EX-10.1






Exhibit 10.1




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




BETWEEN




MYERS INDUSTRIES, INC.




AND




JOHN C. ORR




Amendment and Restatement Effective Date: June 1, 2008




 









 





Table of Contents




	 	 	 	 	 
	 
	 	 	 	Page	 
	DEFINITIONS
	 	 	1	 	 
	 
	AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT
	 	 	5	 
	 
	EMPLOYMENT TERM.
	 	 	5	 
	 
	POSITION, DUTIES, AND RESPONSIBILITIES
	 	 	6	 
	 
	SALARY, BONUS AND BENEFITS
	 	 	7	 
	 
	TERMINATION OF EMPLOYMENT
	 	 	13	 
	 
	SEVERANCE COMPENSATION
	 	 	13	 
	 
	CHANGE IN CONTROL AND CERTAIN GROSS UP PAYMENTS
	 	 	17	 
	 
	SEVERANCE PLAN
	 	 	20	 
	 
	PLAN AMENDMENTS
	 	 	21	 
	 
	CONFIDENTIAL INFORMATION
	 	 	21	 
	 
	NON-COMPETITION
	 	 	21	 
	 
	ARBITRATION
	 	 	21	 
	 
	NOTICES
	 	 	22	 
	 
	ASSIGNMENT; BINDING EFFECT
	 	 	23	 
	 
	INVALID PROVISIONS
	 	 	24	 
	 
	ALTERNATIVE SATISFACTION OF COMPANY’S OBLIGATIONS
	 	 	24	 
	 
	ENTIRE AGREEMENT, MODIFICATION
	 	 	24	 
	 
	NON-EXCLUSIVITY OF RIGHTS
	 	 	24	 
	 
	WAIVER OF BREACH
	 	 	25	 
	 
	GOVERNING LAW
	 	 	25	 
	 
	TAX WITHHOLDING
	 	 	25	 
	 
	EXPENSES OF ENFORCEMENT
	 	 	25	 
	 
	REPRESENTATION
	 	 	25	 
	 






 









 






	 	 	 	 	 
	 	 	 	Page	 
	SUBSIDIARIES AND AFFILIATES
	 	 	25	 
	 
	NO MITIGATION OR OFFSET
	 	 	25	 
	 
	SOLE REMEDY
	 	 	26	 






(ii)




 









 








AMENDED AND RESTATED EMPLOYMENT AGREEMENT




     THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into as of the
20th day of
June, 2008, by and between MYERS INDUSTRIES, INC., an Ohio corporation (the “Company”), and
JOHN C. ORR (the “Executive”).



W I T N E S S E T H:




     WHEREAS, the Company and the Executive (collectively “the Parties”) desire to enter into this
Amended and Restated Employment Agreement (the “Agreement”) as hereinafter set forth;



     NOW, THEREFORE, the Company and the Executive agree as follows:



     1. DEFINITIONS. For purposes of this Agreement, the following terms shall have the
meanings set forth in this Section 1 when used in this Agreement. Certain other terms are defined
in the body of this Agreement.




	 	(a)	 	Agreement. The term “Agreement” shall mean this
Amended and Restated Employment Agreement, as it may be amended from time to
time.
	 
	 	(b)	 	Annual Bonus. The term “Annual Bonus” shall mean the
bonus paid to executives or other employees of the Company pursuant to a formal
or informal bonus plan or individual annual bonus arrangement.
	 
	 	(c)	 	Base Salary. The term “Base Salary” shall mean the
salary provided for in Section 5 or any increased salary granted to the
Executive in accordance with Section 5.
	 
	 	(d)	 	Board. The term “Board” shall mean the Board of
Directors of the Company.
	 
	 	(e)	 	Cause. The term “Cause” shall mean:






	 	(i)	 	commission by the Executive (evidenced by a
conviction or written, voluntary and freely given confession) of a
criminal act constituting a felony involving fraud or moral turpitude;
	 
	 	(ii)	 	commission by the Executive of a material breach or
material default of any of the Executive’s agreements or obligations
under any provision of this Agreement, including, without limitation, the
Executive’s agreements and obligations under Subsections 4(a) through
4(e), Section 11 or Section 12 of this Agreement, which is




 









 












	 	 	 	not substantially cured in all material respects within thirty (30)
days after the Board gives written notice thereof to the Executive;
or
	 
	 	(iii)	 	commission by the Executive, when carrying out
the Executive’s duties under this Agreement, 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 operations, properties
or business relationships.






	 	(f)	 	Change in Control. The term “Change in Control” shall
mean 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 Securities Exchange Act of 1934, as amended, as in effect
on the date of this Agreement (the “Exchange Act”), whether or not the Company
is then subject to such reporting requirement; provided that, without
limitation, a Change in Control shall be deemed to have occurred if:






	 	(i)	 	any “person” (as defined in Sections 13(d) and
14(d) of the Exchange Act), other than Stephen E. Myers or Mary Myers,
becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing twenty percent (20%) 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;
	 
	 	(ii)	 	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
	 
	 	(iii)	 	there occurs (A) a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation 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 eighty percent (80%) of
the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (B) the approval by the stockholders of the Company
of a plan of complete liquidation of the Company, or (C) the sale or
disposition by the Company of more than fifty





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	 	 	 	percent (50%) of the Company’s assets. For purposes of this
Subsection 1(f)(iii), 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.
	 
	 	(iv)	 	For purposes of this Agreement, a “Change in
Control” will be deemed to occur:






	 	(A)	 	on the day on which a twenty
percent (20%) or greater ownership interest described in
Subsection 1(f)(i) is acquired, provided that a subsequent
increase in such ownership interest after it first equals or
exceeds twenty percent (20%) shall not be deemed a separate
Change in Control;
	 
	 	(B)	 	on the day on which “Continuing
Directors,” as hereinafter defined, cease to be a majority of
the Board as described in Subsection 1(f)(ii);
	 
	 	(C)	 	on the day of a merger,
consolidation or sale of assets as described in
Subsection 1(f)(iii); or
	 
	 	(D)	 	on the day of the approval of a
plan of complete liquidation as described in
Subsection 1(f)(iii).






	 	(v)	 	For purposes of this Subsection 1(f), 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 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.






	 	(g)	 	Company. The term “Company” shall mean Myers
Industries, Inc., an Ohio corporation, and its successors and assigns to the
extent permitted under this Agreement.




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	 	(h)	 	Compensation Committee. The term “Compensation
Committee” shall mean the Compensation Committee of the Board or its successor.
	 
	 	(i)	 	Director. The term “Director” shall mean a member of
the Board.
	 
