EX-10.1



 Exhibit 10.2 
 SEPARATION AGREEMENT 
 This SEPARATION AGREEMENT (this
“Agreement”) is entered into as of August 31, 2012, between Myers Industries, Inc., an Ohio corporation (“Company”), and Donald A. Merril (“Executive”). 

RECITALS 
 A. Executive
has been employed by the Company as its Executive Vice President, Chief Financial Officer and Secretary. 
 B. Executive and the Company are
parties to an Employment Agreement dated January 24, 2006 (“Employment Agreement”) and a Non-Disclosure and Non-Competition Agreement dated January 24, 2006 (“Non-Disclosure Agreement”). 

C. Executive and the Company have mutually agreed to terminate the employment relationship effective on August 31, 2012 (the “Termination
Date”). 
 D. Executive and the Company desire to provide for a smooth transition of Executive’s responsibilities and to resolve all
issues regarding his employment with and separation from the Company. Accordingly, and without admitting any liability or wrongdoing whatsoever, they are entering into this Agreement. 
 In consideration of the promises and mutual agreements, provisions and covenants contained in this Agreement and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows: 
 AGREEMENTS 

1.1 Executive hereby acknowledges, covenants and agrees: 
  


	 	(a)	That his employment with the Company as Executive Vice President, Chief Financial Officer and Secretary and the Employment Agreement are terminated effective upon the
Termination Date, and he hereby resigns from any and all other positions held with the Company and any affiliate thereof as of the Termination Date. 

  

	 	(b)	 To release and discharge forever the Company and its: (i) affiliated companies and entities, (ii) present and former directors, shareholders,
officers, employees, agents and attorneys, (iii) predecessors, (iv) successors, (v) insurance carriers, and (vi) assigns (the Company and (i) through (vi) are sometimes hereinafter collectively referred to as the
“Company and All Related Parties”), and each of them, from all liabilities, claims, causes of action, charges, complaints, obligations, costs, losses, damages, injuries, attorneys’ fees and other legal responsibilities, of any form
whatsoever, whether known or unknown, foreseen or unforeseen, anticipated or unanticipated, suspected or unsuspected, manifest or latent, which Executive now owns or holds, has at any time heretofore owned or











	 	
held or may at any time own or hold by reason of any matter or thing arising from any cause whatsoever prior to the Effective Date of this Agreement, and without limiting the generality of the
foregoing, from all claims, demands and causes of action based on, relating to or arising out of Executive’s status as a shareholder, or ownership of shares, in the Company, or Executive’s employment with the Company or any of its
affiliates, compensation for such employment, or the termination of such employment relationship, including but not limited to claims for breach of contract, claims under the Employment Agreement, defamation, invasion of privacy, wrongful discharge,
retaliatory discharge based on the asserted engagement of any type of protected activity or whistleblowing including, without limitation, under the Sarbanes-Oxly Act, or those claims arising under the Americans With Disabilities Act, the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Ohio Revised Code Chapter 4112, and any other federal, state or local laws prohibiting age, sex, race, national origin, disability or any other forms of discrimination or
sexual or other forms of harassment. The foregoing shall not release any rights under this Agreement or the obligation of the Company to indemnify or advance expenses, or the rights to indemnification or advancement of expenses Executive has,
pursuant to any director and officer or other insurance policy the Company maintains or has maintained (including self-insurance), the General Corporation laws of the State of Ohio or other applicable state or jurisdiction, pursuant to the articles
of incorporation or code of regulations of the Company, or pursuant to the Indemnification Agreement between the Executive and the Company. 

  

	 	(c)	 That (i) he has made no assignment and will make no assignment of the claims, demands, causes of action or other rights released herein; and
(ii) he will not institute any legal or administrative proceedings or, absent an order from a court of competent jurisdiction, participate in any manner in any civil lawsuit or administrative proceeding based upon, arising out of or relating to
any claim, demand, cause of action or other right released herein. In the event any such civil lawsuit or administrative proceeding is initiated by Executive or any assignee or successor of Executive, Executive agrees to repay to the Company all
consideration paid by the Company under this Agreement upon the demand of the Company. Executive further agrees to indemnify and hold harmless the Company and All Related Parties against any loss or liability whatsoever, including but not limited to
reasonable attorneys’ fees, caused by or incurred in any action or proceeding before any court or governmental agency, commission, division or department, whether state, federal or local, which is brought by or on behalf of Executive or
Executive’s successors in interest if such action or proceeding arises out of, is based on or is related to any claims, demands, causes of action or other rights released herein. The foregoing shall not prohibit Executive from filing a charge
of discrimination with the Equal Employment Opportunity Commission, 



  
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however, Executive acknowledges and agrees that this Agreement waives and releases any right to individual relief at law or equity that Executive may otherwise have in connection with any
proceeding arising out of any such charge of discrimination. 

