021

JANE SCACCETTI

 

 

 

 

 

 

 

 

 

s/ Robert A. Stefanko

 

Director

 

March 11, 2021

ROBERT A. STEFANKO

 

 

 

 

 

67

Exhibit 4

Myers Industries, Inc.

DESCRIPTION OF SECURITIES REGISTERED PURSUANT TO

SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934

 

DESCRIPTION OF CAPITAL STOCK

The following summary describes the terms and provisions of the capital stock of Myers Industries, Inc., an Ohio corporation (the “Company,” “we”, “our,” and “us”). The following summary does not purport to be complete and is qualified in its entirety by reference to the Company’s Amended and Restated Articles of Incorporation, Amended and Restated Code of Regulations, copies of which have been filed previously with the Securities and Exchange Commission and are incorporated herein by reference, and applicable provisions of Ohio law.

General

The Company’s authorized capital stock consists of 61,000,000 shares. Our authorized capital stock consists of 60,000,000 shares of common stock, without par value (“Common Stock”), and 1,000,000 shares of Serial Preferred Stock, without par value (the “Preferred Stock”). All of our outstanding shares of common stock are fully paid and non-assessable.

Common Stock

Exchange and Trading Symbol. Our Common Stock is listed on the New York Stock Exchange (“NYSE”) under the symbol “MYE.”

Voting Rights. Each holder of our Common Stock is entitled to one vote for each share on all matters submitted to a vote of the shareholders, including the election of directors. Our shareholders do not have cumulative voting rights in the election of directors. Under the current “plurality voting” standard of the Ohio General Corporation Law, director nominees who receive the greatest number of affirmative votes are elected.

Except as otherwise provided by the Company’s Amended and Restated Articles of Incorporation, Amended and Restated Code of Regulations, or applicable provisions of Ohio law, any other matter brought to a vote of the shareholders is determined by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power of the Company.

Dividends. Subject to preferences that may be applicable to any then outstanding Preferred Stock, holders of our Common Stock are entitled to receive dividends, if any, as may be declared from time to time by our Board of Directors out of legally available funds.

Liquidation. In the event of our liquidation, dissolution or winding up, holders of our Common Stock will be entitled to share ratably in the net assets legally available for distribution to shareholders after the payment of all of our debts and other liabilities, subject to any preferential rights of any then outstanding shares of Preferred Stock.

Rights and Preferences. Holders of our Common Stock have no preemptive, conversion, subscription or other rights, and there are no redemption or sinking fund provisions or restrictions on alienability applicable to our Common Stock. The rights, preferences and privileges of the holders of our Common Stock are subject to and may be adversely affected by the rights of the holders of shares of any series of our Preferred Stock that we may designate and issue in the future.

Serial Preferred Stock

Our Board of Directors has the authority, without any further vote or action by our shareholders, subject to certain limitations prescribed by law and the rules and regulations of the NYSE, to issue up to 1,000,000 shares of Serial Preferred Stock in one or more series and to fix the rights, preferences, privileges and restrictions thereof. These rights, preferences and privileges could include dividend rights, terms of redemption, liquidation preferences,

sinking fund terms, conversion rights and the number of shares constituting any series or the designation of such series, any or all of which may be greater than the rights of Common Stock. Holders of Preferred Stock are entitled to one vote per share and holders of Common Stock and Preferred Stock vote together as a single class.

The rights of the holders of Common Stock will generally be subject to the prior rights of the holders of any outstanding Preferred Stock with respect to dividends, liquidation preferences and other matters. Our Board of Directors may authorize the issuance of Preferred Stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our Common Stock. The issuance of Preferred Stock could have the effect of decreasing the market price of our common shares. The issuance of Preferred Stock also could have the effect of delaying, deterring or preventing a change in control without further action by our shareholders.

Corporate Governance

Size of Board; Election of Directors. The number of directors shall be a number not less than seven and not more than fifteen, and shall be determined from time to time (i) by resolution adopted by the affirmative vote of a majority of the directors, or (ii) at any annual or special meeting of shareholders called for that purpose at which a quorum is present. The directors shall be elected at the annual meeting of shareholders in accordance with the provisions of the Amended and Restated Code of Regulations, except as provided in the Amended and Restated Code of Regulations, and each director elected shall hold office until his or her successor is elected and qualified, or until his or her earlier resignation or removal. Any vacancy on the Board of Directors may be filled by a vote of a majority of the directors then in office, even if the directors then in office constitute less than a majority of the whole authorized number of Directors. The Company’s Board of Directors is not classified.

Special Meetings of Shareholders. Special meetings of our shareholders may be called at any time by the chairman of our Board of Directors, by our president, the Board of Directors acting at a meeting, by a majority of the Board of Directors acting without a meeting, or by persons who hold at least 50% of the outstanding shares of Common Stock entitled to vote.

Written Consent of Shareholders. Any action that may be authorized or taken at a meeting of the shareholders or of the directors, as the case may be, may be authorized or taken without a meeting with the affirmative vote or approval of, and in a writing or writings signed by all the shareholders who would be entitled to notice of a meeting of the shareholders held for such purpose, or all the directors, respectively, which writing or writings shall be filed with or entered upon the records of the Company.

Amendment of the Amended and Restated Code of Regulations. The Amended and Restated Code of Regulations may be amended by (i) the Board of Directors to the extent permitted by the Ohio General Corporation Law or (ii) the shareholders, upon the affirmative vote or written consent of the holders of the majority of the shares entitled to vote thereon, which amendment shall be filed with or entered upon the records of the Company and provided to each shareholder entitled to vote and did not participate in the adoption of such amendment.

Anti-Takeover Effects of Articles, Regulations and the Ohio General Corporation Law. Certain provisions of Ohio law and our Amended and Restated Articles of Incorporation may have the effect of discouraging or rendering more difficult an unsolicited acquisition of a corporation or its capital stock by means of a tender offer, open market purchase, proxy fight or otherwise, to the extent the corporation is subject to those provisions. We have opted out of one such provision. We remain subject to the remaining provisions, which are described below.

The Company is subject to Chapter 1704 of the Ohio Revised Code, referred to as the Ohio merger moratorium statute. The statute prohibits certain “Chapter 1704 transactions” between an “issuing public corporation” (such as the Company) and a person that beneficially owns 10% or more of the outstanding voting power of the corporation in the election of directors (an “interested shareholder”). “Chapter 1704 transactions” involve a broad range of transactions, including mergers, consolidations, combinations, liquidations, recapitalizations and other transactions between an issuing public corporation and an interested shareholder.

Such “Chapter 1704 transactions” are generally prohibited for three years following the date on which the interested shareholder acquired its 10% of the voting power in the election of directors of the issuing corporation (the “share acquisition date”), unless, prior to the interested shareholder’s share acquisition date, the corporation’s

board of directors approves (i) the Chapter 1704 transaction, or (ii) the purchase of the 10% ownership interest by the interested shareholder on the interested shareholder’s share acquisition date.

After the initial three year moratorium, “Chapter 1704 transactions” with an interested shareholder are prohibited, unless (i) the board of directors approved the purchase of the 10% ownership interest by the interested shareholder on the interested shareholder’s share acquisition date, (ii)  the transaction is approved by the affirmative vote of the holders of shares of the corporation entitled to exercise at least two-thirds of the voting power of the corporation in the election of directors, or of such different proportion as the articles of incorporation may provide, including the approval of the affirmative vote of the holders of at least a majority of the disinterested shares, or (iii) the transaction results in shareholders, other than the interested shareholder, receiving a fair price as set forth under Chapter 1704.

Section 1707.041 of the Ohio Revised Code regulates certain “control bids” for corporations in Ohio with certain concentrations of Ohio shareholders and permits the Ohio Division of Securities to suspend a control bid if certain information is not provided to offerees.

Requirements for Advance Notification of Shareholder Nominations and Proposals. Our Amended and Restated Code of Regulations establish advance notice procedures with respect to shareholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the Board of Directors or a committee of the Board of Directors. The advance notice provisions require that a shareholder proposal for a director nomination be received by the secretary of the Company not less than 90 days nor more than 120 days prior to the one year anniversary date of the immediately preceding annual meeting of shareholders. In the event that the annual meeting is called for a date that is not within 30 days before or after such anniversary date, notice by a shareholder, in order to be timely, must be received no later than the close of business on the tenth day following the day on which notice of the date of the annual meeting was mailed or public disclosure of the date of the annual meeting was made, whichever first occurs. A shareholder wishing to directly nominate an individual to serve as a director must follow the procedure outlined in our Amended and Restated Code of Regulations, in addition to applicable regulations adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended.

 

Exhibit 10(n)

 

NON-COMPETITION AND CONFIDENTIALITY AGREEMENT

 

THIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into effective as of October 19, 2020 between Myers Industries, Inc., an Ohio Corporation (the “Company”) and Thomas Harmon (the “Employee”).

RECITALS:

1.The Company is a diversified international manufacturer of polymer products for the industrial, agricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service and under vehicle repair. The business of the Company is operated by the Company itself and through its various operating divisions, subsidiaries and other affiliated entities, all together with the Company being collectively referred to in this Agreement as the “Company Group.”

2.Employee is being employed as Senior Vice President, Human Resources by the Company, and the execution of this Agreement is a condition of such employment.

3.The Company Group has acquired and established valuable and competitively sensitive information through its business, research, development and practices, which information is described more extensively herein, and is collectively referred to as the “Confidential Information.” To protect the interests of the Company Group and the competitive advantage derived from the Confidential Information, it is necessary that such Confidential Information be kept secret and confidential.

4.The Employee, from and after the commencement of employment, will be engaged in activities such that the Employee will have extensive access to and become familiar with, and may develop or contribute to, some or all of the Confidential Information. In addition, Employee will have extensive contact with; and/or receive Confidential Information concerning, the customers of the Company Group. The Employee recognizes that the Confidential Information and the Company Group’s customer relationships are vital to the success of the Company and that extensive, irreparable harm would result were such Confidential Information to be disclosed outside the Company Group or if Employee were to engage in certain activity which competes with the Company Group members.

NOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set forth below, the parties agree as follows:

1.Confidential Information:  For purposes of this Agreement, Confidential Information includes, but is not limited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing information, customer contact information, product design and development information, methods of operation, technical services, non-public financial information, business development plans and strategies, system analyses, quality control programs and information, computer programs, software and hardware configurations, information regarding the terms of the Company Group’s relationships with suppliers, pricing information, processes and techniques, creations, innovations, and any other information which the Company Group members may reasonably treat or designate as confidential from time to time. The Company believes that all Confidential Information constitutes trade secret information under applicable law. Employee shall, however, maintain the confidentiality of all Confidential Information whether or not ultimately determined to be a trade secret.

2.Confidentiality and Non-Competition:

 

A.Covenants

(a)Employee acknowledges he/she is being provided access to the Confidential Information in order to enhance and maximize Employee’s performance in his/her position. Employee further acknowledges that the Company Group would be irreparably injured and the good will of the Company Group would be irreparably damaged if Employee were to breach the covenants set forth in this Paragraph 2. Employee further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and duration and do not unreasonably restrict Employee’s association with other business entities, either as an employee or otherwise as set forth herein.

(b)During Employee’s employment and any time thereafter, except as may be required by law, Employee shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any Confidential Information other than in the authorized scope of Employee’s employment. Upon termination of employment, no matter what the reason for such termination, and at any other time upon the request of any Company Group member, Employee shall immediately return any and all Confidential Information, and all other materials, property and information in tangible or electronic form concerning the business and affairs of the Company Group and/or its customers.

(c)Employee agrees that during Employee’s employment and for a period of twelve (12) months following the termination of such employment, no matter what the reason for such termination, Employee will not directly or indirectly, whether on Employee’s own behalf or on behalf of any other person or entity, do or suffer any of the following:

(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by or otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or business entity that competes with any member of the Company Group which Employee was employed by, provided services to and/or was otherwise sufficiently involved with to possess knowledge of its Confidential Information and/or its customer relationships (each a “Protected Company Group Member”) in the United States or in any geographic area(s) outside the United States in which any such Protected Company Group Member has operations or sells products or services (the “Restricted Territory-). Without limiting the generality and scope of the foregoing, any business entity or person providing products or services competitive with those of a Protected Company Group Member in the Restricted Territory from either inside or outside the Restricted Territory is deemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase “competes with” means providing services and products which are the same as, similar to, reasonably substitutable for, or otherwise capable of displacing the services and products of a Protected Company Group Member. Notwithstanding the foregoing, Employee’s passive investment ownership of not more than one percent (1%) of the stock of any publicly traded corporation shall not be deemed a violation of this provision.

(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services which compete with the products or services of a Protected Company Group Member to any person or business entity which is or was a customer or prospective customer of such Protected Company Group Member at any time during the last thirty-six (36) months of Employee’s employment, nor shall Employee in

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any way assist any other person or entity in such activity. For purposes of this Agreement, (1) the phrase “products or services which compete with the products or services of a Protected Company Group Member means products or services which are the same as, similar to, reasonably substitutable for, or otherwise capable of displacing the products or services of such Protected Company Group Member; and (2) the term “prospective customer” means any person or entity a Protected Company Group Member solicited, called on or otherwise specifically identified as a target for the sale of its products or services.

(iii)Solicit, hire or otherwise engage the services of any person who then currently is, or who at any time during Employee’s employment was, an employee, consultant or independent contractor of any Company Group member, or otherwise encourage or induce any such person to discontinue his or her relationship with any Company Group member. Employee will not engage in any business relationship with any subcontractor, supplier or service provider of any Company Group member which interferes with such Company Group member’s relationship with such subcontractor, supplier or service provider, or in any way causes such subcontractor, supplier or service provider to reduce, alter, modify or discontinue the business it (they) do(es) with a Company Group member.

3.Inventions: Employee hereby expressly agrees that all research discoveries, inventions and innovations (whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not reduced to writing), Confidential Information and copyrightable works, and similar and related information (in whatever form or medium), which (1) either (i) relate to actual or anticipated business, research and development or existing or future products or services of any Company Group member or (ii) result from or are suggested by any work performed by the Employee of any Company Group member and (2) are conceived, developed, made or contributed to in whole or in part by the Employee during his employment (“Work Product-), shall be and remain the sole and exclusive property of the Company or of any Company Group member designated by the Company for such purpose.

(i)Work Made for Hire. The Employee acknowledges that, unless otherwise agreed in writing by the Company, all Work Product eligible for any form of copyright, trademark or patent protection made or contributed to in whole or in part by the Employee within the scope of Employee’s employment during the period of Employee’s employment shall be deemed a “work made for hire” and shall be owned by the applicable Company Group member.

(ii)Assignment of Proprietary Rights. The Employee hereby assigns, transfers and conveys to the applicable Company Group member any Work Product designed by the Company, and shall assign, transfer and convey thereto, all right, title and interest in and to all inventions, ideas, improvements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade secrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work Product (the “Proprietary Rights”) for the applicable Company Group member’s exclusive ownership and use, together with all rights to sue and recover for past and future infringement or misappropriation thereof

(iii)Further Instruments. At the request of the Company or any Company Group member during Employee’s employment and thereafter, the Employee

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will promptly and fully assist the Company Group member designated by the Company in effecting the purpose of the foregoing assignment, including but not limited to the further acts of executing any and all documents necessary to secure for the applicable Company Group member such Proprietary Rights and other rights to all Work Product and all confidential information related thereto, providing cooperation and giving testimony.

(iv)Inapplicability of Section 3 in Certain Circumstances. The Company expressly acknowledges and agrees that, and the Employee is hereby advised that, this Section 3 does not apply to any invention for which no equipment, supplies, facilities, trade secret information or Confidential Information of any Company Group member was used and which was developed entirely on the Employee’s own time, unless (i) the invention relates to the business of any Company Group member or its actual or demonstrably anticipated research or development or (ii) the invention results from or is suggested by any work performed or observed by the Employee for any Company Group member.

4.Remedies: Employee acknowledges that the restrictions contained in paragraphs 2 and 3 of this Agreement are reasonable in light of Employee’s position and are necessary to protect the Company Group from unfair competitive harm. Employee further acknowledges that any breach of this Agreement will result in immediate irreparable harm to the Company Group and that the Company shall be entitled to immediate injunctive relief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This Agreement is to be construed as separate and independent from any other obligations and any claim by Employee asserted against the Company Group or any member thereof and shall not constitute a defense to the enforcement of this Agreement. In the event any court determines that the restrictions set forth herein are unreasonable or unenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.

5.Position of Employment: Employee expressly acknowledges that the obligations contained in paragraphs 2 and 3 of this Agreement shall remain in full force and effect during Employee’s employment in any position for any Company Group member and with respect to any Confidential Information.

6.Validity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent jurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall be enforced against the Employee to the extent the court deems to be reasonable or in accordance with public policy. In the event any provision of this Agreement shall for any reason be wholly invalid, or unenforceable in any respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full force and effect as if the invalid portion was never part of this Agreement.

7.Miscellaneous: Employee acknowledges that the Employee has carefully read this entire Agreement and fully agrees with and understands all of the provisions hereof. This Agreement supersedes all prior agreements between any Company Group member and the Employee regarding the subject matter of this Agreement and constitutes the entire agreement between the parties with respect to such subject matter. The Employee further agrees that in executing this Agreement, the Employee has not relied on any written or oral representations, promises, conditions, or understandings of any Company Group member, express or implied, except as set forth herein. This Agreement may not be amended or modified other than in writing signed by the parties. This Agreement and any disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State’s choice of law, rules or principles. Employee and the Company expressly agree that any legal action arising out of or related to this

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Agreement will be brought exclusively in the state or federal courts located in Summit County, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all objections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to the business of the Company or any Company Group member without the consent of Employee, but may not be assigned by Employee to any third party. This Agreement is not a contract of employment for any definite period and Employee acknowledges that Employee’s employment is terminable at-will.

IN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of the date first set forth above.

 

 

COMPANY

 

MYERS INDUSTRIES, INC.

 

 

Date: 10/19/20_____________________

By:/s/ Michael McGaugh____________________

 

Michael McGaugh

President and Chief Executive Officer

 

 

EMPLOYEE

Date:10/19/20

 

/s/ Thomas Harmon

Thomas Harmon

 

 

 

 

 

 

 

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Exhibit 10(ac)

MYERS INDUSTRIES, INC.

SENIOR OFFICER SEVERANCE PLAN

(As Amended Effective April 6, 2020)

 

 

 

 

Myers Industries, Inc.

Senior Officer Severance Plan

Adopted effective February 21, 2020

Amended effective April 6, 2020

 

 

WHEREAS, Myers Industries, Inc., a corporation organized and existing under the laws of the State of Ohio (the “Company”), recognizes that one of its most valuable assets are the members of its senior leadership team;

WHEREAS, the Company desires to establish the Myers Industries, Inc. Senior Officer Severance Plan (the “Plan”) to provide certain severance benefits for senior officers eligible to participate in the Plan, including severance benefits in the event of certain terminations of employment, including in connection with a Change in Control of the Company;

WHEREAS, the Plan is intended to replace and supersede the Severance and Change in Control Agreements and Change in Control Agreements previously entered into between the Company and certain of its senior officers; and

WHEREAS, to the extent that an otherwise eligible senior officer remains covered by a previously executed Severance and Change in Control Agreement or Change in Control Agreement on the Effective Date of this Plan, such officer shall not be entitled to any benefit under this Plan until that individual has agreed to terminate such agreement;

NOW, THEREFORE, the Company hereby adopts the Plan effective as of February 21, 2020.

 

 

 

 

MYERS INDUSTRIES, INC.

SENIOR OFICER SEVERANCE PLAN

 

1.

ADOPTION AND OBJECTIVE

1.1Adoption.  Myers Industries, Inc., an Ohio, hereby adopts, assumes and establishes this plan for certain of its senior officers to be known as the “Myers Industries, Inc. Senior Officer Severance Plan” (as it may be amended from time to time, the “Plan”).

1.2Objective.  The Plan is designed to attract and retain certain senior officers of the Company and the Company’s Affiliates and to reward such employees by providing replacement income and certain benefits if such an individual’s employment with the Company or the Company’s Affiliates is terminated in certain circumstances, including in connection with a Change in Control of the Company.

1.3Purpose.  The Plan is intended to constitute the type of arrangement identified as a “severance pay arrangement” within the meaning of Section 3(2)(B)(i) of ERISA, as further elaborated in regulations promulgated by the Secretary of Labor at Title 29, Code of Federal Regulations, § 2510.3-2(b), and which qualifies as a “top hat” plan for a select group of management or highly compensated employees.  No Covered Officer shall have a vested right to the benefits under the Plan. The Plan is intended to constitute the type of arrangement identified as a “severance pay arrangement” within the meaning of Section 3(2)(B)(i) of ERISA, as further elaborated in regulations promulgated by the Secretary of Labor at Title 29, Code of Federal Regulations, § 2510.3-2(b), which is subject to ERISA.  No Covered Officer shall have a vested right to the benefits under the Plan. The benefits paid by the Plan are not intended as deferred compensation nor is the Plan intended to be an “employee pension benefit plan or “pension plan” as those terms are defined in Section 3(2) of ERISA.

2.

DEFINITIONS

As used in the Plan, the following terms and phrases shall have the meanings set forth below:

2.1“Accrued Obligations” means the portion of the Base Salary accrued but unpaid through the Termination Date and earned but unused vacation time, in each case to the extent not theretofore paid.

2.2“Affiliate” and “Affiliates” mean, when used with respect to any entity, individual, or other person, any other entity, individual, or other person which, directly or indirectly, through one or more intermediaries controls, or is controlled by, or is under common control with such entity, individual or person.

2.3“Annual Bonus” means the cash bonus payable to the Covered Officer pursuant to a formal or informal Company annual bonus plan or individual bonus arrangement on a calendar year basis; provided that the Annual Bonus shall not include any long-term cash award under any Company long-term performance bonus plan.

 

 

2.4“Assets” means assets of any kind owned by the Company, including but not limited to securities of the Company’s direct and indirect subsidiaries.

2.5“Base Salary” means a Covered Officer’s annual base salary as in effect from time to time.

2.6 “Beneficial Owner” shall have the meaning ascribed to the term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act or any successor act.

2.7“Benefit Plans” means any bonus, incentive, profit sharing, performance, savings, retirement or pension policy, plan, program or arrangement, including, but not limited to, any deferred compensation, supplemental executive retirement or other retirement income, stock option, stock purchase, stock appreciation, restricted stock, deferred stock unit, employee stock ownership or similar policy, plan, program or arrangement of the Company (or any substitute or alternative plan) or any employee welfare benefit plan (within the meaning of Section 3(1) or ERISA) maintained by the Company.

2.8“Board” means the Board of the Company.

2.9“Cause” means

(a)commission by the Covered Officer (evidenced by a conviction or written, voluntary and freely given confession) of a felony, crime of moral turpitude or any crime involving fraud, breach of trust or misappropriation;

(b)any breach by the Covered Officer of the Covered Officer’s fiduciary duties;

(c)continued failure by the Covered Officer to perform the Covered Officer’s Duties in any material respect (other than any failure resulting from the Covered Officer’s incapacity due to physical or mental illness), or the commission by the Covered Officer of a breach or default of any agreement relating to Covered Officer’s employment with the Company or the code of conduct or any other policy of the Company which breach or default results in material economic harm to the Company or has a materially adverse effect on the Company’s reputation, operations, properties or business relationships, in each case which continued failure or breach or default is not substantially cured in all material respects within thirty (30) days after the Board gives written notice thereof to the Covered Officer; or

(d)commission by the Covered Officer, when carrying out the Covered Officer’s Duties, of acts or the omission of any act, which both (A) constitutes gross negligence or willful misconduct and (B) results in material economic harm to the Company or has a materially adverse effect on the Company’s reputation, operations, properties or business relationships.

 

2.10“Change in Control” means a change in control of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act as in effect on the date of this Agreement, whether or not

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the Company is then subject to such reporting requirement; provided that, without limitation, a Change in Control shall be deemed to have occurred if:

(a)any “person” (as defined in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing thirty percent (30%) or more of the combined voting power of the Company’s then outstanding securities; provided that a Change in Control shall not be deemed to occur under this clause (i) by reason of the acquisition of securities by the Company or an employee benefit plan (or any trust funding such a plan) maintained by the Company;

(b)during any period of one (1) year there shall cease to be a majority of the Board comprised of “Continuing Directors” as hereinafter defined; or

(c)there occurs (i) a Merger of the Company with any other corporation, other than a Merger which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) more than fifty percent (50%) of the combined voting power of the Voting Securities of the Company or such surviving entity outstanding immediately after such Merger, (ii) the approval by the stockholders of the Company of a plan of complete liquidation of the Company, or (iii) the sale or disposition by the Company of more than fifty percent (50%) of the Company’s assets. For purposes of this Section 2.10(c), a sale of more than fifty percent (50%) of the Company’s assets includes a sale of more than fifty percent (50%) of the aggregate value of the assets of the Company and its subsidiaries or the sale of stock of one or more of the Company’s subsidiaries with an aggregate value in excess of fifty percent (50%) of the aggregate value of the Company and its subsidiaries or any combination of methods by which more than fifty percent (50%) of the aggregate value of the Company and its subsidiaries is sold.

(d)For purposes of this Agreement, a “Change in Control” will be deemed to occur on:

(i)the day on which a thirty percent (30%) or greater ownership interest described in Subsection 2.10(a) is acquired, provided that a subsequent increase in such ownership interest after it first equals or exceeds thirty percent (30%) shall not be deemed a separate Change in Control;

(ii)on the day on which “Continuing Directors”, as hereinafter defined, cease to be a majority of the Board as described in Section 2.10(b);

(iii)on the day of a Merger or sale of assets as described in Section 2.10(c); or

(iv)on the day of the approval of a plan of complete liquidation as described in Section 2.10(c).

