pre14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Filed by the
Registrant þ
Filed by a Party other than the
Registrant o
Check the appropriate box:
þ Preliminary
Proxy Statement
o Confidential,
For Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
o Definitive
Proxy Statement
o Definitive
Additional Materials
o Soliciting
Material Pursuant to
§240.14a-12
MYERS INDUSTRIES, INC.
(Name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act
Rules 14a-6(i)(1)
and 0-11.
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Title of each class of securities to which transaction applies:
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Aggregate number of securities to which transaction applies:
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Per unit price or other underlying value of transaction computed
pursuant to Exchange Act
Rule 0-11.
(set forth the amount on which the filing fee is calculated and
state how it was determined):
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Proposed maximum aggregate value of transaction:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by
Exchange Act
Rule 0-11(a)(2)
and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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(1)
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Amount previously paid:
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Form, Schedule or Registration Statement No.:
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PRELIMINARY COPY
- SUBJECT TO COMPLETION
1293 South Main Street Akron, Ohio 44301
March ,
2010
To Our Shareholders:
You are cordially invited to attend the Annual Meeting of
Shareholders to be held on Friday April 30, 2010, at
9:00 A.M. at the Louis S. Myers Training Center, 1554 South
Main Street, Akron, Ohio 44301.
At the Annual Meeting you will be asked to elect the nine
director candidates nominated by our Board of Directors and to
ratify the appointment of KPMG LLP as our independent registered
public accounting firm. Enclosed with this letter is a Notice of
Annual Meeting together with a Proxy Statement which contains
information with respect to the nominees for director and the
other proposal.
The proposals discussed in the Proxy Statement are very
important to our shareholders and the Company, and we hope that
you will be able to personally attend the Annual Meeting.
Whether or not you expect to attend the Annual Meeting in
person, I urge you to complete and return the enclosed white
proxy card as soon as possible.
If you have any questions or need assistance in voting your
shares, please contact our proxy solicitor, Innisfree M&A
Incorporated, toll-free at
(888) 750-5834.
Banks and brokers may call collect at
(212) 750-5833.
Sincerely,
John C. Orr
President and Chief Executive Officer
Important Notice Regarding the Availability of Proxy
Materials for the Annual Meeting of Shareholders to be held on
April 30, 2010: This Proxy Statement and the Companys
2009 Annual Report to Shareholders are available on Myers
website at
www.myersindustries.com/annualreports.html.
Table of
Contents
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PROXY
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1293 South Main Street Akron, Ohio 44301
To Be Held Friday,
April 30, 2010
The Annual Meeting of Shareholders of Myers Industries, Inc., an
Ohio corporation (Myers or the Company),
will be held at the Louis S. Myers Training Center, 1554 South
Main Street, Akron, Ohio 44301, on Friday, April 30, 2010
at 9:00 A.M. (local time), for the following purposes:
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To elect the nine candidates nominated by the Board of Directors
to serve as directors until the next Annual Meeting of
Shareholders;
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2.
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To ratify the appointment of KPMG LLP as the Companys
independent registered public accounting firm for fiscal
2010; and
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To consider such other business as may be properly brought
before the meeting or any adjournments thereof.
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The Board of Directors has fixed the close of business on
March 10, 2010 as the record date for the determination of
shareholders entitled to notice of and to vote at the Annual
Meeting. All shareholders are cordially invited to attend the
Annual Meeting in person. To be sure that your shares are
properly represented at the Annual Meeting, whether or not you
intend to attend the Annual Meeting in person, please complete
and return the enclosed white proxy card as soon as
possible.
If you have any questions or need assistance in voting your
shares, please contact our proxy solicitor, Innisfree M&A
Incorporated, toll-free at
(888) 750-5834.
Banks and brokers may call collect at
(212) 750-5833.
By Order of the Board of Directors,
Donald A. Merril
Chief Financial Officer, Vice President
and Corporate Secretary
Akron, Ohio
March , 2010
THE 2009 ANNUAL
REPORT TO SHAREHOLDERS ACCOMPANIES THIS NOTICE
1
Matters Related to the Proxy Statement.
Meeting Time and Applicable Dates. This Proxy
Statement is furnished in connection with the solicitation by
the Board of Directors (the Board or Board of
Directors) of Myers Industries, Inc., an Ohio corporation,
of the accompanying proxy to be voted at the Annual Meeting of
Shareholders (Annual Meeting) to be held on Friday,
April 30, 2010, at 9:00 A.M. (local time), and at any
adjournment thereof. The close of business on March 10,
2010, has been fixed as the record date for the determination of
the shareholders entitled to notice of and to vote at the
meeting.
Outstanding Shares and Quorum. On the record
date, Myers had outstanding approximately
[ ] shares
of common stock, without par value (Common Stock).
Each share of Common Stock is entitled to one vote. For
information concerning our Principal Shareholders
see the section titled Security Ownership of Certain
Beneficial Owners and Management below. In accordance with
the Companys Code of Regulations, the holders of shares of
Common Stock entitling them to exercise a majority of the voting
power of the Company, present in person or by proxy, shall
constitute a quorum for the Annual Meeting. Shares of Common
Stock represented by signed proxies will be counted toward the
establishment of a quorum on all matters even though they are
signed but otherwise unmarked, or marked Abstain,
Against or Withhold Authority.
Votes Required. With respect to
Proposal No. 1, to elect the nine director candidates
nominated by the Board, if a quorum is present at the Annual
Meeting, the nominees for election as directors who receive the
greatest number of votes cast will be elected as directors.
Abstentions will not affect the outcome of the election of
directors. Proposal No. 2, to ratify the appointment
of the independent registered public accounting firm, is a
non-binding proposal, but its approval requires the affirmative
vote of the holders of a majority of the shares of Common Stock
represented in person or by proxy at the Annual Meeting. Broker
non-votes will have no effect on Proposal No. 2.
Abstentions or a failure by those present in person or by proxy
to vote will act as a vote AGAINST Proposal No. 2.
Even if the selection is ratified, the Audit Committee and the
Board, in their discretion, may change the appointment at any
time during the year if we determine that such a change would be
in the best interests of the Company and our shareholders.
Proxy Instructions. All shares of Common Stock
represented by properly executed proxies which are returned and
not revoked will be voted in accordance with the instructions,
if any, given therein. If no instructions are provided in a
proxy, the shares of Common Stock represented by such proxy will
be voted FOR the Boards nominees for director, FOR the
ratification of the appointment of KPMG LLP, and in accordance
with the proxy-holders best judgment as to any other
matters, if any, which may be properly raised at the Annual
Meeting.
Proxy Voting. If your shares are registered
directly in your name with our transfer agent, then you are a
shareholder of record with respect to those shares and you may
either vote in person at the Annual Meeting or by using the
enclosed white proxy card to vote by telephone, by internet, or
by signing, dating and returning the white proxy card in the
envelope provided. Whether or not you plan to attend the Annual
Meeting in person, you should submit your white proxy card as
soon as possible. If your shares are held in street
name through a broker, bank or other nominee, then you
must instruct them to vote on your behalf, otherwise your shares
cannot be voted at the Annual Meeting. You should follow the
directions provided by your broker, bank or other nominee
regarding how to instruct such party to vote. If you have any
questions or need assistance in voting your shares, please
contact our proxy solicitor, Innisfree M&A Incorporated, at
the address and phone numbers below.
INNISFREE M&A INCORPORATED
501 MADISON AVENUE,
20TH FLOOR
NEW YORK, NY 10022
SHAREHOLDERS CALL TOLL FREE:
(888) 750-5834
BANKS AND BROKERS MAY CALL COLLECT:
(212) 750-5833
Proxy Revocation and Voting in Person. A
shareholder who has given a proxy may revoke it at any time
prior to its exercise by: (1) giving written notice of such
revocation to the Corporate Secretary of the
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Company, (2) executing and delivering to the Corporate
Secretary of the Company a later dated proxy reflecting contrary
instructions, or (3) appearing at the Annual Meeting and
taking appropriate steps to vote in person.
Voting Confidentiality. Proxies, ballots and
voting tabulations are handled on a confidential basis to
protect your voting privacy. This information will not be
disclosed except as required by law.
Inspector of Election. The inspector of
election for the Annual Meeting shall determine the number of
votes cast by holders of Common Stock for all matters. The Board
will appoint an inspector of election to serve at the Annual
Meeting. Preliminary voting results will be announced at the
Annual Meeting, if practicable. Final voting results will be
filed on a Current Report on
Form 8-K,
which will be filed with the Securities and Exchange Commission
(the SEC).
Address of Company. The mailing address of the
principal executive offices of the Company is 1293 South Main
Street, Akron, Ohio 44301.
Mailing Date. This Proxy Statement, together
with the related proxy card and our 2009 Annual Report to
Shareholders, is being mailed to our shareholders on or about
March [ ], 2010.
Trademark. Myers Industries,
Inc.®
is a registered trademark of the Company.
Availability on the Internet. This Proxy
Statement and the Companys 2009 Annual Report to
Shareholders are available on Myers website at
www.myersindustries.com/annualreports.html.
3
THE BOARD OF
DIRECTORS RECOMMENDS THE ELECTION OF THESE NOMINEES
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Name
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Age
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Principal Occupation for Past Five Years and Other
Information
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Keith A. Brown
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President of Chimera Corporation, Westlake, Ohio, a management
holding company; former Director of US Gypsum Corporation
(NYSE), Chicago, Illinois, a manufacturer of gypsum paneling
products from 1993-2009. Served as Director of Myers since 1997.
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Mr. Brown has familiarity with the operational requirements of a
large complex organization and has experience dealing with
reorganizations, turnarounds, and mergers and acquisitions. Mr.
Brown has also served on the board of directors of both public
and private companies and his experience and skills make him an
important contributor to our Board.
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Vincent C. Byrd
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President, U.S. Retail, Coffee, The J.M. Smucker Company
(J.M. Smucker) (NYSE), Orrville, Ohio, a
manufacturer and marketer of branded food products; Director of
J.M. Smucker; formerly Senior Vice President, Consumer Market,
of J.M. Smucker; former Director of Spangler Candy Company,
Bryan, Ohio, a manufacturer of confectionery products. Served
as Director of Myers since 2006.
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By virtue of his more than 33 years of work experience with
a Fortune 500 company in the consumer packaged goods
industry and over ten years of experience serving on the board
of directors of The J.M. Smucker Company, Mr. Byrd brings to the
Board key insights into the operational requirements of a public
company. In addition, Mr. Byrds international experience
and finance and accounting background provides valuable business
acumen and financial skills to the Board.
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Sarah R. Coffin
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Chief Executive Officer of Aspen Growth Strategies, LLC,
Wooster, Ohio, an investment company; former Director and
Chairman of the Compensation Committee of SPX Corporation
(NYSE), Charlotte, North Carolina, a global industrial equipment
and global manufacturing company; former Director of
Huttenes-Albertus International, Chicago, Illinois, an
international manufacturer of chemical products for the foundry
industry; former Director of Asia-Dekor, China, a manufacturer
of flooring and related products.
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As a former division leader in several companies, Ms. Coffin has
substantial senior level executive experience in marketing and
operations and would add a unique perspective to the Board. It
is anticipated that her background in the polymer industry,
coupled with her knowledge and insight from her prior service on
the boards of other companies, will allow Ms. Coffin to provide
valuable contributions to the Board.
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John B. Crowe
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Chief Executive Officer and Chairman of Buckeye Technologies
Inc. (NYSE), Memphis, Tennessee, a producer of absorbent
products, chemical cellulose products and customized paper.
Formerly Senior Vice President, Wood Cellulose and Executive
Vice President and General Manager at Alabama River Pulp Co.,
Inc. and Alabama Pine Pulp Co., Inc. Served as Director of Myers
since 2009.
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As Chairman and Chief Executive Officer of Buckeye Technologies
Inc., Mr. Crowe brings valuable insight into the operational
requirements, investor relations and strategic planning
processes of a public company. In addition, Mr. Crowe draws on
his considerable leadership experience, including his service as
a United States Air Force Reserve Lt. Colonel and as a Vietnam
veteran, in his service to the Board.
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Principal Occupation for Past Five Years and Other
Information
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Richard P. Johnston
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A retired Certified Public Accountant; Chairman of the Board of
Dismal River Golf Club, Mullen, Nebraska; Managing Director of
Jackson Hole Capital Partners, Jackson Hole, Wyoming; Director
of Results Radio, Inc., Sonoma, California; formerly served as
Founder and Director of AGCO, Inc. (NYSE), Duluth, Georgia, a
manufacturer and distributor of agricultural equipment. Served
as Director of Myers since 1992 and is currently Chairman of the
Board of Myers.
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With his years of management experience and service on the board
of directors with a number of different public companies, Mr.
Johnston brings critical experience and insight regarding best
practices for a public company. In addition, his more than
seventeen years of experience as a Director of Myers gives him a
deep understanding of the Company and its operations and makes
him particularly qualified to serve as Chairman of the Board.
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Edward W. Kissel
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President and Managing Partner of Kissel Group Ltd., Akron,
Ohio, a holding company with interests in property, consulting
and mold manufacturing; Director of Smithers Scientific
Services, Inc., Akron, Ohio, a provider of testing services for
materials; formerly President, Chief Operating Officer and
Director of OM Group, Inc. (NYSE), Cleveland, Ohio, a specialty
chemical company; formerly Director of Weda Bay Minerals, Inc.
(Toronto Stock Exchange), Toronto, Canada, a mineral exploration
company; formerly Managing Director of Kane & Co., Los
Angeles, California, an investment banking firm. Served as
Director of Myers since 2000.
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Mr. Kissel has broad global experience in the manufacturing,
chemical and commodity industries. He has had executive
assignments in strategy, operations, sales and marketing, and
research and development, including both growth and turnaround
situations. His involvement with plant start-ups and major
expansions, as well as experience with mergers and acquisitions,
provides valuable insight to the Board.
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John C. Orr
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President and Chief Executive Officer of Myers; formerly
President and Chief Operating Officer of Myers; formerly General
Manager of Buckhorn, Inc., a subsidiary of Myers; formerly Vice
President of Manufacturing North American Tire
Division, The Goodyear Tire and Rubber Company; Director of
Libbey Inc. (NYSE), Toledo, Ohio, a producer of glass tableware
products. Served as Director of Myers since 2005.
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Mr. Orrs extensive leadership experience in the
manufacturing industry in addition to his years of service to
Myers in management, position him well to serve on the Board.