	 	(j)	 	Disability. The term “Disability” shall mean a
physical or mental incapacity that prevents the Executive from performing his
duties hereunder for a period of one hundred eighty (180) consecutive days in
any period of two consecutive fiscal years of the Company.
	 
	 	(k)	 	Effective Date. The term “Effective Date” shall mean
the effective date of this amended and restated Agreement, which shall be
June 1, 2008.
	 
	 	(l)	 	Employment Term. The term “Employment Term” shall have
the meaning set forth in Subsection 3(b) of this Agreement.
	 
	 	(m)	 	Good Reason. The term “Good Reason” shall mean the
occurrence of one or more of the following conditions arising without the
consent of the Executive:






	 	(i)	 	a material diminution in the Executive’s annual
Base Salary;
	 
	 	(ii)	 	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 Executive which, in
the aggregate is material;
	 
	 	(iii)	 	a material diminution in the Executive’s
authority, duties or responsibilities;
	 
	 	(iv)	 	a requirement that the Executive report to
anyone other than the Board of Directors of the Company;
	 
	 	(v)	 	a material change in the geographic location at
which the Executive must perform his duties;
	 
	 	(vi)	 	any other action or inaction that constitutes a
material breach by the Company of this Agreement or any other
agreements under which the Executive provides services to the Company
(specifically including a failure of the purchaser in a Change in
Control transaction, to assume this Agreement in accordance with
Section 15 hereof).






	 	 	 	In order for a condition to constitute a Good Reason, the Executive must
provide written notification to the Company of the existence of the
condition within forty-five (45) days of the initial existence of the





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	 	 	 	condition (or within forty-five (45) days following the Executive 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 Executive must
voluntarily terminate employment with the Company within one hundred eighty
(180) days following the initial existence of the condition (or within one
hundred eighty (180) days following the Executive actually becoming aware of
such condition, if later), but in no event later than February 13 of the
year following the date of the initial existence of the condition or, if
later, the date the Executive becomes aware of the condition. The parties
agree that “Good Reason” will not be deemed to have occurred merely because
the Company becomes a subsidiary or division of another entity following a
“Change in Control,” as defined herein, provided the Executive continues to
serve as the Chief Executive Officer of such subsidiary or division and such
subsidiary or division is comparable in size to the organization consisting
of the Company and its subsidiaries prior to the Change in Control.
	 
	 	(n)	 	Parties. The term “Parties” shall mean the Company and
the Executive.
	 
	 	(o)	 	Retirement. The term “Retirement” shall have the
definition ascribed to such term in the Company’s Executive Supplemental
Retirement Plan as in effect on the Effective Date.
	 
	 	(p)	 	Severance Benefit Plan. The term “Severance Benefit
Plan” shall mean any plan, policy or arrangement providing severance benefits
for executive officers (and any other employees) of the Company.





     2. AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT. This Agreement amends and restates
that certain employment agreement between the Parties which was effective May 1, 2005 (the “2005
Agreement”) and shall be deemed effective as of 12:00 a.m. on the Effective Date. The 2005
Agreement replaced and superseded that certain Change In Control Agreement between the Parties
dated as of February 14, 2003, effective as of 12:00 a.m. on May 1, 2005. Amendment and
restatement of the prior employment agreement does not revoke any right that either party to such
agreement had with respect to periods prior to the Effective Date. This Agreement shall not
supersede and shall have no effect on that certain Indemnification Agreement between the Parties
dated as of February 14, 2003 or that certain Non-Competition and Non-Disclosure Agreement between
the Parties dated as of July 18, 2000 which agreements shall remain in effect until they shall
expire in accordance with its and their terms.



     3. EMPLOYMENT TERM.




	 	(a)	 	During the Employment Term, the Company shall employ the
Executive, and the Executive shall serve the Company, as its highest ranking
executive officer, which as of the Effective Date is President and Chief





5









 











	 	 	 	Executive Officer, based on the terms and subject to the conditions set
forth herein.
	 
	 	(b)	 	The Employment Term shall commence on the Effective Date and
shall end on the date immediately preceding the third (3rd) anniversary of the
Effective Date, provided that the Employment Term may terminate prior to such
third (3rd) anniversary as provided in Section 6 hereof; and provided further
that the Company may elect to renew the Employment Term for one additional
three-year period by giving written notice thereof to the Executive at least
ninety (90) days prior to the third (3rd anniversary of the
Effective Date. If the Company does not elect to renew the Employment Term for
such additional three-year period, then the Executive’s employment shall
terminate on the date immediately preceding the third (3rd)
anniversary of the Effective Date, and such termination of employment shall be
treated as an involuntary termination without Cause. If the Company elects to
renew the Employment Term for such additional three-year period, then the
expiration of the Employment Term at the end of such additional three-year
period shall not be treated as an involuntary termination without Cause.





     4. POSITION, DUTIES, AND RESPONSIBILITIES. At all times during the Employment Term,
the Executive shall:




	 	(a)	 	Hold the position of the Company’s highest ranking executive
officer reporting to the Board, which position, at the time of this Agreement,
is its President and Chief Executive Officer;
	 
	 	(b)	 	Have those duties and responsibilities, and the authority,
customarily possessed by the highest ranking executive officer of a major
corporation and such additional duties as may be assigned to the Executive from
time to time by the Board which are consistent with the position of President
and Chief Executive Officer of a major corporation;
	 
	 	(c)	 	Continue as a Director immediately upon the execution of this
Agreement, and for so long as the Executive shall serve as the highest ranking
executive officer of the Company, he shall be nominated by the Corporate
Governance and Nominating Committee (or its successor) and the Board for
re-election as a Director at such time as nominees are being proposed for
election at the annual meeting of shareholders of the Company as long as such
nomination does not impair the proper exercise of the applicable fiduciary
duties by such Committee or the Board;
	 
	 	(d)	 	Adhere to such reasonable written policies and such reasonable
unwritten policies and directives as are of common knowledge to executive
officers
of the Company, as may be promulgated from time to time by the Board and
which are applicable to executive officers of the Company; and




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	 	(e)	 	Devote the Executive’s entire business time, energy, and talent
(subject to vacation time in accordance with the Company’s policy applicable to
executive officers, illness or injury) to the business, and to the furtherance
of the purposes and objectives, of the Company, and neither directly nor
indirectly act as an executive of or render any business, commercial, or
professional services to any other person, firm or organization for
compensation, without the prior written approval of the Board.