For purposes herein, the words “Continuing Directors” mean individuals who at the beginning of any period (not including any period prior to the date of this Agreement) of one (1) year constitute the Board and any new Director(s) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least

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a majority of the Directors then still in office who either were Directors at the beginning of the period or whose election or nomination for election was previously so approved.

2.11“Code” means the Internal Revenue Code of 1986, as amended, or any successor act.

2.12“Company” means Myers Industries, Inc., an Ohio corporation, and any Successor by Merger or otherwise.

2.13“Compensation Committee” means the Compensation Committee of the Board or its successor. After a Change in Control, “Compensation Committee” means (a) the individuals (not fewer than three (3) in number) who, on the date six months prior to the Change in Control constitute the Compensation Committee of the Board, plus, (b) in the event that fewer than three (3) individuals are available from the group specified in clause (a) above for any reason, such individuals as may be appointed by the individual or individuals so available (including for this purpose any individual or individuals previously so appointed under this clause (b)); provided, however, that the maximum number of individuals constituting the Compensation Committee after a Change in Control shall not exceed six (6).

2.14“Covered Officer” means a senior officer of the Employer designated as eligible to participate in the Plan under the provisions of Section 3, and shall include, as of the Effective Date of the Plan the individuals holding the positions of: (a) President/Chief Executive Officer, (b) Chief Financial Officer, (c) Chief Legal Officer, (d) Chief Human Resource Officer, and (e) Group Presidents.

2.15“Director” means a member of the Board.

2.16“Disability” means a physical or mental incapacity that prevents the Covered Officer from performing his duties for a total of one hundred eighty (180) days in any twenty four (24) month period.

2.17“Duties” means the duties and responsibilities customarily required of a similar officer of a major corporation as the position held by a Covered Officer or such additional duties as may be assigned from time to time to the Covered Officer by the Chief Executive Officer of the Company or, with respect to the Chief Executive Officer, as may be assigned from time to time by the Board, and which are consistent with the position held by such Covered Officer.

 

2.18 “Effective Date” means February 21, 2020, the date as of which the Plan is adopted.

2.19“Employer” means the Company or any Affiliate that adopts the Plan pursuant to the provisions of Section 17.

2.20“Entity” means any corporation, partnership, association, joint-stock company, limited liability company, trust, unincorporated organization or other business entity.

2.21“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor act.

2.22“Exchange Act” means the Securities Exchange Act of 1934, as amended.

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2.23“Fiscal Year” means the fiscal year of the Company.

2.24“Good Reason” means the occurrence of one or more of the following conditions arising without the consent of the Covered Officer:

(a)a material diminution in the Covered Officer’s annual Base Salary or a material diminution in the Covered Officer’s aggregate compensation package, in either case, below the level in effect on the later of the Effective Date or the date a Covered Officer becomes a participant in the Plan pursuant to Section 3; provided, however, that for purposes of this Section 2.24(a) a material diminution will not be deemed to have occurred (i) solely because of changes to the allocation among compensation components such as the Company’s long-term incentive plan, Annual Bonus, Base Salary, or other cash or equity awards, or (ii) from the failure to achieve applicable performance targets under a short-term or long-term performance based plan or program;

(b)a reduction or series of reductions in the aggregate value of the life insurance, accidental death, long term disability, short term disability, medical, dental and vision benefits and expense reimbursement policy available to the Covered Officer as of the Effective Date which, in the aggregate is material, unless such reduction or series of reductions is consistent with reductions applicable to all employees of the Company or its Affiliates;

(c)a material diminution in the Covered Officer’s Duties;

(d)a change of more than fifty (50) miles in the geographic location at which the Covered Officer must perform the Covered Officer’s Duties; or

(e)any other action or inaction that constitutes a material breach by the Company of this Agreement or any other agreements under which the Covered Officer provides services to the Company or its Affiliates (specifically including a failure of the purchaser in a Change in Control transaction, to assume this Agreement in accordance with Section 19 hereof).

In order for a condition to constitute a Good Reason, the Covered Officer must provide written notification to the Company of the existence of the condition within forty-five (45) days of the initial existence of the condition (or within forty-five (45) days following the Covered Officer actually becoming aware of such condition, if later), upon the notice of which the Company shall have a period of thirty (30) days during which it may remedy the condition. Furthermore, to constitute a Good Reason, the Covered Officer must voluntarily terminate employment with the Company within ninety (90) days following the initial existence of the condition or within ninety (90) days following the date the Covered Officer actually becomes aware of such condition, if later.

2.25“Group Presidents” means the President of the Material Handling business segment of the Company and the President of the Distribution business segment of the Company.

2.26“Merger” means a merger, consolidation or similar transaction.

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2.27 “Person” shall have the meaning ascribed to the term in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended, or any successor act, and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) thereof, except that the term shall not include (a) the Company, the Employer or any of their Affiliates, (b) a trustee or other fiduciary holding Company securities under an employee benefit plan of the Company or any of its Affiliates, (c) an underwriter temporarily holding securities pursuant to an offering of those securities or (d) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of stock of the Company.

2.28“Section 409A” means Section 409A of the Code and the rules and regulations issued thereunder by the Internal Revenue Service and the Department of Treasury.

2.29“Separation From Service” means a Covered Officer’s termination of employment with the Company or Employer, provided that such termination constitutes a separation from service within the meaning ascribed to such term under Section 409A.

2.30“Specified Employee” means a Covered Officer who, as of the date of his Separation from Service, is deemed to be a “specified employee” within the meaning ascribed to that term under Section 409A.

2.31“Specified Owner” means any of the following:

(a)the Company;

(b)an Affiliate of the Company;

(c)an employee benefit plan (or related trust) sponsored or maintained by the Company or any Affiliate of the Company;

(d)a Person that becomes a Beneficial Owner of the Company’s outstanding Voting Securities representing 30 percent or more of the combined voting power of the Company’s then outstanding Voting Securities as a result of the acquisition of securities directly from the Company and/or its Affiliates; or

(e)a Person that becomes a Beneficial Owner of the Company’s outstanding Voting Securities representing 30 percent or more of the combined voting power of the Company’s then outstanding Voting Securities as a result of a Merger if the individuals and Entities who were the Beneficial Owners of the Voting Securities of the Company outstanding immediately prior to such Merger own, directly or indirectly, at least 50 percent of the combined voting power of the Voting Securities of any of the Company, the surviving Entity or the parent of the Company or the surviving Entity outstanding immediately after such Merger in substantially the same proportions as their ownership of the Voting Securities of the Company outstanding immediately prior to such Merger.

2.32“Successor” means a person with or into which the Company shall have been merged or consolidated or to which the Company shall have transferred its assets as an entirety or substantially as an entirety.

2.33“Target Bonus” means a Covered Officer’s Annual Bonus at the target level in effect during the applicable calendar year.

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2.34“Term” means the period commencing on the Effective Date and ending on the date on which the Plan is terminated by the Board as provided in Section 16.

2.35“Termination Date” means the date as of which a Covered Officer incurs a Separation From Service.

2.36“Voting Securities” means the outstanding securities entitled to vote generally in the election of Directors or other governing body.

2.37“Wholly-Owned Subsidiary” means an Entity that is, directly or indirectly, wholly owned by the Company.

3.

ELIGIBILITY

The Company shall notify an individual officer of his or her eligibility to participate in the Plan as a Covered Officer by furnishing such officer a written notification of participation.

Notwithstanding any other provision of the Plan, the Committee may discontinue an individual’s participation in the Plan at any time by providing written notice (the “Notice”) that the individual shall no longer be eligible to participate in the Plan; provided, however, that a Change in Control has not occurred.  If a Change in Control occurs within ninety (90) days after the date a Notice is provided, then the applicable individual may be eligible to receive a benefit under Section 5 of the Plan in connection with that Change in Control.

Participation in the Plan shall supersede, be in lieu of, and terminate any and all agreements and rights that the Covered Officer has under any prior employment, severance, or change in control agreements between the Covered Officer and the Company or its Affiliates other than the Non-Competition and Non-Disclosure Agreements described in Sections 10 and 11; provided, however, that participation in the Plan shall not prevent or limit a Covered Officer’s eligibility to participate in any benefit, bonus, incentive or other plan, program, policy or practice provided by the Company or its Affiliates for its senior officers.  Notwithstanding a Covered Officer’s participation in the Plan, the Covered Officer’s employment shall continue to be “at-will” as described in Section 14.

4.

SEVERANCE BENEFITS

4.1If the Covered Officer’s employment is terminated by the Company other than for Cause or is terminated by the Covered Officer for Good Reason, but not in connection with a Change in Control as set forth in Section 5 below, and provided such termination constitutes a Separation From Service, and further provided that Covered Officer delivers an effective release of claims as required under Section 6 below, the Covered Officer will be entitled to the following severance benefits (the “Severance Benefits”):

(a)a single lump sum payment, within thirty (30) days following the later of the Termination Date and the Release Effective Date, in an amount equal to the Accrued Obligations, plus

(1)for the President/Chief Executive Officer, one and one-half (1.5) times his or her Base Salary in effect on the Termination Date (or, if such Base

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Salary has decreased during the one (1) year period ending on the Termination Date, at the highest rate in effect during such period);

(2)for a Covered Officer other than the President/Chief Executive Officer, one (1) times his or her Base Salary in effect on the Termination Date (or if such Base Salary has decreased during the one (1) year period ending on the Termination Date, at the highest rate in effect during such period); or

(3)for a Covered Officer other than the President/Chief Executive Officer who had entered into a Severance and Change in Control Agreement with the Company that was effective on the day preceding the Effective Date but was superseded by this Plan, one (1) times (A) his or her Base Salary in effect on the Termination Date (or if such Base Salary has decreased during the one (1) year period ending on the Termination Date, at the highest rate in effect during such period), and (B), his or her Target Bonus, plus the pro rata portion of the Target Bonus for the period commencing on the first day of the Fiscal Year in which the employment of the Covered Officer is terminated and ending on the Termination Date;

(b)for the applicable period under Code Section 4980B (the “COBRA Period”), but in no event more than twelve (12) months following the Termination Date, coverage under the Company’s group medical and dental plans (the “Health Care Plans” all at the levels being provided to the Covered Officer immediately prior to the Termination Date (the “Health Care Coverage”) and the Company shall pay the entire cost of the premiums for such continued Health Care Coverage, provided that if Covered Officer shall become eligible to participate in medical and dental plans provided by another employer, the Company shall be relieved of the requirement to provide such continued coverage under this Plan;

(c)for a period of one (1) year, beginning with the month following the Termination Date, provide long-term disability coverage, including long-term disability protection under policies that are the same or substantially similar to those in effect as of the date hereof (the “Disability Coverage”); and

(d)for a period of one (1) year, beginning with the month following the Termination Date, provide life insurance protection under policies that are the same or substantially similar to those in effect as of the date hereof (the “Life Insurance Coverage”);

(e)for a one (1) year period commencing on the Termination Date, the Company pay for executive outplacement services for the Covered Officer from a nationally recognized executive outplacement firm at a level appropriate for the most senior officers;

(f)any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or provided by the Company, including, but not limited to, the Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Plan); and

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(g)the treatment of all outstanding stock options, restricted stock, restricted stock units, or similar awards granted to the Covered Officer under the Company’s long-term incentive plan or any successor or replacement equity-based incentive plan shall be subject to the terms and conditions of the respective award or option agreement.

4.2With respect to Section 4.1(b), the Health Care Coverage provided to the Covered Officer during any calendar year during the Term will not affect the Health Care Coverage provided to him or her in any other calendar year. The Covered Officer’s right to receive the Health Care Coverage is not subject to liquidation or exchange for any other benefit, whether under this Agreement or otherwise. With respect to Section 4.1(c), the Disability Coverage provided to the Covered Officer during any calendar year during the Term will not affect the Disability Coverage provided to him or her in any other calendar year. The Covered Officer's right to receive the Disability Coverage is not subject to liquidation or exchange for any other benefit, whether under this Agreement or otherwise. With respect to Section 4.1(d), the Life Insurance Coverage provided to the Covered Officer during any calendar year during the Term will not affect the Life Insurance Coverage provided to him or her in any other calendar year. The Covered Officer’s right to receive the Life Insurance Coverage is not subject to liquidation or exchange for any other benefit, whether under this Agreement or otherwise. Notwithstanding the foregoing, Covered Officer shall be entitled to receive the same Disability Coverage, Life Insurance Coverage and Health Care Coverage as is made available to Company employees generally.

4.3If the Covered Officer’s employment with the Company is terminated by reason of the Covered Officer’s death or Disability during the Term, the Covered Officer or his or her surviving spouse shall be entitled to receive:

(a)the Accrued Obligations and a pro rata portion of the Target Bonus for the period commencing on the first day of the Fiscal Year in which the death or Disability occurs and ending on the date of death or Disability, within 30 days;

(b)any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or provided by the Company, including, but not limited to, the Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Plan);

(c)if the Covered Officer and/or his or her surviving spouse and dependents properly elect continued medical coverage in accordance with Code Section 4980B (“COBRA”), the Company shall pay the entire cost of the premiums for such continued medical coverage (the “Medical Coverage”) for the longer of (A) the maximum required period of coverage under Code Section 4980B(f) or (B) twelve (12) months, provided, however, that such Medical Coverage provided to the Covered Officer in any calendar year during such period will not affect the Medical Coverage provided to him in any other calendar year and the Covered Officer's right to receive the Medical Coverage is not subject to liquidation or exchange for any other benefit, whether under this Agreement or otherwise; and

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(d)the Covered Officer will become immediately and fully vested in all outstanding stock options, restricted stock, restricted stock units, or similar awards under the Company’s long-term incentive plan or any successor or replacement equity-based incentive plan, and any such award or options shall be then and thereafter fully exercisable until the termination of such award or options pursuant to the terms of the respective award or option agreement.

4.4If the Covered Officer’s employment hereunder is terminated by the Company for Cause or by the Covered Officer other than for Good Reason, then no further compensation or benefits will be provided to the Covered Officer by the Company under this Agreement following the Termination Date other than payment of (a) the Accrued Obligations within 30 days after the Termination Date, and (b) any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or provided by the Company, including, but not limited to, the Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Plan).

4.5Notwithstanding anything contained in this Agreement to the contrary, if the Covered Officer breaches any of the obligations under Sections 10 or 11 hereof, and such breach is not substantially cured in all material respects within thirty (30) days after the Company or the Board gives written notice thereof to the Covered Officer, no further severance payments or other benefits will be payable to the Covered Officer under this Section 4.

4.6The Company shall be entitled to set-off any amounts owed to the Company by the Covered Officer against Severance Benefits payable by the Company to the Covered Officer pursuant to this Plan.

5.

Termination in Connection with a Change in Control.  

5.1If at any time within ninety (90) days prior to a Change in Control or one hundred eighty (180) days following a Change in Control, the Covered Officer’s employment is terminated by the Company without Cause or by the Covered Officer for Good Reason, or because in connection with a Change in Control the liabilities, obligations and duties of the Company under this Plan are required pursuant to Section 19 hereof to be assumed by an assignee or transferee that is the successor to all or substantially all of the assets of the Company and this Plan is not so assumed or replaced with a substituted award or right having substantially equivalent economic value and substantially equivalent or better terms and conditions by such assignee or transferee that is the successor to all or substantially all of the assets of the Company, and provided such termination constitutes a Separation From Service, and further provided that the Covered Officer delivers an effective release of claims as required under Section 6 below, the Covered Officer will be entitled to the following payments and benefits (the “Change in Control Benefits”), in lieu of the Severance Benefits outlined in Section 4 hereof:

(a)a single lump sum payment, within thirty (30) days following the later of the Termination Date and the Release Effective Date, in an amount equal to the Accrued Obligations, plus the pro rata portion of the Target Bonus for the period commencing on the first day of the Fiscal Year in which the employment of the Covered Officer is terminated and ending on the Termination Date, plus

 

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(1)for the President/Chief Executive Officer, two (2) times (A) his or her Base Salary in effect on the Termination Date (or, if such Base Salary has decreased during the one (1) year period ending on the Termination Date, at the highest rate in effect during such period), plus (B) his or her Target Bonus;

(2)for a Covered Officer other than the President/Chief Executive Officer or a Group President, one and one-half (1.5) times (A) his or her Base Salary in effect on the Termination Date (or if such Base Salary has decreased during the one (1) year period ending on the Termination Date, at the highest rate in effect during such period), plus (B) his or her Target Bonus;

(3)for a Covered Officer other than the President/Chief Executive Officer or a Group President who had entered into a Change in Control Agreement with the Company that was effective on the day preceding the Effective Date but was superseded by this Plan, two (2) times (X) his or her Base Salary in effect on the Termination Date (or if such Base Salary has decreased during the one (1) year period ending on the Termination Date, at the highest rate in effect during such period), plus (Y) his or her Target Bonus; or

(4)for a Group President, one (1) times (A) his or her Base Salary in effect on the Termination Date (or if such Base Salary has decreased during the one (1) year period ending on the Termination Date, at the highest rate in effect during such period), plus (B) his or her Target Bonus.

(b)for up to eighteen (18) months following the Termination Date, continued Health Care Coverage and the Company shall pay the entire cost of the premiums for such continued Health Care Coverage, provided that if Covered Officer shall become eligible to participate in Health Care Plans provided by another employer, the Company shall be relieved of the requirement to provide such continued Health Care Coverage under this Plan;

(c)for a period of two (2) years, beginning with the month following the Termination Date, Disability Coverage;

(d)for a period of two (2) years, beginning with the month following the Termination Date, Life Insurance Coverage;

(e)for a one (1) year period commencing on the Termination Date, the Company pay for executive outplacement services for the Covered Officer from a nationally recognized executive outplacement firm at a level appropriate for the most senior officers;

(f)any other amounts or benefits provided under any plan, policy, practice, program, contract or arrangement of or provided by the Company, including, but not limited to, the Benefit Plans, which shall be governed by the terms thereof (except as explicitly modified by this Plan); and

(g)the treatment of all outstanding stock options, restricted stock, restricted stock units, or similar awards granted to the Covered Officer under the Company’s long-

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term incentive plan or any successor or replacement equity-based incentive plan shall be subject to the terms and conditions of the respective award or option agreement.

5.2With respect to Section 5.1(b), the Health Care Coverage provided to the Covered Officer during any calendar year during the Term will not affect the Health Care Coverage provided to him or her in any other calendar year. The Covered Officer’s right to receive the Health Care Coverage is not subject to liquidation or exchange for any other benefit, whether under this Agreement or otherwise. With respect to Section 5.1(c), the Disability Coverage provided to the Covered Officer during any calendar year during the Term will not affect the Disability Coverage provided to him or her in any other calendar year. The Covered Officer's right to receive the Disability Coverage is not subject to liquidation or exchange for any other benefit, whether under this Agreement or otherwise. With respect to Section 5.1(d), the Life Insurance Coverage provided to the Covered Officer during any calendar year during the Term will not affect the Life Insurance Coverage provided to him or her in any other calendar year. The Covered Officer’s right to receive the Life Insurance Coverage is not subject to liquidation or exchange for any other benefit, whether under this Agreement or otherwise. Notwithstanding the foregoing, Covered Officer shall be entitled to receive the same Disability Coverage, Life Insurance Coverage and Health Care Coverage as is made available to Company employees generally.

 

5.3Notwithstanding anything contained in this Agreement to the contrary, if the Covered Officer breaches any of the obligations under Sections 10 or 11 hereof, and such breach is not substantially cured in all material respects within thirty (30) days after the Company or the Board gives written notice thereof to the Covered Officer, no further payments or other benefits will be payable to the Covered Officer under this Section 5.

5.4The Company shall be entitled to set-off any amounts owed to the Company by the Covered Officer against any Change in Control Benefits payable by the Company to the Covered Officer pursuant to this Plan.

6.

Release Required; Timing of Payments.

6.1Prior to the payment of any Severance Benefits or Change in Control Benefits, a Covered Officer shall execute and allow to become effective a standard employment release agreement (the “Release”) releasing the Company (and the other Released Parties named in the Release) from any and all claims Covered Officer (or any other Releasors, as defined in the Release) may have against such entities related to or arising in connection with events occurring prior to signing the release, including relating to or in connection with a Covered Officer’s employment, the terms of such employment, and termination thereof within the time frame set forth therein, but not later than sixty (60) days following a Covered Officer’s Separation from Service (the date such Release becomes effective, the “Release Effective Date”). No Severance Benefits shall be paid or provided prior to the Release Effective Date.

6.2The Release shall be in substantially the form attached hereto as Exhibit A, and shall specifically relate to all of a Covered Officer’s rights and claims in existence at the time of such execution and shall confirm a Covered Officer’s continuing obligations to the Company (including but not limited to obligations under any confidentiality, non-compete and/or non-solicitation agreement with the Company). Unless a Change in Control has occurred, the Board,

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in its sole discretion, may modify the form of the required Release to comply with applicable law and shall determine the form of the required Release, which may be incorporated into a termination agreement or other agreement with the Covered Officer.

6.3Within five (5) days following the Release Effective Date, the Company will pay (or commence payment of) the Severance Benefits or Change in Control Benefits, as the case may be, a Covered Officer would otherwise have received on or prior to such date but for the delay in payment related to the effectiveness of the Release, with the balance of benefits being paid as originally scheduled. Notwithstanding the foregoing, if the Company (or, if applicable, the successor entity thereto) determines that any of the Severance Benefits or Change in Control Benefits constitute “deferred compensation” under Section 409A (defined below), then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, no Severance Benefits or Change in Control Benefits will be paid prior to the 60th day following a Covered Officer’s Separation from Service. On the 60th day following the date of Separation from Service, the Company will pay to a Covered Officer the Severance Benefits or Change in Control Benefits that the Covered Officer would otherwise have received on or prior to such date, with the balance of the Severance Benefits or Change in Control Benefits being paid as originally scheduled.

7.

Expenses of Enforcement.

A Covered Officer shall not be required to incur the expenses associated with the enforcement of the Covered Officer's rights under this Agreement by litigation or other legal action. Therefore, the Company shall pay, or cause to be paid, on a current basis, reasonable attorney fees and expenses incurred by a Covered Officer to enforce the provisions of this Agreement. The Covered Officer shall be required to repay any such amounts to the Company to the extent that a court of competent jurisdiction issues a final and non-appealable order setting forth the determination that the claims of the Covered Officer were frivolous.

8.

Limitation on Benefits Payable.

8.1Notwithstanding anything herein to the contrary, if the amounts payable to a Covered Officer, either alone or together with other payments and benefits that the Covered Officer has the right to receive from the Company or any of its Affiliates, would constitute a “parachute payment” under Section 280G of the Code,

(a)such payments and benefits shall be reduced by the amount, if any, that is the minimum necessary to result in no portion of the payments or benefits constituting a parachute payment under Section 280G of the Code.  

(b)to the extent that the Covered Officer has been employed with the Company and its Affiliates in the Covered Officer’s current position for less than three full calendar years, such payments and benefits shall be reduced as described in section 8.1(a) if the Company’s then current independent registered public accounting firm (the “Accounting Firm”) determines that such reduction would result in the Covered Officer retaining, on an after-tax basis (taking into account federal, state and local income taxes, employment, social security and Medicare taxes, the imposition of the excise tax imposed by Section 4999 of Code or any interest or penalties with respect to such excise tax (such excise tax,

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together with any such interest or penalties, are collectively referred to as the “Excise Tax”), and all other taxes, determined by applying the highest marginal rate under Section 1 of the Code and under state and local laws which applied (or is likely to apply) to the Covered Officer’s taxable income for the tax year in which the transaction which causes the application of Section 280G of the Code occurs, or such other rate(s) as the Accounting Firm determines to be likely to apply to the Covered Officer in the relevant tax year(s) in which any of the payments and benefits is expected to be made taxable) a larger amount as a result of such reduction than the Covered Officer would receive, on a similar after tax basis, if the Covered Officer received all of such payments and benefits.

If the payments and benefits are to be reduced, the reduction shall occur in the following order: (1) reduction of cash payments for which the full amount is treated as a “parachute payment” (as defined under Section 280G of the Code and the regulations thereunder); (2) cancellation of accelerated vesting (or, if necessary, payment) of cash awards for which the full amount is not treated as a parachute payment; (3) reduction of any continued employee benefits; and (4) cancellation or reduction of any accelerated vesting of equity awards.  In selecting the equity awards (if any) for which vesting will be cancelled or reduced under clause (4) of the preceding sentence, awards shall be selected in a manner that maximizes the after-tax aggregate amount of reduced payments and benefits provided to the Covered Officer, provided that if (and only if) necessary in order to avoid the imposition of an additional tax under Section 409A, awards instead shall be selected in the reverse order of the date of grant. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis.

The Covered Officer and the Company shall furnish such documentation and documents as may be necessary for the Accounting Firm to perform the requisite Section 280G of the Code computations and analysis, and the Accounting Firm shall provide a written report of its determinations, hereunder, including detailed supporting calculations. If the Accounting Firm determines that aggregate payments and benefits should be reduced as described above, it shall promptly notify the Covered Officer and the Company to that effect. In the absence of manifest error, all determinations made by the Accounting Firm under this Section 8.1 shall be binding on the Covered Officer and the Company and shall be made as soon as reasonably practicable and in no event later than thirty (30) days following the later of the Covered Officer’s Termination Date or the date of the transaction which causes the application of Section 280G of the Code. The Company shall bear all costs, fees and expenses of the Accounting Firm.

8.2To the extent requested by the Covered Officer, the Company shall cooperate with the Covered Officer in good faith in valuing, and the Accounting Firm shall take into account the value of, services to be provided by the Covered Officer (including the Covered Officer agreeing to refrain from performing services pursuant to a covenant not to compete under any Non-Competition and Non-Disclosure Agreement) before, on or after the date of the transaction which causes the application of Section 280G of the Code such that payments in respect of such services may be considered to be “reasonable compensation” within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the Code and/or exempt from the definition of the term “parachute payment” within the meaning of Q&A-2(a) of such final regulations  in accordance with Q&A-5(a) of such final regulations.