His service as a director and in management for other public
companies provides Mr. Orr with a variety of perspectives that
he contributes to the Board.
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Jon H. Outcalt
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Chairman, Federal Process Corp., Cleveland, Ohio, a manufacturer
and distributor of industrial products; Chairman and Chief
Executive Officer of Aberdeen Group, Inc., Beachwood, Ohio, an
investment holding and management company; Director of AmTrust
Financial Corp. (f/k/a Ohio Savings Financial
Corporation), Cleveland, Ohio, a savings and loan holding
company. Served as Director of Myers since 1984.
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Mr. Outcalts extensive experience, including his service
as Senior Vice President of a global investment management firm
for over 21 years, co-founder of a company that was later
taken public, and involvement with the purchase and sale of
several private companies, provides Mr. Outcalt with a deep
understanding of the financial markets. His service on the
board of directors of numerous companies, both public and
private, and his more than 26 years of service on our Board
make him a valuable director.
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Name
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Age
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Principal Occupation for Past Five Years and Other
Information
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Robert A. Stefanko
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Currently retired, formerly Chairman of the Board and Executive
Vice President of Finance & Administration of A. Schulman,
Inc., Akron, Ohio, an international supplier of plastic
compounds and resins; Director and member of Audit Committee of
OMNOVA Solutions, Inc. (NYSE), Fairlawn, Ohio, an innovator of
emulsion polymers, specialty chemicals and decorative and
functional surfaces; former director of The Davey Tree Expert
Company, Kent, Ohio, a tree, shrub and lawn care company.
Served as Director of Myers since 2007.
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As a former Chief Financial Officer and director of A. Schulman,
Inc. from 1979 through 2006 and as a former director of other
public company boards, Mr. Stefanko has had extensive
involvement in a number of public company compensation matters.
Mr. Stefanko also serves on the Executive Committee of the Akron
General Health System, which employs over 6,000 people. In
addition, Mr. Stefankos experience with financial matters
and service on compensation and audit committees gives him
valuable knowledge and insight that he brings to the
Boards deliberations.
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Each of the foregoing nominees were recommended by the
Governance Committee. There are, and during the past ten years
there have been, no legal proceedings material to an evaluation
of the ability of any director or executive officer of Myers to
act in such capacity or concerning his or her integrity. There
are no family relationships among any of the directors and
executive officers. In the course of conducting a search for a
chief operating officer candidate for the Company,
Ms. Coffin was identified as a nominee with the assistance
of a professional recruiting firm.
The Board
recommends that you vote FOR each of the director
nominees listed above.
Director Independence. The Board has
determined that each of the following directors and nominees are
independent and that each of these nominees has no
material relationship with us that would impact their
independence: Keith A. Brown, Vincent C. Byrd, Sarah R. Coffin,
John B. Crowe, Richard P. Johnston, Edward W. Kissel, Jon H.
Outcalt, and Robert A. Stefanko. The determination of whether a
director is independent is based upon the
Boards review of the relationships between each director
and the Company, if any, under the Companys Board of
Directors Independence Criteria policy adopted by the
Board on April 20, 2004 as amended and the corporate
governance listing standards of the New York Stock Exchange
(NYSE). In connection with the Boards
determination regarding the independence of each non-management
director the Board considered any transactions, relationships
and arrangements as required by our independence guidelines. In
particular, the Board considered the relationship between A.
Schulman, Inc. (A. Schulman) and the Company in
connection with its independence determination of Robert A.
Stefanko and concluded Mr. Stefanko met the independence
requirement. Mr. Stefanko is a stockholder of A. Schulman,
holding less than 1% of A. Schulmans shares of stock. In
fiscal 2009, we purchased $276,986 of materials from A. Schulman
during the ordinary course of operations, which is less than 1%
of the annual revenues of both companies. All members of the
Audit Committee, the Compensation Committee, and the Governance
Committee were determined to be independent as above, and in
addition, the Board determined that the members of the Audit
Committee are also independent as defined in the SEC regulations.
Committees of the Board. The
Board has three standing committees, the Audit Committee, the
Compensation Committee, and the Governance Committee, whose
members were appointed in April 2009 following the Annual
Meeting.
Audit Committee. The Audit Committee is
currently comprised of four independent directors, Robert A.
Stefanko (Chairman and Presiding Director), Edward W. Kissel,
Vincent C. Byrd and Jon H. Outcalt. The functions of the Audit
Committee, which met five times in 2009, are to: (1) engage
the independent registered public accounting firm,
(2) approve all audit and related engagements (audit and
non-audit),
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(3) review the results of the audit and interim reviews,
(4) evaluate the independence of the independent registered
public accounting firm, (5) review with the independent
registered public accounting firm the financial results of the
Company prior to their public release and filing of reports with
the SEC, (6) direct and supervise special investigations
and (7) oversee our accounting, internal accounting
controls and auditing matters reporting hotline (discussed
below) and our corporate compliance program. The Audit Committee
also has oversight of our system of internal auditing functions
and controls, as well as our internal control procedures. None
of our Audit Committee members serve on more than two other
public company audit committees.
The Board has identified Robert A. Stefanko as the Audit
Committee financial expert.
Compensation Committee. The Compensation
Committee establishes and administers the Companys
policies, programs and procedures for compensating its executive
officers and directors. The Compensation Committee has the
authority to retain outside consultants regarding executive
compensation and other matters. The Compensation Committee,
which met nine times in 2009, is currently comprised of four
independent directors, Jon H. Outcalt (Chairman and Presiding
Director), Robert A. Stefanko, Richard P. Johnston and Keith A.
Brown.
Corporate Governance and Nominating
Committee. The Governance Committee is
responsible for, among other things, evaluating new director
candidates and incumbent directors, and recommending to the
independent directors of the Board nominees to serve on the
Board as well as members of the Boards committees. The
Governance Committee is also responsible for recommending and
monitoring participation in continuing education programs by the
members of the Board. The Governance Committee, which met six
times in 2009, is currently comprised of four independent
directors, Edward W. Kissel (Chairman and Presiding Director),
Richard P. Johnston, Keith A. Brown and John B. Crowe.
Committee Charters and
Policies. The Board has adopted written
charters for the Audit Committee, the Compensation Committee,
and the Governance Committee. Each Committee reviews and
evaluates the adequacy of its charter at least annually and
recommends any proposed changes to the Board for approval. Each
of the written charters and policies of the Committees of the
Board are available on the Corporate Governance page
accessed from the Investor Relations page of the
Companys website at
www.myersind.com.
Board Role in Risk
Oversight. The Board annually reviews the
Companys strategic plan, which addresses, among other
things, the risks and opportunities facing the Company. The
Board also has overall responsibility for executive officer
succession planning and reviews succession plans each year.
Certain areas of oversight are delegated to the relevant
committees of the Board and the committees regularly report back
on their deliberations. This oversight is enabled by reporting
processes that are designed to provide visibility to the Board
about the identification, assessment, monitoring and management
of enterprise-wide risks. In October 2009, management conducted
its most recent enterprise-wide risk assessment of the Company
and each of its business segments and presented it to the Board
for review. The focus of this assessment included a review of
strategic, financial, operational, compliance and technology
objectives and risks for the Company. In addition, on an ongoing
basis: (a) the Audit Committee maintains primary
responsibility for oversight of risks and exposures pertaining
to the accounting, auditing and financial reporting processes of
the Company; (b) the Compensation Committee maintains
primary responsibility for risks and exposures associated with
oversight of the administration and implementation of our
compensation policies; and (c) the Governance Committee
maintains primary responsibility for risks and exposures
associated with corporate governance and succession planning.
Board Attendance. There were
a total of eight regularly scheduled and special meetings of the
Board of Directors in 2009. During 2009, all directors attended
at least 75% of the aggregate total number of the meetings of
the Board and Committees on which they served. In 2009, all of
our directors attended our Annual Meeting. Although we do not
have a formal policy requiring directors to attend the Annual
Meeting, our directors are encouraged to attend.
8
Written Communication. Interested parties may
send such communications by mail or courier delivery addressed
as follows: Board of Directors (or Committee Chair, Board Member
or Non-Management Directors, as the case may be),
c/o Donald
A. Merril, Corporate Secretary, Myers Industries, Inc., 1293
South Main Street, Akron, Ohio 44301. All communications
directed to the Board of Directors or to the
Non-Management Directors will be forwarded unopened
to the Chair of the Governance Committee. The Chair of the
Governance Committee in turn determines whether the
communications should be forwarded to the appropriate members of
the Board and, if so, forwards them accordingly. For
communications addressed to a particular director or the Chair
of a particular Committee of the Board, however, the Corporate
Secretary will forward those communications, unopened, directly
to the person or Committee Chair in question.
Toll Free Hotline. In 2003 the Audit Committee
established a hotline for receiving, retaining and
treating complaints from any interested party regarding
accounting, internal accounting controls and auditing matters,
and procedures for the anonymous submission of these concerns.
The hotline is maintained by a company which is independent of
Myers. Interested parties may also use this hotline to
communicate with the Board. Any interested party may contact a
director, a Committee, the non-management directors, or the
Board through the toll free hotline at
(877) 285-4145.
The hotline is available worldwide, 24 hours a day, seven
days a week. Note that all reports made through the hotline are
directed to the Chair of the Audit Committee and the Corporate
Secretary. We do not permit any retaliation of any kind against
any person who, in good faith, submits a complaint or concern
under these procedures.
Shareholder
Nominations of Director Candidates.
Shareholder Recommendation Policy. The
Governance Committee will consider individuals for nomination to
stand for election as a director who are recommended to it in
writing by any of our shareholders that strictly follow the
procedures outlined in the next paragraph below and that send a
signed letter of recommendation to the following address:
Corporate Governance and Nominating Committee,
c/o Mr. Donald
A. Merril, Chief Financial Officer, Vice President and Corporate
Secretary, Myers Industries, Inc., 1293 South Main Street,
Akron, Ohio 44301.
Recommendation letters must certify that the person making the
recommendation is a shareholder of the Company (including the
number of shares held as of the date of the recommendation), and
further state the reasons for the recommendation, the full name
and address of the proposed nominee as well as a biographical
history setting forth past and present directorships,
employment, occupations and civic activities for at least the
past five years. Any such recommendation should be accompanied
by a signed written statement from the proposed nominee
consenting to be named as a candidate and, if nominated and
elected, consenting to serve as a director. The letter must also
include a signed written statement that the nominating
shareholder and the candidate will make available to the
Governance Committee all information reasonably requested in
furtherance of the Governance Committees evaluation. The
letter must be received before the close of business on or
before November 15th of the year prior to our next
annual meeting of shareholders.
The Governance Committee reviews and evaluates individuals for
nomination to stand for election as a director who are
recommended to the Governance Committee in writing by any of our
shareholders pursuant to the procedures outlined in the
paragraph above on the same basis as candidates who are
suggested by our current or past directors, executive officers,
or other sources, which may, from
time-to-time,
include professional search firms retained by the Governance
Committee. In considering individuals for nomination to stand
for election, the Governance Committee will consider:
(1) the current composition of the Board of Directors and
how it functions as a group; (2) the talents,
personalities, strengths, and weaknesses of current directors;
(3) the value of contributions made by individual
directors; (4) the need for a person with specific skills,
experiences or background to be added to the Board of
9
Directors; (5) any anticipated vacancies due to retirement
or other reasons; and (6) other factors which may enter
into the nomination decision.
When considering an individual candidates suitability for
the Board of Directors, the Governance Committee will evaluate
each individual on a
case-by-case
basis. The Governance Committee does not prescribe minimum
qualifications or standards for directors, however, the
Governance Committee looks for directors who have personal
characteristics, educational backgrounds and relevant experience
that would be expected to help further the goals of both the
Board of Directors and the Company. In addition, the Governance
Committee will review the extent of the candidates
demonstrated excellence and success in his or her chosen
business, profession, or other career and the skills and talents
that the candidate would be expected to add to the Board of
Directors. The Governance Committee may choose, in individual
cases, to conduct interviews with the candidate
and/or
contact references, business associates, other members of boards
on which the candidate serves or other appropriate persons to
obtain additional information. The Governance Committee will
make its determinations on whether to nominate an individual
candidate based on the Board of Directors then-current
needs, the merits of that candidate and the qualifications of
other available candidates.
Shareholder Nomination Policy. A shareholder
may directly nominate a candidate for election as a director of
the Company in accordance with our Amended and Restated Code of
Regulations only if written notice of such intention is received
by the Corporate Secretary not less than sixty (60) days
nor more than ninety (90) days prior to the date of such
annual meeting of shareholders or special meeting of
shareholders for the election of directors. In the event that
the date of such meeting to elect directors is not publicly
disclosed at least seventy (70) days prior to the date of
such meeting, written notice of such shareholders intent to
nominate a candidate must be received by the Corporate Secretary
not later than the close of business on the tenth (10th) day
following the date on which notice of such meeting is first
provided to the shareholders. A shareholder wishing to directly
nominate an individual to serve as a director must follow the
procedure outlined in Article I, Section 12 of our
Amended and Restated Code of Regulations, titled Advance
Notice of Director Nomination and then send a signed
letter of nomination to the following address: Corporate
Governance and Nominating Committee,
c/o Mr. Donald
A. Merril, Corporate Secretary, Myers Industries, Inc., 1293
South Main Street, Akron, Ohio 44301.
In May, 2009, Gamco Investors, Inc., a New York corporation
(Gamco), amended its Schedule 13D relating to
the Company to disclose its intent to submit recommendations of
one or more individuals as nominees for director to the
nominating committee of our Board for election as directors at
our Annual Meeting to be held in 2010. Gamco further amended its
Schedule 13D relating to the Company on October 30,
2009 and November 13, 2009 to disclose that it had sent
letters to the Company announcing its intention to recommend up
to four individuals for nomination for election as directors of
the Company at the Annual Meeting, and recommending Edward F.
Crawford, Avrum Gray and Robert Prather as nominees to our
Board. According to the information provided by Gamco, for which
the Company disclaims any responsibility, it is part of a group
of stockholders that together beneficially owned
3,530,575 shares of our Common Stock as of
November 13, 2009. As of the date of this proxy statement,
Gamco has not indicated that it intends to solicit proxies from
our stockholders for the election of its proposed nominees. If
Gamco proceeds to solicit proxies, our Board recommends that you
NOT return Gamcos proxy card or otherwise vote as
recommended by Gamco.