     Nothing in this Agreement shall preclude the Executive from devoting reasonable periods of
time to charitable and community activities or the management of the Executive’s investment assets,
provided such activities do not unreasonably interfere with the performance by the Executive of the
Executive’s duties hereunder. Furthermore, service by the Executive on the boards of directors of
up to two (2) noncompeting companies (in addition to affiliates of the Company) shall not be deemed
to be a violation of this Agreement, provided such service does not unreasonably interfere with the
performance of the Executive’s duties hereunder.



     5. SALARY, BONUS AND BENEFITS. For services rendered by the Executive on behalf of
the Company during the Employment Term, the following salary, bonus and benefits shall be provided
to the Executive by the Company:




	 	(a)	 	The Company shall pay to the Executive, in equal installments,
according to the Company’s then current practice for paying its executive
officers in effect from time to time during the Employment Term, an annual Base
Salary at the initial rate of Seven Hundred Twenty-Five Thousand Dollars
($725,000.00). This salary shall be subject to annual review by the
Compensation Committee in January of each year commencing in January 2009 for
the year then commencing and may be increased, but not decreased, to the
extent, if any, that the Compensation Committee may determine.
	 
	 	(b)	 	The Executive shall have an Annual Bonus opportunity for each
year of the Employment Term as follows:






	 	(i)	 	for 2008, the Annual Bonus opportunity shall be
provided pursuant to the terms of the annual bonus plan in which the
Executive is participating on the Effective Date; and
	 
	 	(ii)	 	for periods thereafter, the Parties agree that
the Executive and the Compensation Committee shall establish the
metrics for the determination of the Annual Bonus to be paid to the
Executive, but with a target Annual Bonus opportunity for each year
which is not less than one hundred percent (100%) of the Executive’s
Base Salary for such year.






	 	 	 	Such Annual Bonus shall be paid at such time as Annual Bonuses are paid to
executive officers of the Company as determined by the Compensation




7









 












	 	 	 	Committee, but in no event later than March 15 of the year following the
year with respect to which such Annual Bonus relates. If any portion of an
Annual Bonus shall be payable in a year after the year in which it is
earned, and in the event the Executive’s employment is terminated prior to
payment of the full Annual Bonus amount to which he is entitled for any
prior year, any remaining payments shall be made within thirty (30) days of
his termination date (subject to the requirement that in no event shall the
Annual Bonus be paid later than March 15 of such subsequent year).
	 
	 	(c)	 	The Executive shall be eligible for participation in such other
benefit plans, including, but not limited to, the Company’s profit sharing
plan, Executive Supplemental Retirement Plan, short-term and long term
disability plans, group term life insurance plan, medical plan or PPO, dental
plan, and the Amended and Restated 1999 Incentive Stock Plan (the “1999 Plan”),
as the Company may adopt from time to time and in which the Company’s executive
officers, or employees in general, are eligible to participate. This
Subsection 5(c) shall not be deemed to prevent participation in any special
plan or arrangement providing special benefits to the Executive which are not
available to other employees. Such participation shall be subject to the terms
and conditions set forth in the applicable plan documents. As is more fully
set forth in Section 9 hereof, the Executive shall not be entitled to
duplicative payments under this Agreement and any Severance Benefit Plan.
	 
	 	(d)	 	Without limiting the generality of Subsection 5(c) above, with
respect to life insurance, the Executive shall:






	 	(i)	 	be provided with coverage at the Company’s
expense under a life insurance policy or policies, which such policy or
policies provide a death benefit of not less than one (1) times annual
Base Salary; and
	 
	 	(ii)	 	cease to be provided with coverage at the
Company’s expense under the following existing life insurance policies
 — First Colony Life Insurance Company Term Life Policy Number 5,678,193
with a date of issue of September 21, 2000 and a face amount of
$1,000,000.00 and John Hancock Variable Life Insurance Company Term
Life Policy Number 75 075 238 with a date of issue of October 28, 2000
and a face amount of $325,000.00.






	 	(e)	 	Without limiting the generality of Subsection 5(c) above, the
Executive shall be entitled to an automobile of the Executive’s choice and
reimbursement for all expenses in connection therewith, including, but not
limited to, the cost of acquisition, maintenance, fuel and liability
insurance, provided that the Executive must actually perform services in any
year in order to receive such reimbursements and must submit all




8









 












	 	 	 	reimbursement requests promptly so that all reimbursements will be made by
March 15 of the year following the year to which such reimbursement relates.
	 
	 	(f)	 	The Executive shall be entitled to take, during each calendar
year commencing on or after January 1, 2008, vacation time equal to not fewer
than four (4) weeks.
	 
	 	(g)	 	Without limiting the generality of Subsection 5(c) above, the
Executive shall:






	 	(i)	 	cease as of the Effective Date to be provided
with coverage under the following existing long term disability
insurance policy – Northwestern Mutual Life Insurance Company Policy
Number L660631 with a policy effective date of January 1, 2006; and
	 
	 	(ii)	 	be provided with long term disability insurance
coverage at the Company’s expense in an amount that provides for the
replacement in the event of disability of at least sixty percent (60%)
of the Executive’s annual Base Salary with such benefit payable for a
period to expire not earlier than the later of the Executive’s
attainment of age sixty-five (65) or two (2) years following onset of
the disability (subject to the Executive’s earlier death or recovery).






	 	 	 	To the extent reasonably possible, such disability benefits shall be
provided under this Subsection 5(g) in such a manner that long term
disability benefits payable to the Executive due to his disability will be
exempt from federal income tax.
	 
	 	(h)	 	The Company shall pay the reasonable legal fees incurred by the
Executive in connection with negotiation of this Agreement and the maintenance,
review and renegotiation thereof.
	 
	 	(i)	 	Notwithstanding any contrary provision of this Agreement, the
Executive will at all times be entitled to benefits which are at least as
favorable to the Executive and his family as are provided to any other
executive of the Company or the family thereof, with the exception of Mary
Myers and Stephen E. Myers.
	 