8.3If it is ultimately determined (by IRS private letter ruling or closing agreement, court decision or otherwise) that the Covered Officer’s payments and benefits were reduced by

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too much or by too little in order to accomplish the purpose of this Section 8, the Covered Officer and the Company shall promptly cooperate to correct such underpayment or overpayment in a manner consistent with the purpose of this Section 8.

9.

Withholding of Taxes; Tax Year.

9.1The Company may withhold from any amounts payable under this Plan all federal, state, city, or other taxes as the Company is required to withhold pursuant to any applicable law, regulation or ruling.

9.2If a payment under any provision of the Plan is payable during a period that includes more than one taxable year a Covered Officer shall have no right to specify the taxable year during which such payment shall be made.

10.

Confidential Information.

Each Covered Officer agrees that the Covered Officer will not, during the Term or at any time thereafter, either directly or indirectly, disclose or make known to any other person, firm, or corporation any confidential information, trade secret or proprietary information of the Company in violation of the Non-Disclosure and Non-Competition Agreement between the Company and the Covered Officer, the continued effectiveness of which shall be a condition to participation in this Plan (each, the “Non-Competition and Non-Disclosure Agreement”).

11.

Non-Competition.

Payment of any Severance Benefits or Change in Control Benefits under this Plan is contingent upon a Covered Officer’s compliance with the Non-Competition and Non-Disclosure Agreement, and each Covered Officer hereby acknowledges and reaffirms that, during the Term, and for the period set forth in the Non-Competition and Non-Disclosure Agreement, the Covered Officer shall not compete with the Company, as more fully set forth in the Non-Competition and Non-Disclosure Agreement.

12.

Death of Covered Officer.

A Covered Officer shall be entitled, to the extent permitted under any applicable law, to select and change a beneficiary or beneficiaries to receive any compensation or benefits payable hereunder following the Covered Officer’s death by giving the Company written notice thereof. In the absence of such a selection, any compensation or benefit payable under this Plan following the death of the Covered Officer shall be payable to the Covered Officer’s spouse or, if the Covered Officer does not have a surviving spouse, to the Covered Officer’s estate. In the event of a Covered Officer’s death or a judicial determination of a Covered Officer’s incompetence, reference in this Plan to the Covered Officer shall be deemed, where appropriate, to refer to the Covered Officer’s beneficiary, estate or other legal representative.

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13.

Arbitration.

The following arbitration rules shall apply to this Agreement:

13.1In the event that a Covered Officer's employment shall be terminated by the Company during the Term or the Company shall withhold payments or provision of benefits because the Covered Officer is alleged to be engaged in activities prohibited by Section 10 or 11 hereof or for any other reason, the Covered Officer shall have the right, in addition to all other rights and remedies provided by law, at Covered Officer’s election either to seek arbitration in the metropolitan area of Akron, Ohio, under the Commercial Arbitration Rules of the American Arbitration Association by serving a notice to arbitrate upon the Company or to institute a judicial proceeding, in either case within one hundred and twenty (120) days after having received notice of termination of Covered Officer’s employment.

13.2Without limiting the generality of Section 13.1, this Section 13.2 shall apply to termination asserted to be for “Cause” or for “Good Reason”. In the event that (i) the Company terminates a Covered Officer’s employment for Cause, or (ii) a Covered Officer resigns employment for Good Reason, the Company and the Covered Officer each shall have thirty (30) days to demand of the American Arbitration Association in writing (with a copy to the other party hereto) that arbitration be commenced to determine whether Cause or Good Reason, as the case may be, existed with respect to such termination or resignation. The parties shall have thirty (30) days from the date of such written request to select such third party arbitrator. Upon the expiration of such thirty (30) day period, the parties shall have an additional thirty (30) days in which to present to such third party arbitrator such arguments, evidence or other material (oral or written) as may be permitted and in accordance with such procedures as may be established by such third party arbitrator. The third party arbitrator shall furnish a written summary of his findings to the parties hereto not later than thirty (30) days following the last day on which the parties were entitled to present arguments, evidence or other material to the third party arbitrator.

During the period of resolution of a dispute under this Section 13.2, a Covered Officer shall receive no compensation by the Company (other than payment by the Company of premiums due before or during such period on any insurance coverage applicable to the Covered Officer hereunder) and the Covered Officer shall have no duties to perform for the Company. If the arbitrator determines that the Company did not have Cause to terminate the Covered Officer’s employment or that the Covered Officer had Good Reason to resign his or her employment, as the case may be, the Company shall promptly pay the Covered Officer in a lump sum any compensation to which the Covered Officer would have been entitled, for the period commencing with the date of the Covered Officer’s termination or resignation and ending on the date of such determination, had his or her employment not been terminated or had he or she not resigned.

14.

Employment at Will.

The adoption and maintenance of the Plan is not a contract between the Company and its employees that gives any employee the right to be retained in its employment.  Likewise, it is not intended to interfere with the rights of an Employer to terminate an employee’s employment at any time with or without notice and with or without cause or to interfere with an employee's right to terminate his employment at any time. Each Covered Officer acknowledges and confirms that such Covered Officer’s employment by the Company is employment-at-will, and that such

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employment-at-will status cannot be modified except in a specific writing that has been authorized or ratified by the Board.

15.

Employment Actions.

This Plan is not intended to create, and will not be construed as creating, an express or implied contract of employment. Nothing contained herein will prevent the Company at any time from terminating a Covered Officer’s right and obligation to perform services to the Company or prevent the Company from removing a Covered Officer from any position which the Covered Officer holds with the Company, provided, however, that no such action shall affect the obligation of the Company to make payments and provide benefits if and to the extent required under this Plan. The payments and benefits provided in this Plan will be full and complete liquidated damages for any such employment action taken by the Company.

16.

Amendment, Termination.

Subject to the restrictions set forth in this Section 16, the Board of Directors may amend or terminate the Plan at any time, provided, however, that (i) no amendment or Plan termination shall have effect to the extent that it would reduce the benefit otherwise payable under the Plan to a Covered Officer whose employment is terminated within 180 days after the date of such amendment or Plan termination, and (ii) if a Covered Officer had entered into a Severance and Change in Control Agreement or a Change in Control Agreement with the Company that was effective on the day preceding the Effective Date but was superseded by this Plan and the Plan is terminated or amended in a manner that materially reduces the severance benefits provided hereunder, the Company shall re-enter into such an agreement with the Covered Officer on the same substantive terms and conditions.

17.

Adoption of Plan by Affiliates.

17.1With the written approval of the Compensation Committee, any entity that is an Affiliate may adopt the Plan by appropriate action of its board of directors or noncorporate counterpart, as evidenced by a written instrument executed by an authorized officer of such entity or an executed adoption agreement (approved by the board of directors or noncorporate counterpart of the Affiliate), agreeing to be bound by all the terms, conditions and limitations of the Plan and providing all information required by the Compensation Committee.

17.2The provisions of the Plan shall apply separately and equally to each adopting Affiliate in the same manner as is expressly provided for the Company, except that the power to appoint the Compensation Committee and the power to amend or terminate the Plan shall be exercised by the Company.

17.3For purposes of the Code and ERISA, the Plan as adopted by the Affiliates shall constitute a single plan rather than a separate plan of each Affiliate.

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18.

Notices.

For purposes of this Plan, all communications provided for herein shall be in writing and shall be deemed to have been duly given when hand delivered or mailed by United States Express mail, postage prepaid, addressed as follows:

If the notice is to the Company:

Myers Industries, Inc.

1293 South Main Street

Akron, OH 44301

Attn: Chair of the Compensation Committee

With a copy to:

Myers Industries, Inc.

1293 South Main Street

Akron, OH 44301

Attn: Chief Legal Officer

 

If the notice is to a Covered Officer:

The residential address reflected in the Company’s employment files for the Covered Officer

Or, to such other address as the Company or a Covered Officer may furnish in writing to the other in accordance herewith, provided that such notice of change of address shall be effective only upon actual receipt.

19.

Assignment; Binding Effect.

This Plan shall be binding up and inure to the benefit of the Company and the Covered Officers and their respective successors, heirs (in the case of Covered Officers) and permitted assigns. The Plan shall be binding upon any successor of the Company. Further, the Board shall not authorize a Change in Control that is a Merger or a sale transaction unless the Company’s successor or purchaser agrees to take such actions as are necessary to expressly assume the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law, and cause all Covered Officers to be paid or provided all benefits under the terms of the Plan as in effect immediately prior to the Change in Control. The Company further agrees that, in the event of a Merger or sale or transfer of assets constituting a Change in Control, it shall be a condition precedent to the consummation of any such transaction that the successor, assignee or transferee expressly assume the liabilities, obligations, and duties of the Company hereunder.

No rights, benefits, or obligations of a Covered Officer under this Agreement may be assigned or transferred by the Covered Officer other than the Covered Officer’s rights to compensation and benefits transferred by will or operation of law, and except as provided in this Section 19. No benefits hereunder shall be subject to anticipation by a Covered Officer,

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to attachment by, interference with, or control of any creditor of a Covered Officer, or to being taken or reached by any legal or equitable process in satisfaction of any debt or liability of a Covered Officer prior to its actual receipt by the Covered Officer. Any attempted conveyance, transfer, assignment, mortgage, pledge, or encumbrance of the benefits hereunder prior to payment thereof shall be void.

20.

Invalid Provisions.

Any provision of this Plan that is prohibited or unenforceable shall be ineffective to the extent, but only to the extent, of such prohibition or unenforceability without invalidating the remaining portions hereof and such remaining portions of this Plan shall continue to be in full force and effect. In the event that any provision of this Plan shall be determined to be invalid or unenforceable, the Company will in good faith seek to replace such provision with another provision that will be valid or enforceable and that is as close as practicable to the provisions held invalid or unenforceable.

21.

Alternate Satisfaction of Company’s Obligations.

In the event this Plan provides for payments or benefits to or on behalf of a Covered Officer which cannot be provided under the Company’s benefit plans, policies or arrangements either because such plans, policies or arrangements no longer exist or no longer provide such benefits or because provision of such benefits to a Covered Officer would adversely affect the tax qualified or tax advantaged status of such plans, policies or arrangements for the Covered Officer or other participants therein, the Company may provide the Covered Officer with an “Alternative Benefit”, as defined in this Section 21, in lieu thereof. The Alternative Benefit is a benefit or payment which places the Covered Officer and the Covered Officer’s dependents or beneficiaries, as the case may be, in at least as good of an economic position as if the benefit promised by this Plan (a) were provided exactly as called for by this Plan, and (b) had the favorable economic, tax and legal characteristics customary for plans, policies or arrangements of that type. Furthermore, if such adverse consequence would affect a Covered Officer or the Covered Officer’s dependents, the Covered Officer shall have the right to require that the Company provide such an Alternative Benefit. Notwithstanding the foregoing, if provision of an alternative benefit would constitute a violation of Internal Revenue Code Section 409A, the parties will be left to their legal remedies.

22.

Administration of Plan.

22.1The general administration of the Plan on behalf of the Company (as plan administrator under Section 3(16)(A) of ERISA) shall be placed with the Compensation Committee. The Compensation Committee shall have the full discretionary power and authority to construe, interpret and administer the Plan, to make eligibility determinations, to correct deficiencies in the Plan and to supply omissions. All decisions, actions and interpretations of the Compensation Committee shall be final, binding and conclusive upon the parties.  

22.2The Compensation Committee shall maintain such records regarding the fiscal and other transactions of the Plan and such other data as may be required to carry out its function under the Plan and to comply with applicable laws. The Company shall prepare and file as required by law or regulation all reports, forms, documents, and other items required by ERISA,

19

 

 

the Code and other relevant statutes, each as amended from time to time, and all regulations thereunder.

22.3The Plan shall be “unfunded” for the purposes of ERISA and the Code and the benefits and payments to be paid under the plan shall be paid out of the general assets of the Company as and when payable under the Plan. All Covered Officers shall be solely unsecured creditors of the Company. If the Company decides in its sole discretion to establish any advance reserve on its books against the future expense of the potential payments hereunder, or, if the Company decides in its sole discretion to fund a trust under the Plan, such reserve or trust shall not under any circumstances be deemed to be an asset of the Plan.

23.

Entire Agreement; Integration

Except for the Non-Competition and Non-Disclosure Agreement between each Covered Officer and the Company or an Affiliate, and subject to the provisions of Section 24 hereof, this Plan supersedes all prior and contemporaneous agreements, representations, and understandings, whether oral or written, with regard to the terms and conditions applicable to a Covered Officer’s separation from the Company, including the provision of any Severance Benefits or Change in Control Benefits in connection therewith.

24.

Non-Exclusivity of Rights.

Notwithstanding the foregoing provisions of Section 23, nothing in this Plan shall prevent or limit a Covered Officer’s continuing or future participation in any benefit, bonus, incentive or other plan, program, policy or practice provided by the Company or its Affiliates for senior officers. Amounts which a Covered Officer or a Covered Officer’s dependents or beneficiaries, as the case may be, are otherwise entitled to receive under any such plan, policy, practice or program shall not be reduced by this Plan unless specifically provided.

25.

Claims Procedure

25.1Claims Review. Any Covered Officer or Beneficiary (the claimant) who wishes to request a review of a claim for benefits under the Plan or who wishes an explanation of a benefit or its denial may direct to the Compensation Committee a written request for such review within 120 days of the denial. The Compensation Committee or its delegate shall respond to the request by issuing a notice to the claimant as soon as possible, but in no event later than 90 days (45 days for disability claims) from the date of receipt of the request, subject to an extension of an additional 90 days (60 days for a disability claim) in special cases. This notice furnished by the claims reviewer shall be written in a manner calculated to be understood by the claimant, shall be posted by first-class mail to the address of record of the claimant and shall include the following:

(a)The specific reason or reasons for any denial of benefits;

(b)The specific Plan provisions on which any denial is based;

(c)A description of any further material or information which is necessary for the claimant to perfect his or her claim and an explanation of why the material or information is needed;

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(d)To the extent that the appeal relates to a Disability claim, a discussion of the decision, including an explanation of the basis for disagreeing with or not following (1) the views presented by the claimant to the Plan of the health care professionals treating the claimant and vocational professionals who evaluated the claimant; (2) the views of medical or vocational experts whose advice was obtained on behalf of the Plan in connection with a claimant’s adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination; and (3) any disability determination regarding the claimant presented by the claimant to the Plan made by the Social Security Administration;

(e)An explanation of the Plan’s claim appeals procedure; and

If the Compensation Committee or its delegate denies the claim or fails to respond to the claimant’s written request for a review within 180 days of its receipt, the claimant shall be entitled to proceed to the claim appeals procedure described in Section 25.2. If the claimant does not respond to the notice within 60 days from receipt of the notice, the claimant shall be considered satisfied in all respects.

25.2Appeals Procedure. In the event that the claimant wishes to appeal the claim review denial, the claimant or his or her duly authorized representative may submit to the Compensation Committee, within 60 days of his or her receipt of the notice, a written notification of appeal of the claim denial. The notification of appeal of the claim denial shall permit the claimant or his or her duly authorized representative to utilize the following claim appeals procedures:

(a)To review pertinent documents;  

(b)To submit issues and comments in writing to which the Compensation Committee or its delegate shall respond;

(c)To the extent that the appeal relates to a Disability claim, a discussion of the decision, including an explanation of the basis for disagreeing with or not following (1) the views presented by the claimant to the Plan of the health care professionals treating the claimant and vocational professionals who evaluated the claimant; (2) the views of medical or vocational experts whose advice was obtained on behalf of the Plan in connection with a claimant’s adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination; and (3) any disability determination regarding the claimant presented by the claimant to the Plan made by the Social Security Administration; and

(d)A statement of the Covered Officer’s right to bring a civil action under Section 502(a) of ERISA.

The Compensation Committee or its delegate shall furnish a final written decision on formal review not later than 60 days after receipt of the notification of appeal, unless special circumstances require an extension of the time for processing the appeal or the appeal relates to a Disability claim. In no event, however, shall the Compensation Committee or its delegate respond later than 120 days after a request for an appeal. The decision on the appeal shall be written in a manner calculated to be understood by the claimant, shall include specific reasons for the decision,

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shall contain specific references to the pertinent Plan provisions on which the decision is based, and shall include any other topics required to be addressed for a Disability claim.

25.3 Discretion Regarding Claims and Appeals. The Compensation Committee, or any individual or committee to whom responsibility for claims and appeals has been delegated, shall have complete discretion in deciding such claims and appeals and any such decision shall be final, conclusive and binding upon the claimant.

26.

Compliance with Section 409A of the Code.

Certain payments contemplated by this Plan may be considered “deferred compensation” for purposes of Section 409A of the Code. Accordingly, the following provisions shall be in effect for purposes of avoiding or mitigating any adverse tax consequences to the Covered Officer under Section 409A:

26.1A termination of employment will not be deemed to have occurred for purposes of any provision of this Plan providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A, for purposes of any such provision of this Plan, references herein to “termination”, “termination of employment” or similar terms will mean “separation from service”.

26.2The intent of the Company and the Covered Officers is that payments and benefits under this Plan comply with or be exempt from Code Section 409A and the regulations and guidance promulgated thereunder and, accordingly, to the maximum extent permitted, this Plan will be interpreted to be in compliance therewith or exempt therefrom. In no event whatsoever will the Company be liable for any additional tax, interest or penalty that may be imposed on a Covered Officer by Code Section 409A or damages for failing to comply with Code Section 409A.

26.3To the extent any provisions of this Plan would otherwise contravene one or more requirements or limitations of Code Section 409A, then the Company and a Covered Officer may, within any applicable time period provided under the Treasury Regulations issued under Code Section 409A, effect through mutual agreement the appropriate amendments to those provisions which are necessary in order to bring the provisions of this Plan into compliance with Code Section 409A, provided such amendments shall not reduce the dollar amount of any such item of deferred compensation or adversely affect the vesting provisions applicable to such item or otherwise reduce the present value of that item. If any legislation is enacted during the term of this Plan which imposes a dollar limit on deferred compensation, then a Covered Officer will cooperate with the Company in restructuring any items of compensation under this Plan that are deemed to be deferred compensation subject to such limitation, provided such restructuring shall not reduce the dollar amount of any such item or adversely affect the vesting provisions applicable to such item or otherwise reduce the present value of that item.

26.4Notwithstanding any provision to the contrary in this Plan, if (i) the Company, in its good faith discretion, determines that any payments or benefits described in this Plan would constitute non-exempt deferred compensation for purposes of Section 409A of the Code, and (ii) a Covered Officer is a “specified employee” (within the meaning of Section 409A of the Code and the Treasury Regulations thereunder) at the time of his or her termination of employment, then

22

 

 

such payments or benefits shall not be made or paid to the Covered Officer prior to the earlier of (A) the expiration of the six (6) month period measured from the date of such “separation from service” or (B) the date of his death (the “Delay Period”). Upon the expiration of the Delay Period, all payments deferred pursuant to this Section 26.4 shall be paid in a lump sum to the Covered Officer, and any remaining payments due under this Plan shall be paid in accordance with the normal payment dates specified for them herein.

26.5For purposes of Code Section 409A, a Covered Officer’s right to receive any installment payment pursuant to this Plan will be treated as a right to receive a series of separate and distinct payments.

26.6Whenever a payment under this Plan specifies a payment period with reference to a number of days (e.g., “payment will be made within thirty (30) days following the Termination Date”), the actual date of payment within the specified period will be determined solely by the Company.

26.7Notwithstanding any other provision herein to the contrary, in no event will any payment that constitutes non-exempt deferred compensation subject to Code Section 409A, as determined in good faith by the Company, be subject to offset, counterclaim, or recoupment by any other amount payable to a Covered Officer unless otherwise permitted by Code Section 409A.

To the extent that reimbursements or other in-kind benefits under this Plan constitute non-exempt deferred compensation for purposes of Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by a Covered Officer, (ii) any right to such reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.

27.

Miscellaneous.

27.1Number and Gender. As used in the Plan, unless the context otherwise expressly requires to the contrary, references to the singular include the plural, and vice versa; references to the masculine include the feminine and neuter; references to “including” means “including (without limitation)”; and references to Sections and clauses mean the sections and clauses of the Plan.

27.2Headings. The headings of Sections herein are included solely for convenience, and if there is any conflict between such headings and the text of the Plan, the text shall control.

27.3Severability. Each provision of the Plan may be severed.  If any provision is determined to be invalid or unenforceable, that determination shall not affect the validity or enforceability of any other provision.

27.4Waiver of Breach. The failure at any time to enforce any of the provisions of this Plan or to require performance of any of the provisions of this Plan shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Plan or any

23

 

 

part of this Plan or the right to enforce each and every provision of this Plan in accordance with the terms of this Plan.

27.5Governing Law. To the extent legally required, the Code and ERISA shall govern the Plan and, if any provision hereof is in violation of any applicable requirement thereof, the Company reserves the right to retroactively amend the Plan to comply therewith. To the extent not governed by the Code and ERISA, the provisions of the Plan shall be governed by the laws of the State of Ohio, without reference to rules relating to conflicts of law.

27.6No Mitigation or Offset. The Company agrees that if a Covered Officer’s employment with the Company or any Affiliate terminates during the Term of the Plan, the Covered Officer is not required to seek other employment. Except as provided in Section 4.1(b) and Section 5.1(b) with respect to the Health Care Coverage, amounts due the Covered Officer pursuant to this Plan shall not be offset by any remuneration attributable to any subsequent employment a Covered Officer may obtain.


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EXHIBIT A

 

FORM OF RELEASE AGREEMENT

 

In consideration of receiving certain benefits under the Myers Industries, Inc. Senior Officer Severance Plan adopted effective February 21, 2020 (the “Plan”), I have agreed to sign this Release. I understand that I am not entitled to benefits under the Plan unless I sign this Release.

 

I understand that this Release, together with the Agreement, constitutes the complete, final and exclusive embodiment of the entire agreement between Myers Industries, Inc. (the “Company”), affiliates of the Company, and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated therein. Certain capitalized terms used in this Release and not defined herein are defined in the Plan.

 

Except as otherwise set forth in this Release, I, on behalf of myself and my heirs, executors, representatives, administrators, agents, insurers, and assigns (collectively, the “Releasors”) hereby generally, completely and irrevocably waive, release, and discharge the Company and its current and former directors, officers, employees, stockholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns (collectively, the “Released Parties”) from any and all claims, liabilities obligations, and expenses (including attorneys’ fees), both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company or its affiliates, or the termination of that employment; (2) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company or its affiliates; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964, the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (“ADEA”), the federal Employee Retirement Income Security Act of 1974 (ERISA), the federal Family and Medical Leave Act (FMLA), the federal Equal Pay Act, the federal Civil Rights Act of 1991, Section 1981 of U.S.C. Title 42, the federal Worker Adjustment and Retraining Notification (WARN) Act, the federal National Labor Relations Act (NLRA), the federal Older Workers Benefit Protection Act, the federal Fair Labor Standards Act, or any Ohio labor and employment law (including any law concerning unlawful and unfair labor and employment practices), all including any amendments and their respective implementing regulations.

 

Notwithstanding the foregoing, the following are not included in the Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any written indemnification agreement with the Company to which I am a party, the Articles of Incorporation, Code of Regulations, or other organizational charter of the Company, or under applicable law; (2) any rights related to vested securities of the Company that were granted to me during the course of my employment with the Company or any shares of capital stock or other

25

 

 

securities of the Company that I purchased other than pursuant to a Company stock option or stock plan; or (3) any rights which are not waivable as a matter of law. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company, except that I hereby waive my right to any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent and warrant that, other than the Excluded Claims, I am not aware of any claims I have or might have against any of the Released Parties that are not included in the Released Claims.

 

I acknowledge that I am knowingly and voluntarily agreeing to all of the terms and conditions set forth in this Release, including waiving and releasing any rights I may have under the ADEA. I also acknowledge that the consideration given for the Released Claims is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) the Released Claims do not apply to any rights or claims that arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have twenty-one (21) days to consider this Release (although I may choose to voluntarily sign it sooner); (d) I have seven (7) days following the date I sign this Release to revoke the Release by providing written notice to an officer of the Company; and (e) the Release will not be effective until the date upon which the revocation period has expired unexercised, which will be the eighth day after I sign this Release (the “Effective Date”).

 

I hereby represent that I have been paid all compensation owed (except for any Severance Benefits or Change in Control Benefits I may be owed under the Plan) and for all hours worked, I have received all the leave and leave benefits and protections for which I am eligible, and I have not suffered any on-the-job injury for which I have not already filed a workers’ compensation claim.

 

I hereby agree not to disparage the Company, or any other Released Party, in any manner likely to be harmful to its or their business, business reputation, or personal reputation; provided, however, that I will respond accurately and fully to any question, inquiry or request for information when required by legal process.

 

I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than twenty-one (21) days following the date it is provided to me, and I must not revoke it thereafter.

 

I HAVE READ THIS RELEASE AGREEMENT IN ITS ENTIRETY AND UNDERSTAND ALL OF ITS TERMS. I UNDERSTAND THAT THIS RELEASE AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, EVEN THOSE UNKNOWN CLAIMS THAT, IF KNOWN BY ME, WOULD AFFECT MY DECISION TO ACCEPT THIS RELEASE AGREEMENT.

 

26

 

 

 

 

 

 

 

Name:

 

 

 

 

 

Date:

 

 

27

3/13/2020 35132074 V.7

 

 

 

 

 

 

Exhibit 10(af)

 

 

PORTIONS OF THIS EXHIBIT THAT ARE NOT MATERIAL AND WOULD LIKELY CAUSE MATERIAL HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED HAVE BEEN REDACTED AND/OR OMITTED PURSUANT TO ITEM 6.01(b)(10) OF REGULATION S-K

 

 

 

 

 

 

 

 

ASSET PURCHASE AGREEMENT

 

 

BY AND AMONG

 

 

MYERS INDUSTRIES INDIANA LLC,

 

 

ELKHART PLASTICS, INC.,

 

 

ELKHART PLASTICS INTERNATIONAL, LTD.,

 

 

ELKHART PLASTICS OF IOWA, INC.,

 

 

AND

 

 

ELKHART PLASTICS OF MICHIGAN, INC.