OUR BOARD RECOMMENDS THAT YOU VOTE FOR EACH OF
KEITH A. BROWN, VINCENT C. BYRD,
SARAH R. COFFIN, JOHN B. CROWE,
RICHARD P. JOHNSTON, EDWARD W. KISSEL,
JOHN C. ORR, JON H. OUTCALT, AND
ROBERT A. STEFANKO BY EXECUTING AND RETURNING THE
WHITE PROXY CARD OR VOTING BY ONE OF THE OTHER WAYS INDICATED
THEREON, PROXIES SOLICITED BY THE BOARD WILL BE SO VOTED UNLESS
STOCKHOLDERS SPECIFY OTHERWISE.
10
Corporate
Governance Policies.
Implementation. The Board of Directors has
implemented the corporate governance initiatives required by the
NYSE rules and the Sarbanes-Oxley Act of 2002. These initiatives
include, among others, Corporate Governance
Guidelines, a Code of Business Conduct and
Ethics for the Companys directors, officers and
employees, as well as a Code of Ethical Conduct for the
Finance Officers and Finance Department Personnel. These
corporate governance policies and procedures are discussed in
various places within this Proxy Statement.
Availability of Corporate Governance
Policies. Each of our corporate governance
policies is available on the Corporate Governance
page accessed from the Investor Relations page of
our website at www.myersind.com.
Code of Ethics. We have a Code of
Business Conduct and Ethics and a Code of Ethical
Conduct for the Finance Officers and Finance Department
Personnel, which embody our commitment to ethical and
legal business practices, as well as satisfies the NYSE
requirements to implement and maintain such policies. The Board
expects all of our officers, directors and other members of our
workforce to act ethically at all times. Both of these policies
are available on our website at www.myersind.com on the
Corporate Governance page accessed from the
Investor Relations page.
Executive Sessions of the Board. Effective in
December 2002, the Board adopted a policy requiring the
non-management directors, both as to the Board and in their
respective Committees, to meet regularly in executive session
without any management personnel or employee directors present.
During 2009, the Board and each Committee met regularly in
executive session as follows: Board of Directors, four times;
Audit Committee, five times; Compensation Committee, nine times;
and the Governance Committee, six times.
Independent Chairman. Effective in October
2009, in an effort to further align the interests of the Company
and its shareholders by ensuring independent leadership of the
Board, the Board appointed Richard P. Johnston independent
Chairman of the Board. The independent Chairman serves as a
liaison between our directors and our management and helps to
maintain open communication and discussion by the Board. Duties
of the Chairman are specified in the Charter of the Chairman of
the Board of Directors, adopted October 28, 2009, and
include serving in a presiding capacity, coordinating the
activities of the Board, leading the independent directors in
executive session, and such other duties and responsibilities as
the Board of Directors may determine from
time-to-time.
This charter is available on our website at www.myersind.com
on the Corporate Governance page accessed from
the Investor Relations page.
Presiding Directors. The independent directors
reported that in 2009 they selected Presiding Directors to
preside during executive sessions. The Chairman of the
Governance Committee acts as the Presiding Director for the
executive sessions of the Board, and the Chair of each Committee
was selected as the Presiding Director for the executive
sessions of the applicable Committee.
Anonymous Reporting. The Audit Committee
maintains procedures, including a worldwide telephone
hotline, which allows employees and interested
parties to report any financial or other concerns anonymously as
further detailed under Interested Parties Communications
with the Board of Directors above.
Annual Board and Committee
Self-Assessments. In 2004, the Board, through the
Governance Committee, instituted annual self-assessments of the
Board, as well as of the Audit Committee, the Compensation
Committee, and the Governance Committee, to assist in
determining whether the Board and its Committees are functioning
effectively. In early 2010, the Board and each of its Committees
conducted the most recent self-evaluations and discussed the
results at subsequent meetings.
NYSE and SEC Certifications. In 2009 we
submitted to the NYSE an unqualified Section 12(a)
certification by our Chief Executive Officer. Further, each
applicable filing with the SEC contained the Section 302
and 906 Certifications of both our Chief Executive Officer and
Chief Financial Officer.
11
Director Compensation. The
annual retainer for non-employee directors is $25,000, except
for the Audit Committee chair, who receives an annual retainer
of $30,000. In addition, directors receive a meeting fee of
$1,500 for each scheduled Board or Committee meeting which they
attend, except that Committee chairs receive $2,000 for each
Committee meeting they attend. Directors who are not appointed
members of a Committee are paid a meeting fee if they attend the
Committee meeting at the request of the chair of the Committee.
Directors are reimbursed for their reasonable out of pocket
expenses related to attending Board and Committee meetings.
Directors who are employees of the Company do not receive either
the annual retainer or the meeting fees.
Under the 2008 Incentive Stock Plan each non-employee director
who holds such position on the date of the annual meeting of the
shareholders and has been a director for the entire period since
the annual meeting of shareholders of Myers that was held in the
immediately preceding calendar year will be awarded annually, on
the date of the annual meeting of shareholders,
1,000 shares of Common Stock (or such higher number of
shares of Common Stock as recommended by the Compensation
Committee and approved by the Board, not to exceed
3,000 shares). Previously under the Amended and Restated
1999 Incentive Stock Plan, a restricted stock award of
1,000 shares of Common Stock was made to each non-employee
director on the date of the annual meeting of shareholders in
each of 2007 and 2008. Each of those restricted stock awards
will vest in equal amounts over a four year period from the date
of grant.
Our Code of Regulations provides that we will indemnify, to the
fullest extent then permitted by law, any of our directors or
former directors who was or is a party or is threatened to be
made a party to any matter, whether civil or criminal, by reason
of the fact that the individual is or was a director of the
Company, or serving at our request as a director of another
entity. We have entered into indemnity agreements with each of
our directors contractually obligating us to provide such
protection. We also currently have in effect director and
officer insurance coverage.
The following table shows the compensation paid to each of the
non-employee directors during fiscal 2009. Mr. Orr, who is
our President and Chief Executive Officer, does not receive any
additional compensation for his services as a director.
NON-EMPLOYEE
DIRECTOR COMPENSATION TABLE
FOR FISCAL 2009
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Change in
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Pension Value
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Fees Earned
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Non-Equity
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and Nonqualified
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or Paid in
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Option
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Incentive Plan
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Deferred
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All Other
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Cash
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Stock Awards
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Awards
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Compensation
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Compensation
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Compensation
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Total
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Name
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($)
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($)(7)
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($)(8)
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($)
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Earnings ($)
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($)
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($)
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Keith A. Brown
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61,750
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10,030
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71,780
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Vincent C. Byrd
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54,250
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10,030
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64,280
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John B.
Crowe(1)
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40,750
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0
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40,750
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Richard P. Johnston
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74,250
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10,030
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25,549(10
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109,829
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Edward W.
Kissel(2)
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77,500
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10,030
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87,530
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Stephen E. Myers
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34,750
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(6)
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10,030
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(19,019
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)(9)
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229,948(11
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255,709
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Richard L.
Osborne(3)
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19,500
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10,030
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29,530
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Jon H.
Outcalt(4)
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68,500
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10,030
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78,530
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Robert A.
Stefanko(5)
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68,500
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10,030
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78,530
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(1) |
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Mr. Crowe became a member of
the Board effective as of the annual meeting held April 30,
2009.
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(2) |
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Mr. Kissel served as the
Chairman and Presiding Director of the Governance Committee.
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(3) |
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Mr. Osborne, who has been our
director since 1978, retired from the Board as of April 30,
2009.
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(4) |
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Mr. Outcalt served as the
Chairman and Presiding Director of the Compensation Committee.
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(5) |
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Mr. Stefanko served as the
Chairman and Presiding Director of the Audit Committee.
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(6) |
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Mr. Myers is the former Chief
Executive Officer and Chairman and received compensation under a
severance arrangement which terminated on May 1, 2009 (see
footnote 11 below). The amounts reported here represent payments
made to Mr. Myers for his continued service on the
Companys board.
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12
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(7) |
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Stock Award amounts shown in this
Non-Employee Director Compensation Table do not reflect
compensation actually received by the directors. The amounts
shown reflect the fair market value of 1,000 shares of
common stock awarded to the following directors on
April 30, 2009: Mr. Brown, Mr. Byrd,
Mr. Johnston, Mr. Kissel, Mr. Myers,
Mr. Osborne, Mr. Outcalt, and Mr. Stefanko.
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(8) |
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No stock option awards were
provided to the non-employee directors in 2009. The number of
stock options held by the directors at December 31, 2009
was as follows: Mr. Brown (8,850), Mr. Byrd (0),
Mr. Crowe (0), Mr. Johnston (8,850), Mr. Kissel
(8,850), Mr. Myers (5,000), Mr. Osborne (8,850),
Mr. Outcalt (8,850), and Mr. Stefanko (0).
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(9) |
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Mr. Myers began receiving
payments under our Supplemental Executive Retirement Plan as of
May 1, 2009. The amount reported reflects the change in net
present value of the accrued Supplemental Executive Retirement
Plan benefit from January 1, 2009 to December 31, 2009.
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(10) |
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The amount of $25,549 for
Mr. Johnston reflects an annual pension benefit that he is
entitled to under the terms of an employment agreement with our
subsidiary Buckhorn Inc. He resigned as an employee in 1990. The
pension benefits commenced under the employment agreement
following his resignation.
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(11) |
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On May 1, 2005, Mr. Myers
entered into a retirement and separation agreement with a term
through May 1, 2009, during which time, he was considered a
non-executive employee with total compensation of $500,000 per
year, allocated as follows: (i) compensation for his
services as an employee at $60,000; (ii) compensation for
non-compete provisions at $220,000 and (iii) compensation
for releases of claims and other covenants at $220,000. Under
this agreement in 2009, Mr. Myers also received $396 for
the cost of group term life insurance exceeding $50,000. The
agreement provided coverage under the Companys health care
plan until May 1, 2009. After May 1, 2009,
Mr. Myers began receiving payments under the Companys
Supplemental Executive Retirement Plan (see footnote 9 above).
Until he reaches the age of 75, Mr. Myers will be
reimbursed for private supplemental health care coverage that he
obtains up to a maximum of the then current cost of COBRA
coverage under the Companys health care plan. COBRA
reimbursements of $5,599 were made to Mr. Myers in 2009.
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Risk Assessment
of Compensation Practices.
In establishing compensation policies and practices for all of
our employees, we utilize a balanced mixture of salary, bonus
and, in some cases, equity-based compensation that support the
enhancement of revenue, earnings and cash performance of the
Company for our shareholders without creating undue risk. Under
our long term incentive program adopted for 2010 (2010
LTIP) we intend to utilize a blend of stock options,
service-based awards and performance-based awards with a greater
emphasis on performance-based awards than service-based awards
that we believe will further align the interests of our
employees with those of our shareholders. Our risk oversight and
overall compensation structure has features that guard against
excessive risk taking, including:
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Our Boards and its committees role in risk oversight,
including internal control over financial reporting and other
strategic, financial, operational, compliance and technology
policies and practices (see the section titled
Boards Role in Risk Oversight above for a
complete description);
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Diversified nature of our business segments with respect to
industries and markets served, products and services sold, and
geographic footprint;
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Establishment and annual review of base salaries to be
consistent with an employees responsibilities;
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Determination and award of incentive awards based on a review of
a variety of indicators of performance that diversifies the
risks associated with any single indicator of performance;
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A mixture of fixed and variable, annual and long-term, and cash
and equity compensation are provided to our employees to
encourage strategy and actions that are in the long-term
interests of the Company and our shareholders; and
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Awards of incentive compensation with vesting criteria to reward
employees for driving sustainable, profitable growth for
shareholders.
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EXECUTIVE
COMPENSATION AND RELATED INFORMATION
Compensation
Disclosure and Analysis.
The primary objective of our executive compensation package is
to attract, retain, and motivate our executives. Our current
executive officers, John C. Orr, President and Chief Executive
Officer, David B.
13
Knowles, Executive Vice President and Chief Operating Officer,
and Donald A. Merril, Chief Financial Officer, Vice President
and Corporate Secretary, are compensated according to the terms
of their employment contracts, which are described below under
the section titled Employment Agreements Including Change
in Control. Messrs. Orr, Knowles and Merril are the
only Named Executive Officers of the Company (collectively, the
Named Executive Officers). We seek to provide a
total compensation package that is competitive and that rewards
our executives for their role in creating value for our
shareholders.
Overview:
Our Compensation Committee, which is comprised of four
independent directors, is responsible for establishing and
administering our compensation policies. To meet our goals, the
Compensation Committee has implemented compensation packages
that are based on a mix of salary, bonus opportunities, equity
awards and other benefits. The Compensation Committee focuses on
performance based compensation to insure the alignment of our
executives interests with those of our shareholders. We
believe that performance and equity based compensation are the
components of our executive compensation package that will
maximize shareholder value and enable us to attract and retain
qualified executives.
The Chief Executive Officer regularly meets with the
Compensation Committee and makes recommendations with respect to
our compensation programs, practices and packages for executives
and other employees. The Compensation Committee considers these
recommendations in its deliberations and meets in executive
session at the end of each meeting. The Compensation Committee
discusses Mr. Orrs compensation package with him, but
makes its decisions with regard to his compensation in executive
session. Under the terms of their respective employment
agreements, Mr. Orrs and Mr. Merrils
respective base salaries may not be decreased.
Objectives:
Our executive compensation program is designed to meet the
following goals:
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Motivate our executive officers to achieve short-term and
long-term Company goals that will increase shareholder value;
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Ensure that the actual compensation paid to our executive
officers is aligned and correlated with financial performance
and changes in shareholder value;
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Motivate and reward executives whose knowledge, skills and
performance are crucial to our success; and
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Attract and retain talented and experienced executives and other
key employees.
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Policies:
To meet our objectives, the Compensation Committee implemented
the following policies:
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Provide compensation packages that are within a range that is
reasonably competitive in the market;
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Provide short-term performance incentives by establishing goals
for our executives through a bonus plan focused on operating
performance and cash flow; and
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Provide long-term performance incentives and reward executive
management for achievement of long-term strategic initiatives
through the use of restricted stock awards, option grants and
other equity-based awards under our 2008 Incentive Stock Plan.