	 	(j)	 	Each year during the Employment Term, at the customary time for
granting stock options (i.e., each September commencing with September 2008),
the Executive will be granted the option to purchase shares of the Company’s
common stock. The value of each such annual grant during
the Employment Term shall be not less than One Million Dollars
($1,000,000.00) determined on the basis of a Black-Scholes valuation or




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	 	 	 	other measure utilized by the Compensation Committee which measure is in
general use at the time of such grant by public companies in the United
States of America for such purpose. The terms of such options shall be as
set forth in option agreements evidencing such grants, which option
agreements will contain the following provisions:






	 	(i)	 	a ten (10) year term, subject to early
termination as provided in Subsection 5(j)(iii) below and, subject to
Subsection 8(a)(ii), in connection with a Change in Control, with an
exercise price equal to the fair market value of the Company’s common
stock on the date of grant;
	 
	 	(ii)	 	becoming exercisable (i.e., vesting) ratably in
three (3) equal annual installments over a three (3) year period
following the date of grant (i.e., one-third (1/3) annually), provided
that the Executive is employed by the Company on the applicable vesting
date; provided further that all of such options shall become
exercisable in full in the event of the termination of the Executive’s
employment by reason of his death or Disability, by the Company not for
Cause or by the Executive for Good Reason and;
	 
	 	(iii)	 	notwithstanding (i) above, the options will
automatically terminate, to the extent not exercised, as follows:
	 
	 		 	(A) immediately upon involuntary termination for Cause;
	 
	 		 	(B) six (6) months following a voluntary termination without Good
Reason (provided, however, such six (6) month period
will not extend the ten (10) year term of the option); or
	 
	 		 	(C) twelve (12) months following such termination of employment for
any reason other than an involuntary termination for Cause or a
voluntary termination without Good Reason (provided, however, such
twelve (12) month period will not extend the ten (10) year term of
the option).






	 	 	 	The parties acknowledge that the Company does not have sufficient shares of
Company common stock available under the 1999 Plan to satisfy the
requirement of this Subsection 5(j). In order to satisfy the requirement of
this Subsection 5(j), the Company will adopt a new equity incentive plan by
September 2008 (the “2008 Plan”), shall submit the 2008 Plan to its
stockholders at the first annual meeting of stockholders following adoption
of the 2008 Plan with a recommendation that the 2008 Plan be approved, and
grant the options described under Subsection 5(j) under the 2008 Plan
conditioned upon stockholder approval of the 2008 Plan. The
Company acknowledges that the effective grant of such options each year in
accordance with this Subsection 5(j) is a material term of the




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	 	 	 	Agreement and that failure of the Company to provide such options on a effective basis,
whether due to any action or inaction of the Company or the failure of the
stockholders to approve the 2008 Plan (or any successor plan) or otherwise
will constitute a material breach of this Agreement for purposes of this
Agreement in general and the definition of “Good Reason” in particular.
	 
	 	(k)	 	The Executive shall be entitled to receive a supplemental
retirement benefit in the amount of Two Hundred Seventy-Five Thousand Dollars
($275,000.00) per annum for a period of ten (10) years, commencing the first
day of the month following the later of his Retirement or his attainment of age
sixty-five (65). This benefit shall be provided under the Company’s Executive
Supplemental Retirement Plan or otherwise as the Parties shall agree. In the
event that the Executive shall die after such benefits begin but before all ten
(10) years of payments shall have been received, the Executive’s spouse or
other beneficiaries shall be entitled to the remainder of such payments. In
the event that the Executive’s termination of employment shall be due to his
death or Retirement, the payments shall be made pursuant to the Company’s
Amendment to the Myers Industries, Inc. Executive Supplemental Retirement Plan
for the Executive, dated of even date herewith.
	 
	 	(l)	 	The Executive shall be provided, at the Company’s expense, with
director’s and officer’s liability insurance coverage with respect to claims
against the Executive arising in connection with his activities performed on
behalf of or in connection with his service as an officer or Director of the
Company or any affiliate. Such coverage shall continue thereafter for so long
as the Company maintains such coverage for its directors and officers serving
during the Employment Term.
	 
	 	(m)	 	Upon the date of execution of this Agreement, the Executive
shall be granted a special option to purchase shares of the Company’s common
stock. The value of such special grant shall be not less than Seven Hundred
and Fifty Thousand Dollars ($750,000.00) determined on the basis of a
Black-Scholes valuation or other measure utilized by the Compensation Committee
which measure is in general use at the time of such grant by public companies
in the United States of America for such purpose and issued pursuant to the
1999 Plan. The terms of the special option shall be as set forth in the 1999
Plan and in the option agreements evidencing such grant, which terms shall
contain the following provisions:






	 	(i)	 	a ten (10) year term, subject to earlier
termination as provided in Subsection 5(m)(iii) below and, subject to
Subsection 8(a)(ii), in connection with a Change in Control, with an
exercise price equal
to the fair market value of the Company’s common stock on the date of
grant (the “Exercise Price”);





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	 	(ii)	 	becoming exercisable on a performance basis as
follows:






	 	(A)	 	one-third (1/3) shall become
exercisable each anniversary of the grant date if the per share
value of the Company’s common stock equals or exceeds: (x) one
hundred and ten percent (110%) of the Exercise Price in the case
of the first anniversary of the grant date; (y) one hundred and
twenty one percent (121%) of the Exercise Price in the case of
the second anniversary of the grant date; and (z) one hundred
and thirty three percent (133%) of the Exercise Price in the
case of the third anniversary of the grant date;
	 
	 	(B)	 	if the requirements of the
foregoing Subsection 5(m)(ii)(A) are not satisfied for any or
all of such three (3) years, but if the per share value of the
Company’s common stock is at least one hundred and thirty
percent (130%) of the Exercise Price on the third
(3rd) anniversary of the grant date, all said options
shall become exercisable to the extent they are not already
exercisable; and
	 
	 	(C)	 	all of such options shall become
exercisable in the event of the Executive’s death, Disability,
involuntary termination of employment not for Cause or voluntary
termination of employment for Good Reason on or before the third
(3rd) anniversary of the grant date or in the event
of a Change in Control on or before the third (3rd)
anniversary of the grant date; and
	 
	 	(D)	 	if any portion of the options
have not become exercisable by the third (3rd)
anniversary of the grant date, or, if earlier, upon the
Executive’s involuntary termination of employment for Cause or
voluntary termination of employment without Good Reason, such
options shall be automatically forfeited as of such date;






	 	(iii)	 	notwithstanding Subsection 5(m)(i) above, the
options will automatically terminate, to the extent not exercised, as
follows:
	 
	 		 	(A) immediately upon involuntary termination for Cause;
	 
	 		 	(B) six (6) months following a voluntary termination without Good
Reason (provided, however, such six (6) month period will not extend
the ten (10) year term of the option); or
	 
	 		 	(C) twelve (12) months following such termination of employment for
any reason other than an involuntary termination for Cause or a
voluntary termination without Good Reason (provided, however,




12









 












	 	 	 	such twelve (12) month period will not extend the ten (10) year term of
the option).





     6. TERMINATION OF EMPLOYMENT. As indicated in Subsection 3(b), the Employment Term
may terminate prior to the date specified therein as follows:




	 	(a)	 	The Executive’s employment hereunder will terminate without
further notice upon the death of the Executive.
	 