 

 

Signing and Closing Date

 

 

November 10, 2020

 

 

 

 

 

 

 

 

 

DEFINED TERMS

 

Buyer

Myers Industries Indiana LLC, an Indiana limited liability company

Seller

Elkhart Plastics, Inc., an Indiana corporation, Elkhart Plastics International Ltd., an Indiana corporation, Elkhart Plastics of Iowa, Inc., an Indiana corporation, and Elkhart Plastics of Michigan, Inc., an Indiana corporation

 

TABLE OF CONTENTS

 

All Documents dated November 10, 2020 unless otherwise noted

Page

Asset Purchase Agreement

1

Disclosure Schedules to Asset Purchase Agreement

2

Closing Certificate

3

Bill of Sale

4

Assignment and Assumption Agreement

5

Patent Assignment Agreement

6

Trademark Assignment Agreement

7

Domain Name Assignment Agreement

8

Secretary’s Certificate of each Seller

9

Escrow Agreement

10

Flow of Funds Memorandum

11

Lease Assignment Agreements

12

Lease Amendments

13

Key Employee Offer Letters

14

Indemnification Agreement between Buyer and Jack E. Welter

15

Restrictive Covenant Agreements

16

FIRPTA Certificate for Elkhart Plastics International Ltd.

17

 

 

 

 

 

 

Execution Version

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (“Agreement”) is entered into as of this 10th day of November, 2020, by and among Myers Industries Indiana LLC, an Indiana limited liability company (“Buyer”), Elkhart Plastics, Inc., an Indiana corporation (“EPI”), Elkhart Plastics International, Ltd., an Indiana corporation (“EPI International”), Elkhart Plastics of Iowa, Inc., an Indiana corporation (“EPI Iowa”), Elkhart Plastics of Michigan, Inc., an Indiana corporation (“EPI Michigan”) (EPI, EPI Michigan, EPI International and EPI Iowa are collectively, “Seller”).

RECITALS:

WHEREAS, Seller is engaged in the business of designing, manufacturing, selling and distributing rotationally molded plastic products (the “Business”);

WHEREAS, on the terms and subject to the conditions of this Agreement, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, substantially all of Seller’s assets, and Seller desires to assign to Buyer, and Buyer desires to assume from Seller, certain specified liabilities of Seller related to the Business; and

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements set forth in this Agreement, Buyer, the Seller hereby agree as follows:

ARTICLE 1

Definitions

1.1Definitions.  Certain terms used in this Agreement shall have the meanings set forth in Article 9, or elsewhere herein as indicated in Article 9.  

1.2Accounting Terms.  Accounting terms used in this Agreement and not otherwise defined herein shall have the meanings attributed to them under GAAP except as may otherwise be specified herein.

ARTICLE 2

Purchase and Sale

2.1Purchase and Sale.  

2.1.1Acquired Assets.  On the terms and subject to the conditions contained herein, Seller hereby sells, assigns, transfers and delivers to Buyer, and Buyer hereby purchases, acquires and accepts from Seller, free and clear of all Liens with respect to assets owned by Seller (other than Permitted Liens identified on Schedule 2.1.1) (other than Permitted Liens), other than the

 

 

Excluded Assets, all of Seller’s right, title and interest in and to all of Seller’s assets, properties, rights, Contracts and claims (the “Acquired Assets”), including, without limitation, the following:

a.Accounts Receivable.  All accounts receivable and all notes, bonds and other evidences of indebtedness in favor of Seller and rights to receive payments arising out of sales and services rendered, including any rights of Seller with respect to any third party collection procedures or any other actions or proceedings which have been commenced in connection therewith, together with the proceeds in respect of any of the foregoing (the “Accounts Receivable”);

b.Inventory.  Any and all inventory, including, without limitation, any samples, raw materials, work in progress, supplies, spare parts, finished products, shipping containers, labels, packaging, materials, and any prepaid inventory, whether in the possession of Seller, on consignment or otherwise in the possession of a third party, or in transit to Seller (the “Inventory”);

c.Fixed Assets.  All machinery, equipment, furniture, furnishings, molds, fixtures, tools, dies, vessels, vehicles, computers and other tangible personal property used in or useful to Seller’s conduct of the Business;

d.Business Intellectual Property.  All Intellectual Property owned or held for use by Seller in its operation of the Business, including, without limitation, the name “Elkhart Plastics” and “EPI” and any variations or derivations thereof (collectively, the “Business Intellectual Property”), together with the books and records related thereto, goodwill and right to sue third-parties for past infringement or improper, unlawful or unfair use or disclosure of the Business Intellectual Property;

e.Assumed Contracts.  To the extent transferable, the Contracts to which Seller is a party that are related to its operation of the Business and that are set forth on Schedule 2.1.1(e) (collectively, “Assumed Contracts”);

f.Books and Records.  Other than the Excluded Records, all of the books and records of Seller related to the Acquired Assets or the Business, including business records, files, research material, tangible data, documents, payroll and personnel records with respect to the Transferred Employees (to the extent permitted by Law), invoices, customer lists, vendor lists and service provider lists, whether in written or electronic form;

g.Listings.  All interests in and to telephone and fax numbers, post office boxes and all listings in all telephone books and directories, stationery, forms, labels, shipping materials, catalogs, brochures, art work, photographs, digital marketing materials and advertising and promotional materials, whether in written or electronic form;

h.Permits.  To the extent transferable, all Permits held by Seller that are required by Governmental Authorities and used in Seller’s operation of the Business;

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i.Prepaid Assets.  All prepaid assets and other similar items, including prepaid expenses, security deposits, deferred charges, advance payments and other prepaid items (the “Prepaid Assets”);

j.Warranties.  To the extent transferable, all rights, causes of actions, rights of recovery, rights of offset, rights of recoupment, claims and credits related to any Acquired Asset or any Assumed Liability, including all guarantees, warranties, indemnities and similar rights in favor of Seller in respect of any Acquired Asset or any Assumed Liability;

k.Insurance Policies.  All insurance policies of Seller identified on Schedule 2.1.1 (k).  

l.Goodwill.  Any and all goodwill of Seller;

m.Seller Plans.  The Seller Plans listed on Schedule 2.1.1(m) (the “Assumed Seller Plans”);

n.Lockbox Accounts.  The Seller lockbox accounts set forth on Schedule 2.1.1(n); and

o.Other Assets.  All other assets of Seller used in or useful to its operation of the Business (unless included in the Excluded Assets).

2.1.2Excluded Assets.  The following assets, properties, rights, Contracts and claims, wherever located, whether tangible or intangible, real or personal, of Seller (whether or not related to, or used by Seller in its operation of, the Business) are not included in the definition of Acquired Assets and are not being sold, assigned, transferred or delivered to Buyer (collectively, the “Excluded Assets”):

a.Cash; Bank Accounts.  Other than the lockbox account set forth on Schedule 2.1.1(n), all cash, cash equivalents, marketable securities and similar investments, bank accounts, lockboxes and deposits of Seller;

b.Retained Warranties.  All rights, causes of actions, claims and credits related to any Excluded Asset or any Retained Liability, including all guarantees, warranties, indemnities and similar rights in favor of Seller in respect of any Excluded Asset or any Retained Liability;

c.Insurance Policies.  Any insurance policies of Seller not assumed by the Buyer and all claims and rights of Seller under its insurance policies arising prior to Closing, whether or not related to the Business;

d.Tax Refunds and Deposits.  All (i) claims for and rights of Seller to receive Tax refunds (unless the underlying non-income Tax was included in the Accrued Liabilities) and (ii) Tax deposits;

3

 

e.Transaction Documents.  All rights of Seller under this Agreement, the other agreements and instruments executed and delivered in connection with this Agreement, and the transactions contemplated hereby or thereby;

f.Excluded Records.  (i) Seller’s minute books, stock books and other organizational records having to do with the formation and capitalization of Seller, (ii) any personnel records and other records relating to the employees of Seller that Seller is required by Law to retain in its possession, and (iii) Tax Returns of Seller (collectively, the “Excluded Records”);

g.Capital Stock.  All capital stock or other equity interests owned by EPI in any other Person, including EPI Michigan, EPI International and EPI Iowa;

h.Excluded Contracts.  Any Contracts which are not included among the Assumed Contracts (the “Excluded Contracts”); and

i.Other Excluded Assets.  The assets set forth on Schedule 2.1.2(i).  

2.1.3Liabilities.  Buyer hereby assumes and agrees to pay, perform and discharge when due only the following Liabilities of Seller related to the Business (the “Assumed Liabilities”):

a.Trade Payables.  All trade accounts payables of Seller that:  (i) are not outstanding in excess of Seller’s normal and customary periods for payment as of the Closing and in no event more than sixty (60) days old, (ii) arose in the ordinary course of the Business, and (iii) remain unpaid at the Closing, all as specifically set forth on Schedule  2.1.3(a) (the “Trade Payables”);

b.Assumed Contracts and Assumed Seller Plans.  The performance or payment obligations arising after the Closing under the Assumed Contracts and Assumed Seller Plans to the extent (i) such performance or payment obligations accrue, relate and are to be performed solely after the Closing, (ii) such performance or payment obligations (aa) do not arise out of a breach of an Assumed Contract or Assumed Seller Plan that was payable prior to the Closing, (iii) the corresponding benefits of such Assumed Contracts and Assumed Seller Plans are validly assigned to and received by Buyer, or if not assigned, benefit and are utilized by the Buyer; and

c.Accrued Liabilities.  Those accrued liabilities of Seller included in the calculation of Working Capital and relating to the Business incurred in the ordinary course of business and specifically listed by account and in the amounts set forth on Schedule 2.1.3(c) (the “Assumed Accrued Liabilities”).  

2.1.4Retained Liabilities.  Notwithstanding anything in this Agreement to the contrary, except for the Assumed Liabilities, Buyer is not assuming and will not become responsible for any Liabilities of Seller (the Liabilities being retained by Seller are hereinafter collectively referred to as the “Retained Liabilities”).  No disclosure by Seller contained in the Disclosure Schedules will

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in any way affect Seller’s obligations hereunder with respect to the Retained Liabilities.  A non-exclusive list of the Retained Liabilities is set forth below:

a.Transaction Documents.  Any of Seller’s Liabilities under this Agreement or the Seller Ancillary Agreements;

b.Expenses.  Any of Seller’s Liabilities for expenses or fees incident to, resulting from, relating to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees and fees of any broker or finder, or other Person acting in a similar capacity), including without limitation, any unpaid change of control or severance obligations of Seller (“Selling Expenses”);

c.Taxes.  Any Liability of Seller for Taxes, including any Liability of Seller for any amount of federal, state, local or other Taxes which are imposed on or measured by the income of Seller for any period;

d.Product Liability.  All Liabilities of Seller to customers or third parties with respect to services performed by Seller on or prior to the Closing Date or products manufactured, sold or leased by Seller on or prior to the Closing Date, without regard to (i) the basis or theory of claim (negligence, strict tort, breach of express or implied warranty, fraud or failure to warn, test, inspect or instruct, infringement claims and any related claims, or otherwise), (ii) the nature of the damages sought (property damage, economic loss, personal injury, wrongful death or other), or (iii) whether the claim arose or is asserted before or after the Closing;

e.Employees.  Except to the extent specifically included in the Assumed Accrued Liabilities, all Liabilities arising out of the employment relationship between Seller and any of its employees or former employees existing at any time, whether before or after the Closing, including, without limitation, all Liabilities relating to all severance claims of any employee of Seller (including, without limitation, such claims relating to or resulting from the consummation of the transactions contemplated hereby) and all workers’ compensation or EEOC claims, demands, investigations or proceedings relating to events which occurred prior to the Closing;

f.Past Violations.  Any of Seller’s Liabilities (i) arising by reason of any violation or alleged violation of any Law or any requirement of any Governmental Authority or (ii) arising by reason of any breach or alleged breach by Seller of any Contract or Order;

g.Litigation; Claims.  Any of Seller’s Liabilities relating to any legal action, litigation, proceeding or claim arising out of or in connection with Seller’s conduct of the Business, or any other conduct of Seller or its officers, directors, employees, consultants, agents or advisors, on or prior to the Closing Date, including but not limited to the matter set forth on Schedule 2.1.4(g);

h.Environmental.  Any Liability of Seller arising under Environmental Law and relating to or arising before Closing from Seller, the Business, the Leased Real Property, or the Acquired Assets, including, but not limited to, any such Liability relating to or arising from (i)

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the Leased Real Property or any other real property presently or formerly owned, operated or leased by Seller, (ii) the off-site transportation, disposal or arranging for the off-site disposal of any Hazardous Materials by Seller, (iii) the release by Seller of Hazardous Materials in, at, on, from or emanating from the Leased Real Property or any other real property presently or formerly owned, operated or leased by Seller, or (iv) the actual or alleged violation by Seller of any Environmental Law;

i.Successor Liability.  Any Liabilities of Seller which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of Liability;

j.Indebtedness.  All of Seller’s indebtedness, including the current portion of any long-term debt and any working capital line, Liabilities related to notes payable, mortgages, term loans, credit cards, equipment loans, cash overdrafts, revolver borrowings and loans or payables to any Seller (or any Affiliate of Seller) or any employee or Affiliate of Seller, or any other obligation for borrowed money, and any interest related to any of the foregoing (“Indebtedness”);

k.Excluded Assets.  Any Liability of Seller in respect of any of the Excluded Assets (including under any Contracts or understandings related thereto and any Liability related to EPI Michigan, EPI International or EPI Iowa that is not an Assumed Liability); and

l.Other Liabilities.  All Liabilities of EPI International and any other Liability of Seller not expressly assumed by Buyer pursuant to Section 2.1.3 above.

2.2Consideration  .

2.2.1Purchase Price.  The aggregate consideration to be paid by Buyer to Seller in consideration of the Acquired Assets shall consist of:

a.the payment by Buyer to Seller of an amount (the “Purchase Price”) equal to:

(i)Sixty Two Million Five Hundred Thousand Dollars ($62,500,000) (the “Cash Amount”); and

(ii)plus or minus the amount, if any, by which the Closing Working Capital is greater or less than the Working Capital Target; provided that the Closing Working Capital exceeds the Working Capital Top Collar or the Closing Working Capital is less than the Working Capital Lower Collar, as applicable; and

(iii)plus the amount of the Seller’s prepaid expenses (which includes the amount of prepaid premium with respect to the applicable Assumed Seller Plans for the period from the Closing Date through February 1, 2021 and one-half (1/2) of the premium paid by Seller for Buyer’s share of product liability insurance “tail” policy) for Assumed Seller Plans.

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b.the assumption by Buyer of the Assumed Liabilities.

2.2.2Payment of Estimated Purchase Price; Payment of Indebtedness.  

a.Estimated Purchase Price.  Prior to the Closing, Seller has estimated in good faith the amount of the Closing Working Capital, and delivered to Buyer a certificate setting forth such estimate (the “Closing Certificate”).  As used herein, (i) “Estimated Closing Working Capital” means the estimate of the Closing Working Capital as set forth in the Closing Certificate, and (ii) “Estimated Purchase Price” means an amount equal to the Purchase Price calculated as set forth in Section 2.2.1, assuming that the Closing Working Capital is equal to the Estimated Closing Working Capital.  For the purposes of the Closing Certificate, the Estimated Closing Working Capital shall be calculated in accordance with GAAP, consistently applied, on a basis consistent with the Annual Financial Statements and Exhibit A.  Subject to the terms and conditions of this Agreement, at the Closing, Buyer shall:

(i)pay and deliver to Seller an amount (the “Closing Cash Payment”) equal to the Estimated Purchase Price less the sum of (A) the Escrow Amount, and any (B) the Repaid Selling Expenses (as defined below) and Repaid Indebtedness (as defined below), by means of a wire transfer of immediately available funds to such account as directed by Seller prior to the Closing (the “Seller’s Account”);

(ii)deliver the Escrow Amount to the Escrow Agent to be held pursuant to the terms of this Agreement and the Escrow Agreement; and

(iii)on behalf of Seller, pay or cause to be paid the Selling Expenses set forth on Schedule 2.2.2(a)(iii) (the “Repaid Selling Expenses”), and the Indebtedness set forth on Schedule 2.2.2(a)(iii) (the “Repaid Indebtedness”).  

2.3Post-Closing Adjustment.  

2.3.1Adjustment Statement Preparation.  Within one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Seller an adjustment statement (the “Preliminary Adjustment Statement”) setting forth the amount of the Closing Working Capital and Buyer’s written calculation of the Purchase Price, and any adjustments necessary to reconcile the Estimated Purchase Price to the Purchase Price (the “Preliminary Post-Closing Adjustment”).  The Preliminary Adjustment Statement shall be prepared in accordance with GAAP, on a basis consistent with the Annual Financial Statements (unless determined not to be in accordance with GAAP).  Furthermore, the value of the Inventory included in the calculation of the Closing Working Capital set forth in the Preliminary Adjustment Statement in good faith based on methodology consistent with the Interim Financial Statements and the Final Adjustment Statement (as hereinafter defined) shall be determined based upon a physical count performed by Seller or its representatives (and observed and approved by Buyer or its representatives) within thirty (30) days after the Closing Date and reconciliation of the physical count to the balance as of the Closing Date.

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2.3.2Adjustment Statement Review.  Seller shall review the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment and shall notify Buyer in writing of any dispute it has with respect to the content of the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment within thirty (30) days after receipt of the Preliminary Adjustment Statement setting forth in such written notice its objections to the Preliminary Adjustment Statement or the Preliminary Post-Closing Adjustment with particularity and the specific changes or adjustments which Seller claims are required to be made thereto.

2.3.3Adjustment Statement Dispute Resolution.  If Seller timely notifies Buyer in accordance with Section 2.3.2 of an objection to the Preliminary Adjustment Statement or the Preliminary Post-Closing Adjustment, and if Seller and Buyer are unable to resolve such dispute through good faith negotiations within fifteen (15) days after Seller’s delivery of such notice of objection, then the parties shall mutually engage and submit such dispute to, and the same shall be finally resolved in accordance with the provisions of this Agreement by the Akron, Ohio office of BDO USA LLP (the “Independent Accountants”).  The Independent Accountants shall determine and report in writing to Buyer and Seller as to the resolution of all disputed matters submitted to the Independent Accountants and the effect of such determinations on the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment within twenty (20) days after such submission or such longer period as the Independent Accountants may reasonably require, and such determinations shall be final, binding and conclusive as to the parties hereto.  The parties will request such firm to review and resolve the disputed items in a written report in accordance with the terms of this Agreement within thirty (30) days of such reference.  In resolving any disputed item, the Independent Accountants shall:  (a) be bound by the provisions of this Section 2.3 and the definitions pertaining hereto; (b) not assign a value to any item greater than the higher value claimed for such item or less than the lower value for such item claimed by either Seller or Buyer, (c) restrict its decision to such items which are then in dispute, and (d) only review this Agreement and the written presentations of Seller and Buyer in resolving any matter which is in dispute.  The fees and disbursements of the Independent Accountants shall be borne equally by the Buyer and the Seller.

2.3.4Final Adjustment Statement and Post-Closing Adjustment.  The Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment shall become the “Final Adjustment Statement” and the “Final Post-Closing Adjustment,” respectively, and as such shall become final, binding and conclusive upon the parties hereto for all purposes of this Agreement upon the earliest to occur of the following:

a.the mutual acceptance by Buyer and Seller of the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment, respectively, with such changes or adjustments thereto, if any, as may be proposed by Buyer and consented to by Seller;

b.the expiration of thirty (30) days after Seller’s receipt of the Preliminary Adjustment Statement and the Preliminary Post-Closing Adjustment, respectively, without timely written objection thereto by Seller in accordance with Section 2.3.2; or

c.the delivery to Buyer and Seller by the Independent Accountants of the report of their determination of all disputed matters submitted to them pursuant to Section 2.3.3.  

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2.3.5Adjustment of Purchase Price.  Upon determination of the Final Adjustment Statement pursuant to Section 2.3.4, a dollar-one adjustment to the Purchase Price shall be made and paid by the applicable Party to the other Party pursuant to the terms hereof with regard to the Closing Working Capital only if the Closing Working Capital exceeds the Working Capital Top Collar or the Closing Working Capital is less than the Working Capital Lower Collar, as applicable.

a.Payment of the amount of any adjustment to the Purchase Price required to be made by Buyer under this Section 2.3.5 shall be made by wire transfer of immediately available funds to the account specified by Seller in connection with the Closing within five (5) business days after the date that the determination of the Closing Working Capital is deemed final in accordance with Section 2.3.4, together with accrued interest thereon from the Closing Date to the date of payment calculated at the Escrow Interest Rate from time to time in effect.

b.Payment of the amount of any adjustment to the Purchase Price required to be made by Sellers under this Section 2.3.5 shall include accrued interest thereon from the Closing Date to the date of payment calculated at the Escrow Interest Rate from time to time in effect and shall first be paid by the Escrow Agent from the Working Capital Escrow Amount pursuant to the terms of the Escrow Agreement within five (5) business days after the date that the determination of the Closing Working Capital is deemed final in accordance with Section 2.3.4.

c.Any and all payments by the Seller (whether directly or by the Escrow Agent in accordance with the Escrow Agreement) or the Buyer to the other made pursuant to this Article 2 will be treated by the Parties on all applicable Tax returns as an adjustment to the Purchase Price and the amount of any Tax adjustment shall be recalculated by taking into account the Purchase Price adjustment hereunder.

2.4Allocation of the Purchase Price.  At or prior to Closing, Buyer and Seller shall agree upon the allocation of the Purchase Price and Assumed Liabilities among the Acquired Assets and among each of the Sellers for purposes of Section 1060 of the Internal Revenue Code as set forth on Schedule 2.4 (which schedule shall be adjusted to reflect changes in Closing Working Capital and to the Purchase Price as provided in Section 2.3.5).  Buyer and Seller shall complete and attach such fair market value determination and allocation and to Internal Revenue Service Form 8594 to their respective Tax Returns accordingly.

2.5Satisfaction of Retained Liabilities.  To preclude the assertion of claims for nonpayment against Buyer, the Seller and Buyer agree to pay from the Escrow , as and when due and payable, or pursuant to a final Order or Judgment, the uninsured portion of any known, settled, agreed, liquidated and undisputed Retained Liabilities, excepting any Assumed Liabilities.

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ARTICLE 3

Representations and Warranties Concerning the Business and the Seller

The Seller hereby jointly and severally represent and warrant to Buyer as follows:

3.1Organization; Authority and Enforceability.  

3.1.1Each of EPI, EPI Michigan, EPI Iowa and EPI International is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Indiana.  Seller has all requisite power and authority to own and lease its assets, including the Acquired Assets, and to operate the Business as the same are now being owned, leased and operated.  Seller is duly qualified or licensed to do business as a foreign entity in, and is in good standing in, each jurisdiction in which the nature of the Business or the ownership of its assets or properties requires it to be so qualified or licensed, which jurisdictions are set forth on Schedule 3.1.1(a).  Seller has provided to Buyer a true, complete and correct copy of the Charter Documents, as currently in effect, of Seller.  Schedule 3.1.1(b) sets forth the capitalization of EPI and each other Seller, and all of the issued and outstanding shares of common stock of EPI are owned as set forth on Schedule 3.1.1(b).  Except as set forth in Schedule 3.1.1(a), Seller does not have any ownership interest in any other Person and is not a member of any partnership or joint venture.

3.1.2Each Seller has full legal power, authority and capacity to execute, deliver and perform this Agreement and each other agreement, instrument and document to be executed and delivered by such Seller in connection herewith (collectively, the “Seller Ancillary Agreements”), and to consummate the transactions contemplated hereby and thereby.  This Agreement has been duly executed and delivered by each Seller and each Seller Ancillary Agreement to which such Seller is a party has been duly executed and delivered by the Seller a party thereto and, in each case, constitutes the legal, valid and binding obligation of each Seller, enforceable against such Seller in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws of general application affecting enforcement of creditors’ rights or by principles of equity (“Enforceability Exceptions”).  

3.2Noncontravention.  

3.2.1Consents.  Except as set forth on Schedule 3.2.1, no waiver, approval, consent or permit of, or filing with or notice to, any Governmental Authority or any other Person is required related to any Material Contract or Permit in connection with the transaction contemplated hereby or the execution, delivery or performance by any Seller of this Agreement or any other agreement or document delivered by or on behalf of any Seller in connection herewith.

3.2.2No Conflicts.  Except as set forth on Schedule 3.2.2, no action taken or required to be taken by or on behalf of any Seller in connection herewith, including, but not limited to, the execution, delivery and performance of this Agreement and each Seller Ancillary Agreement:  (a) gives rise to a right of any party to accelerate, amend, modify, or terminate, or require payments under, or require the authorization, consent or approval from any third party or result in the creation of a Lien upon any of the Acquired Assets, pursuant to any Permit or Material Contract to which

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any Seller is a party or under which such Seller is bound; (b) conflicts with or violates:  (i) any Law; (ii) the Charter Documents of Seller; (iii) any Material Contract or Permit by which a Seller is bound or to which any of the Acquired Assets or the Business are subject; or (iv) any order, arbitration award, judgment, decree or other similar restriction to which any Seller is subject; or (c) constitutes an event which, after notice or lapse of time or both, could result in any of the foregoing.

3.3Financial Statements.