  

	 	(d)	That he will not apply for or seek re-employment with the Company or any affiliate thereof at any time in the future, and acknowledges that the Company shall have no
obligation to consider him for employment at any time in the future. 

  

	 	(e)	To the best of his knowledge and belief, the Executive has already reported to the Company any actions or inactions by the Company or any Related Parties which could
constitute the basis for a claimed violation of any federal, state or local law or regulation. 

 2.1 The Company
hereby acknowledges and agrees that upon Executive’s prior execution of this Agreement the Company shall, following the Effective Date (as defined in Section 3.7): 

 

	 	(a)	Pay Executive, on September 7, 2012 his current base salary earned to the Termination Date along with all earned, but unused vacation time (five (5) days),
subject to all required federal, state and local income and employment taxes and related deductions and withholdings. 

  

	 	(b)	Pay Executive, on the first regular payroll date following the Effective Date, subject to all required federal, state and local income and employment taxes and related
deductions and withholdings, the following amounts: 

 i) Severance pay in a lump sum amount equal to the sum of
one times Executive’s base salary in effect on the Effective Date (total amount of $342,750). 
 ii) Severance pay in a
lump sum amount equal to one times Executive’s annual bonus at the highest rate in effect during the prior three year period ($351,244) plus any annual bonus earned but unpaid as of the Termination Date ($219,105). 

iii) Tax gross-up payment in a lump sum of $608,763 to cover federal, state and local income taxes on (i) and (ii) above and
this clause (iii). 
  

	 	(c)	Reimburse Executive a sum not to exceed $7,500, for Executive’s attorney fees incurred in connection with this Agreement, provided that evidence of such expenses
is provided to the Company. 

  

	 	(d)	 (i) Continue to pay Executive’s car expenses (including lease fees and liability insurance) for the month of September 2012 of $1,818 per month
and reimburse Executive’s maintenance and fuel expenses in arrears for 



  
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September 2012 provided accurate substantiation of those costs are submitted in accordance with past practices. Executive agrees to return the car to the Company no later than September 30,
2012 in good condition (normal wear and tear excepted). 

 (ii) Pay Executive, on the first regular payroll date
following the Effective Date, a lump sum amount of 26,422 as payment in full for the remaining 11 months of car expense, maintenance and fuel reimbursement pursuant to the terms of the Employment Agreement. 

 

	 	(e)	Pay Executive, on the first regular payroll date following the Effective Date, a lump sum amount of $12,500 for outplacement services. 


 

	 	(f)	Pay Executive a tax gross-up payment in an amount equal to 66.67% of the amount of any taxable payments in Sections 2.1(c)-(e) and Section 2.2, simultaneously
with the payment of any such taxable payment. For the avoidance of doubt, the parties agree that the amount of the tax gross-up payments with respect to the payments in Sections 2.1(d), 2.1(e) and 2.2 will be $17,616, $8,334, and $12,603,
respectively. 

 2.2 Executive’s coverage under the Company’s medical, dental, long term and short term
disability, life and any other insurance plans or policies in which Executive participated immediately prior to the Effective Date, as well as any such insurance obtained by Executive and reimbursed by the Company immediately prior to the Effective
Date will cease on the Effective Date, subject to Executive’s right to continue medical and dental coverage pursuant to COBRA. The Company will provide any notices regarding the foregoing as required by law. The Company will pay Executive an
amount equal to twelve (12) months COBRA premiums for medical and dental coverage equal to $15,101 plus an amount equal to twelve (12) months premiums for long-term disability, short-term disability and life insurance coverage commensurate
with that provided to employees of the Company equal to $3,803. Such payment will be made in the first regular payroll date following the Effective Date. 
 2.3 The Company and Executive acknowledge that Executive has a vested right under the Company’s Executive Supplemental Retirement Plan, as amended, and pursuant to the Amendment to the Company’s
Executive Supplemental Retirement Plan between the Executive and the Company effective December 15, 2008 (the “SERP”), that Executive currently is vested in eight (8) years of service under the SERP and that he is entitled to a
Supplemental Vested Pension based upon commencement of the benefit upon his attainment of age 55, pursuant to Sections 4.2 and 4.4 of the SERP. The parties agree that such Supplemental Vested Pension to be paid Executive at age 55 is
$1,666.66 per month payable for a period of 120 months ($200,000 total benefit). 
 2.4 The Company and Executive acknowledge
that nothing herein shall affect the stock options granted to Executive by the Company which are now vested, being a total of 112,067 shares, and that Executive shall have a right to exercise such vested options until January 31, 2013 pursuant
to the terms of the Stock Option Grant Agreements or 