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Compensation Components:
Our executive compensation program is designed to be consistent
with the objectives set forth above. The basic elements of our
compensation package include (i) base salary,
(ii) annual bonus opportunities, (iii) long-term
incentives, such as equity awards, (iv) retirement
benefits, and (v) generally available health, welfare and
other benefit programs and executive perquisites. Under our
executive compensation program, we target total compensation to
be within the range of compensation paid to similarly situated
14
executive officers at peer public companies and companies in our
industry. We also monitor and assess the competitive retention
and recruiting pressures for executive talent in our industries
and our markets.
Compensation for our executives is established based on the
scope of their responsibilities and their relevant background,
training and experience. The Compensation Committee has the
authority to engage its own independent advisors and
compensation consultants to assist in carrying out its
responsibilities. Data on compensation practices of companies
similar to ours is also considered in establishing the
compensation of our executives. In fiscal 2008, the Compensation
Committee reviewed the base salaries of similarly situated
executives at the following peer companies predominantly located
in Ohio: Brush Engineered Materials, Inc, Caraustar Industries,
Inc., Chesapeake Energy Corporation, Libbey Inc., Nordson
Corporation, OMNOVA Solutions Inc., Park-Ohio Holdings Corp.,
and STERIS Corporation, among others, in setting the base
salaries for Messrs. Orr and Merril for fiscal 2009. Such
data was gathered through searches of publicly available
information with the assistance of Westervelt Consulting LLC.
In fiscal 2009, Towers Perrin (n/k/a Towers Watson) was engaged
by the Compensation Committee to review peer company practices
from 20 select peer companies in the plastics,
packaging/container and distribution industries that were
jointly selected by the Compensation Committee and Towers
Watson. These peer companies are located across the country and
have median revenues of approximately $877 million, which
we believe to be indicative of our competitive market for
executive talent. This review included the compensation of
executives at Tupperware Brands Corporation, Aptargroup, Inc.,
Boise Inc., A. Schulman Inc., Spartech Corporation, Associated
Materials, LLC, Park-Ohio Holdings Corp., West Pharmaceutical
Services, Inc., BWAY Holding Company, Tredegar Corporation,
OMNOVA Solutions Inc., Caraustar Industries, Inc., Milacron
Inc., AEP Industries Inc., Crocs, Inc., NN, Inc., American
Biltrite Inc., Dorman Products, Inc., Trex Company, and
Multi-Color Corporation. In addition, Towers Watson provided the
Compensation Committee with data from compensation surveys that
include hundreds of companies in a broader range of industries
with revenues that are comparable to ours and helped us to
develop the 2010 LTIP. Towers Watson has not provided other
services to Myers during fiscal 2009 and has received no
compensation other than with respect to the services provided to
the Compensation Committee.
The Compensation Committee reviews the compensation program on
an annual basis. In setting compensation levels for a particular
executive, the Compensation Committee takes into consideration
the executives past and expected contributions to our
business.
Base Salary. Base salaries for our executive
officers are established based on the scope of their
responsibilities and their relevant background, training and
experience. Data on compensation practices of companies similar
to ours is also considered in setting base salaries. The
Compensation Committee targets base salaries around the 50th
percentile of peer public companies and industry competitors in
our markets, but also considers other factors, including
individual experience and performance, external market
conditions and the scope of responsibilities. The base salary
for our executive officers is set forth in their respective
employment agreements and these salaries are reviewed on an
annual basis. All of the executive officers are eligible for
periodic increases in base salary based on performance. The
purpose of the base salary component is to keep our annual
compensation for our executive officers competitive with the
market and to recognize the skills, competencies, experience and
individual performance of our executive officers.
Bonus. In keeping with its policy of rewarding
our executive officers for performance, the executive cash bonus
compensation plan implemented by the Compensation Committee in
2007 awards bonuses based on our achievement of operational
goals. The plan is applicable to members of senior management
and the determination of cash bonus awards is based on two
components: (i) 50% of the award amount is based on the
Companys achievement of certain targets (EBITDA
Targets) for earnings before interest, taxes, depreciation
and amortization (EBITDA), as adjusted for special
income and expenses, that are approved by the Compensation
Committee, and (ii) 50% of the award amount is based on the
Companys achievement of certain targets (Cash Flow
Targets) for cash flow (Cash Flow) established
by the Compensation Committee. The Compensation Committee chose
EBITDA and Cash Flow as the two
15
components to be measured because the Compensation Committee
believes that they are indicators of our operational
profitability and long-term financial health. Both components
are weighted equally in order to balance the motivations of our
executive officers to achieve both near-term profitability and
long-term growth.
The establishment of EBITDA Targets and Cash Flow Targets for a
particular year are driven by the annual budget developed by
senior management. The annual budget is developed by senior
management through vigorous
bottoms-up
planning, evaluation of business expectations on a segment by
segment basis, customer reviews, raw material availability and
pricing evaluations, SG&A considerations, and general
business and economic conditions. The annual budget is vetted
and approved by the Board. EBITDA Targets and Cash Flow Targets
are established based upon a reasonable level of expected return
given our performance against such annual budget. The
Compensation Committee sets maximum targets that it believes to
be reasonable stretch targets in the current economic climate,
resulting in payouts to management that appropriately motivate
our senior management without encouraging inappropriate
risk-taking activities.
Long-Term Incentives. We customarily have
awarded long-term equity incentive grants in the form of options
to our executive officers under our 2008 Incentive Stock Plan,
as part of our total compensation package, during September or
October of each fiscal year. Under the 2010 LTIP, the
Compensation Committee has decided to move the timing of such
long-term equity incentive grants to the first quarter of each
fiscal year to allow the Compensation Committee to have greater
visibility into the fiscal year-end results at the time it
considers the extent of incentive grants to be made. The value
of any such grants is determined by the closing price of our
stock on the NYSE on the date that the Compensation Committee
approves such grants. In addition, from
time-to-time
during the year, the Compensation Committee may make grants to a
new employee or, in rare circumstances, to a current employee.
In such cases, the value of the grants is based on the closing
price of our stock on the NYSE on the date of such grants.
The 2008 Incentive Stock Plan provides us with flexibility to
grant stock options, stock appreciation rights, performance
awards, restricted stock and other forms of equity-based awards.
These awards are consistent with our goal of motivating and
rewarding our executive officers for increasing shareholder
value and promote our long-term interests by aiding the
retention of high-quality executives. Our use of long-term
incentives reflect the belief that a significant component of
executive compensation should be at risk where the amount earned
depends on achieving Company performance objectives designed to
enhance shareholder value. Accordingly, our long-term incentives
are designed to pay larger amounts if we achieve favorable
performance and smaller amounts if we do not achieve target
performance. Performance awards reward our executive officers
for achieving sustained financial results as well as for
increasing our stock price. As a result, they tie rewards to
performance and provide an additional means to own our stock.
Retirement Benefits. To enhance our ability to
attract and retain experienced key executive officers, we have
adopted a Supplemental Executive Retirement Plan
(SERP) which provides certain pension benefits to a
select group of management employees, including our executive
officers. The annual supplemental pension benefit is payable for
ten years commencing at retirement or age 65. Credit for
years of service under the SERP may also be awarded to a
participant at the discretion of the Compensation Committee. As
part of their respective employment agreements Mr. Orr,
Mr. Knowles, and Mr. Merril were provided with an
annual SERP benefit equal to $275,000, $75,000, and $50,000,
respectively, payable for ten years commencing at the later of
retirement or age 65, as well as a Years of
Service credit. We provide benefits under the SERP in
order to offer competitive benefits to newly appointed senior
executives and to enhance the retention and recruitment of well
qualified executive officers.
In addition to the SERP, we maintain a tax-qualified 401(k)
Plan, pursuant to which all participants are eligible to receive
matching contributions from the Company.
Other. We maintain broad-based benefits and
perquisites that are provided to all employees, including health
insurance and life and disability insurance. We also provide our
executive officers with various personal benefits. The actual
perquisites provided to each of our executive officers are set
forth in their respective employment agreements, but these
perquisites generally include use of a company car or a car
16
allowance (including certain related expenses), use of the
Company club membership at the executives own expense, and an
annual executive physical examination. These benefits are valued
by calculating their incremental cost to the Company. Our
executive officers benefits and perquisites are not tied
to individual or Company performance, which is the same approach
used for all employees. The Compensation Committee believes that
these benefits are set at a reasonable level, are highly valued
by our executive officers, have limited costs and are part of a
competitive compensation package that helps us to attract and
retain high quality executive officers.
Compensation Upon a Termination and Change of Control Based
Compensation:
We have provided our executive officers with severance payments
as provided in their respective employment agreements to provide
some level of income continuity should an executives
employment be terminated without cause, which we believe to be
in alignment with competitive practices for executives at peer
public companies and companies in our industry. See the section
titled Employment Agreements Including Change in
Control for a discussion of the compensation payable to
each of Messrs. Orr, Knowles and Merril upon a termination
of employment.
Additionally, our executive officers are entitled to certain
payments upon a change in control of the Company on the terms
set forth in their respective employment agreements. We believe
it is appropriate and in the best interests of our Company to
reinforce and encourage the continued attention and dedication
of our key executive officers to their respective duties without
distraction in light of the potential for a change in control of
the Company. See the section titled Employment Agreements
Including Change in Control for a discussion of the
compensation payable to each of Messrs. Orr, Knowles and
Merril upon a change in control of the Company.
Compensation of Chief Executive Officer:
In May, 2005, the Board appointed John C. Orr as the Chief
Executive Officer. Mr. Orr had previously held the position
of our Chief Operating Officer. In June 2008, the Company
renewed its employment agreement with Mr. Orr. When
establishing the total mix of compensation for the Chief
Executive Officer, the Compensation Committee reviewed
Mr. Orrs performance, which included in part a review
of the Companys operations, results, cost containment and
reductions, as well as his leadership skills. In addition, the
Compensation Committee conducted an assessment of his abilities
to meet the goals and objectives being set for him as Chief
Executive Officer in areas such as strategic planning, financial
results (annual and long-term), and succession planning, as well
as taking into consideration the increase in responsibilities
and obligations in his new position as Chief Executive Officer.
The Compensation Committee also reviewed publicly available
compensation information for companies similar to ours in one or
more ways, such as those with like amount of sales, market
value, products, or within the same industry or geographic area.
For a complete description of Mr. Orrs compensation
see the section titled Employment Agreements Including
Change in Control.
Compensation of Chief Operating Officer and Chief Financial
Officer:
While the Compensation Committee reviews each individuals
performance, the recommendation of the Chief Executive Officer
and analysis of peer group compensation are important factors
used by the Committee in determining the base salary for the
Chief Operating Officer and the Chief Financial Officer. The
Compensation Committees review of performance and
determination of the total mix of compensation is based upon the
same factors as mentioned above for the Chief Executive Officer,
but as applicable to the Chief Operating Officers or the
Chief Financial Officers respective duties and
responsibilities. For a complete description of
Messrs. Knowles and Merrils compensation see
the section titled Employment Agreements Including Change
in Control.
Accounting and Tax Considerations:
In designing our compensation programs, we take into
consideration the accounting and tax effect that the components
will have or may have on our executive officers and the Company.
However, in light of the fact that only Mr. Orrs
compensation may be impacted by Sec. 162(m) of Internal Revenue
Code of 1986,
17
as amended (the IRC), and the impact of the
potential lost deduction is de minimis, the Compensation
Committee has decided to retain flexibility in compensating our
executive officers.
Executive Compensation in 2009:
Based in large part on external market conditions, the
Compensation Committee maintained the base salaries for
Messrs. Orr and Merril for fiscal 2009 at the same level as
during fiscal 2008. Mr. Knowles was appointed to his
current position effective June 19, 2009, and his base
salary for 2009 was based on Mr. Knowles skills,
experience, expected responsibilities and contributions to the
Company.
In determining the cash bonuses for our executive officers for
fiscal 2009, the Compensation Committee utilized the criteria
established by the executive cash bonus compensation plan with
EBITDA Targets and Cash Flow Targets established by the
Compensation Committee based on the annual budget developed by
senior management for fiscal 2009. In fiscal 2009, the EBITDA
Targets were established with reference to our financial
performance and general economic conditions and the Compensation
Committees belief that to be rewarded, senior management
had to generate EBITDA results that improved on EBITDA results
achieved in fiscal year 2008, while the Cash Flow Targets were
established with the recognition that cash flow generation was
essential to us in the constrained economic environment. The
table below sets forth the EBITDA Targets and Cash Flow Targets
utilized by the Compensation Committee for fiscal 2009:
|
|
|
|
|
Percentage Payout
|
|
EBITDA Target
|
|
Cash Flow Target
|
|
|
(In millions)
|
|
(In millions)
|
|
0%
|
|
N/A
|
|
$42.34
|
25%
|
|
N/A
|
|
$44.99
|
50%
|
|
N/A
|
|
$47.63
|
75%
|
|
N/A
|
|
$50.28
|
100%
|
|
$83.39
|
|
$52.93
|
125%
|
|
$85.99
|
|
$56.24
|
150%
|
|
$88.60
|
|
$59.55
|
175%
|
|
$91.21
|
|
$62.85
|
200%
|
|
$93.81
|
|
$66.16
|
The percentage payout for each component was determined
independently of the other component and was determined based on
a sliding scale between zero and 200%. The resulting percentage
payout for each component was added together to determine the
total percentage payout under the plan. Each participants
total bonus award under the plan was determined by multiplying
the total percentage payout under the plan by the salary target
specified by the Compensation Committee for each participant in
the plan based on their management level and experience. For
fiscal 2009, the aggregate target award for the Chief Executive
Officer was 100% of his base salary, with a maximum aggregate
award of 200% of his base salary, the aggregate target award for
the Chief Financial Officer was 75% of his base salary, with a
maximum aggregate award of 150% of his base salary. For 2009,
under the terms of his employment agreement with the Company,
our Chief Operating Officer was entitled to a bonus of not less
than $150,000 in consideration of his lost bonus opportunity
with his prior employer caused by his change of employment
mid-year, with a target annual bonus opportunity of not less
than 75% of his base salary, with a maximum aggregate award of
150% of his base salary, for future years.