3.3.1Attached as Schedule 3.3.1 are true, correct and complete copies of the (a) the unaudited financial statements of Seller as of and for the fiscal years ended December 31, 2018 and December 31, 2019, internally prepared in conformity with GAAP consistently applied (the “Annual Financial Statements”), and (b) the internally prepared, unaudited financial statements of Seller as of and for the nine (9) month period ended September 30, 2020 (the “Interim Financial Statements”, and together with the Annual Financial Statements, the “Financial Statements”).  The Financial Statements have been prepared in accordance with GAAP, consistently applied, without modification of the accounting principles used in the preparation thereof throughout the periods presented, except for (i) the absence of normal disclosures made in footnotes and (ii) with respect to the Interim Financial Statements normal year-end adjustments which are not material, individually or in the aggregate.  The Financial Statements present fairly the financial position of Seller as of the dates indicated and the results of operations for the periods then ended.  The Financial Statements are consistent in all material respects with the books and records of Seller (which books and records are true and complete in all material respects).  The unaudited balance sheet of Seller as of September 30, 2020 and included in the Interim Financial Statements is herein referred to as the “Acquisition Balance  Sheet.”

3.3.2Except as set forth on Schedule 3.3.2, to the Seller’s Knowledge, Seller has no debt, liabilities or obligations whatsoever (whether or not accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due and regardless of when asserted) other than those (a) specifically reflected on and fully reserved against on the face of the Acquisition Balance Sheet, (b) incurred in the ordinary course of business since the date of the Acquisition Balance Sheet (none of which relates to breach of Contract, breach of warranty, tort, infringement, or violation of Law), (c) incurred pursuant to the Seller Plans or Contracts and not resulting from a breach pursuant to, or violation of Law related to, such Plans or Contracts by Seller prior to the Closing, or (d) those liabilities that are the subject of another representation or warranty, or are not required to be disclosed because such other representation or warranty is limited or qualified with respect to time, dollar amount, Knowledge, materiality or other similar qualification.

3.3.3The current internal accounting controls of Seller provide reasonable assurance that:  (a) transactions are executed in accordance with management’s authorization; (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, consistently applied and in accordance with past practice; and (c) accounts, notes and other receivables and inventory are recorded accurately in all material respects, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis.

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3.4Absence of Certain Changes.  Since December 31, 2019, there has occurred no fact, event or circumstance which has had or could reasonably be expected to have a Material Adverse Effect on Seller and the Business has been conducted in the ordinary course of business, consistent with past practice.  Without limiting the generality of the foregoing, except as set forth on Schedule 3.4, since December 31, 2019, Seller has not:

a.sold, assigned, transferred or licensed, or committed to sell, assign, transfer or license, any tangible or intangible assets for an amount in excess of Fifty Thousand Dollars ($50,000) in the aggregate, other than sales of inventory in the ordinary course of business;

b.other than in the ordinary course of business, (i) made, granted, or committed to make or grant:  (A) any bonus or any wage, salary or compensation increase to any director, officer, employee, independent contractor or consultant, or (B) an increase of any benefit provided under any Seller Plan, (ii) adopted, amended or terminated any employee benefit plan, program or arrangement, or (iii) entered into, amended or terminated any employment agreement, deferred compensation arrangement, collective bargaining agreement or other similar arrangement with any of its directors, officers, employees, independent contractors, consultants or members;

c.made or authorized any capital expenditures or commitment for capital expenditures in an amount more than Fifty Thousand Dollars ($50,000) individually;

d.purchased or leased, or committed to purchase or lease, any asset or assets for an amount in excess of Fifty Thousand Dollars ($50,000) individually, except for purchases of inventory and supplies in the ordinary course of business;

e.except as disclosed on Schedule 3.4 and except with respect to payments and reimbursement of fees and expenses and loans of employees, directors and officers of Seller in the ordinary course of business, made any further loans, advances or capital contributions to, or investments in, any Person;

(i)made any change in the Tax reporting or accounting policies or practices of Seller, including practices with respect to (y) depreciation or amortization polices or rates or (z) the payment of accounts payable or the collection of accounts receivable; or (ii) taken any actions which have accelerated sales into periods prior to the Closing that would otherwise reasonably be expected to occur following the Closing;

f.amended its Charter Documents;

g.instituted or settled any action, claim, suit or proceeding that involved stated claims of more than Fifty Thousand Dollars ($50,000);

h.instituted or permitted any material change in the conduct of the Business, or any material change in its method of purchase, sale, lease, management, marketing, promotion or operation;

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i.granted any license or sublicense of any rights under or with respect to any Intellectual Property or disposed of or abandoned any rights in, to or for the use of any Intellectual Property, other than having the floating dock patents lapse as described on Schedule 3.4;

j.suffered any theft, damage, destruction or loss (without regard to any insurance) of or to any tangible asset or assets having a value in excess of Fifty Thousand Dollars ($50,000) individually or Five Hundred Thousand Dollars ($500,000) in the aggregate;

k.entered into any Material Contract or amended, modified or terminated any existing Material Contract (other than a termination of a Material Contract as a result of the expiration of the term of such Material Contract);

(i)mortgaged, pledged or subjected to any Lien, other than Permitted Liens, any of its owned properties or owned assets or (ii) discharged or satisfied any Lien, or paid any obligation or liability, except in the ordinary course of business;

l.agreed to take any of the actions described in subsections (a) through (l) above.

3.5Taxes.  All Tax Returns of Seller required by any Governmental Authority to be filed in connection with the properties, business, income, expenses, net worth or franchises of Seller have been timely filed, and all such Tax Returns are correct and complete.  All Taxes due in connection with the properties, business, income, expenses, net worth or franchises of Seller have been paid, other than Taxes which are not yet due or which, if due, are not yet delinquent or are being contested in good faith.  Any Taxes that are being contested are described on Schedule 3.5.  There are no Tax claims, audits or proceedings pending or, To Seller’s Knowledge, threatened, in connection with the properties, business, income, expenses, net worth or franchises of Seller.  To Seller’s Knowledge, there are not currently in force any extensions of time with respect to the dates on which any Tax Return was or is due to be filed by Seller, or any waivers or agreements for the extension of time for the assessment or payment of any Tax.  Seller has withheld or collected from each payment made to each of its employees the amount of all Taxes required to be withheld or collected therefrom and Seller has paid the same when due to the proper Governmental Authorities.

3.6Employees.

3.6.1Except as set forth on Schedule 3.6.1(a), there are no, and in the past three (3) years, there have been no pending or, To Seller’s Knowledge, threatened claims by any employee or former employee of Seller with respect to his or her employment, termination of employment, compensation or benefits (other than routine claims for benefits under the Seller Plans in the ordinary course).  Seller has not been and is not a party to, or bound by, any collective bargaining agreement with any labor organization, nor is there currently or has there been in the past five (5) years, any pending or, To Seller’s Knowledge, threatened union organizational activities or proceedings with respect to employees of Seller.  Schedule 3.6.1(b) sets forth a complete list of all employees of Seller, including their ages, dates of hire, years of service credited under each applicable Assumed Seller Plan for purposes of eligibility, vesting and accrual of benefits as

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appropriate, accrued vacation, compensation (and whether hourly or salaried) and exempt or non-exempt status.  No labor strike, slowdown or stoppage is pending or, To Seller’s Knowledge, threatened against Seller.  Seller is and has been in compliance with all Laws relating to the employment of labor, including all such Laws relating to wages, hours, the WARN Act or similar state Law, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation, engagement of independent contractors (including the classification of individuals as employees or independent contractors) and the withholding and payment of income and employment Taxes and any similar Tax.  There has been no “mass layoff” or “plant closing” as defined by the WARN Act or any similar layoff or closing as defined by any foreign Law with respect to Seller.  To Seller’s Knowledge, no executive or key employee has any present intention to terminate his or her employment with Seller.

3.6.2Seller has completed and maintains in its files Forms I-9 with respect to each of its employees.  Seller uses E-Verify to determine if its employees are legally authorized to work in the United States.  To the Knowledge of Seller and based solely upon E-Verify, all of its employees are legally authorized to work in the United States.

3.7Employee Benefit Plans and Other Compensation Arrangements.  Set forth on Schedule 3.7(a) is a true and complete list of all Seller Plans.  True and complete copies of the following documents with respect to each Seller Plan have been made available to Buyer, as applicable:  (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto, (ii) the Forms 5500 and all schedules thereto for the most recent three (3) years, (iii) the most recent valuation report, including any FAS 106 report; (iv) the most recent IRS determination or opinion letter, (v) the most recent summary plan description and subsequent summaries of material modifications, (vi) the most recent financial statements, and (vii) written summaries of all material terms of unwritten Seller Plans.  Except as set forth on Schedule 3.7(b):  

(i)neither Seller nor any ERISA Affiliate has sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA, and neither Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan;

(ii)To Seller’s Knowledge, the Seller Plans and any related trusts that are eligible for Tax-favored treatment, currently satisfy, and for all prior periods have satisfied, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, and to Seller’s Knowledge, no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment;

(iii)To Seller’s Knowledge, all of the Seller Plans have been operated in compliance with their respective terms and all applicable Laws;

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(iv)neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will now or at any time in the future result in the payment of a stay bonus or retention bonus or similar payment by Seller;

(v)none of the Seller Plans provide life, medical, dental, vision or other welfare coverage to Persons who are not current employees of Seller or their spouses or dependents or for periods extending beyond the last day of the month of termination of employment, except as required by Part 6 of Title I of ERISA, Section 4980B of the Code, or any similar state or local Law; and

(vi)Seller has retained the right to amend or terminate each Seller Plan, other than any “Plan” that is a Contract with an individual.

3.8Permits; Compliance with Laws.

3.8.1Except as set forth on Schedule 3.8.1(a), To Seller’s Knowledge, Seller has complied and is in compliance, in all material respects, with all applicable Laws and Orders, and Seller possesses and has possessed and is and has been in compliance with, in all material respects, all Permits identified on Schedule 3.8.1 with respect to the operation of the Business as currently or as it has, from time to time, been conducted by Seller (collectively, “Permits”).  Except as set forth on Schedule 3.8.1(b), in the past five (5) years, Seller has not received any notice from any Person alleging any noncompliance by Seller with any Order or Permit or any communication from any Governmental Authority threatening to withdraw or suspend or not renew any Permit held by Seller.  Each Permit is valid and in full force and effect.

3.8.2Neither the Seller, nor any of its shareholders acting in their capacity as an authorized person for Seller (i) has used or is using any corporate funds for any illegal contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) has used or is using any corporate funds for any direct or indirect unlawful payments to any foreign or domestic government officials or employees applicable to Seller, (iii) has violated or is violating any provision of the United States Foreign Corrupt Practices Act of 1977, as amended, or any similar law under any jurisdiction, (iv) has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties, (v) has made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment of any nature, or (vi) has violated any anti-boycott provisions of any applicable Law or other applicable Laws relating to exports and embargos.

3.8.3Seller is and has at all times been in compliance with all applicable Laws relating to import and export controls.  Seller has not (i) made a voluntary disclosure with respect to violations of such Laws, (ii) been subject to any (A) claim, action, audit, compliance assessment or focused assessment for alleged or actual underpayment of import or export duties, Taxes or fees, (B) suspension of export privileges, or (C) investigation or enforcement action or sanction by any Governmental Authority arising under such Laws, (iii) made or provided any false statement or omission to any Governmental Authority or to any customer in connection with the importation or exportation of merchandise, or (iv) exported or re-exported, directly or, To Seller’s Knowledge, indirectly, any items to Iran, Sudan, Syria, North Korea, Belarus, or Burma or to any persons listed

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on the U.S. Bureau of Industry and Security’s Denied Persons List or Entity List, or the U.S. Department of Treasury List of Specially Designated Nationals or Blocked Persons.  Seller is in compliance with all applicable Laws relating to anti-money laundering or anti-terrorism, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162 (commonly known as the “Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto, and all anti-boycott provisions of any applicable Law or other applicable Laws relating to exports and embargos.

3.9Real and Personal Properties.

3.9.1Real Property.

a.Seller does not own any Real Property.

b.Schedule 3.9.1(b) identifies the Leased Real Property, and lists the leases relating to such Leased Real Property (the “Leases”).  Seller has a valid and subsisting leasehold estate in, and the right to quiet enjoyment of, the Leased Real Property, subject to the terms of each Lease, except as set forth on Schedule 3.9.1(b).  With respect to each Lease:  (i) such Lease is in full force and effect and is the legal, valid and binding obligation of Seller, and To Seller’s Knowledge, the other party thereto, in each case enforceable in accordance with its respective terms, subject to the Enforceability Exceptions, and all rents, required deposits and additional rents and other amounts due and payable as of the Closing Date (other than normal maintenance and repair obligations arising under the Lease in the ordinary course of business, and real estate taxes and assessments not yet due) pursuant to such Lease have been paid in full, (ii) there is no existing default by Seller or, To Seller’s Knowledge, by the lessor of such Lease, (iii) Seller has not received any notice that it is in default under such Lease, (iv),To Seller’s Knowledge, there exists no event, occurrence, condition or act (including the transactions contemplated by this Agreement), that with the giving of notice, the lapse of time or the happening of any further event or condition, would constitute a default by Seller under such Lease, except as set forth in the Lease, and (vi) all buildings which are on the Leased Real Property are, to Seller’s Knowledge, suitable for the business of Seller as currently conducted.  The Leases provided to Buyer are all of the leases and rental agreements, together with all amendments, that constitute the Leased Real Property, and no Leases have been amended, modified or terminated other than amendments or modifications provided to Buyer.

c.To Seller’s Knowledge, neither the whole nor any portion of the Leased Real Property has been condemned, requisitioned, or otherwise taken by any public authority, and no written notice of any such condemnation, requisition, or taking has been received by Seller.  To Seller’s Knowledge, no such condemnation, requisition, or taking is threatened or contemplated.  To Seller’s Knowledge, there are no public improvements proposed or in progress that will result in special assessments against or otherwise adversely affect any of the Leased Real Property.  Seller has not been notified in writing of future improvements by any public authority, any part of the cost of which would or might be asserted against Seller.

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d.To Seller’s Knowledge, the Leased Real Property is in compliance with all applicable Laws.  To Seller’s Knowledge, the zoning of each parcel of the Leased Real Property permits the existing improvements and uses of Seller.

e.To Seller’s Knowledge, except as set forth in Schedule 3.9.1(e) each of the buildings, structures, improvements and systems (including the heating, ventilating, air conditioning, plumbing, electrical and drainage systems) situated or located on the Leased Real Property is in good condition and repair, reasonable wear and tear excepted, and contains no known material structural defects.  None of the buildings, structures or improvements situated on the Leased Real Property, during the period of time during which such Leased Real Property has been leased or otherwise used by Seller, has been damaged by fire or other casualty, except for such damage as has been fully repaired and restored.

f.Except as set forth on Schedule 3.9.1(f), all utilities servicing the Leased Real Property are publicly provided and maintained and such utilities are separately metered within each Leased Real Property.  All of the driveways, parking areas, and loading docks located at the Leased Real Property are not shared with any third parties nor to Seller’s Knowledge, subject any easements or common use agreements.  To Seller’s Knowledge, all of the streets, roads and avenues adjoining or adjacent to the Leased Real Property are publicly owned and maintained.

g.To Seller’s Knowledge, no Leased Real Property is subject to any options, purchase or sale contracts, leases or rights of occupancy or other agreements not otherwise identified in this Agreement.  Except as set forth on Schedule 3.9.1(g) Seller is not a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any Leased Real Property.

3.9.2Assets.

a.Title.  Except for Permitted Liens or as set forth on Schedule 3.9.2(a), or the requirement of obtaining the other party’s consent with regard to the Assumed Contracts that are not material (i) the Acquired Assets that are owned by Seller are free and clear of all Liens as of Closing, and (ii) there exists no condition as of Closing affecting the title to any part of the Acquired Assets owned by the Seller which would prevent Buyer from using or enforcing its rights with respect to any part of the Acquired Assets to the same extent that Seller could continue to do so if the transactions contemplated hereby did not take place.

b.Condition; Possession.  Except as set forth on Schedule 3.9.2(b),all of the tangible assets material to the operation of the Business and included in the Acquired Assets (i) are in good operating condition, subject to routine repair and maintenance, normal wear and tear excepted, and do not require any expenditures greater than $300,000 individually or in the aggregate, to remain in such condition beyond maintenance and repairs necessary in the ordinary course of business, (ii) are capable of being used for their intended purpose in connection with the Business, and (iii) are in the possession of Seller and located at the Leased Real Property.

c.Sufficiency of Assets.  The Acquired Assets include all of the operating assets of Seller necessary for the operation of the Seller’s Business as currently conducted and

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constitute all of the assets, tangible and intangible, of any nature whatsoever, (a) necessary to operate the Business in the manner presently operated by Seller, except for the Excluded Assets, and (b) pertaining to technology, processes, plans, and other items under development used in Seller’s Business.  EPI International has no assets.

3.10Inventories.  The Inventory, including, without limitation, raw materials, ingredients, work-in-process and finished products, is merchantable, fit, usable and saleable for the purpose for which it was procured or manufactured in the ordinary course of business, except to the extent of the reserve reflected on the Final Adjustment Statement.  The Inventory on the Acquisition Balance Sheet and Inventory arising after the date of the Acquisition Balance Sheet and reflected on the books and records of Seller are stated thereon in accordance with GAAP, on a lower of cost or market basis, consistently applied.

3.11Accounts Receivable.  The Accounts Receivable (a) represent bona fide and valid accounts receivable arising from sales actually made or services actually performed and (b) will be collected by Seller within one hundred and twenty (120) days following the Closing Date (net of any reserves included on the Final Adjustment Statement).  The Accounts Receivable reflected on the Acquisition Balance Sheet are stated thereon in accordance with GAAP, consistently applied, including allowances for doubtful accounts.  Except as set forth on Schedule 3.11, no customer has, and Seller has not permitted any customer to have, any rebates, volume discounts or mark-downs, and To Seller’s Knowledge, no customer has any rights of contest, claim or setoff with respect to their Accounts Receivable.  Except as set forth on Schedule 3.11, no Person has a Lien on such Accounts Receivable or any part thereof, and no agreement for deduction, free goods, rebate, discount or other deferred price or quantity adjustment has been made to such Accounts Receivable.

3.12Intellectual Properties.  Schedule 3.12(a) sets forth (i) a complete and correct list of all patented or registered Intellectual Property and pending patent applications or other applications for registration of Intellectual Property, material unregistered Marks, Copyrights, Internet domain names and software (other than “off the shelf” software) included in the Business Intellectual Property, and (ii) any registered Business Intellectual Property used but not owned by Seller and identifies the owner of such Business Intellectual Property.  Excepting for “off the shelf” software licenses, Schedule 3.12(b) sets forth all other licenses to which Seller is a party either as a licensee or licensor (specifying its status) and any other agreements under which Seller grants or receives any rights to Intellectual Property or is required to pay any royalty payments for use of any Intellectual Property (the “Licenses”).  All fees due as of the date hereof associated with maintaining any Business Intellectual Property have been paid in full in a timely manner to the proper Governmental Authority, and except as set forth on Schedule  3.12(b), all actions required as of the date hereof associated with maintaining any registered or issued Business Intellectual Property have been taken, and no such fees are due, and no such actions are required, within the three (3) month period after the Closing Date.  Except as set forth on Schedule 3.12(c) and except for customer owned products, designs, specifications, molds and proprietary information (“Customer IP”):

a.Other than Customer IP, (i) Seller owns and possesses all, right, title and interest in and to, or has a valid and enforceable right or license to use, the Business Intellectual

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Property as currently being used, (ii) Seller owns all formulae and know-how used in the operation of the Business it being understood that there is no formulae or know-how owned by Seller and used in the operation of the Business which is not in the public domain, and (iii) the Business Intellectual Property includes all formulae and know-how owned and used by Seller in its operation of the Business it being understood that there is no formulae or know-how owned by Seller and used in the operation of the Business which is not in the public domain;

(i)the issued Patents and registered Intellectual Property, and the applications therefor, owned by Seller and included among the Business Intellectual Property are valid, subsisting, in full force and effect, and have not been cancelled, expired or abandoned; and (ii) except as set forth on Schedule 3.12(a), Seller has not within the past two (2) years, abandoned, cancelled, or permitted to be abandoned, cancelled, or lapsed, any issued Patents or registered Intellectual Property, or the applications therefor, owned by Seller that are currently included among the Business Intellectual Property nor have there been any interference actions, re-examinations, cancellation proceedings, or other judicial, arbitration, or other adversarial proceedings with respect to any such Intellectual Property;

b.except pursuant to a License set forth on Schedule 3.12(b), Seller has not licensed or otherwise granted or, except for Customer IP, received any right to or from any Person under any Business Intellectual Property;

c.To Seller’s Knowledge, (i) Seller has not infringed, misappropriated or otherwise conflicted with, any Intellectual Property of any third party; and (ii) the conduct of the Business as currently conducted by Seller does not infringe upon, misappropriate, or otherwise conflict with, any Intellectual Property owned or controlled by any third party, it being understood that there is no formulae or know-how used in the operation of the Business which is not in the public domain other than Customer IP.  Seller has not received any written notice regarding, and there are currently no actions, suits, arbitrations, judgments, proceedings, investigations or claims of any kind whatsoever related to any of the foregoing (including, without limitation, any demands or offers to license any Intellectual Property from any third party, and any claims asserting the invalidity, misuse or unenforceability of any Intellectual Property now owned or used by Seller);

(i)To Seller’s Knowledge, no third party has infringed, misappropriated or otherwise conflicted with the Business Intellectual Property; and (ii) no such claims have been brought or threatened against any third party by Seller (including, without limitation, any demands or offers to license any Intellectual Property now or formerly owned or used by Seller, and any claims asserting the invalidity, misuse or unenforceability of any Intellectual Property now or formerly owned or used by any third party);

3.13Contracts.  Schedule 3.13 lists all of the following written or oral agreements, contracts, leases, Licenses, purchase and sales orders and binding letters of understanding (collectively, “Contracts”) to which Seller is a party that are material to its operation of the Business or by which any Acquired Asset is bound or is subject to as of the date hereof:

a.A full print out of outstanding purchase orders, for sales or purchases of good or services;

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b.Contracts which involve commitments to make capital expenditures in excess of $50,000;

c.Contracts relating to Indebtedness or to the granting by Seller of a Lien on any of the Acquired Assets, or any guaranty by Seller of any obligation in respect of borrowed money or otherwise;

d.Contracts with dealers, distributors or sales representatives;

e.Contracts pursuant to which Seller directly or as a subcontractor sells products or services of the Business in any country outside the United States or with any Person that is a Governmental Authority or Affiliate of a Governmental Authority;

f.employment, confidentiality or non-competition Contracts with any employee, shareholder, officer, director, consultant or management advisor;

g.Contracts which limit the freedom of Seller to engage in any business or compete with any Person;

h.Contracts pursuant to which Seller is a lessor or a lessee of any personal or real property, or holds or operates any tangible personal property owned by another Person, except for any such individual lease under which the annual rent or lease payments do not exceed Fifty Thousand Dollars ($50,000);

i.Contracts or group of Contracts for the purchase or sale of capital assets in excess of Fifty Thousand Dollars ($50,000);

j.each partnership or joint venture Contract;

k.each Contract not included in subsection (e) providing for severance, retention, change in control or other similar payments;

l.each Contract with any current or former officer, director, shareholder or Affiliate of Seller;

m.Contracts under which Seller has made advances or loans to any other Person;

n.each Contract containing a “most-favored nation” pricing agreement, special warranties, rebate arrangements, cooperative arrangements, mark-down arrangements, agreements to take back or exchange goods, consignment arrangements or similar understandings with a customer or supplier of Seller;

o.Contracts with any contract manufacturer (not including component suppliers); and

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p.any other Contract material to the operation of the Business that requires Seller to make payments in excess of Fifty Thousand Dollars ($50,000) and that is not terminable by Seller without penalty upon less than sixty (60) days’ prior written notice.

Complete copies of each Contract required to be identified on Schedule 3.13, including amendments, waivers, or other changes thereto (collectively, the “Material Contracts”), have been provided to Buyer.  In the case of each oral Material Contract, Schedule 3.13 also includes a brief description of such Contract.  Each of the Assumed Contracts is in full force and effect and is the legal, valid and binding obligation of Seller, and To Seller’s Knowledge, the other party thereto, in each case enforceable in accordance with its respective terms, subject to the Enforceability Exceptions.  Seller has performed all obligations required to be performed by it pursuant to the Assumed Contracts, is not in breach or default thereunder (and no event has occurred that, with the giving of notice, lapse of time, or both, would constitute a breach or default), and, To Seller’s Knowledge, no other party to any Assumed Contract is in breach or default thereunder.  Except as set forth on Schedule 3.13, Seller has not received any written notice of any Person’s intent to terminate or materially amend any Assumed Contract.

3.14Litigation.  Except as set forth on Schedule 3.14, there are no, and in the past five (5) years, there have been no, actions, suits, arbitrations, judgments, proceedings, investigations or claims of any kind whatsoever, at Law or in equity, pending or, To Seller’s Knowledge, threatened against Seller or that would prohibit Seller from consummating the transactions contemplated hereunder.  Except as set forth on Schedule 3.14, Seller is not a party to or subject to any order, judgment, ruling, injunction, assessment, award, decree or writ from any Governmental Authority (each, an “Order”).

3.15Brokerage.  No Person is or will become entitled, by reason of any agreement or arrangement entered into or made by or on behalf of Seller, to receive any commission, brokerage, finder’s fee or other similar compensation in connection with the consummation of the transactions contemplated by this Agreement.

3.16Products.

3.16.1Except as set forth on Schedule 3.16.1, in the past three (3) years, there have been no product warranty or service warranty claims in excess of the Seller’s warranty reserve reflected on the Financial Statements in the aggregate in any such year made against Seller alleging that any products supplied, assembled, packaged, manufactured, distributed, sold or leased by or on behalf of Seller are defective or improperly designed or manufactured, and no such claims are currently pending or, To Seller’s Knowledge, threatened against Seller.  Except as set forth on Schedule 3.16.1, there have been no product recalls by Seller in the past three (3) years.  Seller’s standard terms and conditions of sale (containing applicable guaranty, warranty and indemnity provisions) are attached to Schedule 3.16.1, and, except for such standard terms and conditions and except as set forth on Schedule 3.16.1, Seller has not given a written warranty in respect of products or services supplied, manufactured, distributed, sold or leased by Seller.  Subject to the Seller’s warranty reserve, each product supplied, assembled, packaged, manufactured, distributed, sold or leased by or on behalf of Seller has been in conformity with all applicable contractual commitments and To Seller’s Knowledge all express and implied warranties.