  
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Option Agreements pursuant to which they were granted, subject to any restrictions under law. To the extent that the exercise period set forth in this Section 2.4 is inconsistent with any
Stock Option Grant Agreement or Option Agreement evidencing such vested options, such Stock Option Grant Agreement or Option Agreement is hereby amended to conform with this Section 2.4. The Company agrees to assist Executive in the exercise of
such options and agrees to facilitate Executive’s filing of any Form 4s as necessary with the SEC in the same manner it does for other executives. Executive acknowledges that the filing of the Form 4s is ultimately his responsibility.
Executive further acknowledges (i) that if he is in possession of material non-public information concerning the Company’s business and operations there may exist restrictions under law regarding the manner or ability to exercise any
options and sell the underlying securities and (ii) that compliance with any such restrictions is solely Executive’s responsibility. 
 2.5 The Company and Executive acknowledge that Executive is entitled to payments aggregating $333,000 pursuant to the terms of those certain Performance Based Cash Award Agreements between the Company and
Executive dated as of March 4, 2010, March 3, 2011 and March 2, 2012. 
 2.6 The Company acknowledges that
Executive has certain personal effects, which are his personal possessions and which Executive shall (other than the office furniture and certain other items which shall be professionally moved), have a right to remove from the Company on or before
the Termination Date. Executive and the Company will cooperate in good faith in the review of the Company’s files and documents to determine those items which Executive may retain. Executive’s retention of any such items shall be subject
to his confidentiality and nondisclosure obligations under this Agreement and his ethical duty to maintain client confidences. 

2.7 The Company agrees to provide Executive in advance with sufficient time for review and comment (which shall be deemed to be no less
than 24-hours by e-mail), any press release or filing to be made publicly, or with the SEC or NYSE, which has as its subject the termination of Executive’s relationship with the Company. Company need only provide the portion which deals with
Executive. 
 2.8 The Company releases and forever discharges Executive, his heirs, attorneys, successors and assigns from all
liabilities, claims, causes of action, charges, complaints, obligations, costs, losses, damages, injuries and attorneys’ fees and other legal responsibilities, whether known or unknown, foreseen or unforeseen, anticipated or unanticipated,
suspected or unsuspected, manifest or latent, which the Company now holds, has at any time heretofore owned or held, or may at any time own or hold by reason of any matter or thing arising from any cause whatsoever prior to the Effective Date of
this Agreement. 
 2.9 That (i) the Company has made no assignment and will make no assignment of the claims, demands,
causes of action or other rights released herein; and (ii) it will not institute or legal or administrative proceedings or, absent an order from a court of competent jurisdiction, participate in any manner in any civil lawsuit or administrative
proceeding based upon, arising out of or relating to any claim, demand, cause of action or other right released herein. 

  
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 3.0 Executive shall fully cooperate with the Company in the transition of his duties and
responsibilities by being reasonably available to answer questions and other inquiries by telephone. 
 3.1 Subject to paragraph
2.1(d), Executive covenants and represents that he has returned, or will return before the Effective Date of this Agreement, to the Company all of the Company’s property of any kind in his possession or the possession of his agents including,
without limitation, all keys, credit cards, files, papers, documents, and devices for holding electronic information. Executive further agrees that he will not, without prior written consent of the Company, directly or indirectly, disclose, reveal
or communicate, or cause or allow to be disclosed, revealed or communicated, to any third party any confidential matters, non-public information concerning the Company, proprietary information or trade secrets of the Company or its affiliates.

 3.2 All provisions of this Agreement will be binding on and inure to the benefit of the dependents, successors, heirs,
executors, representatives, administrators and assigns of Executive, the Company and All Related Parties. 
 3.3 With the
exception of the Non-Disclosure Agreement, the SERP, the indemnification rights and Indemnification Agreement, the Performance Based Cash Award Agreements, the vested stock options, the conversion rights to any insurance benefits, the vested rights
in the Company’s profit sharing or other retirement plan, the vested rights in Company’s 401(k) Plan, and the COBRA rights, which all shall remain in full force and effect, this Agreement constitutes the entire agreement among the parties
and supersedes and extinguishes all prior negotiations and agreements among the parties. It is further agreed that, other than the payments and entitlements specifically referenced in this Agreement, all payments due Executive as a result of his
employment or pursuant to the Employment Agreement, whether salary, severance, bonus, commission, stock options, membership interest, stock grant or other payments, have been made and that Executive is due no other payments whatsoever except those
specifically provided for herein. 
 3.4 Executive and the Company further acknowledge and agree: 

 

	 	(a)	 Neither Executive nor the Company (including Related Parties) will make any statement or otherwise communicate, divulge or disseminate any information
regarding the events, discussions or communications relating to or leading up to this Agreement, to any person or entity, other than the information set forth in the Company’s Form 8-K filing regarding Executive’s separation from
employment, the Agreement and any subsequent filings required under the SEC or NYSE rules. Nothing herein shall limit any communication Executive may have with his legal advisor, nor by the Company with its legal advisor and independent registered
audit firm, provided that Executive and Company, as applicable, will 