In fiscal 2009, after adjustments for special income and
expenses approved by the Compensation Committee, the Company
achieved an EBITDA and cash flow under the plan that
corresponded to a 0% payout for the EBITDA component under the
plan and 200% payout for the cash flow component under the plan,
which resulted in an averaged payout of 100% (the
2009 Percentage Payout). In accordance with the
plan, the Chief Executive Officer was entitled to a cash bonus
under the plan for fiscal 2009 equal to his 2009 salary
multiplied by the 2009 Percentage Payout, which equated to
an award of $725,000. The Chief Operating Officer was entitled
to a cash bonus under the plan for fiscal 2009 equal to 75% of
his 2009 salary multiplied by the 2009 Percentage Payout
and multiplied by (196/365) for the pro-rata amount of days
worked by Mr. Knowles in fiscal 2009, which equated to an
award of $161,096. The Chief Financial
18
Officer was entitled to a cash bonus under the plan for fiscal
2009 equal to 75% of his 2009 salary multiplied by the
2009 Percentage Payout, which equated to an award of
$248,063. Each of these cash bonuses was paid early in 2010.
In fiscal 2009, in large part based on the Companys
financial performance and external market conditions, and in
consideration of the Compensation Committees decision to
engage Towers Watson to assist in the development of a modified
approach to the Companys philosophy regarding the use of
long term incentives pursuant to the 2010 LTIP, no long-term
equity incentive awards were granted to our executive officers
or members of senior management under the 2008 Incentive Stock
Plan. Perquisites for our Chief Executive Officer included use
of a Company provided automobile, reimbursement of automobile
related expenses and use of the Company club membership at the
Chief Executive Officers own expense. Perquisites for our
Chief Operating Officer included a monthly automobile allowance,
temporary living expenses and use of the Company club membership
at the Chief Operating Officers own expense. Perquisites
for our Chief Financial Officer included use of a Company
provided automobile, automobile insurance cost reimbursement,
and use of the Company club membership at the Chief Financial
Officers own expense.
Executive Compensation in 2010:
In fiscal 2009, the Compensation Committee engaged Towers Watson
to conduct a study to provide competitive pay data for the peer
group companies described above for all elements of direct
compensation utilized by us (salary, bonus and long-term
incentives) for our Named Executive Officers and other key
members of management and to make recommendations on the types
and amounts of compensation for our executives for fiscal 2010,
including our approach and philosophy with respect to the use of
long-term incentives. Towers Watson was selected by the
Compensation Committee based on its reputation and its
experience with companies of our size and in our industry.
For fiscal 2010, based on external market conditions, the
continued economic uncertainty for 2010, senior
managements recommendations and the counsel of Towers
Watson, the Compensation Committee has decided to maintain the
base salaries for Messrs. Orr, Knowles and Merril at the
same level as during fiscal 2009.
The Compensation Committee has decided to continue the executive
cash bonus compensation plan for fiscal 2010, with EBITDA
Targets and Cash Flow Targets established by the Compensation
Committee based on the annual budget developed by senior
management for fiscal 2010. In 2010, the EBITDA Target commences
payout at a lower threshold than in fiscal 2009 because of the
Committees recognition of the continuing difficult
economic climate and the impact of the sale of the assets of two
of our manufacturing businesses (Michigan Rubber Products, Inc.
and Buckhorn Rubber Products Inc.) in October, 2009. The Cash
Flow Targets also have lower thresholds than in fiscal 2009
because of the Compensation Committees recognition of
managements significant prior efforts in this area and the
reduced benefit that is anticipated from future efforts to
manage the Companys working capital processes. The
Committee determined to modify the calculation of the Cash Flow
Target to be cash flow before capital expenditures so as to
balance sound decisions on long-term capital investments with
achievement of cash flow goals. The
19
EBITDA Targets and Cash Flow Targets established by the
Compensation Committee for fiscal 2010 are set forth in the
table below:
|
|
|
|
|
|
|
|
|
EBITDA Target
|
|
Cash Flow Target
|
Percentage Payout
|
|
(In millions)
|
|
(In millions)
|
|
|
0%
|
|
|
$61.02
|
|
$49.30
|
|
25%
|
|
|
$64.84
|
|
$52.39
|
|
50%
|
|
|
$68.65
|
|
$55.47
|
|
75%
|
|
|
$72.47
|
|
$58.55
|
|
100%
|
|
|
$76.28
|
|
$61.63
|
|
125%
|
|
|
$81.05
|
|
$65.49
|
|
150%
|
|
|
$85.82
|
|
$69.34
|
|
175%
|
|
|
$90.58
|
|
$73.19
|
|
200%
|
|
|
$95.35
|
|
$77.04
|
In March 2010, the Board implemented the 2010 LTIP developed
with the assistance of Towers Watson, and a blend of stock
options, service-based awards and performance-based awards were
granted to our executives pursuant to the 2008 Incentive Stock
Plan. The 2010 LTIP modifies our recent historical approach of
primarily awarding stock options and is intended to place
greater emphasis on cash performance-based awards than
service-based equity awards to further align the interests of
our executives with those of our shareholders. For 2010, the mix
of awards granted to our executives were composed of 35% stock
options, 35% performance-based awards and 30% service-based
awards. The stock options vest ratably during the three years
from the date of grant, the service-based awards are subject to
three year cliff vesting, and the performance-based awards vest
over three years based on return on invested capital goals
established by the Compensation Committee at the time of the
award grant. In determining the awards granted to our executive
officers and senior management in 2010 and such awards
role in motivating and fairly compensating our employees, the
Compensation Committee believed it was important to acknowledge
that no long-term grants were made in fiscal 2009.
Compensation
Committee Interlocks and Insider Participation.
During fiscal 2009, the following directors were members of the
Compensation Committee: Jon H. Outcalt, Edward W. Kissel (until
April 30, 2009), Robert A. Stefanko (after April 30,
2009), Richard P. Johnston (after April 30, 2009) and
Keith A. Brown (after April 30, 2009). None of the
Compensation Committees members have at any time been an
officer or employee of the Company. None of our Named Executive
Officers serves, or in the past fiscal year has served as a
member of the board of directors or compensation committee of
any entity that has one or more Named Executive Officers serving
on the Companys Board or Compensation Committee.
Compensation
Committee Report on Executive Compensation.
The information contained in this report shall not be deemed
to be soliciting material or filed with
the SEC or subject to the liabilities of Section 18 of the
Securities Exchange Act of 1934, as amended (the Exchange
Act), except to the extent that we specifically
incorporate it by reference into a document filed under the
Securities Act of 1933, as amended (the Securities
Act) or the Exchange Act.
The Compensation Committee, which is currently composed of four
independent directors, operates under a written charter adopted
by the Compensation Committee and ratified by the Board. A copy
of the charter is available on our website www.myersind.com
on the Corporate Governance page under the
Investor Relations section. The Compensation
Committee is responsible for, among other duties, establishing
and administering the policies which govern executive
compensation.
The executive compensation program for the executive officers of
the Company is administered by the Compensation Committee. The
Compensation Committees function is to review the
performance of the Chief Executive Officer and the other
executive officers in determining the amount and type of
20
compensation to be paid and awarded, as well as approve
compensation adjustments and to make awards of cash bonuses and
long-term incentive grants, if deemed appropriate. Historically,
the Compensation Committee primarily based its decisions on
qualitative factors, exercising its discretion and using its
judgment after considering those factors it deemed relevant. The
Compensation Committee continues to place increased emphasis on
quantitative factors pursuant to the executive cash bonus
compensation plan.
The Compensation Committee, in the performance of its duties and
responsibilities, has reviewed and discussed with management the
information provided under the section titled Compensation
Discussion and Analysis. Based on discussions with
management and our review of the Compensation Discussion
and Analysis disclosure, we have recommended to the Board
that the Compensation Discussion and Analysis be
included in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009.
The foregoing report has been furnished by the current members
of the Compensation Committee, being:
Jon H. Outcalt (Chairman and Presiding Director), Robert A.
Stefanko, Richard P. Johnston, and Keith A. Brown
Summary of Cash and Certain Other
Compensation. The following table contains
certain information regarding the compensation earned, paid or
payable during 2009, for services rendered to the Company and
its subsidiaries during fiscal 2009, to the Named Executive
Officers.
SUMMARY
COMPENSATION TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Value and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
Nonqualified
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
Option
|
|
|
Incentive Plan
|
|
|
Deferred
|
|
|
All Other
|
|
|
|
|
Name and
|
|
|
|
|
Salary
|
|
|
Bonus
|
|
|
Awards
|
|
|
Awards
|
|
|
Compensation
|
|
|
Compensation
|
|
|
Compensation
|
|
|
|
|
Principal Position
|
|
Year
|
|
|
($)
|
|
|
($)(1)
|
|
|
($)(2)(3)
|
|
|
($)(2)(3)
|
|
|
($)
|
|
|
Earnings ($)
|
|
|
($)(4)
|
|
|
Total ($)
|
|
|
John C. Orr
|
|
|
2009
|
|
|
|
725,000
|
|
|
|
725,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
81,166
|
|
|
|
38,134
|
|
|
|
1,569,300
|
|
|
|
|
2008
|
|
|
|
725,000
|
|
|
|
|
|
|
|
276,100
|
|
|
|
1,877,501
|
|
|
|
|
|
|
|
888,272
|
|
|
|
41,587
|
|
|
|
3,808,460
|
|
|
|
|
2007
|
|
|
|
645,000
|
|
|
|
591,465
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28,289
|
|
|
|
51,519
|
|
|
|
1,316,273
|
|
David B. Knowles
|
|
|
2009
|
|
|
|
200,000
|
|
|
|
161,096
|
|
|
|
|
|
|
|
86,100
|
|
|
|
|
|
|
|
|
|
|
|
18,021
|
|
|
|
465,217
|
|
|
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Donald A. Merril
|
|
|
2009
|
|
|
|
330,750
|
|
|
|
248,063
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,107
|
|
|
|
9,322
|
|
|
|
603,242
|
|
|
|
|
2008
|
|
|
|
330,750
|
|
|
|
|
|
|
|
87,850
|
|
|
|
229,447
|
|
|
|
|
|
|
|
|
|
|
|
5,786
|
|
|
|
653,833
|
|
|
|
|
2007
|
|
|
|
315,000
|
|
|
|
230,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,030
|
|
|
|
647,010
|
|
|
|
|
(1) |
|
The amounts set forth in this
column were earned during the respective fiscal year and paid
early in the following year.
|
|
(2) |
|
Amounts shown do not reflect
compensation actually received by the executive officers.
Instead the amounts shown are reported at grant date fair value
in accordance with Financial Accounting Standards Board
(FASB) Accounting Standard Codification Topic 718,
Compensation Stock Compensation (referred to herein
as FASB ASC Topic 718).
|
|
(3) |
|
Information regarding the shares of
restricted stock and stock options granted to our named
executive officers during 2006, 2007 and 2008 are set forth in
the Grants of Plan Based Awards Table for each respective year.
The Grants of Plan Based Awards Table also sets forth the grant
date fair value in accordance with FASB ASC Topic 718.
|
|
(4) |
|
The amounts set forth in this
column include: (a) Company contributions under our 401(k)
plan and profit sharing plan earned during the respective fiscal
year but paid early in the following year; (b) tax
reimbursement payments; (c) perquisites and other personal
benefits. The amounts are listed in the following table:
|
21
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Orr
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
Contributions
|
|
|
|
|
|
|
1,347
|
|
|
|
5,185
|
|
Tax Reimbursement
|
|
|
|
|
|
|
12,250
|
|
|
|
19,848
|
|
Perquisites
|
|
|
38,134
|
|
|
|
27,990
|
|
|
|
26,486
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38,134
|
|
|
|
41,587
|
|
|
|
51,519
|
|
Mr. Knowles
|
|
|
|
|
|
|
|
|
|
|
Contributions
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Reimbursement
|
|
|
|
|
|
|
|
|
|
|
|
|
Perquisites
|
|
|
18,021
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18,021
|
|
|
|
|
|
|
|
|
|
Mr. Merril
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contributions
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Reimbursement
|
|
|
|
|
|
|
|
|
|
|
|
|
Perquisites
|
|
|
9,322
|
|
|
|
5,786
|
|
|
|
11,030
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,322
|
|
|
|
5,786
|
|
|
|
11,030
|
|
The perquisites and other personal benefits for Mr. Orr
during fiscal 2009 included: (i) an automobile and related
expenses and (ii) payment of life insurance premiums. The
perquisites and other personal benefits for Mr. Knowles
during fiscal 2009 included: (i) an automobile allowance
and (ii) temporary living expenses. The perquisites and
other personal benefits for Mr. Merril during fiscal 2009
included an automobile. These benefits are valued based on the
incremental costs to us.
Employment
Agreements Including Change in Control.
John C. Orr, President and Chief Executive Officer, was
appointed to his current position on May 1, 2005. On
June 20, 2008, the Board of Directors, upon the
recommendation of the Compensation Committee, approved an
employment agreement between the Company and Mr. Orr, for
Mr. Orr to continue serving the Company as the President
and Chief Executive Officer. The employment agreement was
effective as of June 1, 2008 and has a three year term.
Mr. Orrs employment agreement provides a base salary
of $725,000 and certain benefits, with an annual bonus
opportunity each year during his employment term that is based
on metrics established by the Compensation Committee, but with a
target of not less than 100% of Mr. Orrs base salary
for the particular year. The benefits provided under
Mr. Orrs employment agreement include, but are not
limited to: (i) participation in our profit sharing plan,
(ii) benefits under the executive supplemental retirement
plan, (iii) short-term and long-term disability insurance,
(iv) life insurance, (v) medical and dental insurance,
(vi) vacation, (vii) incentive stock options under the
2008 Incentive Stock Plan, (viii) an automobile and
reimbursement of insurance and other expenses related to the
automobile, (ix) annual grant of stock options with a value
on the date of grant of at least $1,000,000 determined on the
basis of a Black-Scholes valuation or other measure utilized by
the Compensation Committee, provided such other measure is in
general use at the time of such grant by other public companies,
(x) a one-time special option to purchase shares of Common
Stock with a value on the date of grant of at least $750,000 and
(xi) reimbursement of any excise taxes.