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3.16.2Except as set forth on Schedule 3.16.2, no claims alleging bodily injury or property damage as a result of any defect in the design or manufacture of any product or the breach of any duty to warn, test, inspect or instruct of dangers therein (each a “Product Liability Claim”) have been made in the past three (3) years, or are currently pending or, To Seller’s Knowledge, threatened against Seller.  Subject to the Seller’s warranty reserve set forth in the Working Capital calculation at Closing, as applicable, To Seller’s Knowledge, there are no defects in the design or manufacture of products designed and manufactured by Seller which could result in a Product Liability Claim, and there has not been any failure when required by Seller to warn, test, inspect or instruct of known dangers in products designed and manufactured by Seller which could form the basis for a product recall or any Product Liability Claim against Seller.

3.17Environmental Matters.

3.17.1Except as set forth on Schedule 3.17:  

(i)To Seller’s Knowledge, Seller is and at all times has been in material compliance with all applicable Environmental Laws, and (ii) without limiting the foregoing, To Seller’s Knowledge, Seller:  (x) has timely obtained, and is and has been in material compliance with, all Environmental Permits set forth on Schedule 3.17 for the lease, operation or use of the Leased Real Property, the Business or the Acquired Assets; and (y) has prepared and timely filed with the appropriate jurisdictions all reports, data, documentation and filings required pursuant to any Environmental Law;

a.there has been no generation, Treatment, Storage, Disposal or transport of any Hazardous Material, regardless of quantity, by Seller at, on, under, or from any of the Leased Real Property, except in compliance with applicable Environmental Laws;

b.there are currently no, and there have not been any, asbestos-or urea formaldehyde-containing materials incorporated by Seller into the Products of Seller or To Seller’s Knowledge, any asbestos used on the buildings or any improvements that are a part of the Leased Real Property;

c.all Hazardous Materials not in current, usable inventory will be removed from the Leased Real Property and disposed of, in compliance, in all material respects, with all Environmental Laws;

d.To Seller’s Knowledge, Seller has not sent any Hazardous Material to a site that, pursuant to any Environmental Law:  (i) has been placed or proposed for placement on the National Priorities List or any similar state list, or (ii) is subject to or the source of an Order, demand or request from a Governmental Authority to take any Removal, Remedial or Response action or to pay for the costs of any such action at any location;

e.in the past five (5) years, no Seller has received any notice, Order, demand, inquiry, summons, complaint, directive, warning, request for information, notice of violation or other communication from any Governmental Authority, citizens’ group, employee or other Person claiming that Seller or the Business is or may be liable for:  (i) any actual or alleged

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violation of or noncompliance with any Environmental Law; (ii) any actual or alleged obligation to undertake or bear the cost of any Liabilities under any Environmental Law with respect to the Leased Real Property or any other facility or property owned, occupied, or used by Seller, now or in the past, or any property or facility at or to which any Hazardous Material generated, manufactured, Stored, handled, imported, used or processed by Seller has been transported, Treated, Stored, transferred, Disposed, recycled or received; or (iii) any personal injury or property damage related to any Release, Treatment, Storage or Disposal of, or exposure to, any Hazardous Material;

f.To Seller’s Knowledge, and other than as set forth on Schedule 3.17 there are no underground storage tanks or related piping, landfills, surface impoundments, sumps, septic systems, waste disposal areas, wastewater treatment systems, radioactive materials, underground injection wells or monitoring wells located on, under or at any of the Leased Real Property.

g.To Seller’s Knowledge, Seller has not made any Release or Disposal of any Hazardous Material in violation of applicable Environmental Laws, at, on, under or from the Leased Real Property, or any other facility or property when owned, occupied, or used by Seller, now or in the past;

h.To Seller’s Knowledge, the Leased Real Property is not, and is not reasonably expected to be, subject to any Lien, environmental covenant, engineering or institutional control, activity and use limitation or other restriction, nor is Seller subject to any pending or existing Order, action, proceeding, investigation, settlement, schedule of compliance or other restriction under any Environmental Law; and

i.To Seller’s Knowledge, no conflict minerals are necessary to the functionality or production of, and no conflict minerals are used in, or in the production of, any product manufactured by Seller.

3.17.2Schedule 3.17.2 contains complete list of:  (A) all environmental reports, audits, or assessments, pertaining to Hazardous Materials or Environmental Law prepared in the past five (5) years in the possession or control of Seller with respect to the assets or Business of Seller (including the Leased Real Property), true and complete copies of which have been provided to Buyer.

3.17.3To Seller’s Knowledge, all of the products manufactured by Seller, and all raw materials purchased from others used in such products, which were required to be reported to the United States Environmental Protection Agency for listing in the TSCA inventory have been so reported or notified.  No report of substantial risk under TSCA has been made by Seller, nor to Seller’s Knowledge, was any such report required in connection with the operation of the Business.  Seller has never sold any product containing asbestos, and no raw material used by Seller in the manufacture of its products contains or contained asbestos.

3.18Related Party Transactions.  Except as set forth on Schedule 3.18, no shareholder, employee, officer or director of Seller or any member of his or her immediate family, or any Affiliate of any Seller (each a “Company Related Person”):  (a) owes any amount to Seller nor

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does Seller owe any amount to, nor has Seller committed to make any loan or extend or guarantee credit to or for the benefit of any Company Related Person (other than any participant loans under any Seller Plan and any payments to, and reimbursement of fees and expenses of, employees, directors and officers of Seller in the ordinary course of business), (b) owns any property or right, tangible or intangible, that is used by Seller, (c) no shareholder, officer or director of Seller or to the Seller’s Knowledge any employee, has any claim or cause of action against Seller, other than claims for accrued compensation or benefits arising in the ordinary course of employment or under any Seller Plan, or (d) no shareholder, officer or director of Seller or to the Seller’s Knowledge any employee, has any ownership interest in, directly or indirectly, any customer, supplier or licensor of Seller (other than the ownership of up to (but not more than) five percent (5%) of any class of securities of any such customer, supplier or licensor if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Exchange Act).

3.19Material Customers and Suppliers.  Schedule 3.19 sets forth the twelve (12) largest customers (the “Material Customers”) and the twelve (12) largest suppliers (the “Material Suppliers”) of Seller (and the dollar volumes related thereto), in each case for (a) the twelve (12) month periods ended December 31, 2019 and 2018, and (b) the nine (9) month period ended September 30, 2020.  Except as set forth on Schedule 3.19, in the past twelve (12) months and except with regard to and as a result of the COVID-19 pandemic, no Material Customer has (i) canceled or otherwise terminated or, To Seller’s Knowledge, made any threats to cancel or otherwise terminate, its relationship with Seller, (ii) materially decreased or, To Seller’s Knowledge, threatened to materially decrease, its purchases from Seller, or (iii) changed or, To Seller’s Knowledge, threatened to change, its payment or pricing terms with respect to Seller or otherwise materially and adversely alter its current agreements, programs or commitments with Seller.  In the past twelve (12) months and except with regard to and as a result of the COVID-19 pandemic, no Material Supplier has (i) canceled or otherwise terminated or, To Seller’s Knowledge, made any threats to cancel or otherwise terminate, its relationship with Seller, (ii) materially decreased or, To Seller’s Knowledge, threatened to materially decrease, its sales of supplies to Seller, or (iii) raised or, To Seller’s Knowledge, threatened to raise, its prices to Seller or otherwise materially and adversely alter its current agreements, programs or commitments with Seller.  Except as set forth on Schedule 3.19, there are no pending material disputes between Seller and any of the Material Customers or Material Suppliers and, To Seller’s Knowledge, none of the Material Customers or Material Suppliers has or is planning to terminate its relationship with Seller.

3.20Insurance.  Schedule 3.20(a) contains a complete list of (i) all insurance policies (excluding the Seller Plans) owned, held by or applicable to Seller (or its assets or the Business) and (ii) all self-insured, retained limit, deductible or co-insurance programs.  All such policies are in full force and effect, all premiums due and payable with respect thereto have been paid, and no written notice of denial of coverage, cancellation or termination has been received with respect to such policies.  All such insurance policies will remain in full force and effect with respect to periods before the Closing.  To Seller’s Knowledge, no event has occurred, including, without limitation, the failure by Seller to give any notice or information or Seller giving any inaccurate or erroneous notice or information, which limited or impairs the rights of Seller under any such

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insurance policies.  Seller has not received written notice of cancellation of any such insurance policies in the last two (2) years, and, To Seller’s Knowledge, no threat has been made to cancel any insurance policy of Seller during such period.  Schedule 3.20(b) sets forth a list of all pending claims made by Seller under the insurance policies listed on Schedule 3.20(a) and all past claims submitted to its insurance carriers in the past three (3) years.

3.21Governmental Contracts.  Seller does not currently have any Government Contracts.

3.22Full Disclosure.  No representation or warranty of the Seller contained in this Agreement or in any other agreement delivered by the Seller, or in connection with the transactions contemplated herein or therein, contains a material omission, untrue statement of fact or omits or will omit to state a fact necessary to make the statements contained herein or therein not misleading.

3.23COVID-19 and Stimulus Program Matters.  Seller’s policies and practices with regard to the COVID-19 pandemic are set forth in Schedule 3.23.  Schedule 3.23(a) sets forth any claim or complaint related to COVID-19 pending, or to the Knowledge of Seller, threated, against Seller alleging inadequacy of the actions taken or not taken by Seller in providing a reasonably safe working environment relating to COVID-19.  Schedule 3.23(b) sets forth (i) any federal, state, or local program, benefit, or accommodation designed to assist businesses and employees during the COVID-19 pandemic that Seller has applied for, received, or otherwise taken advantage of (and Seller has provided Buyer with copies of any applications therefor).  Since March 17, 2020, Seller has not had imposed upon it by the landlord with regard to any Leased Real Property any material restrictions on the use of the premises leased thereunder based upon or as a result of COVID-19.  At all times since March 17, 2020, Seller has taken reasonable and adequate measures to provide a reasonably safe working environment at the Leased Real Property.  Except as set forth on Schedule 3.23(c), Seller has not experienced any material Liability with respect to COVID-19 which is not a Retained Liability.

ARTICLE 4

Representations and Warranties of Buyer

Buyer represents and warrants to the Seller that:

4.1Organization; Authorization.  Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio.  Buyer has full corporate power, authority and capacity to execute, deliver and perform this Agreement and each other agreement, instrument and document to be delivered by Buyer in connection herewith (the “Buyer Ancillary Agreements”), and to consummate the transactions contemplated hereby and thereby.

4.2Execution and Delivery; Enforceability.  This Agreement has been duly executed and delivered by Buyer and each Buyer Ancillary Agreement to which Buyer is a party has been duly executed and delivered by Buyer and, in each case, constitutes the legal, valid and binding

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obligation of Buyer, enforceable in accordance with its terms, except as such enforcement may be limited by the Enforceability Exceptions.

4.3Governmental Authorities; Consents.  Except with respect to the consent of Buyer’s board of directors and filings which may be required by the United States Securities and Exchange Commission, Buyer is not required to submit any notice, report or other filing with, or obtain any consent, approval or authorization of, any Governmental Authority or other Person in connection with Buyer’s execution, delivery or performance of this Agreement or any Buyer Ancillary Agreement, and such execution, delivery and performance will not violate any Law by which Buyer is bound.

4.4Brokerage.  No Person is or will become entitled, by reason of any Contract entered into or made by or on behalf of Buyer, to receive any commission, brokerage, finder’s fee or other similar compensation in connection with the consummation of the transactions contemplated by this Agreement.

4.5Legal Proceedings.  There is no Order or action, suit, arbitration, proceeding, investigation or claim of any kind whatsoever, at Law or in equity, pending or, to the knowledge of Buyer, threatened against Buyer, which would give a third party the right to enjoin or rescind the transactions contemplated by this Agreement or otherwise prevent Buyer from complying with the terms and provisions of this Agreement.

ARTICLE 5

Closing Deliveries

5.1Seller’s Closing Deliveries.  At or prior to the Closing, Seller shall deliver to Buyer, or cause to be delivered to Buyer:

a.duly executed counterparts of (i) a bill of sale and (ii) an Assignment and Assumption Agreement (the “Assignment and Assumption Agreement”), each in a form acceptable to Buyer;

b.assignment(s) providing for the assignment to Buyer of the Business Intellectual Property (in a form acceptable to Buyer), duly executed by Seller;

c.evidence acceptable to Buyer that Seller has made or received all filings, authorizations, approvals and consents and received UCC-3 termination statements with regard to Liens on the Acquired Assets as set forth on Schedule 5.1(c), from all applicable Governmental Authorities or other Persons, as the case may be;

d.the invoices for the Selling Expenses;

e.a certificate of good standing as of the most recent practicable date from the Secretary of State of each Seller’s state of organization and each state where each Seller is qualified to do business as a foreign entity;

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f.certificates of title for all vehicles and any other Acquired Asset the ownership of which is evidenced by a certificate of title, in each case duly endorsed for transfer to Buyer;

g.a certificate of the Secretary of each Seller certifying, as complete and accurate as of the Closing, attached copies of the Charter Documents of such Seller, certifying and attaching all requisite resolutions or actions of each Seller’s directors and shareholders approving the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and certifying to the incumbency of the officers of each Seller executing this Agreement and any other document relating to the transactions contemplated hereby;

h.evidence acceptable to Buyer of the change of each Seller’s name to one which does not include the name Elkhart Plastics, EPI or any derivation thereof;

i.a complete set of the Disclosure Schedules hereto;

j.a duly executed counterpart to the Escrow Agreement, duly executed by Seller;

k.a counterpart signature page to a flow of funds memorandum (the “Flow of Funds Memo”), duly executed by the Seller;

l.satisfactory evidence that Seller has obtained a mutually acceptable three year “tail” policy with respect to Seller’s product liability relating to the Business prior to the Closing (the cost of which shall be born equally by Buyer and Seller);

m.a counterpart signature page to each of the assignment agreements with respect to each of the Leases being assigned to Buyer (collectively, the “Lease Assignment Agreements”), and amendments to each of the Leases with Affiliates, as agreed upon by the parties (collectively the “Lease Amendments”), and an executed Lease Agreement, between EPI and Pigeon River Properties LLC, for the premises located at 605 Sol Morris Avenue, White Pigeon, Michigan (the “Michigan Lease”);

n.a counterpart signature page to the Employment Agreement by Jack E. Welter, Jeffrey Giacchino, Charles Huston, Jon Wyngarden, Mark Nichols, Bonnie Turner, and Cullen Jones (the “Employment Agreements”);

o.a counterpart signature page to the Indemnification Agreement by Jack E. Welter (the “Indemnification Agreement”);

p.restrictive covenant agreements from each of the shareholders of EPI (collectively, the “RCA’s”);

q.evidence acceptable to Buyer authorizing the dissolution of EPI International and EPI International Inc., an Indiana corporation (provided that no such dissolution of EPI International shall occur until after the Closing in accordance with Section 7.9 hereof); and

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r.a non-foreign person affidavit that complies with the requirements of Section 1445 of the Code, duly executed by EPI International.

Any agreement or document to be delivered to Buyer pursuant to this Section 5.1 shall be in form and substance reasonably satisfactory to Buyer.

5.2Buyer’s Closing Deliveries.  At or prior to the Closing, Buyer shall deliver to Seller (or such other Person designated herein):

(i)the Closing Cash Payment to the Seller’s Account, (ii) the Repaid Closing Indebtedness to those Persons set forth in the Payoff Letters, (iii) the Repaid Selling Expenses on behalf of Seller to those Persons set forth in the invoices, and (iv) the Escrow Amount to the Escrow Agent;

a.a counterpart signature page to the Assignment and Assumption Agreement, duly executed by Buyer;

b.a counterpart signature page to the Escrow Agreement, duly executed by Buyer and the Escrow Agent;

c.a counterpart signature page to the Flow of Funds Memo, duly executed by Buyer;

d.a counterpart signature page to each of the Lease Amendments, duly executed by the landlords thereto and of the White Pigeon Lease;

e.a counterpart signature page to each of the Lease Assignment Agreements, duly executed by Buyer;

f.delivery of offer letters to the Offered Employees set forth on Schedule 5.2(g) and a counterpart signature page to the Employment Agreements.

g.a counterpart signature page to the Indemnification Agreement by Jack E. Welter; and

h.a counterpart signature page to each of the RCA’s, duly executed by Buyer.

Any agreement or document to be delivered to Seller pursuant to this Section 5.2 shall be in form and substance reasonably satisfactory to Seller.

ARTICLE 6

The Closing

The consummation of the transactions contemplated herein (the “Closing”) will take place simultaneously with the execution of this Agreement at the offices of Calfee, Halter & Griswold LLP in Cleveland, Ohio, or at such other place as to which Buyer and the Seller may mutually

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agree or by e-mail exchange of relevant signature pages, deliveries and other documents as Buyer and the Seller may mutually agree.  The date on which the Closing actually occurs is referred to herein as the “Closing Date.” The transfers and deliveries described in Article 5 shall be mutually interdependent and shall be regarded as occurring simultaneously, and, any other provision of this Agreement notwithstanding, no such transfer or delivery shall become effective or shall be deemed to have occurred until all of the other transfers and deliveries provided for in Article 5 shall also have occurred or been waived in writing by the party entitled to waive the same.  Such transfers and deliveries shall be deemed to have occurred and the Closing shall be effective as of 12:01 a.m. on the Closing Date.

ARTICLE 7

Additional Covenants and Agreements

7.1Miscellaneous Covenants.

7.1.1Expenses; Transfer Taxes.  Buyer shall pay all fees and expenses incident to the transactions contemplated by this Agreement which are incurred by Buyer or its representatives or are otherwise expressly allocated to Buyer hereunder, and the Seller shall pay all fees and expenses incident to the transactions contemplated by this Agreement which are incurred by the Seller or their representatives, or are otherwise expressly allocated to the Seller hereunder.  The Seller shall pay all sales or other transfer Taxes, if any, which may be payable in connection with the transactions contemplated by this Agreement.  Each Seller acknowledges and agrees that no such expenses of the Seller shall be Assumed Liabilities hereunder.  The Seller shall pay any and all costs associated with the assignment or transfer of all Assumed Contracts.

7.1.2No Assignments.  No assignment of all or any part of this Agreement or any right or obligation hereunder may be made by any party hereto without the prior written consent of all other parties hereto, and any attempted assignment without such consent shall be void and of no force or effect; provided, however, that (a) Buyer may assign any of its rights or delegate any of its duties under this Agreement to any Affiliate of Buyer provided, further, that no such assignment shall relieve Buyer of its obligations hereunder; (b) Buyer may assign its rights, but not its obligations, under this Agreement to any of its financing sources; and (c) Buyer may assign any of its rights or delegate any of its duties under this Agreement to a purchaser of substantially all of the assets of Buyer or the Business.  Buyer will notify Seller of any such assignment within thirty (30) days after such assignment.

7.1.3Further Assurances and Assistance.  The Seller acknowledge and agree that at any time and from time to time after the Closing, each will execute and deliver to Buyer such further conveyances, assignments or other written assurances as Buyer may reasonably request to perfect and protect Buyer’s title to the Acquired Assets.  In addition to the foregoing, Seller appoints Buyer, effective as of the Closing, the attorney of Seller with full power of substitution, in the name of Buyer, or the name of Seller, on behalf of and for the benefit of Buyer, to collect all Accounts Receivable and other payments due Buyer hereby transferred and assigned to Buyer, to endorse, without recourse, all checks in the name of Seller the proceeds of which Buyer is entitled to hereunder and to prosecute, in the name of Seller, all proceedings which Buyer may deem proper

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to enforce any claim of any kind in or to the Acquired Assets.  Seller agrees that the foregoing powers are coupled with an interest, shall be irrevocable, and shall not be affected by the dissolution of Seller or for any other reason.  Seller further agrees that Buyer shall retain for its own account any amounts collected pursuant to the foregoing powers, and Seller shall pay or transfer to Buyer, if and when received, any amounts which shall be received by Seller after the Closing in respect of any Accounts Receivable or other assets or rights hereby transferred to Buyer.

7.2Restrictive Covenants.

7.2.1Confidential Information.  In consideration of the consummation of the transactions contemplated herein, the Seller covenants and agrees at all times to hold as confidential (unless disclosure is required by Law, is necessary by the Seller in the ordinary course of winding down the Seller and paying Taxes after Closing, or required pursuant to a final, non-appealable court order, in which case such party will provide Buyer reasonable notice prior to such disclosure and shall take all reasonable steps to prevent or limit disclosure) and not use any and all knowledge, information or documents of a confidential or proprietary nature or not generally known to the public with respect to the Acquired Assets, or the Business, or Buyer (“Confidential Information”).

7.2.2Non-Competition.  In further consideration of the consummation of the transactions contemplated herein, the Seller covenants and agrees that until the fifth (5th) anniversary of the Closing Date (the “Non-Competition Period”), neither they nor their Affiliates, shall, without the prior written consent of Buyer, either directly or indirectly, whether or not for consideration,

a.Engage in or otherwise compete with Buyer or its Affiliates in the Business anywhere in North America or any other territory in which Seller sold rotationally molded plastic products (the “Products”) during the two (2) years prior to the Closing Date (the “Territory”);

b.Solicit, divert, or take away the business of any current or prospective customer of Buyer or its Affiliates, for the purchase of Products or related services provided by the Buyer or its Affiliates including any products which may be used in substitution for the Products manufactured, sold or provided by Buyer or its Affiliates anywhere in the Territory;

c.Operate, control, advise, be engaged by, perform any consulting services for, invest in or otherwise become associated in any capacity with, any business, company, partnership, organization, proprietorship, or other entity, who or which, at any time during the Non-Competition Period, is engaged in the Business as then conducted by Buyer or its Affiliates in the Territory; or

d.engage in any practice the purpose of which is to evade the provisions of this covenant; provided, however, that nothing contained herein shall prevent the Seller from acquiring an equity interest of up to two percent (2%) of an entity whose shares are traded on a national securities exchange or over-the-counter market.

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7.2.3Non-Interference.  In further consideration of the consummation of the transactions contemplated herein, during the Non-Competition Period, neither the Seller nor their Affiliates, shall, without the prior written consent of Buyer, directly or indirectly,

a.hire, solicit, induce or attempt to hire, solicit or induce, whether or not for consideration, any employee or consultant of Buyer to terminate his, her or its relationship with Buyer;

b.induce or attempt to induce any supplier, contractor or customer of Buyer to terminate or adversely change its relationship with Buyer; or

c.induce or attempt to induce any licensor, customer, supplier or contractor of Buyer to terminate or adversely change its relationship with Buyer or otherwise interfere with any relationship between Buyer and any of its licensors, customers, suppliers or contractors.

7.2.4Remedy for Certain Breaches.  The Seller acknowledges and agrees that the covenants in Section 7.2 were negotiated at arm’s length, are required for the fair and reasonable protection of Buyer, that Buyer would not have purchased the Acquired Assets had the Seller not agreed to these covenants, that the restrictions contained herein are designed to protect the business of Buyer, and that the obligations of Buyer in this Agreement constitute adequate consideration for the obligations of the Seller under Section 7.2.  The Seller further acknowledges and agrees that a breach of any of the covenants, obligations or agreements set forth in Section 7.2, will result in irreparable and continuing damage to Buyer and its business and property for which there may be no adequate remedy at Law, and the Seller agrees that in the event of any such breach, Buyer shall be entitled to injunctive relief to restrain such breach by any Seller, and to such other and further relief (including damages) as is proper under the circumstances.

7.2.5Reformation of Agreement; Severability.  The parties intend the covenants set forth in Section 7.2 to be enforced as written.  However, in the event that any provision set forth in Section 7.2 is held by a court of competent jurisdiction to be invalid or unenforceable to any extent, such court shall exercise its discretion in reforming such provision to the end that the Seller shall be subject to such restrictions and obligations as the court deems reasonable under the circumstances and enforceable by Buyer.  In the event that a provision or term of this Agreement is found to be void or unenforceable to any extent and such court does not exercise its discretion to reform such provision, it is the agreed upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall remain in full force and effect to the maximum extent permitted by Law and that this Agreement shall be enforceable as if such void or unenforceable provision or term had never been a part hereof.

7.3Employment Matters.

7.3.1Buyer shall offer employment commencing on the Closing Date to the individuals listed on Schedule 7.3.1 (the “Offered Employees”).  Those Offered Employees who accept such offers of employment shall be referred to herein as the “Transferred Employees,” and the Offered Employees who do not accept such offers of employment and the employees of Seller not included in the Offered Employees shall collectively be referred to herein as “Excluded Employees.” No

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provision of this Agreement shall be construed to prohibit Buyer from having the right to terminate the employment of any Transferred Employee, with or without cause.  Seller shall terminate, effective as of the Closing Date, the employment of the Transferred Employees and the Excluded Employees with Seller.