	 	(b)	 	The Company may terminate the Executive’s employment hereunder
upon the Executive’s Disability, if the Executive is prevented from performing
his duties hereunder by reason of physical or mental incapacity for a period of
one hundred eighty (180) consecutive days in any period of two consecutive
fiscal years of the Company, but in any such event the Executive shall be
entitled to full compensation and benefits under this Agreement until the close
of such one hundred and eighty (180) day period.
	 
	 	(c)	 	The Executive may terminate his employment due to his
Retirement.
	 
	 	(d)	 	The Company may terminate the Executive’s employment hereunder
effective immediately upon giving written notice of such termination for
“Cause.”
	 
	 	(e)	 	The Company may terminate the Executive’s employment hereunder
without Cause at any time upon thirty (30) days written notice.
	 
	 	(f)	 	The Executive may terminate his employment hereunder effective
immediately upon giving written notice of such termination for “Good Reason.”
	 
	 	(g)	 	The Executive may terminate his employment hereunder without
Good Reason at any time upon thirty (30) days written notice.





     7. SEVERANCE COMPENSATION. If the Executive’s employment terminates, the following
severance provisions will apply:




	 	(a)	 	If the Executive’s employment is terminated by the Company
other than for Cause or is terminated by the Executive for Good Reason, then
the Company shall:






	 	(i)	 	pay to the Executive within thirty (30) days
following his termination of employment a single sum payment equal to
three (3) times his annual Base Salary in effect on the date of such
termination of employment (or if such annual Base Salary has decreased
during the one year period ending on the date of the




13









 












	 	 	 	Executive’s termination of employment, at the highest rate in effect during such
period);
	 
	 	(ii)	 	pay to the Executive within thirty (30) days
following his termination of employment a single sum payment in an
amount equal to the sum of (A) three (3) times his Annual Bonus at the
highest rate in effect during the prior three (3) year period, plus (B)
the pro rata portion of the target Annual Bonus (assuming 100% of
target) that is applicable to the period commencing on the first day of
the fiscal year in which the employment of the Executive is terminated
and ending on the date of such termination;
	 
	 	(iii)	 	provide the following benefits and cash
payments:






	 	(A)	 	for the applicable period under
Code Section 4980B (the “COBRA Period) following the Executive’s
termination of employment, coverage under the Company’s group
medical and dental plans (the “Health Care Plans”) all at the
levels being provided to the Executive immediately prior to the
Executive’s termination of employment, or if any of such
benefits have decreased during the one year period ending on the
Executive’s termination of employment, at the highest level in
effect during such one year period;
	 
	 	(B)	 	for a period of thirty-six (36)
months, beginning with the month following the month of the
Executive’s termination of employment (the “Payment Term”),
provide an automobile allowance not to exceed one hundred ten
percent (110%) of the automobile allowance paid to the Executive
in the calendar year preceding the year of his termination of
employment for the purpose of paying expenses related to the
cost of acquisition, maintenance, fuel and liability insurance
associated with the Executive’s automobile (the “Automobile
Allowance”). The Automobile Allowance provided to the Executive
during any calendar year during the Payment Term will not affect
the Automobile Allowance payable to him in any other calendar
year. The Executive’s right to receive the Automobile Allowance
is not subject to liquidation or exchange for any other benefit,
whether under this Agreement or otherwise;
	 
	 	(C)	 	For the Payment Term, provide
long term disability coverage, including long term disability
protection under policies obtained by the Executive, as provided
for in a policy or Subsection 5(g)(ii) of this Agreement (the




14









 












	 	 	 	“Disability Coverage”). The Disability Coverage provided to the
Executive during any calendar year during the Payment Term will
not affect the Disability Coverage provided to him in any other
calendar year. The Executive’s right to receive the Disability
Coverage is not subject to liquidation or exchange for any other
benefit, whether under this Agreement or otherwise;
	 
	 	(D)	 	For the Payment Term, provide
life insurance protection as provided for in Subsection 5(d)(i)
(the “Life Insurance Coverage”). The Life Insurance Coverage
provided to the Executive during any calendar year during the
Payment Term will not affect the Life Insurance Coverage
provided to him in any other calendar year. The Executive’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; and
	 
	 	(E)	 	For a period of time commencing
with the last day of the COBRA Period and ending on the last day
of the Payment Term, provide coverage under the Health Care
Plans (the “Health Care Coverage”). The Health Care Coverage
provided to the Executive during any calendar year during the
Payment Term will not affect the Health Care Coverage provided
to him in any other calendar year. The Executive’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.






	 	(iv)	 	for the one year period commencing on the date
of his termination of employment, pay for executive outplacement
services for the Executive from a nationally recognized executive
outplacement firm at the level provided for the most senior executives.






	 	(b)	 	If the Executive’s employment with the Company is terminated
by reason of the Executive’s death or Disability during the Employment Term,
the Executive or his surviving spouse shall be entitled to receive (i) the Base
Salary and Annual Bonus accrued and unpaid to the date of death or Disability,
(ii) any amounts payable under any employee benefit plan of the Company in
accordance with the terms of such plan, and (iii) if the
Executive and/or his 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




15









 












	 	 	 	4980B(f) or (B) thirty-six
(36) months, provided, however, that such Medical Coverage provided to the
Executive in any calendar year during such period will not affect the
Medical Coverage provided to him in any other calendar year and the
Executive’s right to receive the Medical Coverage is not subject to
liquidation or exchange for any other benefit, whether under this Agreement
or otherwise.
	 
	 	(c)	 	If the Executive’s employment hereunder is terminated:






	 	(i)	 	by reason of the Executive’s death or
Disability; or
	 
	 	(ii)	 	is terminated by the Company other than for
Cause or is terminated by the Executive for Good Reason;






	 	 	 	The Executive will become fully vested in all outstanding stock options,
restricted stock, restricted stock units or similar awards and any such
award shall be then and thereafter fully exercisable until the termination
of such options pursuant to their terms. The Company agrees to amend the
terms of any options granted to the Executive prior to the date of this
Agreement to extend the period during which such options may be exercised
following a termination of employment by the Company without Cause, by the
Executive for Good Reason or by reason of the Executive’s death or
disability to twelve (12) months following the termination date (but not
beyond the expiration date of such options) or by the Executive other that
for Good Reason to six (6) months following the termination date (but not
beyond the expiration date of such options).
	 