In fiscal 2009, Mr. Orr agreed to defer receipt of the
option grants provided in his employment agreement pending
stabilization of the economic environment, the financial
performance of the Company and the adoption by the Compensation
Committee of the 2010 LTIP. Mr. Orr, the senior management
team and the Compensation Committee worked with Towers Watson in
fiscal 2009 to design the 2010 LTIP to provide more emphasis on
performance based awards in long-term incentive compensation and
to reduce potential dilution resulting from the issuance of
stock options alone to senior management. The Compensation
Committee and Mr. Orr agreed that it was more advantageous
to the Company to have Mr. Orr participate in the same
long-term incentive plan, with the same incentives and
motivations, as the rest of the senior management team, rather
than continuing to receive the guaranteed option grants provided
for in his employment agreement. Consequently, in March, 2010,
Mr. Orr and the Company amended his
22
employment agreement to eliminate the guaranteed option grants
in exchange for Mr. Orrs participation in the 2010
LTIP along with the other members of our senior management, and
Mr. Orrs receipt of awards thereunder as approved by
the Compensation Committee. The full text of this amendment is
attached as Exhibit 10.1 to the current report on
Form 8-K
filed with the SEC on March 9, 2010.
Mr. Orrs employment agreement also provides that if
Mr. Orr is terminated other than for cause or if he
terminates for good reason, or if there is a change in control,
then he is entitled to: (1) three times Mr. Orrs
annual base salary as in effect on the date of his termination
in a lump sum within thirty (30) days after such
termination; (2) an amount equal to the sum of
(A) three times his annual bonus at the highest rate in
effect during the prior three year period plus (B) a
pro-rata portion of the target annual bonus within thirty
(30) days after such termination; (3) COBRA health
coverage at the Companys expense for the applicable period
under Section 4980B of the IRC, followed by coverage under
the Companys health care plans for the remainder of the
employment term; (4) continuation of the automobile
allowance for the remainder of the employment term;
(5) long term disability protection for the remainder of
the employment term; (6) life insurance protection for the
remainder of the employment term; and (7) outplacement
services for one year and is provided with IRC Section 280G
protection in the form of an excise tax
gross-up
payment. In addition, upon Mr. Orrs termination
following a change of control, all of Mr. Orrs
outstanding stock options and restricted stock awards will
become vested, to the extent not previously forfeited or
terminated. Mr. Orr is also subject to a three year
non-compete agreement.
In the event that Mr. Orrs employment is terminated
by us other than for cause or by him for good reason, or if
there is a change of control of the Company, then Mr. Orr
would receive the following benefits under the terms of his
employment agreement if such event occurred as of
December 31, 2009: (i) a lump sum payment of
$4,350,000 consisting of a combination of a payment of three
times his most recent salary and three times the highest annual
bonus awarded during the prior three year period;
(ii) continuation of medical, dental, long and short-term
disability protection and any life insurance coverage for a
period of three years with an estimated value of $141,042;
(iii) acceleration of the vesting of stock options or other
vesting provisions related to restricted stock or other stock
awards having a value of $1,633,876 and (iv) other benefits
valued at $65,000, including payments for automobile allowances.
If Mr. Orr is terminated by us for cause or he resigns
other than for good reason, then Mr. Orr is only entitled
to compensation earned prior to the date of termination that has
not yet been paid.
David B. Knowles, Executive Vice President and Chief Operating
Officer, was appointed to his current position effective
June 19, 2009, for a two year term with automatic renewals
for successive one year terms thereafter until an event of
termination. Under the terms of his employment agreement,
Mr. Knowles will receive a base salary of $400,000 per
year, subject to annual review by the Compensation Committee.
For 2009, Mr. Knowles received a bonus of $161,096 pursuant
to the executive cash bonus compensation plan. Any future or
additional bonus will be determined by the Compensation
Committee pursuant to metrics established by the Compensation
Committee, with a target annual bonus opportunity for each year
that is not less than 75% of Mr. Knowles base salary for
the particular year. In connection with the employment
agreement, Mr. Knowles was granted stock options to acquire
30,000 shares of the Companys common stock. The
benefits provided under Mr. Knowles employment
agreement include, but are not limited to:
(i) participation in our profit sharing plan,
(ii) benefits under the executive supplemental retirement
plan, (iii) short-term and long-term disability insurance,
(iv) group term life insurance, (v) medical and dental
insurance, (vi) vacation (vii) a monthly automobile
allowance; and (viii) reimbursement of moving expenses and
a one time payment for closing costs and other expenses relating
to the sale of his current home
and/or
purchase of a new home in the Akron, Ohio area.
In the event that Mr. Knowles employment is
terminated by the Company other than for cause or is terminated
by Mr. Knowles for good reason, then the Company will
provide to Mr. Knowles in addition to any base salary and
annual bonus accrued and unpaid as of the date of termination:
(1) continuation of Mr. Knowles annual base
salary as in effect on the date of his termination for a period
of one year after such termination; (2) an amount equal to
his annual bonus at the highest rate in effect during the prior
three year period payable in a lump sum within ninety
(90) days after such termination; (3) COBRA health
coverage at the Companys expense for a period of one year;
(4) continuation of the automobile allowance
23
for a period of one year; (5) long term disability
protection for a period of one year; (6) life insurance
protection for a period of one year; and (7) outplacement
services for one year. In the event that Mr. Knowles is
terminated due to his death or disability, then Mr. Knowles
or his spouse will be entitled to receive: (1) any base
salary and annual bonus accrued and unpaid; (2) any amounts
payable under any Company employee benefit plan; and
(3) COBRA coverage at the Companys expense for the
longer of (A) the applicable period under IRC
Section 4980B; or (B) thirty-six (36) months. If
Mr. Knowles employment is terminated by the Company
with cause or by Mr. Knowles without good reason, then no
further compensation is payable to Mr. Knowles other than
compensation earned prior to the termination but unpaid at the
time of termination. In the event Mr. Knowles is terminated
in connection with, or within thirty (30) days following,
the occurrence of a specified change in control event,
Mr. Knowles will be provided with the following benefits in
addition to any base salary and annual bonus accrued and unpaid
as of the date of termination: (1) an amount equal to the
sum of (A) one and one half times his annual base salary as
in effect on the date of his termination, plus (B) one and
a half times his annual bonus at the highest rate in effect
during the prior three year period, payable within thirty
(30) days after such termination; and (2) full vesting
of all outstanding stock options, restricted stock or similar
awards and any option shall become fully exercisable within
90 days of such termination date. Mr. Knowles is
subject to a three year non-compete agreement.
In the event that Mr. Knowles employment is
terminated by us other than for cause or by him for good reason
then Mr. Knowles would receive the following benefits if
such event occurred as of December 31, 2009: (i) a
payment of $561,096 consisting of a combination of continuation
of payment of his then base salary for one year and a lump sum
payment of the highest annual bonus awarded during the prior
three year period; (ii) continuation of medical, dental,
long and short-term disability protection and any life insurance
coverage for a period of one year with an estimated value of
$18,000; (iii) acceleration of the vesting of stock options
or other vesting provisions related to restricted stock or other
stock awards having a value of $86,100 and (iv) other
benefits valued at $65,000, including payments for automobile
allowances and executive outplacement service fees. In the event
Mr. Knowles is terminated in connection with, or within
thirty (30) days following, the occurrence of a specified
change in control event other than for cause or by him for good
reason, then Mr. Knowles would receive the following
benefits if such event occurred as of December 31, 2009:
(i) a payment of $841,644 consisting of a combination of a
payment of one and a half times his most recent salary and one
and a half times the highest annual bonus awarded during the
prior three year period; (ii) continuation of medical,
dental, long and short-term disability protection and any life
insurance coverage for a period of one year with an estimated
value of $18,000; (iii) acceleration of the vesting of
stock options or other vesting provisions related to restricted
stock or other stock awards having a value of $86,100 and
(iv) other benefits valued at $65,000, including payments
for automobile allowances and executive outplacement service
fees. If Mr. Knowles is terminated by us for cause or
resigns other than for good reason, then Mr. Knowles is
only entitled to compensation earned prior to the date of
termination that has not yet been paid.
Donald A. Merril, Vice President, Chief Financial Officer and
Corporate Secretary, was appointed to his current position
effective April 25, 2006. On January 24, 2006, the
Compensation Committee approved an employment agreement with
Mr. Merril for a term that continues indefinitely until an
event of termination. The employment agreement provides him with
a base salary and certain benefits with any bonus to be
determined by the Compensation Committee pursuant to metrics
established by the Compensation Committee, with a target annual
bonus opportunity for each year that is not less than 75% of
Mr. Merrils base salary for the particular year. The
benefits provided under Mr. Merrils employment
agreement include, but are not limited to:
(i) participation in our profit sharing plan,
(ii) benefits under the executive supplemental retirement
plan, (iii) short-term and long-term disability insurance,
(iv) group term life insurance, (v) medical and dental
insurance, (vi) vacation, (vii) incentive stock
options under the 2008 Incentive Stock Plan, and (viii) an
automobile and reimbursement of related expenses. The
Compensation Committee maintained the annual salary payable to
Mr. Merril under his employment agreement at $330,750 for
calendar year 2010. His employment agreement also provides that
if Mr. Merril is terminated other than for cause or if he
terminates for good reason, he is entitled to one year of
compensation and benefits. If there is a change in control and
Mr. Merril is terminated, Mr. Merril is entitled to
18 months
24
compensation and benefits and is provided with IRC
Section 280G protection in the form of an excise tax
gross-up
payment, if applicable. Mr. Merril is subject to a three
year non-compete agreement, except in a change in control
situation, and then for 18 months.
In the event that Mr. Merrils employment is
terminated by us other than for cause or by him for good reason
then Mr. Merril would receive the following benefits if
such event occurred as of December 31, 2009: (i) a
lump sum payment of $578,813 consisting of a combination of a
payment of his most recent base salary and the highest annual
bonus awarded during the prior three year period;
(ii) continuation of medical, dental, long and short-term
disability protection and any life insurance coverage for a
period of one year with an estimated value of $18,000;
(iii) acceleration of the vesting of stock options or other
vesting provisions related to restricted stock or other stock
awards having a value of $289,113 and (iv) other benefits
valued at $50,000, including payments for automobile allowances
and executive outplacement service fees. In the event of a
change of control, Mr. Merril has the right to extend his
employment under the terms of this employment agreement for a
period of 18 months. Further upon a change of control and
termination of Mr. Merrils employment by us other
than for cause or by him for good reason then Mr. Merril
would receive the following benefits if such event occurred as
of December 31, 2009: (i) a lump sum payment of
$868,220 consisting of a combination of a payment of one and a
half times his most recent salary and one and a half times the
highest annual bonus awarded during the prior three year period;
(ii) continuation of medical, dental, long and short-term
disability protection and any life insurance coverage for a
period of eighteen months with an estimated value of $27,000;
(iii) acceleration of the vesting of stock options or other
vesting provisions related to restricted stock or other stock
awards having a value of $289,113 and (iv) other benefits
valued at $50,000, including payments for automobile allowances
and executive outplacement service fees. If Mr. Merril is
terminated by us for cause or resigns other than for good
reason, then Mr. Merril is only entitled to compensation
earned prior to the date of termination that has not yet been
paid.
For purposes of Mr. Orrs, Mr. Knowles and
Mr. Merrils employment agreements, a change in
control is defined generally as: (1) the acquisition by any
person of 20% or more of the voting power of the outstanding
securities of the Company, (2) a change in the majority of
directors during a one year period, (3) a merger or
consolidation of the Company where the Company is not the
surviving entity, (4) the complete liquidation of the
Company, or (5) the sale or disposition of more than 50% of
the Companys assets.
The Companys Amended and Restated Code of Regulations
provide that the Company will indemnify, to the fullest extent
then permitted by law, any officer or former officer of the
Company who was or is a party or is threatened to be made a
party to any matter, whether civil or criminal, by reason of the
fact that the individual is or was an officer of the Company, or
serving at the request of the Company as an officer of another
entity. The Company has entered into indemnity agreements with
its executive officers contractually obligating the Company to
provide such protection. The Company also currently has in
effect officer and director insurance coverage.
Grants of Plan Based
Awards. The following table contains
information concerning the grant of plan based awards to the
Named Executive Officers under the 2008 Incentive Stock Plan.
The actual value and gains, if any, on an option exercise are
dependent upon the future performance of our Common Stock and
25
overall market conditions. The option awards and unvested
portion of stock awards identified in the table below are also
reported in the Outstanding Equity Awards at Fiscal
2009 Year-End table below.
Grants of Plan
Based Awards
During Fiscal 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
Option
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
Awards:
|
|
|
Exercise
|
|
|
Grant Date
|
|
|
|
|
|
|
Estimated Future
|
|
|
Estimated Future
|
|
|
Number
|
|
|
Number of
|
|
|
or Base
|
|
|
Fair Value
|
|
|
|
|
|
|
Payouts Under Non-Equity
|
|
|
Payouts Under Equity
|
|
|
of Shares
|
|
|
Securities
|
|
|
Price of
|
|
|
of Stock
|
|
|
|
|
|
|
Incentive Plan Awards
|
|
|
Incentive Plan Awards
|
|
|
of Stock
|
|
|
Underlying
|
|
|
Option
|
|
|
and Option
|
|
|
|
Grant
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
or Units
|
|
|
Options
|
|
|
Awards
|
|
|
Award
|
|
Name:
|
|
Date
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
(#)
|
|
|
(#)
|
|
|
($/Sh)
|
|
|
($)
|
|
|
John C. Orr
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David B. Knowles
|
|
|
6/29/09
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,000(1
|
)
|
|
|
8.19
|
|
|
|
245,700
|
|
Donald A. Merril
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Represents grants of incentive
options pursuant to Mr. Knowles employment agreement.
|
Outstanding Equity Awards at Fiscal Year
End. The following table shows all
outstanding equity awards held by the Named Executive Officers
at the end of fiscal 2009, that have not been exercised or that
have not vested. Certain of the awards identified in the table
below are also reported in the Grants of Plan Based Awards
During Fiscal 2009 table above.