7.3.2Effective as of the Closing Date and until December 31, 2020 (or such other date determined by Buyer) and exclusively with regard to the Transferred Employees, Buyer shall provide the Assumed Seller Plans pursuant to the terms of this Agreement, including Section 2.1.3(b).  Additionally, Buyer agrees to assume and pay any accrued vacation, accrued sick time and accrued bonuses as expressly included in the Closing Working Capital that is due Transferred Employees.  On January 1, 2021 (or such other date determined by Buyer), Buyer shall terminate the Assumed Seller Plans and transition the Transferred Employees to its or its Affiliates employee benefit plans.  In connection therewith, Buyer agrees that in connection with the employment of the Transferred Employees from and after January 1, 2021 (or such other date determined by Buyer) and to the extent permitted by the express terms of its employee benefit plans, Buyer shall or shall cause its Affiliates to (a) give full credit for years of service with Seller or predecessors for purposes of eligibility and vesting under Buyer’s employee benefit plans, programs and arrangements (to the extent that Buyer does not maintain the employee benefit plans of the Company); (b) waive any waiting periods for participation, coverage or benefits; (c) waive any exclusions for benefits for pre-existing conditions; and (d) with respect to Buyer’s group health plans, provide credit for co-payments and deductibles made by Transferred Employees under Seller’s group health plans.

7.3.3Buyer shall be responsible for complying with the requirements of COBRA for all of its employees (including the Transferred Employees and the Excluded Employees) and their “qualified beneficiaries” whose “qualifying event” (as such terms are defined in Code Section 4980B or the applicable state law or regulation) occurs prior to the Closing or occurs in connection with the purchase and sale of the Acquired Assets under this Agreement, including Section 7.3.1.  Additionally, Buyer shall be responsible for the cost of COBRA for any Transferred Employee and their “qualified beneficiaries” whose “qualifying event” (as such terms are defined in Code Section 4980B or the applicable state law or regulation) occurs in connection with the purchase and sale of the Acquired Assets as described in this Agreement.

7.3.4Employee benefits claims shall be allocated between the Seller and Buyer as follows:

a.Seller shall be liable for any costs and expenses incurred prior to Closing with regard to claims under a group health plan sponsored by the Seller prior to Closing, meaning that the event that results in the cost or expense occurred prior to Closing.  Buyer shall be liable for any costs and expense incurred after Closing with regard to claims under the Assumed Seller’s Plan and any group health plan subsequently sponsored by the Buyer;

b.Seller shall be liable for any costs and expenses incurred with regard to worker’s compensation claims of Seller’s employees incurred prior to the Closing Date (meaning that the event that results in the cost or expense occurred prior to Closing), and shall retain the insurance coverage available to Seller from Valley Indemnity, Inc. for coverage of such claims.  

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Buyer shall be responsible for worker’s compensation claims that are incurred on or after the Closing Date;

c.With regard to the other Assumed Seller Plans, Seller shall be responsible for processing any claims that arise under those Plans before Closing and paying any related costs incurred prior to Closing, and Buyer shall be responsible for processing any claims that arise under those Plans after Closing and paying any related costs incurred after Closing.

d.With regard to the costs and expenses incurred prior to Closing which Seller is responsible for as set forth in this Section 7.3.4, Buyer shall pay the same and shall be entitled to reimbursement from Seller from the Indemnity Escrow, and Seller and Buyer shall deliver joint written instructions to the Escrow Agent for the release to Buyer of an amount equal to such costs every sixty (60) days from the Closing Date through the date that is six (6) months after the Closing Date.

7.4Contracts; Permits.  To the extent that there are Permits, Assumed Contracts or Assumed Seller Plans relating to the Business which are not assignable without the consent or approval of Persons other than Seller (the “Non-Transferable Assets”), and such consents or approvals are not obtained on or prior to the Closing Date, this Agreement and the Closing shall not constitute an assignment or agreement to assign such Permits, Contracts or Assumed Seller Plans without such consent or approval.  Following the Closing Date, the Seller agree to cooperate in good faith with Buyer to enter into any reasonable arrangement designed to provide Buyer the benefit of such Non-Transferable Assets, including the enforcement for the benefit of any rights previously enjoyed by Seller in connection with any such assets.  To the extent Buyer is provided the benefits pursuant to this Section 7.4 of any such Permit or Contract, Buyer shall perform the obligations of Seller under or in connection with any such Permit, Contract or Assumed Seller Plan.

7.5Publicity.  Unless required by Law, as required by the regulations promulgated by the Securities and Exchange Commission or as required by the rules of any stock exchange or trading system, no party will make any public announcements with respect to the specific details of this Agreement or the transactions contemplated hereby without the written consent of the other parties.  No party shall be prohibited from making public announcements of a general nature (e.g., that a transaction between the parties has been consummated) by way of a press release or otherwise.

7.6Access to and Retention of Books and Records.  For a period of seven (7) years after the Closing Date or for the maximum document retention period required by Law, whichever is longer, the Buyer and the Seller (and to the extent in the possession or control thereof, each Affiliate) shall preserve and retain business records and other accounting, legal, auditing, and other books and records with respect to the Seller’ operation of the Business (collectively, the “Seller Records”).  Notwithstanding the foregoing, the Buyer may dispose of any such Seller Records in Buyer’s possession during such period if the same are first offered to the Seller and not accepted by the Seller within twenty (20) Business Days of such offer.  During such period, upon a Seller’s reasonable request, the Buyer shall permit such Seller and its representatives to have reasonable access to all Seller Records for all purposes; provided, that in the event that any such Seller Records

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are subject to any legal privilege, the Parties agree to cooperate to protect such privilege to the extent practicable.

7.7Tax Cooperation.  Buyer and the Seller shall cooperate fully, as and to the extent reasonably requested by the other Party, in connection with the filing of Tax Returns pursuant to this Agreement and any audit, litigation or other proceeding with respect to Taxes.  Such cooperation shall include the retention and (upon the request of any other Party) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.  The Buyer and the Seller agree, (A) to retain all books and records with respect to Tax matters pertinent to the Seller relating to any Tax period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Buyer, or the Seller, as applicable, any extensions thereof) of the respective Tax periods, and to abide by all record retention agreements entered into with any Tax authority, (B) Until the applicable statutes of limitations (including any extensions) have expired for all Tax periods or portions thereof ending on or before the Closing Date, the Buyer, on the one hand, and each of the Seller, on the other hand, shall each (i) provide the other with such assistance as may reasonably be requested by any of them in connection with any Tax, accounting or other financial reporting, including the preparation of any return, audit, or other examination by any taxing authority or judicial or administrative proceedings relating to liability for Taxes, (ii) retain and provide the other with any records or other information that may be reasonably relevant to any such Tax, accounting or other financial reporting or services, including relating to any such return, audit or examination, proceeding or determination, and (iii) provide the other with any final determination of any such audit or examination, proceeding, or determination that affects any amount required to be shown on any Tax return of the other for any period; and (C) to give the other Party reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other Party so requests, the Buyer or the Seller, as the case may be, shall allow the other Party to take possession of such books and records.

7.8Warranty Service Matters.  Although Buyer does not expressly or by implication assume any of the product or service warranty obligations or Liabilities of Seller related to products sold or services provided by Seller prior to the Closing, Buyer agrees to, on and after the Closing Date, on Seller’s behalf and without assumption of the product or service warranty obligations or Liabilities retained by Seller as Retained Liabilities, to perform Seller’s obligations under its express product or service warranties in a good and workmanlike manner and in accordance with the terms of the Seller’s express warranties.  Neither this Agreement, nor the performance by Buyer of any of Seller’s product or service warranty obligations, shall give rise to any rights in Seller or any third party.  For a period of three (3) years after Closing, Seller agrees to reimburse Buyer upon demand for performing such product or service warranty obligations for Seller, that are expressly covered under Seller’s express warranty and not as a customer accommodation, at Buyer’s then existing standard billing rates, for all reasonable costs incurred by Buyer related to such performance and to the extent such obligations exceed the warranty reserve on the Closing Balance Sheet.  Notwithstanding the foregoing, Buyer shall not be entitled to reimbursement for any such costs until the aggregate amount of all of Buyer’s costs under this Section 7.9 exceeds the warranty reserve accrual in the Closing Working Capital, and thereafter Buyer shall be entitled

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to reimbursement from the Indemnity Escrow for the excess over the warranty reserve accrual in the Closing Working Capital, subject to the Indemnification Cap for any such costs.  In addition, Buyer agrees to consult with Seller on what actions to take related to Seller’s Retained Liabilities related to product or service warranties and shall seek Seller’s consent, which shall not be unreasonably withheld, regarding any actions taken which are not consistent with Seller’s historical practice related to its express product and service warranties.

7.9Dissolution of EPI International.  As soon as practicable after the Closing Date, Seller shall file all required documents with the Secretary of State of the State of Indiana to dissolve EPI International.

ARTICLE 8

Indemnification

8.1Indemnification of Buyer.

8.1.1From and after the Closing, and irrespective of any disclosures in the Disclosure Schedules, the Seller, on a joint and several basis, shall indemnify and hold harmless Buyer and its Affiliates and each of their respective stockholders, directors, officers, employees and agents (collectively, the “Buyer Indemnitees”) from:

a.any Losses based upon, arising out of or caused by any inaccuracy in, or breach of, any of the representations and warranties made by the Seller in this Agreement, or Losses resulting from, relating to or arising out of any third party claim resulting from an alleged breach of any representations and warranties made by the Seller in this Agreement (provided that for purposes of calculating Losses but not breaches hereunder, any materiality, Material Adverse Effect or similar qualification in such representations or warranties shall be disregarded);

b.any Losses based upon, arising out of or caused by, any breach or nonperformance of any covenant or obligation made or incurred by the Seller in this Agreement;

c.any Losses resulting from, related to, or arising out of any Retained Liability or any imposition (including by operation of any bulk transfer or other Law) or attempted imposition upon Buyer by a third party of any Retained Liability, including without limitation the imposition or attempted imposition of any Retained Liability on any Buyer Indemnitee on the basis of any “successor liability,” “product line,” or “continuity of business enterprise” legal theory, except to the extent that the Losses arise after Closing and are attributable to the conduct of the Buyer after Closing; and/or

d.any claim of any broker, finder, or other person or entity acting in a similar capacity on behalf of Seller in connection with the transaction contemplated herein.

8.2Indemnification of Seller.  From and after the Closing Date, Buyer shall indemnify the Seller and their Affiliates and each of their respective stockholders, directors, officers, employees and agents (collectively, the “Seller Indemnitees”) against and hold the Seller

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Indemnitees harmless from (a) any Losses arising out of or caused by any inaccuracy in, or breach of, any of the representations and warranties made by Buyer in this Agreement; and (b) any Losses based upon, arising out of, or caused by, any breach or nonperformance of any covenant or obligation made or incurred by Buyer in this Agreement.  The right of the Seller Indemnitees to indemnification, payment of Losses or other remedy based on Buyer’s representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation.Limitations on Indemnification.

8.3.1Notwithstanding any other provision of this Agreement, the indemnification obligations provided for in Article 8 this Agreement shall be subject to the limitations and conditions set forth in this Section 8.3.

8.3.2The indemnification of the Buyer Indemnitees provided for in this Agreement shall be subject to the following limitations:

(a)any claim by a Buyer Indemnitee for indemnification pursuant to Section 8.1.1(a) shall be required to be made by delivering notice to Seller no later than the second (2nd) anniversary of the Closing Date; provided that, any Fraud Claims, or claims arising out of any inaccuracy in or breach of any representation or warranty in Section  3.1 [Organization; Authority and Enforceability], Section 3.9.2(a)  [Title] Section 3.15 [Brokerage], or Section 3.5 [Taxes] may be made at any time prior to the expiration of the applicable statute of limitations (the specific representations and warranties set forth in this clause, are referred to herein as the “Fundamental Representations”);

(b)except with regard to Fraud Claims and claims for breaches of any of the Fundamental Representations, the Buyer Indemnitees shall not be entitled to indemnification pursuant to Section 8.1.1(a) unless and until (i) Losses from a single occurrence, event or set of facts (or a group of common or related set of occurrences, events or set of facts) which is subject to indemnification exceeds $[__________] (the “Mini Basket”) (it being understood and agreed that (x) if a common or related set of occurrences, events or sets of facts results in Losses, such Losses shall be aggregated for purposes of determining whether the Mini-Basket has been satisfied and (y) if the Mini-Basket is satisfied as set forth in clause (x), the Buyer Indemnitees shall be entitled to recover for all such Losses and/or apply all such Losses against the Indemnification Deductible (and not merely the portion of the Losses exceeding the Mini-Basket)), and (ii) the aggregate amount of all of the Buyer Indemnitees’ claims for indemnification pursuant to Section 8.1.1(a)  exceeds [_______________] Dollars ($[______]) (the “Indemnification Deductible”), and thereafter, the Buyer Indemnitees shall be entitled to indemnification pursuant to Section 8.1.1(a) for the amount of Losses above the Indemnification Deductible with respect to such indemnification claims;

(c)except with regard to Fraud Claims, claims for breaches of any of the Fundamental Representations, and claims for breaches of  Section 7.2, the maximum

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indemnification amount to which the Buyer Indemnitees may be entitled pursuant to Section 8.1.1 shall be equal to [_______________] Dollars ($[______]) (the “Indemnification Cap”);

(d)The Buyer Indemnitees acknowledge and agree that recourse by the Buyer Indemnitees for breach of any RCA by an individual shareholder shall be directly against said individual breaching shareholder and not the Seller or any other shareholder;

(e)For clarification and illustrative purposes only, the parties acknowledge and agree that the Mini-Basket and the Indemnification Deductible must be satisfied with regard to all breaches of representations and warranties, except Fundamental Representations and Fraud, before the Buyer Indemnitees may recover from the Indemnity Escrow, and that said thresholds are not applicable to Losses of the Buyer Indemnitees related to Retained Liabilities.

8.3.3The indemnification of the Seller Indemnitees provided for in Section 8.2 of this Agreement shall be subject to the following limitations:

a.any claim by a Seller Indemnitee for indemnification pursuant to Section 8.2 of this Agreement shall be required to be made by delivering notice to Buyer no later than the second (2nd) anniversary of the Closing Date; provided that, any claim for indemnification resulting from, or arising out of, any inaccuracy in or breach of any representation or warranty made by Buyer in Section 4.1 [Organization; Authorization], Section 4.2 [Execution and Delivery; Enforceability] or Section 4.4 [Brokerage] or any Fraud Claim may be made at any time prior to the expiration of the applicable statutes of limitations;

b.except with respect to Fraud Claims and except for claims for indemnification with respect to any inaccuracy in or breach of any representation or warranty contained in Section 4.1 [Organization; Authorization], Section 4.2 [Execution and Delivery; Enforceability] or Section 4.4 [Brokerage], the Seller Indemnitees shall not be entitled to indemnification pursuant to Section 8.2 unless and until the Mini-Basket is satisfied and the aggregate amount of all of the Seller Indemnitees’ claims for indemnification exceeds the Indemnification Deductible, and thereafter, the Seller Indemnitees shall be entitled to indemnification pursuant to Section 8.2 for the amount of indemnification claims above the Indemnification Deductible; and

c.except with respect to Fraud Claims and except for claims for indemnification with respect to any inaccuracy in or breach of any representation or warranty contained in Section 4.1 [Organization; Authorization], Section 4.2 [Execution and Delivery; Enforceability] or Section 4.4 [Brokerage], the maximum indemnification amount to which the Seller Indemnitees may be entitled pursuant to Section 8.2 shall be an amount equal to the Indemnification Cap.

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8.4Procedures Relating to Indemnification.

8.4.1Third-Party Claims.

a.In order for a party (the “indemnitee”) to be entitled to any indemnification provided for under this Agreement in respect of, arising out of, or involving a claim or demand made by a third party against the indemnitee (a “Third-Party Claim”), such indemnitee must notify the party from whom indemnification hereunder is sought (the “indemnitor”) in writing of the Third-Party Claim no later than twenty (20) days after such claim or demand is first asserted.  Such notice shall state in reasonable detail the amount or estimated amount of such Third-Party Claim (if possible), and shall identify the specific basis (or bases) for such Third-Party Claim, including the representations, warranties or covenants in this Agreement alleged to have been breached.  Failure to give such notification shall not affect the indemnification provided hereunder except to the extent the indemnitor shall have been actually and materially prejudiced as a result of such failure.  Thereafter, the indemnitee shall deliver to the indemnitor, without undue delay, copies of all notices and documents (including court papers received by the indemnitee) relating to the Third-Party Claim so long as any such disclosure could not reasonably be expected, in the reasonable opinion of counsel, to have an adverse effect on the attorney-client or any other privilege that may be available to the indemnitee in connection therewith.

b.If a Third-Party Claim is made against an indemnitee and if (i) the indemnitor irrevocably admits to the indemnitee in writing its obligation to indemnify the indemnitee for all liabilities and obligations relating to such Third-Party Claim, (ii) the Indemnification Deductible has been exceeded (if the indemnitor is any Seller), (iii) no claim for injunctive relief is being made against the indemnitee, and (iv) it is reasonably likely that the indemnitee will not suffer a Loss in excess of indemnitor’s indemnification obligations hereunder, the indemnitor may elect to assume and control the defense thereof with counsel selected by the indemnitor that is reasonably acceptable to indemnitee by providing the indemnitee with notice within fifteen (15) days after the indemnitor’s receipt from the indemnitee of notice of the Third-Party Claim.  If the indemnitor assumes such defense, the indemnitee shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnitor, it being understood that the indemnitor shall control such defense; provided that, indemnitee’s expenses of counsel shall be an indemnified Loss for purposes of this Article  8, if such counsel reasonably concludes that a conflict or potential conflict exists between indemnitee and indemnitor that would make separate representation advisable.

c.If the indemnitor so assumes the defense of any Third-Party Claim, all of the indemnified parties shall reasonably cooperate with the indemnitor in the defense or prosecution thereof.  Such cooperation shall include, at the expense of the indemnitor, the retention and (upon the indemnitor’s request) the provision to the indemnitor of records and information which are reasonably relevant to such Third-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.  If the indemnitor has assumed the defense of a Third-Party Claim, (i) the indemnitee shall not admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the indemnitor’s prior written consent (which consent shall not be unreasonably withheld or delayed); and (ii) the indemnitor shall not admit any liability with respect

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to, or settle, compromise or discharge, such Third-Party Claim without the indemnitee’s prior written consent, provided that the indemnitee shall agree to any settlement, compromise or discharge of a Third-Party Claim which the indemnitor may recommend and which by its terms releases the indemnitee from any liability in connection with such Third-Party Claim without cost or expense and without any admission of violation, injunction or agreement to take or restrain from taking any action.

8.4.2Other Claims.  In the event an indemnitee should have a claim against an indemnitor under this Agreement that does not involve a Third-Party Claim, the indemnitee shall deliver notice of such claim to the indemnitor promptly following discovery of any indemnifiable Loss, but in any event not later than the last date set forth in Section 8.3.2(a) or Section 8.3.3(a), as the case may be, for making such claim.  Such notice shall, to the extent known by the indemnitee at the time, state in reasonable detail the amount or an estimated amount of such claim, and shall specify the facts and circumstances, to the extent known by the indemnitee at the time, which form the basis (or bases) for such claim, and shall further specify the representations, warranties or covenants alleged to have been breached.  Failure to give such notification shall not affect the indemnification provided hereunder, except to the extent the indemnitor shall have been prejudiced as a result of such failure.  Upon receipt of any such notice, the indemnitor shall notify the indemnitee as to whether the indemnitor accepts liability for any Loss.  If the indemnitor disputes its liability with respect to such claim, as provided above, the indemnitor and the indemnitee shall attempt to resolve such dispute in accordance with the terms and provisions of Section 10.10.

8.4.3Insured Claims.  Notwithstanding anything herein to the contrary, if the Claim or Third Party Claim is an insured claim, the Parties will cooperate with the insurer in the defense of such claim and with regard to Third Party Claims, the control of the defense of such claim and any settlement or disposition of such claim will also be subject to requirements of the insurer.

8.5Escrow Release.  Except as otherwise set forth herein, the Working Capital Escrow Amount shall serve as the first source of security for the Seller obligations pursuant to Section 2.3, the Indemnity Escrow Amount shall serve as the exclusive source for security for the Seller’ obligations pursuant to Section 7.8 and Section 8.1 hereof, and the PPP Escrow Amount shall serve as the exclusive source of security for the repayment of the PPP Loan if it is not forgiven, in whole or in part.  Within five (5) Business Days following the determination of the Final Post-Closing Adjustment, the Escrow Agent shall distribute the applicable portion of the Working Capital Escrow Amount to such Party entitled to such funds pursuant to Section 2.3.5 hereof with any remaining funds, as applicable, being paid to Seller.  If the Final Post-Closing Adjustment is to be paid to Buyer and the Working Capital Escrow Amount is not sufficient, then any additional dollars shall be paid from the Indemnity Escrow Amount.  Within five (5) Business Days following the determination of what amount of the PPP Loan is forgiven, as applicable, the Escrow Agent shall distribute that portion of the PPP Escrow Amount that is not forgiven to Lake City Bank in payment of the PPP Loan with any remaining funds, as applicable, being paid to Seller.  Within five (5) Business Days following the one year (1) anniversary of the Closing Date, the two (2) year anniversary of the Closing Date and the three (3) year anniversary of the Closing Date (each, an “Escrow Disbursement Date”), the Escrow Agent shall distribute to Seller an amount equal to one third of the Indemnity Escrow Amount, less an amount equal to the sum of (i) the aggregate dollar amount of claims for Losses paid to any Buyer Indemnitee from the Indemnity Escrow Amount,

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and (ii) the aggregate dollar amount of claims for Losses made by any Buyer Indemnitee pursuant to Section 8.1 which are then outstanding and unresolved (“Pending Claims”).  At least sixty (60) days prior to each Escrow Disbursement Date, Buyer shall provide Seller with notice of Pending Claims then outstanding.  Within five (5) Business Days following the third (3rd) anniversary of the Closing Date (such date, the “Escrow Expiration Date”), the Escrow Agent shall distribute to Seller the Indemnity Escrow Amount then remaining in the escrow account less an amount equal to the aggregate dollar amount of claims for Losses made by any Buyer Indemnitee pursuant to Section 8.1 (the “Aggregate Outstanding Claims”) which are then outstanding and unresolved (such amount of the retained Escrow Amount, as it may be further reduced after the Escrow Expiration Date by distributions to Seller as set forth below and recoveries by a Buyer Indemnitee pursuant to Section 8.1  hereof, the “Retained Escrow Amount”).  In the event and to the extent that after the Escrow Expiration Date any outstanding claim made by any Buyer Indemnitee pursuant to Section 8.1 for a Loss is resolved for any amount less than what was retained for such claim at the Escrow Expiration Date, then the Escrow Agent shall distribute to Seller an aggregate amount of the Retained Escrow Amount equal to such difference; provided, however, that such distribution shall only be made to the extent that the Retained Escrow Amount remaining after such distribution would be sufficient to cover the amount of the Aggregate Outstanding Claims that are still unresolved at such time.  In the event and to the extent that after the Escrow Expiration Date any outstanding claim made by any Buyer Indemnitee for a Loss is resolved in favor of such Buyer Indemnitee, such Buyer Indemnitee shall be entitled to recover an amount equal to the amount of the outstanding claim resolved in favor of such Buyer Indemnitee, and Seller and Buyer shall deliver joint written instructions to the Escrow Agent for the release of same to such Buyer Indemnitee.

8.6Insurance Matters.  Buyer agrees to timely submit any insured Claim for which the Seller are obligated to provide Indemnification hereunder, to any applicable insurance carrier for coverage.  If the Buyer receives or recovers any proceeds, including, without limitation, costs of defense, from insurance in connection with any Losses for which the Seller are obligated to provide indemnification hereunder, the Buyer shall apply such proceeds (net of any costs associated with recovering the same) against such indemnification obligation or, if such indemnification obligation has already been satisfied, then such proceeds (net of any costs associated with recovering the same) shall be paid (less any taxes payable) to the Seller, up to an amount not to exceed the amount paid by the Seller to the Buyer in connection with such Losses.

8.7Indemnity Payments.  Any and all payments by the Seller (whether directly or by the Escrow Agent in accordance with the Escrow Agreement) or the Buyer to the other made pursuant to this Article 8 will be treated by the Parties on all applicable Tax Returns as an adjustment to the Purchase Price.

8.8Statutes of Limitation.  No Buyer Indemnitee shall agree to any extension of a statute of limitations that may be applicable to a third-party claim against a Buyer Indemnitee in respect of which the Seller may be obligated to provide indemnification under this Article 8 without the prior written consent of Seller.

8.9Exclusive Remedy.  The Parties agree that, excluding any claim arising under Section 8.1 or 8.2 of this Agreement, for injunctive relief, or other equitable relief in connection

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with the transactions contemplated by this Agreement, and use of insurance proceeds as described herein, the indemnification and escrow provisions of this Article 8 shall be the sole and exclusive remedy as to all claims of any Party arising hereunder.

ARTICLE 9

Certain Definitions

When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Article 9, or elsewhere in this Agreement as indicated in this Article 9:  

“Accounts Receivable” is defined in Section 2.1.1(a).

“Acquired Assets” is defined in Section 2.1.1.

“Acquired Cash” is defined in Section 2.1.1(m).

“Acquisition Balance Sheet” is defined in Section 3.3.1.

An “Affiliate” of a specified Person means any other Person which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person.  For purposes of this definition, “control” of any Person means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting capital stock, by contract, or otherwise.

“Aggregate Outstanding Claims” is defined in Section 8.5.

“Agreement” means this Asset Purchase Agreement, as may be amended from time to time.

“Annual Financial Statements” is defined in Section 3.3.1.

“Assignment and Assumption Agreement” is defined in Section 5.1(a).

“Assumed Accrued Liabilities” is defined in Section 2.1.3(c).

“Assumed Contracts” is defined in Section 2.1.1(e).

“Assumed Liabilities” is defined in Section 2.1.3.

“Authorized Action” is defined in Section 7.7.2.

“Business” is defined in the Recitals.

“Business Day” means any day other than a Saturday, Sunday or a day on which banks in Akron, Ohio are authorized or obligated by law to close.

“Business Intellectual Property” is defined in Section 2.1.1(d).

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“Buyer” is defined in the preamble of this Agreement.

“Buyer Ancillary Agreements” is defined in Section 4.1.

“Buyer Indemnitees” is defined in Section 8.1.1.