	 	(d)	 	If the Executive’s employment hereunder is terminated by the
Company for Cause or terminated by the Executive other than for Good Reason,
then no further compensation or benefits will be provided to the Executive by
the Company under this Agreement following the date of such termination of
employment other than payment of compensation earned to the date of termination
of employment but not yet paid. As more fully and generally provided in
Section 19 hereof, this Subsection 7(d) shall not be interpreted to deny the
Executive any benefits to which he may be entitled under any plan or
arrangement of the Company applicable to the Executive.
	 
	 	(e)	 	Notwithstanding anything contained in this Agreement to the
contrary, other than Section 19 hereof, if the Executive breaches any of the
Executive’s obligations under Section 11 or 12 hereof, and such breach is not
substantially cured in all material respects within thirty (30) days after
the Board gives written notice thereof to the Executive, no further
severance payments or other benefits will be payable to the Executive under
this Section 7.




16









 












	 	8.	 	CHANGE IN CONTROL AND CERTAIN GROSS UP PAYMENTS.






	 	(a)	 	In General. In the event of a Change in Control, the
Executive shall have certain special protections so that he may more fully
focus on the issues related to such a Change in Control, and to reward the
Executive for the substantial additional effort involved in a Change in
Control. The protections and rights are set forth in this Section 8.






	 	(i)	 	In the event of a Change in Control, the
Executive may terminate his employment with the Company at any time
prior to February 13 of the year following the Change in Control and it
will be considered a termination for Good Reason under this Agreement.
	 
	 	(ii)	 	In the event of a Change in Control, the
Executive will become fully vested in all outstanding stock options,
restricted stock, restricted stock units or similar awards, but only to
the extent not previously forfeited or terminated. The option grants
for any options granted pursuant to this Agreement will provide, and
the option grants evidencing any option grants made prior to the
Effective Date shall be amended to provide, that the options evidenced
thereunder shall not terminate prior to the later of the date of the
Change in Control or thirty (30) days after the Executive is given
notice of the Change in Control (provided that this will not extend the
original term of the options).
	 
	 	(iii)	 	In the event of a Change in Control, the
Executive will have available the expenses of enforcement provided in
Section 23 hereof.






	 	(b)	 	Section 280G Protection. The Executive shall be
entitled to a cash payment (the “Excise Tax Gross-Up Payment”) equal to the
amount of excise taxes which the Executive is required to pay pursuant to
Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as
a result of any “parachute payments” as defined in Section 280G(b)(2) of the
Code made by or on behalf of the Company or any successor thereto, under this
Agreement or otherwise, resulting in an “excess parachute payment” as defined
in Section 280G(b)(1) of the Code. In addition to the foregoing, the Excise
Tax Gross-Up Payment due to the Executive under this Section 8 shall be
increased by the aggregate of the amount of federal, state and local income,
excise (excluding any excise taxes under Section 409A of the Code, which is
covered in Subsection 8(c) of this Agreement)
and penalty taxes, and any interest on any of the foregoing, for which the
Executive will be liable on account of the Excise Tax Gross-Up Payment to be
made under this Section 8, such that the Executive will receive the Excise
Tax Gross-Up Payment net of all income, excise (excluding any excise taxes
under Section 409A of the Code, which is covered in





17









 












	 	 	 	
Subsection 8(c) of this
Agreement) and penalty taxes, and any interest on any of the foregoing,
imposed on the Executive on account of the receipt of the Excise Tax
Gross-Up Payment. The computation of the Excise Tax Gross-Up Payment shall
be determined, at the expense of the Company or its successor, by an
independent accounting, actuarial or consulting firm selected by the Company
or its successor. Such Excise Tax Gross-Up Payment shall be made by the
Company or its successor at such time as the Company or its successor shall
determine, in its sole discretion, but in no event later than the date five
(5) business days before the due date, without regard to any extension, for
filing the Executive’s federal income tax return for the calendar year for
which it is determined that excise taxes are payable under Section 4999 of
the Code. Notwithstanding the foregoing, there shall be no duplication of
payments by the Company or its successor under this Section 8 in respect of
excise taxes under Section 4999 of the Code to the extent the Company or its
successor is making payments in respect of such excise taxes under any other
arrangement with the Executive. In the event that the Executive is
ultimately assessed with excise taxes under Section 4999 of the Code which
exceed the amount of excise taxes used in computing the Executive’s payment
under this Section 8, the Company or its successor shall indemnify the
Executive for such additional excise taxes plus any additional excise taxes,
income taxes, interest and penalties resulting from the additional excise
taxes and the indemnity hereunder. All amounts owing under this Subsection
8(b) shall be paid when due, but (in order to comply with Section 409A of
the Code) in no event made later than the end of the Executive’s taxable
year next following the Executive’s taxable year in which the excise tax, or
taxes imposed on the Excise Tax Gross-Up Payment, as applicable, is
remitted.
	 
	 	(c)	 	Section 409A. Certain payments contemplated by this
Agreement (including certain payments not contingent on a Change in Control)
may be “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 Executive under
Section 409A:






	 	(i)	 	It is the intent of the parties that the
provisions of this Agreement comply with all applicable requirements of
Section 409A. Accordingly, to the extent any provisions of this
Agreement would otherwise contravene one or more requirements or
limitations of Section 409A, then the Parties shall, within the
remedial amendment period provided under the regulations issued under
Section 409A, effect through mutual agreement the appropriate
amendments to those provisions which are necessary in order to bring
the provisions of this Agreement into compliance with Section 409A,
provided such amendments shall not reduce the dollar amount of any
such item of deferred compensation or




18









 












	 	 	 	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 Agreement which imposes a dollar limit on deferred compensation,
then the Executive will cooperate with the Company in restructuring
any items of compensation under this Agreement 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.
	 
	 	(ii)	 	Notwithstanding any provision to the contrary
in this Agreement, if the Company, in its good faith discretion,
determines that the payments or benefits described in Subsections 7(a),
7(b), 7(c), 8(a), 8(b) and 8(c) of this Agreement do not qualify as
“short-term deferrals” (within the meaning of Section 409A of the Code
and the Treasury Regulations thereunder), then, (a) if the Executive is
a “specified employee” (within the meaning of Section 409A of the Code
and the Treasury Regulations thereunder) at the time of his termination
of employment, and (b) there has been no change or clarification in the
law after the date of this Agreement that would permit any such
payments or benefits to be paid in accordance with their original terms
(rather than upon the expiration of the Delay Period (as defined
below)) without such payment resulting in a payment that is not a
permissible payment (within the meaning of Section 409A of the Code and
the Treasury Regulations thereunder) as determined by the Company in
its good faith discretion, no payments or benefits to which the
Executive becomes entitled under Subsections 7(a), 7(b), 7(c), 8(a),
8(b) or 8(c) of this Agreement due to his “separation from service”
(within the meaning of Section 409A of the Code and the Treasury
Regulations thereunder) shall be made or paid to the Executive prior to
the earlier of (i) the expiration of the six (6) month period measured
from the date of such “separation from service” or (ii) the date of his
death (the “Delay Period”). Upon the expiration of the Delay Period,
all payments deferred pursuant to this Subsection 8(c) shall be paid in
a lump sum to the Executive, and any remaining payments due under this
Agreement shall be paid in accordance with the normal payment dates
specified for them herein.
	 