Outstanding
Equity Awards at Fiscal 2009 Year-End
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
Incentive Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive Plan
|
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
Equity Incentive
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
Market or
|
|
|
|
|
|
|
|
|
|
Plan Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Payout Value
|
|
|
|
Number of
|
|
|
Number of
|
|
|
Number of
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unearned
|
|
|
of Unearned
|
|
|
|
Securities
|
|
|
Securities
|
|
|
Securities
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Market Value
|
|
|
Shares, Units
|
|
|
Shares, Units
|
|
|
|
Underlying
|
|
|
Underlying
|
|
|
Underlying
|
|
|
|
|
|
|
|
|
Shares or
|
|
|
of Shares or
|
|
|
or Other
|
|
|
or Other
|
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Unexercised
|
|
|
Option
|
|
|
|
|
|
Units of Stock
|
|
|
Units of Stock
|
|
|
Rights That
|
|
|
Rights That
|
|
|
|
Options
|
|
|
Options
|
|
|
Unearned
|
|
|
Exercise
|
|
|
Option
|
|
|
That Have
|
|
|
That Have
|
|
|
Have Not
|
|
|
Have Not
|
|
|
|
(#)
|
|
|
(#)
|
|
|
Options
|
|
|
Price
|
|
|
Expiration
|
|
|
Not Vested
|
|
|
Not Vested
|
|
|
Vested
|
|
|
Vested
|
|
Name
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
(#)
|
|
|
($)
|
|
|
Date
|
|
|
(#)
|
|
|
($)(5)
|
|
|
(#)
|
|
|
($)
|
|
|
John C. Orr
|
|
|
3,300
|
(1)
|
|
|
|
|
|
|
0
|
|
|
|
8.00
|
|
|
|
3/12/13
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
25,000
|
(1)
|
|
|
|
|
|
|
0
|
|
|
|
11.15
|
|
|
|
5/31/15
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
6,868
|
(1)
|
|
|
|
|
|
|
0
|
|
|
|
17.02
|
|
|
|
9/16/16
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
(3)
|
|
|
182,000
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
45,132
|
(2)
|
|
|
|
|
|
|
0
|
|
|
|
17.02
|
|
|
|
9/19/16
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
421
|
(1)
|
|
|
842
|
(1)
|
|
|
0
|
|
|
|
12.55
|
|
|
|
4/23/18
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
18,579
|
(2)
|
|
|
37,158
|
(2)
|
|
|
0
|
|
|
|
12.55
|
|
|
|
4/23/18
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
22,000
|
(4)
|
|
|
200,200
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
83,974
|
(2)
|
|
|
167,947
|
(2)
|
|
|
0
|
|
|
|
9.00
|
|
|
|
6/20/18
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
17,346
|
(1)
|
|
|
0
|
|
|
|
10.92
|
|
|
|
10/3/18
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
76,923
|
(2)
|
|
|
136,500
|
(2)
|
|
|
0
|
|
|
|
10.92
|
|
|
|
10/3/18
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David B. Knowles
|
|
|
|
|
|
|
30,000
|
(1)
|
|
|
0
|
|
|
|
8.19
|
|
|
|
6/29/19
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Donald A. Merril
|
|
|
12,000
|
(1)
|
|
|
3,000
|
(1)
|
|
|
0
|
|
|
|
15.11
|
|
|
|
1/24/2016
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
9,636
|
(1)
|
|
|
|
|
|
|
0
|
|
|
|
17.02
|
|
|
|
9/19/2016
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
6,000
|
(3)
|
|
|
54,600
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
8,364
|
(2)
|
|
|
|
|
|
|
0
|
|
|
|
17.02
|
|
|
|
9/19/2016
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
7,000
|
(4)
|
|
|
63,700
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
6,667
|
(2)
|
|
|
13,333
|
(2)
|
|
|
0
|
|
|
|
12.55
|
|
|
|
4/23/2018
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
14,163
|
(1)
|
|
|
0
|
|
|
|
10.92
|
|
|
|
10/3/2018
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
12,700
|
(2)
|
|
|
11,237
|
(2)
|
|
|
0
|
|
|
|
10.92
|
|
|
|
10/3/2018
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Represents grants of incentive
stock options.
|
|
(2) |
|
Represents grants of non-qualified
stock options.
|
26
|
|
|
(3) |
|
The forfeiture provisions with
respect to all of these restricted stock awards lapse on
September 20, 2010 if the executive is still employed on
such date and certain stock performance goals are met.
|
|
(4) |
|
The forfeiture provisions with
respect to all of these restricted stock awards lapse on
September 20, 2012 if the executive is still employed on
such date and certain stock performance goals are met.
|
|
(5) |
|
Based on the NYSE closing price of
$9.10 per share as of December 31, 2009.
|
Pension Benefits. The
following table shows all pension benefits held by the Named
Executive Officers at the end of fiscal 2009 other than pursuant
to our 401(k) Plan. The Company has adopted a Supplemental
Executive Retirement Plan (the SERP) which provides
certain pension benefits to a select group of management
employees. The annual supplemental pension benefit is payable
for ten years commencing at the later of retirement or
age 65. Under their respective employment agreements with
the Company, Messrs. Orr, Knowles and Merril are guaranteed
a minimum annual supplemental pension benefit of $275,000,
$75,000 and $50,000, respectively.
Pension
Benefits
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Years
|
|
Present Value of
|
|
|
Payments During
|
|
|
|
|
|
Credited Service
|
|
Accumulated Benefit
|
|
|
Last Fiscal Year
|
|
Name
|
|
Plan Name
|
|
(#)
|
|
($)
|
|
|
($)
|
|
|
John C. Orr
|
|
Myers Industries, Inc.
Executive Supplemental
Retirment Plan
|
|
Fully Vested
|
|
|
1,492,755
|
|
|
|
0
|
|
David B. Knowles
|
|
Myers Industries, Inc.
Executive Supplemental
Retirment Plan
|
|
0
|
|
|
0
|
|
|
|
0
|
|
Donald A. Merril
|
|
Myers Industries, Inc.
Executive Supplemental
Retirment Plan
|
|
5
|
|
|
62,040
|
|
|
|
0
|
|
Policies and Procedures with Respect to Related
Party Transactions. The Board is committed to
upholding the highest legal and ethical conduct in fulfilling
its responsibilities and recognizes that related party
transactions can present a heightened risk of potential or
actual conflicts of interest. Accordingly, it is our preference,
as a general rule, to avoid related party transactions. No
related party transaction occured during fiscal 2009.
Our Governance Committee reviews all relationships and
transactions in which we and our directors, nominees for
director and executive officers or their immediate family
members are participants to determine whether such persons have
a direct or indirect material interest. In addition our Audit
Committee is responsible for reviewing and investigating any
matters pertaining to our ethical codes of conduct, including
conflicts of interest.
PROPOSAL NO. 2
RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
The Audit Committee appointed KPMG LLP as the Companys
independent registered public accounting firm to audit the
Companys consolidated financial statements for the year
ending December 31, 2009, and has re-appointed them for the
year ending December 31, 2010. Additional information
regarding the services provided to the Company by KPMG LLP
during 2009 is set forth below, under the section titled
Matters Relating to the Independent Registered Public
Accounting Firm.
Representatives of KPMG LLP are expected to be present at the
Annual Meeting and will have an opportunity to make a statement
if they wish and to respond to appropriate shareholder questions.
27
Although shareholder ratification is not required under the laws
of the State of Ohio, the appointment of KPMG LLP is being
submitted to our shareholders for ratification at the Annual
Meeting in order to provide a means by which our shareholders
may communicate their opinion to the Audit Committee. If our
shareholders do not ratify the appointment of KPMG LLP, the
Audit Committee will reconsider the appointment, but is not
obligated to change the appointment and may for other reasons be
unable to make another appointment.
The Board of Directors recommends that you vote
FOR Proposal 2
relating to the ratification of the appointment of KPMG
LLP
Matters Relating
to the Independent Registered Public Accounting Firm.
The firm of KPMG LLP audited the books and records of the
Company for the years ended December 31, 2009, 2008 and
2007. Representatives of KPMG LLP are expected to be available
at the Annual Meeting to respond to appropriate questions and
will be given the opportunity to make a statement if they desire
to do so.
A description of the fees billed to the Company by KPMG LLP for
the years ended December 31, 2009 and 2008 is set forth in
the table below.
KPMG LLP was first retained by the Audit Committee in 2005. The
Audit Committee (see, Report of Audit Committee)
reviewed the non-audit services provided by KPMG LLP during the
year ended December 31, 2009, and determined that the
provision of such non-audit services was compatible with
maintaining the accountants independence.
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
Audit
Fees(1)
|
|
$
|
1,125,000
|
|
|
$
|
1,250,000
|
|
Audit Related
Fees(2)
|
|
$
|
0
|
|
|
$
|
8,000
|
|
Tax
Fees(3)
|
|
$
|
0
|
|
|
$
|
50,000
|
|
All Other
Fees(4)
|
|
$
|
0
|
|
|
$
|
0
|
|
|
|
|
(1) |
|
Professional fees for the audit of
the annual financial statements and the review of the quarterly
financial statements.
|
|
(2) |
|
Fees for assurance and related
services reasonably related to audits and reviews of benefit
plans.
|
|
(3) |
|
Professional fees for tax
compliance, tax advice, and tax planning.
|
|
(4) |
|
Fees for all other products and
services.
|
The Audit Committees Pre-Approval Policy requires the
pre-approval of all audit and permissible non-audit services
provided by the independent registered public accounting firm.
These services may include audit services, audit-related
services, tax services and other services. Pre-approval is
provided for up to one year and any pre-approval is detailed as
to the particular service or category of services and is
generally subject to a specific range or budget. The independent
registered public accounting firm and management are required to
periodically report to the Audit Committee regarding the extent
of services provided by the independent registered public
accounting firm in accordance with this policy, and the fees for
the services performed to date. During 2009, all services were
pre-approved by the Audit Committee in accordance with the
policy. The Pre-Approval Policy is available on the
Corporate Governance page accessed from the
Investor Relations page of our website at
www.myersind.com.
Audit Committee
Report.
The information contained in this report shall not be deemed
to be soliciting material or filed with
the SEC or subject to the liabilities of Section 18 of the
Exchange Act, except to the extent that we specifically
incorporate it by reference into a document filed under the
Securities Act or Exchange Act.
The Audit Committee, which is composed of four independent
directors, is responsible for assisting the Board in fulfilling
its oversight responsibilities pertaining to the accounting,
auditing and financial reporting processes of the Company. The
duties and responsibilities of the Audit Committee are set forth
in our Audit
28
Committee Charter, which is published on the Companys
website (www.myersind.com) on the Corporate
Governance page under the Investor Relations
section. Management is responsible for establishing and
maintaining the Companys internal control over financial
reporting and for preparing financial statements in accordance
with accounting principles generally accepted in the United
States of America. The Audit Committee is directly responsible
for the appointment, oversight, compensation and retention of
KPMG LLP, the independent registered public accounting firm for
the Company. KPMG LLP is responsible for performing an
independent audit of the Companys annual financial
statements and expressing an opinion on (i) the conformity,
in all material respects, of the Companys financial
statements with accounting principles generally accepted in the
United States of America and (ii) the effectiveness of
internal control over financial reporting.
Each member of the Audit Committee is financially literate and
independent as defined under the Companys Independence
Criteria policy and the independence standards set by the New
York Stock Exchange. The Board has identified Robert A. Stefanko
as the audit committee financial expert.
Mr. Stefanko is independent, as independence for audit
committee members is defined in the applicable listing standards
of the New York Stock Exchange.
The Audit Committees responsibility is one of oversight.
Members of the Audit Committee rely on the information provided
and the representations made to them by: management, which has
primary responsibility for establishing and maintaining
appropriate internal control over financial reporting, and for
the Companys financial statements and reports; and by the
independent registered public accounting firm, which is
responsible for performing an audit in accordance with Standards
of the Public Company Accounting Oversight Board
United States (PCAOB) and expressing an opinion on
(i) the conformity, in all material respects, of the
Companys financial statements with accounting principles
generally accepted in the United States of America and
(ii) the effectiveness of internal control over financial
reporting.
In the performance of our duties we have:
|
|
|
|
|
reviewed and discussed with management the Companys
audited financial statements as of and for the year ended
December 31, 2009;
|
|
|
|
discussed with KPMG LLP, the independent registered public
accounting firm for the Company, the matters required to be
discussed by Auditing Standards No. 61, as amended (AICPA,
Professional Standards, Vol. 1, AU
Section 380) as adopted by PCAOB in
Rule 3200T; and
|
|
|
|
received the written disclosures and the letter from KPMG LLP
required by applicable requirements of the Public Company
Accounting Oversight Board regarding KPMG LLPs
communications with the Audit Committee concerning independence,
and has discussed KPMG LLPs independence with KPMG LLP.
|
Based on the reviews and discussions referred to above, and
exercising our business judgment, we recommended to the Board
that the financial statements referred to above be included in
the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009 for filing with the
SEC. We have selected KPMG LLP as the Companys independent
registered public accounting firm for fiscal 2010, and have
approved submitting the selection of the independent registered
public accounting firm for ratification by the shareholders.
The foregoing report has been furnished by the current members
of the Audit Committee, being:
Robert A. Stefanko, Chair and Presiding Director, Vincent C.
Byrd, Jon H. Outcalt, and Edward W. Kissel
Executive
Officers of the Company.
Disclosure regarding the executive officers of the Company is
set forth in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009 filed with the SEC
under the heading Executive Officers of the
Registrant, which is incorporated into this Proxy
Statement by reference. This Annual Report will be delivered to
our shareholders with the Proxy Statement. Copies of our filings
with the SEC, including the
29
Annual Report, are available to any shareholder through the
SECs internet website at
http://www.sec.gov
or in person at the SECs Public Reference Room at 100 F
Street, N.E., Room 1580, Washington, DC 20549. Information
regarding operations of the Public Reference Room may also be
obtained by calling the SEC at
1-800-SEC-0330.
Shareholders may also access our SEC filings free of charge on
the Companys own internet website at
http://www.myersind.com.
The content of the Companys website is available for
informational purposes only, and is not incorporated by
reference into this Proxy Statement.
Security
Ownership of Certain Beneficial Owners and Management.
The following table shows the number of shares of our common
stock beneficially owned as of December 31, 2009 (unless
otherwise indicated) by:
|
|
|
|
|
each person, who, to our knowledge, beneficially owns more than
5% of our common stock;
|
|
|
|
each of the Companys Directors and Nominees;
|
|
|
|
the Chief Executive Officer and the other Named Executive
Officers; and
|
|
|
|
all individuals who served as Directors or Named Executive
Officers, as a group.
|
A beneficial owner of stock is a person who has sole or shared
voting power, meaning the power to control voting decisions, or
sole or shared investment power, meaning the power to cause the
sale of the stock. All individuals listed in the table have sole
voting and investment power over the shares and have both record
and beneficial ownership over the shares unless otherwise noted.
The Company had no preferred stock issued or outstanding.