  
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cause them and the Related Parties to comply with this paragraph 3.4. Further, subject to the limitations in paragraph 3.1 hereof, nothing shall limit Executive’s duty to respond to any
request by the Company’s Board of Directors or a Committee thereof, any attorney representing the Company, or in response to a lawfully issued subpoena from a court or agency of competent jurisdiction, provided that in the event Executive
receives such a subpoena he shall provide notice to the Company within two days of receipt thereof to enable the Company to move to quash, or otherwise limit such subpoena. Further, Executive agrees not to oppose any action by the Company in
connection with any such subpoena. 

  

	 	(b)	Executive and the Company agree they will not make any disparaging remarks about the other. Disparagement for purposes of this Agreement means to engage in any act or
omission that would in either case subject the Executive or Company to public disrespect, scandal or ridicule or have a material adverse effect on its business, results of operation or financial condition, reputation or standing in the community.


  

	 	(c)	For purposes of paragraphs 3.1 and 3.4, Executive and the Company acknowledge that the term “Company” includes the Company and All Related Parties as defined
in paragraph 1.1(b) hereof. 

  

	 	(d)	Executive retains any and all rights he may have as a shareholder of the Company under Ohio law, the Company’s Articles of Incorporation or Code of Regulations
except to the extent any such right is expressly waived, released, prohibited or otherwise restricted by this Agreement. 

 3.5 Executive and the Company acknowledge that they understand the terms of this Agreement, that they have had the opportunity to review it with legal counsel of their own choosing and that they are
relying solely on the contents of this Agreement and are not relying on any other representation whatsoever as an inducement to enter into this Agreement. 
 3.6 This Agreement will be construed and enforced in accordance with the laws of the State of Ohio. This Agreement may not be varied, altered, modified, canceled, changed or in any way amended except by
written agreement of the parties. However, by signing this Agreement, Executive agrees, without any further consideration, to consent to any amendment necessary to avoid penalties or excise taxes under code § 409A. The Company shall have
no affirmative obligation to amend (or propose an amendment to) this Agreement to the extent necessary to avoid any such penalties or interest, except that it agrees to consent to any such amendment proposed by Executive to the extent such amendment
would not materially increase the Company’s obligations hereunder. 
 3.7 Executive acknowledges that he is aware of his
right to revoke this Agreement at any time within the seven (7) day period following the date this Agreement is signed by him and that, unless so revoked by written notice to the Company, this Agreement will become effective and enforceable
upon the expiration of the seven (7) day revocation 

  
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period (“Effective Date”). Executive further acknowledges that the payments to him specified in this Agreement will be paid only after the expiration of such seven (7) day
revocation period. 
 3.8 Company and Executive further acknowledge that (a) they have read this Agreement, (b) the
Company has offered Executive a period of 21 days to consider whether to enter into it and has either considered this Agreement and its terms for that period of time or has knowingly and voluntarily waived his right to do so, (c) they have been
advised in writing to consult with an attorney prior to signing, (d) they are each signing it voluntarily with full knowledge that it is intended, to the maximum extent permitted by law, as a complete release and waiver of all claims, and
without any coercion, undue influence, threat or intimidation of any kind or type whatsoever, and (e) nothing herein constitutes any admission of liability or wrongdoing on the part of the Executive or the Company. Company represents that it
has the full authority to enter into this Agreement and that the terms and conditions are fully binding upon it. 
 3.9. NOTICES.
For purposes of this Agreement, 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: 

 

			
	(a)	  	If the notice is to the Company:
		
		  	 Myers Industries, Inc.
 1293
South Main Street
 Akron, OH 44301

Attn: Chief Executive Officer

		
		  	With a Copy to:
		
		  	 Benesch, Friedlander, Coplan & Aronoff, LLP
 200 Public Square, Suite #2300
 Cleveland, OH 44114-2378

Attn: Megan L. Mehalko, Esq.

		
	(b)	  	If the notice is to the Executive:
		
		  	 Mr. Donald A. Merril
 4513
Bridle Trail
 Akron, OH 44333

		
		  	With a Copy to:
		
		  	 Brennan, Manna & Diamond

75 East Market Street
 Akron, OH 44308

Attn: John N. Childs, Esq.


 or to such other address as either party hereto may have furnished to the other in writing and in
accordance herewith; except that notices of change of address shall be effective only upon receipt. 

  
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 IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of each of the parties
hereto as of the date first written above. 
  

			
	Donald A. Merril
	
	 /s/ Donald A. Merril

	
	Myers Industries, Inc.
		
	By:	 	 /s/ John C. Orr

		
	Its:	 	 President




  
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