	 	(iii)	 	Should the Executive comply with the
provisions of Subsections 8(c)(i) and (ii) above but nevertheless incur
the twenty percent (20%) penalty tax, and any related interest and
penalties, imposed under Section 409A with respect to one or more
payments or benefits provided to him under this Agreement, then the
Executive will be entitled to receive an additional payment (the “409A
Gross-




19









 












	 	 	 	Up Payment”) equal to the amount of such penalty taxes, plus any
related interest or penalty amounts, which the Executive is required to
pay pursuant to Section 409A. In addition to the foregoing, the 409A
Gross-Up Payment due to the Executive under this Subsection 8(c)(iii)
shall be increased by the aggregate of the amount of federal, state and
local income, excise (excluding any excise taxes under Section 280G of
the Code which is covered in Subsection 8(b) of this Agreement) and
penalty taxes, and any interest on any of the foregoing, for which the
Executive will be liable on account of the 409A Gross-Up Payment to be
made under this Subsection 8(c)(iii), such that the Executive will
receive the 409A Gross-Up Payment net of all income, excise (excluding
any excise taxes under Section 280G of the Code which is covered in
Subsection 8(b) of this Agreement) and penalty taxes, and any interest
on any of the foregoing, imposed on the Executive on account of the
receipt of the 409A Gross-Up Payment. The computation of the 409A
Gross-Up Payment shall be determined, at the expense of the Company or
its successor, by an independent accounting, actuarial or consulting
firm selected by the Company. Such 409A Gross-Up Payment shall be made
by the Company at such time as the Company shall determine, in its sole
discretion, but in no event later than the date five (5) business days
before the due date, without regard to any extension, for filing the
Executive’s federal income tax return for the calendar year for which
it is determined that excise taxes are payable under Section 409A.
Notwithstanding the foregoing, there shall be no duplication of
payments by the Company under this Subsection 8(c)(iii) in respect of
excise taxes, interest and penalties under Section 409A to the extent
the Company is making payments in respect of such excise taxes,
interest and penalties under any other arrangement with the Executive.
All amounts owing under this Subsection 8(c)(iii) shall be paid when
due, but (in order to comply with Section 409A) in no event made later
than the end of the Executive’s taxable year next following the
Executive’s taxable year in which the excise tax, or taxes imposed on
the 409A Gross-Up Payment, as applicable, is remitted.





     9. SEVERANCE PLAN. It is the intention of the Parties that this Agreement provide
special benefits to the Executive. If at any time the Company maintains a Severance Benefit Plan
that would provide better cash severance
benefits to the Executive than this Agreement, the Executive may elect to receive such better
cash severance benefits in lieu of the cash severance benefits provided under Subsections 7(a)(i)
and 7(a)(ii) of this Agreement while continuing to receive any other benefits or coverages
available under this Agreement. If this Agreement would provide better cash severance benefits to
the Executive than a Severance Benefit Plan maintained by the Company, the Executive shall receive
the cash severance benefits under this Agreement, as well as any other benefits or coverages
available under this Agreement.



20









 




In such case, the cash severance benefits under this Agreement
shall be in lieu of the cash severance benefits payable under a Severance Benefit Plan.




     10. PLAN AMENDMENTS. To the extent any provisions of this Agreement modify the terms
of any existing plan, policy or arrangement affecting the compensation or benefits of the
Executive, as appropriate, (a) such modification as set forth herein shall be deemed an amendment
to such plan, policy or arrangement as to the Executive, and both the Company and the Executive
hereby consent to such amendment, (b) the Company will appropriately modify such plan, policy or
arrangement to correspond to this Agreement with respect to the Executive, or (c) the Company will
provide an “Alternative Benefit,” as defined in Section 17 hereof, to or on behalf of the Executive
in accordance with the provisions of such Section 17.



     11. CONFIDENTIAL INFORMATION. The Executive agrees that the Executive will not,
during the Employment 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 that certain Non-Competition and
Non-Disclosure Agreement between the Parties dated July 18, 2000.



     12. NON-COMPETITION. In consideration of this Agreement, the Executive agrees that,
during the Employment Term, and for three (3) years thereafter, the Executive shall not act in
violation of that certain Non-Competition and Non-Disclosure Agreement between the Parties dated
July 18, 2000.



     13. ARBITRATION. The following arbitration rules shall apply to this Agreement:




	 	(a)	 	In the event that the Executive’s employment shall be
terminated by the Company during the Employment Term or the Company shall
withhold payments or provision of benefits because the Executive is alleged to
be engaged in activities prohibited by Section 11 or 12 hereof or for any other
reason, the Executive shall have the right, in addition to all other rights and
remedies provided by law, at his 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
his employment.
	 
	 	(b)	 	Without limiting the generality of Subsection 13(a), this
Subsection 13(b) shall apply to termination asserted to be for “Cause” or for
“Good Reason.” In the event that (i) the Company terminates the Executive’s
employment for Cause, or (ii) the Executive resigns his employment for Good
Reason, the Company and the Executive each shall have thirty (30) days to
demand of the American Arbitration Association in writing (with a copy to the
other Party) 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




21









 












	 	 	 	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 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 Subsection 13(b), the Executive 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 Executive hereunder) and the
Executive shall have no duties for the Company. If the arbitrator determines that the Company did
not have Cause to terminate the Executive’s employment or that the Executive had Good Reason to
resign his employment, as the case may be, the Company shall promptly pay the Executive in a lump
sum any compensation to which the Executive would have been entitled, for the period commencing
with the date of the Executive’s termination or resignation and ending on the date of such
determination, had his employment not been terminated or had he not resigned.



     14. 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:



22









 






	 	(a)	 	If the notice is to the Company:
	 
	 	 	 	Myers Industries, Inc.

1293 South Main Street

Akron, OH 44301

Attn: Chairman of the Compensation Committee
	 
	 	 	 	With a Copy to:
	 
	 	 	 	Benesch, Friedlander, Coplan & Aronoff, LLP

200 Public Square, Suite #2300

Cleveland, OH 44114-2378

Attn: Megan Mehalko, Esq.
	 