30
|
|
|
|
|
|
|
|
|
|
|
Shares
|
|
Percent of
|
|
|
Beneficially
|
|
Shares
|
|
|
Owned
|
|
Outstanding
|
|
Greater Than 5%
Owners(2,3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
T. Rowe Price Associates,
Inc.(5)
100 East Pratt Street
Baltimore, Maryland 21202
|
|
|
3,397,180
|
|
|
|
11
|
.26%
|
Gamco Investors, Inc.
One Corporate Center
Rye, NY
10580-1422
|
|
|
3,459,375
|
|
|
|
9
|
.80%
|
|
|
|
|
|
|
|
|
|
Stephen E.
Myers(4)
|
|
|
2,772,277
|
|
|
|
7
|
.85%
|
|
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BlackRock Inc.
40 East
52nd
Street
New York, New York 10022
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2,535,304
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7
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.18%
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Dimensional Fund Advisors LP
Palisades West, Building One
6300 Bee Cave Road
Austin, Texas 78746
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2,097,700
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5
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.94%
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Rothschild Asset Management
1251 Avenue of the Americas, 51st floor
New York, New York 10020
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1,767,162
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5
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.01%
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Directors, Nominees and Named Executive
Officers(1,2,6,7,9)
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Keith A. Brown
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87,478
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Richard P. Johnston
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30,043
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Edward W. Kissel
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16,255
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Stephen E.
Myers(4)
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2,772,277
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7
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.85%
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John C.
Orr(8)
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363,968
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Vincent C. Byrd
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3,750
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Sarah R. Coffin
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0
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John B. Crowe
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2,000
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David B. Knowles
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0
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Jon H. Outcalt
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40,946
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Robert A. Stefanko
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2,300
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Donald A.
Merril(8)
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62,367
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All Directors, Nominees and Named Executive Officers as a
group (12 persons)
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3,381,384
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9
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.57%
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(1) |
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Unless otherwise indicated, none of
the persons listed beneficially owns one percent or more of the
outstanding shares of Common Stock.
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(2) |
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Unless otherwise noted, the
beneficial owner uses the same address as the address of the
principal office of the Company.
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(3) |
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According to filings made with the
SEC, this party or an affiliate has dispositive and/or voting
power over the shares. Number of shares of Common Stock
beneficially owned is the amount reflected in the most recent
Schedule 13D or Schedule 13G filed by such party with
the SEC.
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(4) |
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Includes 16,775 shares of
Common Stock held by Mr. Myers spouse, for which
Mr. Myers disclaims beneficial ownership and
253,021 shares held by the Louis S. Myers & Mary
S. Myers Foundation for which he may be deemed beneficial owner.
Also includes 479,801 shares held by MSM &
Associates LP and 25,500 shares held by Semantic
Foundation, both of which Mr. Myers is a trustee and may be
deemed the beneficial owner of such shares. Mr. Myers
disclaims beneficial ownership in such shares to the extent he
does not hold a pecuniary interest.
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(5) |
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These securities are owned by
various individual and institutional investors (including T.
Rowe Price Small-Cap Value Fund, Inc., which owns
2,000,000 shares representing 5.67% of Myers
outstanding shares) that T. Rowe Price Associates, Inc.
(Price Associates) serves as investment adviser with
power to direct investments and/or sole power to vote the
securities. For purposes of the reporting requirements of the
Securities and Exchange Act of 1934, as amended, Price
Associates is deemed to
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31
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be a beneficial owner of such
securities; however, Price Associates expressly disclaims that
it is, in fact the beneficial owner of such securities.
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(6) |
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Includes shares which the
non-employee director has a right to acquire by exercising
options granted under the 1992 Stock Option Plan, Amended and
Restated 1999 Incentive Stock Plan and the 2008 Incentive Stock
Plan.
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(7) |
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The amounts shown represent the
total shares of Common Stock owned by such individuals, together
with shares which are issuable under currently exercisable stock
options: Mr. Orr, 260,197, Mr. Merril, 49,367,
Mr. Outcalt, 8,850, Mr. Johnston, 8,850,
Mr. Kissel, 8,850, Mr. Brown, 8,850 and
Mr. Myers, 5,000.
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(8) |
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Includes performance-based
restricted stock: Mr. Orr, 42,000 and Mr. Merril,
13,000.
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(9) |
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None of the individuals is, or was
within the past year, a party to any contract, arrangement or
understanding with any person with respect to any securities of
the Company, including, but not limited to, joint ventures, loan
or option arrangements, puts or calls, guarantees against loss
or guarantees of profit, diversion of losses or profits, or the
giving or withholding of proxies.
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Recent Nominee
Transactions in Our Common Stock.
The following table sets forth all purchases or sales of
securities of the Company effected during the past two years by
the nominees for election as a director set forth in
Proposal No. 1 above and recommended by your Board.
The Common Stock acquired in these transactions was for the
benefit of the individual purchasers and no part of the purchase
price or market value of such Common Stock was represented by
funds borrowed or otherwise obtained for the purpose of
acquiring or holding such Common Stock. Messrs. Brown,
Byrd, Kissel and Outcalt and Ms. Coffin had no purchases or
sales of securities of the Company during this period.
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Nominee
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Trade Date
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Amount Acquired (Sold)
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Price per Share ($)
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John B. Crowe
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01/29/09
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1,000
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$
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6.4988
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03/13/09
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900
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$
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3.75
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100
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$
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3.74
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Richard P. Johnston
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11/16/09
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5,000
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$
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8.82
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11/17/09
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5,000
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$
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8.79
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John C. Orr
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11/12/08
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100
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$
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6.96
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100
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$
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6.98
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400
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$
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6.99
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300
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$
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7.00
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500
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$
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7.01
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400
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$
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7.02
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1,300
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$
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7.03
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800
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$
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7.04
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700
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$
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7.05
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600
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$
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7.06
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200
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$
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7.07
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4,600
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$
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7.08
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Robert A. Stefanko
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11/13/08
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300
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$
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6.67
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Section 16(a) Beneficial Ownership
Reporting Compliance. Section 16(a) of
the Exchange Act requires Myers directors, officers and
persons who own more than ten percent of its Common Stock
(Section 16 Filers) to file reports of
ownership and changes in ownership with the SEC and to furnish
Myers with copies of all such forms they file. These reports can
be viewed on our website at
www.myersind.com/section 16
reports.html, or at the SECs website at
www.sec.gov. Myers understands from the information
provided to it by the Section 16 Filers for 2009 that they
have adhered to all filing requirements applicable to the
Section 16 Filers.
Shareholder Proposal for Inclusion in Proxy
Statement. Any proposals to be considered for
inclusion in the proxy statement to be provided to shareholders
of Myers for its next annual meeting to be held in April
2011 may be made only by a qualified shareholder and must
be received by Myers no later than November 20, 2010.
32
Since no shareholder proposals were made by February 3,
2010, the enclosed white proxy card grants the proxy holders
discretionary authority to vote on any matter raised at the
Annual Meeting. If a shareholder intends to submit a proposal at
our 2010 annual meeting of shareholders to be held in 2011 that
is not eligible for inclusion in the Proxy Statement relating to
the meeting, and the shareholder fails to give us notice in
accordance with the requirements set forth in the Exchange Act
no later than
[ ],
2011, then the proxy holders will be allowed to use their
discretionary authority if a proposal is properly raised at our
annual meeting to be held in 2011.
The submission of such a notice does not ensure that a proposal
can be raised at our Annual Meeting.
No Incorporation by
Reference. The Compensation Committee Report
and the Audit Committee Report (including reference to the
independence of the Audit Committee members) are not deemed
filed with the SEC or subject to the liabilities of
Section 18 of the Exchange Act, and shall not be deemed
incorporated by reference into any prior or future filings made
by us under the Securities Act, or the Exchange Act, except to
the extent that we specifically incorporate such information by
reference. The section of this proxy entitled Compensation
Discussion and Analysis is specifically incorporated by
reference in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2009.
Cost of Proxy
Solicitation. The accompanying proxy is
solicited by and on behalf of the Board, whose notice of meeting
is attached to this Proxy Statement, and the entire cost of such
solicitation will be borne by Myers. In addition to the use of
the mails, proxies may be solicited by personal interview,
telephone and telegram by directors, officers and employees of
Myers. Arrangements will be made with brokerage houses and other
custodians, nominees and fiduciaries for the forwarding of
solicitation material to the beneficial owners of stock held of
record by such persons, and Myers will reimburse them for
reasonable
out-of-pocket
expenses incurred by them in connection therewith. Myers has
also retained Innisfree M&A Incorporated to assist in the
distribution of proxy materials and the solicitation of proxies
at an estimated cost of up to $
plus reimbursement for customary costs and expenses. Myers has
also agreed to indemnify Innisfree M&A Incorporated and
certain related persons against certain liabilities arising out
of or in connection with the engagement. Myers estimates that
the total expenditures relating to its proxy solicitation (other
than salaries or wages of officers and employees, but including
the cost of mailing, related legal and advisory fees and any
litigation related to the solicitation) will be approximately
$ .
Copy of the
Form 10-K. We
will mail without charge, upon written request, a copy of our
Annual report on
Form 10-K
for the year ended December 31, 2009, including the
consolidated financial statements, schedules and list of
exhibits, and any particular exhibit specifically requested.
Requests should be sent to: Myers Industries, Inc., 1293 South
Main Street, Akron, Ohio 44301, Attn: Investor Relations. The
Annual Report on
Form 10-K
is also available at
www.myersind.com and at the
SECs website at
www.sec.gov.
Notice Regarding Delivery of Security Holder
Documents. The SEC now permits companies to
send a single set of annual disclosure documents to any
household at which two or more stockholders reside, unless
contrary instructions have been received, but only if the
company provides advance notice and follows certain procedures.
In such cases, such stockholders continue to receive a separate
notice of the meeting and proxy card. This
householding process reduces the volume of duplicate
information and reduces printing and mailing expenses. We have
not instituted householding for shareholders of record; however,
a number of brokerage firms may have instituted householding for
beneficial owners of the Companys shares of Common Stock
held through such brokerage firms. If your family has multiple
accounts holding shares of Common Stock of the Company, you
already may have received householding notification from your
broker. Please contact your broker directly if you have any
questions or require additional copies of the annual disclosure
documents. The broker will arrange for delivery of a separate
copy of this Proxy Statement or our Annual Report promptly upon
your written or oral request. You may decide at any time to
revoke your decision to household, and thereby receive multiple
copies.
33
PRELIMINARY COPY- SUBJECT TO COMPLETION YOUR VOTE IS IMPORTANT Please take a moment now to
vote your shares of Myers Industries, Inc. Common Stock for the upcoming Annual Meeting of
Shareholders. PLEASE REVIEW THE PROXY STATEMENT AND VOTE TODAY IN ONE OF THREE WAYS: 1. Vote by
TelephonePlease call toll-free in the U.S or Canada at 1-866-580-7646, on a touch-tone phone. If
outside the U.S. or Canada, call 1-215-521-1351. Please follow the simple instructions. You will be
required to provide the unique control number printed below. OR PROXY 2. Vote by InternetPlease
access https://www.proxyvotenow.com/mye, and follow the simple instructions. Please note you must
type an s after http. You will be required to provide the unique control number printed below.
You may vote by telephone or Internet 24 hours a day, 7 days a week. Your telephone or Internet
vote authorizes the named proxies to vote your shares in the same manner as if you had marked,
signed and returned a proxy card. OR 3. Vote by MailIf you do not wish to vote by telephone or
over the Internet, please complete, sign, date and return the proxy card in the envelope provided,
or mail to: Myers Industries, Inc., c/o Innisfree M&A Incorporated, FDR Station, P.O. Box 5155, New
York, NY 10150-5155. 6TO VOTE BY MAIL, PLEASE DETACH PROXY CARD HERE, AND SIGN, DATE AND RETURN IN
THE ENVELOPE PROVIDED6 Please mark your vote as in this example The Board of Directors recommends
that you vote FOR all the nominees listed in Proposal 1 and FOR Proposal 2. FOR AGAINST ABSTAIN1.
To elect the nine candidates nominated by the Companys Board to serve as directors until the next
Annual Meeting of Shareholders: 2. To ratify the appointment of KPMG LLP as the Companys
independent registered public accounting firm for fiscal 2010. 01. KEITH A. BROWN 02. VINCENT C.
BYRD 03. SARAH R. COFFIN 04. JOHN B. CROWE 05. RICHARD P. JOHNSTON 06. EDWARD W. KISSEL 07. JOHN C.
ORR 08. JON H. OUTCALT 09. ROBERT A. STEFANKO 3. Such other business as may properly come before
the meeting or any adjournments or postponements thereof, all in accordance with the notice of this
meeting and the accompanying proxy statement, receipt of which is acknowledged. FOR ALL NOMINEES
WITHHOLD AUTHORITY FOR ALL EXCEPT (Instruction: To withhold authority to vote for any individual
nominee write that nominees name on the line above.) Date: , 2010 Signature Signature (if held
jointly) Title(s), if any Please sign exactly as name appears hereon. When signing as attorney,
executor, administrator, trustee, guardian, etc., give full title as such. Corporations should
provide full name of corporation and title of authorized officer signing the proxy. |
PLEASE VOTE TODAY! SEE REVERSE SIDE FOR THREE EASY WAYS TO VOTE. 6TO VOTE BY MAIL, PLEASE DETACH
PROXY CARD HERE, AND SIGN, DATE AND RETURN IN THE ENVELOPE PROVIDED6 PLEASE SIGN AND DATE ON
REVERSE SIDE OF THIS CARD.MYERS INDUSTRIES, INC. Proxy Solicited by the Board of Directors for the
Annual Meeting to be held on April 30, 2010 WH I T E P R O X YDONALD A. MERRIL, SALVATORE INCANNO,
or either of them, with full power of substitution, are hereby authorized to represent the
undersigned and to vote all shares of Common Stock of the undersigned in MYERS INDUSTRIES, INC.
(Company) at the Annual Meeting of Shareholders of said Company to be held on April 30, 2010, and
any adjournment(s) or postponement(s) thereof with respect to the following matters. THIS PROXY
WILL BE VOTED FOR THE DIRECTOR NOMINEES LISTED ON THE REVERSE SIDE OF THIS PROXY CARD AND FOR THE
APPROVAL OF ITEM 2 UNLESS A CONTRARY VOTE IS INDICATED, IN WHICH CASE THE PROXY WILL BE VOTED AS
DIRECTED. Doc 3479567 Ver 11 |