“Cash Amount” means $62,500,000.

“Charter Documents” means (a) the articles or certificate of incorporation and the bylaws of a corporation; (b) the partnership agreement and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership, or the operating agreement and the articles of organization or certificate of formation of a limited liability company; (d) any charter or similar document adopted or filed in connection with the creation, formation or organization of a Person; (e) the declaration of trust and trust agreement of any trust; and (f) any amendment to any of the foregoing.

“Closing” and “Closing Date” are defined in Article 6.

“Closing Cash Payment” is defined in Section 2.2.2(a)(i).

“Closing Working Capital” means the Working Capital of Seller as of 12:01 a.m. on the Closing Date.

“Code” means the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder.

“Company Related Person” is defined in Section 3.18.

“Confidential Information” is defined in Section 7.2.1.  Notwithstanding, Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of a in violation of this Agreement, (ii) was available to Seller on a non-confidential basis prior to its disclosure, (iii) becomes available from a source other than the Seller or Buyer, provided, however, that such source is not actually known by Seller to be bound by a confidentiality obligation to Buyer; or (iv) is independently developed by Seller.

“Contracts” is defined in Section 3.13.

“COVID-19” means SARS CoV-2 or COVID-19, an any evolutions thereof or related or associated epidemics, pandemics or disease outbreaks.

“Disclosure Schedules” means the Disclosure Schedules annexed hereto and made a part hereof.

“Disposal,” “Storage” and “Treatment” shall have the meanings assigned them in the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et. seq. (“RCRA”) or any similar state or local Law, provided, however, that such terms shall be applied to all “Hazardous Materials,” not solely to “hazardous waste,” as defined in RCRA.

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“Employment Agreements” is defined in Section 5.1(i).

“Enforceability Exceptions” is defined in Section 3.1.2.

“Environmental Law” means any Law, Order or Permit issued to Seller relating to contamination, pollution or the protection of the environment, including, without limitation, soil, land surface or subsurface strata, surface water (including navigable waters, ocean waters, streams, ponds, drainage basins and wetlands), groundwater, drinking water supply, stream sediments, ambient or indoor air, plant and animal life and any other environmental medium or natural resource, or human health and safety or to the use, management, handling, generation, importing, distribution, manufacturing, processing, production, recycling, reclaiming, Storage, Disposal, Treatment, transportation, Release or threatened Release of any Hazardous Material.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder.

“ERISA Affiliate” means any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with Seller, within the meaning of Section 4001(b) of ERISA or Section 414 of the Code.

“Escrow Agent” means Lake City Bank, Elkhart, Indiana.

“Escrow Agreement” means an escrow agreement, dated as of even date herewith, among Buyer, Seller and Escrow Agent.

“Escrow Amount” means the sum of $[________] (the “Indemnity Escrow Amount”), plus $[________] (the “Working Capital Escrow Amount”), and plus $[________] (the “PPP Escrow Amount”).

“Escrow Expiration Date” is defined in Section 8.5.

“Estimated Closing Working Capital” is defined in Section 2.2.2(a).

“Estimated Purchase Price” is defined in Section 2.2.2(a).

“Excluded Assets” is defined in Section 2.1.2.

“Excluded Contracts” is defined in Section 2.1.2(i).

“Excluded Employees” is defined in Section 7.3.1.

“Excluded Records” is defined in Section 2.1.2(g).

“Final Adjustment Statement” is defined in Section 2.3.4.

“Final Post-Closing Adjustment” is defined in Section 2.3.4.

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“Financial Statements” is defined in Section 3.3.1.

“Fraud Claims” means claims relating to fraud, criminal activity, bad faith, intentional misrepresentation or intentional misconduct.

“Fundamental Representations” is defined in Section 8.3.2(a).

“GAAP” means United States generally accepted accounting principles as in effect either from time to time as applied to periods prior to the Closing Date or as applied on the Closing Date, as applicable, and in either case, applied on a basis consistent with the past practices of Seller.

“Governmental Authority” means any domestic, foreign or multi-national federal, state, provincial, regional, municipal or local governmental or administrative authority, including any court, tribunal, agency, bureau, committee, board, regulatory body, administration, commission or instrumentality constituted or appointed by any such authority.

“Government Bid” means any offer made by Seller which, if accepted, would result in a Government Contract.

“Government Contract” means any written Contract, including prime contract, subcontract, teaming agreement or arrangement, joint venture, , pricing agreement, or letter contract (but excluding isolated purchases of Company products by a governmental entity) between Seller, on the one hand, and (a) any Governmental Authority, (b) any prime contractor of a Governmental Authority in its capacity as a prime contractor.

“Hazardous Material” means any chemical, substance, waste, material, pollutant, or contaminant, the use, management, handling, generation, importing, distribution, manufacturing, processing, production, recycling, reclaiming, Storage, Disposal, Treatment, transportation or Release of which is regulated under Law, or which is listed, defined, designated, or classified as, or otherwise determined to be, hazardous, radioactive, or toxic or a pollutant or a contaminant under or pursuant to any Law, including any admixture or solution thereof, and specifically including:  petroleum and all petroleum derivatives thereof or synthetic substitutes therefor (including, without limitation, crude oil or any fraction thereof, gasoline or diesel fuel, all forms of natural gas, and petroleum products, by-products or waste); polychlorinated biphenyls; asbestos and asbestos containing materials (whether friable or non-friable); lead and lead-based paint or other lead containing materials (whether friable or non-friable); urea formaldehyde; microbiological pollutants; batteries or liquid solvents or similar chemicals; radon gas; mildew, fungus, mold, bacteria and/or other organic spore material, whether or not airborne, colonizing, amplifying or otherwise; radioactive material or waste; and infectious waste, regardless of whether specifically listed or designated as a hazardous substance or hazardous waste under any Environmental Law.

“Indebtedness” is defined in Section 2.1.4(j).

“Indemnification Cap” is defined in Section 8.3.2(c).

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“Indemnification Deductible” is defined in Section 8.3.2(b).

“indemnitee” is defined in Section 8.4.1(a).

“indemnitor” is defined in Section 8.4.1(a).

“Independent Accountants” is defined in Section 2.3.3.

“Intellectual Property” means all rights arising from or in respect of any of the following in any jurisdiction throughout the world:  (i) patents, patent applications, patent disclosures and inventions, including any continuations, divisionals, continuations-in-part, renewals and reissues for any of the foregoing (collectively “Patents”), (ii) Internet domain names, trademarks, service marks, service names, trade dress rights, trade names, brand names, slogans, logos and corporate names and registrations and applications for registration thereof, together with all of the goodwill associated therewith (collectively, “Marks”), (iii) copyrights (registered or unregistered) and copyrightable works and registrations and applications for registration thereof, and mask works and registrations and applications for registration thereof (“Copyrights”), (iv) computer software, (specifically excluding all shrink wrap software), data, data bases and documentation thereof, (v) trade secrets and other confidential and proprietary information (including ideas, formulas, compositions, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial and marketing plans and customer and supplier lists and information) (collectively, “Trade Secrets”), and (vi) copies and tangible embodiments thereof (in whatever form or medium).

“Interim Financial Statements” is defined in Section 3.3.1.

“Inventory” is defined in Section 2.1.1(b).

“Law” means any common law decision and any federal, state, regional, local or foreign law, statute, ordinance, code, rule, regulation or Order, including, without limitation, the Foreign Corrupt Practices Act.

“Leases” is defined in Section 3.9.1(b).

“Leased Real Property” means all real property leased by Seller, together with all improvements, buildings and fixtures located thereon and appurtenant rights and interests associated therewith.

“Liability” and “Liabilities” means any responsibility, obligation, duty, commitment, claim or liability, whether known or unknown, threatened, accrued, absolute, contingent or otherwise.

“License” is defined in Section 3.12.

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“Lien” means any lien, charge, mortgage, deed of trust, pledge, easement, encumbrance, security interest, matrimonial or community interest, tenancy by the entirety claim, adverse claim, or any other title defect or restriction of any kind.

“Loss” or “Losses” means any and all losses, Liabilities, damages, diminution in value, costs, expenses, penalties, actions, notices of violation, and notices of Liability and any claims in respect thereof (including, without limitation, amounts paid in settlement and reasonable costs of investigation and legal and accounting expenses).

“Material Adverse Effect” means any state of facts, change, event, effect or occurrence that would be (or could reasonably be expected to be) materially adverse to the condition (financial or otherwise), results of operations, assets, Liabilities, equity, business or prospects of Seller.

“Material Contracts” is defined in Section 3.13.

“Material Customers” is defined in Section 3.19.

“Material Suppliers” is defined in Section 3.19.

“Non-Competition Period” is defined in Section 7.2.2.

“Non-Transferable Assets” is defined in Section 7.4.

“Offered Employees” is defined in Section 7.3.1.

“Order” is defined in Section 3.14.

“Permits” is defined in Section 3.8.1.

“Permitted Liens” means (i) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business, if the underlying obligation is not delinquent or in dispute and appropriate reserves have been set aside in accordance with GAAP; (ii) Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business under which Seller is not in default and as set forth on Schedule 2.1.1; (iii) Liens for current Taxes and utilities not yet due and payable or which may hereafter be paid without penalty or which are being contested in good faith, and, in connection therewith, appropriate reserves have been set aside in accordance with GAAP; (iv) easements, covenants, rights-of-way and other similar restrictions or conditions of record acceptable to Buyer; and (v) zoning, building and other similar ordinances or restrictions imposed by applicable Laws; provided that, none of (iv) and (v), individually or in the aggregate, materially impairs the use or value of any asset to which it or they relate.

“Person” means an individual, a corporation, a limited liability company, a partnership, a trust, an unincorporated association, a government or any agency, instrumentality or political subdivision of a government, or any other entity or organization.

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“Plan” means (i) all employee benefit plans (as defined in Section 3(3) of ERISA), (ii) all bonus (including transaction bonus), incentive compensation, equity or equity-based, stock appreciation right, phantom stock, restricted stock or unit, performance stock or unit, employee stock ownership, stock purchase, deferred compensation, change in control, employment, noncompetition, nondisclosure, vacation, holiday, sick leave, retention, severance, retirement, savings, pension, money purchase, target benefit, cash balance, excess benefit, supplemental executive retirement, profit sharing, life insurance, cafeteria (Section 125), adoption assistance, dependent care assistance, voluntary employees beneficiary, multiple employer welfare, medical, dental, vision, severance, change in control, multiple employer welfare, supplemental unemployment compensation, accident, disability, fringe benefit, welfare benefit, paid time off, employee loan, and salary continuation plans, programs, policies, agreements, arrangements, commitments, practices, contracts, associations and understandings (written or unwritten) including, without limitation, any trust, escrow or other agreement related thereto and any similar plans, programs, policies, agreements, arrangements, commitments, practices, contracts and understandings (written or unwritten), and (iii) all employee benefit plans pursuant to foreign Laws.

“PPP Loan” means that certain loan made by Lake City Bank pursuant to the Paycheck Protection Program in the principle amount of $[_______], plus interest.

“Preliminary Adjustment Statement” is defined in Section 2.3.1.

“Preliminary Post-Closing Adjustment” is defined in Section 2.3.1.

“Prepaid Assets” is defined in Section 2.1.1(i).

“Product Liability Claim” is defined in Section 3.16.2.

“Purchase Price” is defined in Section 2.2.1(a).

“Real Property” means all Leased Real Property and real property previously owned by Seller, if any.

“Release” means any direct or indirect release, spill, pumping, pouring, emission, emptying, discharge, dispersal, injection, placing, escape, leaking, leaching, migration, dumping, deposit or Disposal on or into any building, facility or the environment, whether intentional or intentional, known or unknown.

“Removal,” “Remedial” and “Response” actions shall include the types of activities covered by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601, et seq., RCRA and other comparable Laws, whether the activities are those that might be taken by a Governmental Authority or those that a Governmental Authority might seek to require of third parties under “removal,” “remedial” or other “response” actions.

“Repaid Closing Indebtedness” is defined in Section 2.2.2(a)(iii).

“Repaid Selling Expenses” is defined in Section 2.2.2(a)(iii).

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“Retained Liabilities” is defined in Section 2.1.4.

“Retained Escrow Amount” is defined in Section 8.5.

“Seller” is defined in the preamble of this Agreement.

“Seller Ancillary Agreements” is defined in Section 3.1.2.

“Seller Indemnitees” is defined in Section 8.2.1.

“Seller’s Account” is defined in Section 2.2.2(a)(i).

“Seller” is defined in the Preamble of this Agreement.

“Seller Plan” means any Plan to which Seller contributes to, is a party to, is bound by or could reasonably be expected to have Liability (whether known, accrued, absolute, contingent, liquidated or otherwise) with respect to, and under which directors, employees, independent contracts, consultants or other members of the workforce of Seller are or have been eligible to participate or derive a benefit.

“Selling Expenses” is defined in Section 2.1.4(b).

“Shareholder” is defined in the preamble of this Agreement.

“Tax” or “Taxes” means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, FICA, withholding, excise, severance, stamp, occupation, premium, windfall profits, customs duties, capital stock, franchise, profits, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or Unclaimed Property or other tax assessment or charge of any kind whatsoever imposed by any Taxing Authority, including any interest, penalty, or addition thereto, whether disputed or not and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person by reason of contract (whether written or oral), assumption, transferee liability, operation of law, Section 1.1502-6 of the Treasury regulations (or any predecessor or successor thereof or any analogous or similar provision under Law) or otherwise.

“Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof required to be filed with any Governmental Authority with respect to Taxes.

“Third-Party Claim” is defined in Section 8.4.1(a).

“To Seller’s Knowledge” or the phrases “to the Knowledge of Seller,” “to the knowledge of Seller” or phrases of similar import, means the actual knowledge of [________________] (with respect to Employees and Seller Plans), [________________] (with respect to Environmental) and [________________] (with respect to Intellectual Property) with reasonable inquiry and investigation among themselves.

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“Trade Payables” is defined in Section 2.1.3(a).

“Transferred Employees” is defined in Section 7.3.1.

“TSCA” means the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq., as amended, and any and all rules and regulations adopted pursuant thereto.

“Unclaimed Property” means property that has gone unclaimed or abandoned by the rightful owner (including, without limitation, any uncashed dividend or payroll checks, customer deposit, customer overpayment, credit or refund, supplier payment or other tangible or intangible asset held by Seller), which property is required by applicable Law to be either reported, escheated or otherwise remitted to the applicable Governmental Authority that administers unclaimed or abandoned property or funds.

“WARN Act” means the Worker Adjustment and Retraining Notification Act, as amended, and the regulations thereunder.

“Working Capital” means (a) the sum of the Accounts Receivables, Inventory and Prepaid Assets (excluding any Tax assets (current, deferred or otherwise) and the items referenced in Section 2.2(a)(iii) so there is no double counting) of Seller, minus (b) the sum of the Trade Payables and the Assumed Accrued Liabilities, in all cases, calculated in accordance GAAP, consistently applied.  A sample calculation of Working Capital, including each specific general ledger account, is set forth on Exhibit A hereto.

“Working Capital Target” means an amount equal to [________________] Dollars ($[__________]).

“Working Capital Lower Collar” means an amount equal to the Working Capital Target minus [________________] Dollars ($[__________]).

“Working Capital Top Collar” means an amount equal to the Working Capital Target plus [________________] Dollars ($[__________]).

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ARTICLE 10

Construction; Miscellaneous Provisions

10.1Notices.  Any notice to be given or delivered pursuant to this Agreement shall be ineffective unless given or delivered in writing, and shall be given or delivered in writing as follows:

If to Buyer:

Myers Industries Indiana LLC

c/o Myers Industries, Inc.

1293 South Main Street

Akron, Ohio 44301

Attention:  Chief Legal Officer

Facsimile:  330.761.6166

E-mail:  ahorton@myersind.com

with a copy to:

Calfee, Halter & Griswold LLP

1405 East Sixth Street

Cleveland, Ohio 44114

Attention:  Colleen Geib

Facsimile:  216.241.0816

E-mail:  cgeib@calfee.com

If to any Seller:

Jack E. Welter

21560 C.R. 10

Elkhart, Indiana 46514-4621

Facsimile:

E-mail:

With a copy to:

Warrick & Boyn, LLP

861 Parkway Avenue

Elkhart, Indiana 46516

Attention:  Cynthia S. Gillard

Facsimile:  574-294-7284

E-mail:  cgillard@warrickandboyn.com

or in any case, to such other address for a party as to which notice shall have been given to Buyer and the Seller in accordance with this Section.  Notices so addressed shall be deemed to have been duly given (i) on the third business day after the day of registration, if sent by registered or certified

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mail, postage prepaid, (ii) on the next business day following the documented acceptance thereof for next-day delivery by a national overnight air courier service, if so sent, or (iii) on the date sent by facsimile transmission or electronic mail, if electronically confirmed.  Otherwise, notices shall be deemed to have been given when actually received at such address.

10.2Entire Agreement.  This Agreement and the schedules and exhibits hereto, including the Indemnification Agreement, constitute the exclusive statement of the agreement among the parties hereto concerning the subject matter hereof, and supersedes all other prior agreements, oral or written, among or between any of the parties hereto concerning such subject matter.  All negotiations among or between any of the parties hereto are superseded by this Agreement, the schedules and exhibits hereto, and there are no representations, warranties, promises, understandings or agreements, oral or written, in relation to the subject matter hereof among or between any of the parties hereto other than those expressly set forth or expressly incorporated herein.

10.3Modification.  No amendment, modification, or waiver of this Agreement or any provision hereof, including the provisions of this sentence, shall be effective or enforceable as against a party hereto unless made in a written instrument that specifically references this Agreement and that is signed by the party waiving compliance.

10.4Binding Effect.  This Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and permitted assigns.

10.5Headings.  The article and section headings used in this Agreement are intended solely for convenience of reference, do not themselves form a part of this Agreement, and may not be given effect in the interpretation or construction of this Agreement.

10.6Number and Gender; Inclusion.  Whenever the context requires in this Agreement, the masculine gender includes the feminine or neuter, the feminine gender includes the masculine or neuter, the neuter gender includes the masculine or feminine, the singular number includes the plural, and the plural number includes the singular.  In every place where it is used in this Agreement, the word “including” is intended and shall be construed to mean “including, without limitation.”

10.7Counterparts.  This Agreement may be executed and delivered in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.  A facsimile or other electronic copy of a signature shall be deemed an original for purposes of this Agreement.

10.8Third Parties.  Nothing in this Agreement, express or implied, is intended or shall be construed to confer on any Person, other than the parties hereto and their respective successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement and except in respect of Article 8, as it relates to Buyer Indemnitees and Seller Indemnitees who are not otherwise parties to this Agreement.

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10.9Time Periods.  Any action required hereunder to be taken within a certain number of days shall, except as may otherwise be expressly provided herein, be taken within that number of calendar days; provided, however, that if the last day for taking such action falls on a Saturday, a Sunday, or a U.S. federal legal holiday, the period during which such action may be taken shall automatically be extended to the next Business Day.

10.10Governing Law; Jurisdiction; Waiver of Jury Trial.  This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to the choice of laws or conflicts of laws provisions thereof.  Each party hereto agrees that any claim relating to this Agreement shall be brought solely in the Northern District of Ohio unless said court lacks jurisdiction, in which case any such claim shall be brought in such state or federal court of competent jurisdiction located in Summit County, Ohio, and all objections to personal jurisdiction and venue in any action, suit or proceeding so commenced are hereby expressly waived by all parties hereto.  The parties waive personal service of any and all process on each of them and consent that all such service of process shall be made in the manner, to the party and at the address set forth in Section 10.1 of this Agreement, and service so made shall be complete as stated in such Section.  The Seller expressly acknowledge the notice and service of process to the Seller for each of them in accordance with Section 10.1 and this Section 10.10.

[Signature page follows]

 

 

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IN WITNESS WHEREOF, Buyer and the Seller have executed and delivered this Asset Purchase Agreement as of the date first written above.

 

 

BUYER:

 

 

 

 

 

 

MYERS INDUSTRIES INDIANA LLC

 

 

By:

/s/ Michael McGaugh

 

 

 

Name:  Michael McGaugh

 

 

 

Title: President

 

 

 

SELLER:

 

 

 

 

 

 

ELKHART PLASTICS, INC.

 

 

By:

/s/ Jack E. Welter

 

 

 

Name:  Jack E. Welter

 

 

 

Title: President

 

 

 

ELKHART PLASTICS INTERNATIONAL, LTD.

 

By:

/s/ Jack E. Welter

 

 

 

Name:  Jack E. Welter

 

 

 

Title: President

 

 

 

ELKHART PLASTICS OF IOWA, INC.

 

By:

/s/ Jack E. Welter

 

 

 

Name:  Jack E. Welter

 

 

 

Title: President

 

 

 

ELKHART PLASTICS OF MICHIGAN, INC.

 

By:

/s/ Jack E. Welter

 

 

 

Name:  Jack E. Welter

 

 

 

Title: President

 

 

[Signature Page to Asset Purchase Agreement]

 

 

Exhibits and Schedules

The exhibits and schedules to the Asset Purchase Agreement are omitted pursuant to Item 601(b)(10) of Regulation S-K under the Securities Exchange Act of 1934. The Company agrees to furnish a supplemental copy of any omitted exhibit or schedule to the SEC upon request.

 

 

Exhibit 21

Direct and Indirect Subsidiaries, and Operating Divisions,

of Myers Industries, Inc.

As of December 31, 2020

 

North, Central and South America Operations

 

Ameri-Kart Corp.

Kansas

Ameri-Kart (MI) Corp.

Michigan

Buckhorn Inc.

Ohio

- Buckhorn Services, Inc.

Ohio

DSS Direct, Inc.

Ohio

Elkhart Plastics LLC

Indiana

Erie Island LLC

Ohio

Jamco Products Inc.

Illinois

MYE Canada Operations Inc.

Canada

MYECAP Financial Corp.

Ohio

Myers Holdings Brasil Ltda. (99%)

Brazil

Myers Tire Supply International, Inc.

Ohio

- Myers de El Salvador S.A. De C.V. (75%)

El Salvador

- Orientadores Comerciales S.A.

Guatemala

- Myers de Panama S.A.

Panama

- Myers TSCA, S.A.

Panama

Myers de El Salvador S.A. De C.V. (25%)

El Salvador

Myers Tire Supply Distribution, Inc.

Ohio

MyersTireSupply.com, Inc.

Ohio

Patch Rubber Company

North Carolina

Scepter Canada Inc.

Canada

Scepter US Holding Company

Ohio

- Scepter Manufacturing, LLC

Delaware

 

 

Reported Operating Divisions of Myers Industries, Inc. and Subsidiaries

 

Akro-Mils (of Myers Industries, Inc.)

Akron, Ohio

Myers Tire Supply (of Myers Industries, Inc.)

Akron, Ohio

Buckhorn Canada (of Myers Industries, Inc.)

Ontario, Canada

Myers Tire Supply Canada (of MYE Canada Operations Inc.

Ontario, Canada

 

 

 

 

 

Exhibit 23

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the following Registration Statements:  

 

(1)

Registration Statement (Form S-8 No. 333-207869) pertaining to the Amended and Restated 2008 Incentive Stock Plan of Myers Industries, Inc.,

 

(2)

Registration Statement (Form S-3 No. 033-50286) of Myers Industries, Inc.,

 

(3)

Registration Statement (Form S-8 No. 333-219683) pertaining to the 2017 Incentive Stock Plan of Myers Industries, Inc. as Amended and Restated, and

 

(4)

Registration Statement (Form S-8 No. 333-228515) pertaining to the Myers Industries, Inc. Employee Stock Purchase Plan;

of our reports dated March 11, 2021, with respect to the consolidated financial statements of Myers Industries, Inc. and Subsidiaries and the effectiveness of internal control over financial reporting of Myers Industries, Inc. and Subsidiaries included in this Annual Report (Form 10-K) for the year ended December 31, 2020.  

 

/s/ Ernst & Young LLP

 

Akron, Ohio

March 11, 2021

 

Exhibit 31(a)

Certification Per Section 302 of the Sarbanes-Oxley Act of 2002

I, Michael P. McGaugh, certify that:

 

1.

I have reviewed this annual report on Form 10-K of Myers Industries, Inc.;

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f), for the registrant and have:

 

a.

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b.

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c.

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d.

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected or is reasonably likely to materially affect the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a.

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b.

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date:

March 11, 2021

 

/s/ Michael P. McGaugh

 

 

 

Michael P. McGaugh, President and Chief Executive Officer

 

Exhibit 31(b)

Certification Per Section 302 of the Sarbanes-Oxley Act of 2002

I, Daniel W. Hoehn, certify that:

 

1.

I have reviewed this annual report on Form 10-K of Myers Industries, Inc.;

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f), for the registrant and have:

 

a.

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b.

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c.

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d.

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected or is reasonably likely to materially affect the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a.

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b.

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date:

March 11, 2021

 

/s/ Daniel W. Hoehn

 

 

 

Daniel W. Hoehn, Interim Chief Financial Officer

 

 

 

Exhibit 32

CERTIFICATION

PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Myers Industries, Inc. (the Company) on Form 10-K for the period ended December 31, 2020, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Michael P. McGaugh, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, and to my knowledge:

(1) The Annual Report on Form 10-K of the Company for the period ended December 31, 2020 which this certification accompanies fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Dated:

March 11, 2021

 

/s/ Michael P. McGaugh

 

 

 

Michael P. McGaugh, President and Chief Executive Officer

 

Exhibit 32

CERTIFICATION

PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Myers Industries, Inc. (the Company) on Form 10-K for the period ended December 31, 2020, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Daniel W. Hoehn, Interim Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, and to my knowledge:

(1) The Annual Report on Form 10-K of the Company for the period ended December 31, 2020 which this certification accompanies fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Dated:

March 11, 2021

 

/s/ Daniel W. Hoehn

 

 

 

Daniel W. Hoehn, Interim Chief Financial Officer

 

A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.