	 	(b)	 	If the notice is to the Executive:
	 
	 	 	 	Mr. John C. Orr

1630 Shade Road

Akron, OH 44333
	 
	 	 	 	With a Copy to:
	 
	 	 	 	Roetzel & Andress, L.P.A.

1375 East Ninth Street, 9th Floor

Cleveland, OH 44114

Attn: Ronald C. Stansbury, Esq.




or to such other address as either Party 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.




     15. ASSIGNMENT; BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors, heirs (in the case of the
Executive) and permitted assigns. No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company except that such rights or obligations may be assigned or
transferred in connection with the sale or transfer of all or substantially all of the assets of
the Company, provided that the assignee or transferee is the successor to all or substantially all
of the assets of the Company and such assignee or transferee expressly assumes the liabilities,
obligations and duties of the Company, as contained in this Agreement, either contractually or as a
matter of law. The Company further agrees that, in the event of a sale or transfer of assets as
described in the preceding sentence, it shall be a condition precedent to the consummation of any
such transaction that the assignee or transferee expressly assumes the liabilities, obligations and
duties of the Company hereunder. No rights or obligations of the Executive under this Agreement
may be assigned or transferred by the Executive other than the



23









 




Executive’s rights to compensation and benefits, which may be transferred only by will or operation of law, except as
provided in this Section 15.




     The Executive 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 Executive’s death by giving the Company written notice thereof. In the absence of
such a selection, any compensation or benefit payable under this Agreement following the death of
the Executive shall be payable to the Executive’s spouse, or if such spouse shall not survive the
Executive, to the Executive’s estate. In the event of the Executive’s death or a judicial
determination of the Executive’s incompetence, reference in this Agreement to the Executive shall
be deemed, where appropriate, to refer to the Executive’s beneficiary, estate or other legal
representative.



     16. INVALID PROVISIONS. Any provision of this Agreement 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 Agreement shall continue to be in full force and effect. In the event that any provision of
this Agreement shall be determined to be invalid or unenforceable, the Parties will negotiate in
good faith 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.



     17. ALTERNATIVE SATISFACTION OF COMPANY’S OBLIGATIONS. In the event this Agreement
provides for payments or benefits to or on behalf of the Executive 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 the Executive would adversely affect the tax qualified or tax advantaged status of such
plans, policies or arrangements for the Executive or other participants therein, the Company may
provide the Executive with an “Alternative Benefit,” as defined in this Section 17, in lieu
thereof. The Alternative Benefit is a benefit or payment which places the Executive and the
Executive’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 Agreement (a) were provided exactly as called for by
this Agreement, 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 the Executive or the Executive’s dependents, the Executive shall have the right to require
that the Company provide such an Alternative Benefit.



     18. ENTIRE AGREEMENT, MODIFICATION. Subject to the provisions of Section 19 hereof,
this Agreement contains the entire agreement between the Parties with respect to the employment of
the Executive by the Company and supersedes all prior and contemporaneous agreements,
representations, and understandings of the Parties, whether oral or written. No modification,
amendment, or waiver of any of the provisions of this Agreement shall be effective unless in
writing, specifically referring hereto, and signed by both Parties.



     19. NON-EXCLUSIVITY OF RIGHTS. Notwithstanding the foregoing provisions of
Section 18, nothing in this Agreement shall prevent or limit the Executive’s continuing or future
participation in any benefit, bonus, incentive or other plan, program, policy or practice



24









 




provided by the Company for its executive officers, nor shall anything herein limit or otherwise affect such
rights as the Executive has or may have under any stock option, restricted stock or other
agreements with the Company or any of its subsidiaries. Amounts which the Executive or the
Executive’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 Agreement except as
provided in Section 9 hereof with respect to payments under a Company sponsored Severance Benefit
Plan if cash payments are made hereunder.




     20. WAIVER OF BREACH. The failure at any time to enforce any of the provisions of
this Agreement or to require performance by the other Party of any of the provisions of this
Agreement shall in no way be construed to be a waiver of such provisions or to affect either the
validity of this Agreement or any part of this Agreement or the right of either Party thereafter to
enforce each and every provision of this Agreement in accordance with the terms of this Agreement.



     21. GOVERNING LAW. This Agreement has been made in, and shall be governed and
construed in accordance with the laws of, the State of Ohio. The Parties agree that this Agreement
is not an “employee benefit plan” or part of an “employee benefit plan” which is subject to the
provisions of the Employee Retirement Income Security Act of 1974, as amended.



     22. TAX WITHHOLDING. The Company may withhold from any amounts payable under this
Agreement such federal, state or local taxes or other amounts as shall be required to be withheld
pursuant to any applicable law or regulation. Where withholding applies to shares of the
Company’s common stock, the Company shall make cashless withholding available to the Executive if
permissible by law.



     23. EXPENSES OF ENFORCEMENT. The Executive shall not be required to incur the
expenses associated with the enforcement of the Executive’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 the Executive to enforce the
provisions of this Agreement. The Executive 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 Executive were frivolous.



     24. REPRESENTATION. The Company represents and warrants that it is fully authorized
and empowered to enter into this Agreement and that the performance of its obligations under this
Agreement will not violate any agreement between it and any other person, firm or organization.



     25. SUBSIDIARIES AND AFFILIATES. Notwithstanding any contrary provision of this
Agreement, to the extent it does not adversely affect the Executive, the Company may provide the
compensation and benefits to which the Executive is entitled hereunder through one or more
subsidiaries or affiliates.



     26. NO MITIGATION OR OFFSET. In the event of any termination of employment, the
Executive shall be under no obligation to seek other employment. Amounts due the



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Executive under this Agreement shall not be offset by any remuneration attributable to any subsequent employment he
may obtain.




     27. SOLE REMEDY. The Parties agree that the remedies of each against the other for
breach of this Agreement shall be limited to enforcement of this Agreement and recovery of the
amounts and remedies provided for herein. The Parties, however, further agree that such limitation
shall not prevent either Party from proceeding against the other to recover for a claim other than
under this Agreement.



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     IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement as of the day
and year first above written.



	 	 	 	 	 
	 	 	MYERS INDUSTRIES, INC.
	 

	 	 	 	                (the “Company”)
	 
	 	 	 	 
	 

	 	By:	 	/s/ Jon H. Outcalt
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Its:	 	Chairman of the Compensation Committee
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	 	/s/ John C. Orr
	 	 	JOHN C. ORR
	 

	 	 	 	                (the “Executive”)







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