-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Uo5Kt1d4TQEvVllVdaoFVeTlcdxgi80ulro2zpHAxiAbxMAs7GXvUPcX9/DFkcRk C4fE1smKvcQuUFRvw/zvYw== 0000950152-97-003825.txt : 19970515 0000950152-97-003825.hdr.sgml : 19970515 ACCESSION NUMBER: 0000950152-97-003825 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970331 FILED AS OF DATE: 19970514 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MYERS INDUSTRIES INC CENTRAL INDEX KEY: 0000069488 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 340778636 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-08524 FILM NUMBER: 97603227 BUSINESS ADDRESS: STREET 1: 1293 S MAIN ST CITY: AKRON STATE: OH ZIP: 44301 BUSINESS PHONE: 2162535592 MAIL ADDRESS: STREET 1: 1293 SOUTH MAIN STREET CITY: AKRON STATE: OH ZIP: 44301 FORMER COMPANY: FORMER CONFORMED NAME: MYERS TIRE SUPPLY CO DATE OF NAME CHANGE: 19720609 10-Q 1 MYERS INDUSTRIES QUARTERLY REPORT 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q (Mark One) |X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 1997 ------------------------------------------ or | | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from_______________________ to ________________ Commission file number I-8524 --------------- MYERS INDUSTRIES, INC. ----------------------------------------------------- (Exact name of registrant as specified in its charter) OHIO #34-0778636 - ------------------------------------------------------------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1293 SOUTH MAIN STREET, AKRON, OHIO 44301 - ------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (330) 253-5592 ----------------------------- Indicate whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X . No . ------- -------- Applicable Only to Issuers Involved in Bankruptcy Proceedings During the Preceding Five Years Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes . No . ------- -------- As of April 30, 1997, the number of shares outstanding of the issuer's Common Stock was: 16,874,710 2 -1- PART I - FINANCIAL INFORMATION --------------------------------- MYERS INDUSTRIES, INC. ---------------------- CONDENSED STATEMENT OF CONSOLIDATED FINANCIAL POSITION AS OF MARCH 31, 1997 AND DECEMBER 31, 1996 ------------------------------------------------------
March 31, December 31, ASSETS 1997 1996 ----------- ------------- ------------- CURRENT ASSETS Cash and temporary cash investments $7,534,793 $5,600,349 Accounts receivable-less allowances of $2,228,000 and $2,213,000, respectively 56,762,581 57,604,506 Inventories Finished and in-process products 35,907,812 33,042,266 Raw materials and supplies 6,999,725 6,788,086 ------------- ------------- 42,907,537 39,830,352 Prepaid expenses 2,378,310 3,274,673 ------------- ------------- TOTAL CURRENT ASSETS 109,583,221 106,309,880 OTHER ASSETS Excess of cost over fair value of net assets of companies acquired 14,207,270 14,328,410 Patents and other intangible assets 2,669,806 2,750,530 Other 2,540,644 3,072,974 ------------- ------------- 19,417,720 20,151,914 PROPERTY, PLANT & EQUIPMENT, AT COST Land 2,410,409 2,547,509 Buildings and leasehold improvements 39,224,731 38,918,648 Machinery and equipment 115,708,334 108,594,273 ------------- ------------- 157,343,474 150,060,430 Less allowances for depreciation and amortization 72,056,040 69,400,497 ------------- ------------- 85,287,434 80,659,933 ------------- ------------- $214,288,375 $207,121,727 ============= =============
3 -2- PART I - FINANCIAL INFORMATION ---------------------------------- MYERS INDUSTRIES, INC. --------------------- CONDENSED STATEMENT OF CONSOLIDATED FINANCIAL POSITION AS OF MARCH 31, 1997 AND DECEMBER 31, 1996 ------------------------------------------
March 31, December 31, LIABILITIES AND SHAREHOLDERS' EQUITY 1997 1996 - ------------------------------------ -------------- ------------- CURRENT LIABILITIES Accounts payable $18,367,822 $15,189,488 Employee compensation and related items 8,220,937 10,562,313 Accrued expenses Taxes, other than income taxes 1,188,150 1,062,498 Income taxes 3,881,261 1,452,107 Other 7,991,174 8,066,838 Current portion of long-term debt 463,756 519,769 ------------- ------------- TOTAL CURRENT LIABILITIES 40,113,100 36,853,013 LONG-TERM DEBT, less current portion 4,508,122 4,569,396 DEFERRED INCOME TAXES 3,253,791 3,254,327 SHAREHOLDERS' EQUITY Serial Preferred Shares (authorized 1,000,000) ----- ----- Common Shares, without par value (authorized 30,000,000 shares; outstanding 16,862,355 and 16,854,529, respectively) 10,790,881 10,659,714 Additional paid-in capital 109,864,137 109,864,137 Foreign currency translation adjustment (341,753) (213,572) Retained income 46,100,097 42,134,712 ------------- ------------- 166,413,362 162,444,991 ------------- ------------- $214,288,375 $207,121,727 ============= =============
4 -3- PART I - FINANCIAL INFORMATION --------------------------------- MYERS INDUSTRIES, INC. ---------------------- CONDENSED STATEMENT OF CONSOLIDATED INCOME ------------------------------------------ FOR THE THREE MONTHS ENDED MARCH 31, 1997 AND 1996 --------------------------------------------------
March 31, March 31, 1997 1996 ---------------- ------------- Net sales $76,798,621 $72,554,256 Costs and expenses Cost of sales 52,711,406 48,204,214 Operating expenses 15,930,546 15,307,569 Interest expense, net 7,166 169,538 ---------------- ------------- Total costs & expenses 68,649,118 63,681,321 Income before income taxes 8,149,503 8,872,935 Income taxes 3,341,000 3,658,000 ---------------- ------------- Net income $4,808,503 $5,214,935 ================ ============= Net income per common share $.29 $.31 Dividends per common share $.05 $.04 Weighted average number of common shares outstanding 16,860,399 16,919,909
5 -4- PART I - FINANCIAL INFORMATION --------------------------------- MYERS INDUSTRIES, INC. --------------------- STATEMENTS OF CONSOLIDATED CASH FLOWS FOR THE THREE MONTHS ENDED MARCH 31, 1997 AND 1996 --------------------------------------------------
March 31, March 31, 1997 1996 CASH FLOWS FROM OPERATING ACTIVITIES -------------- ------------- Net income $4,808,503 $5,214,935 Items not affecting use of cash Depreciation 2,891,801 2,591,579 Amortization of excess of cost over fair value of net assets of companies acquired 121,140 138,840 Amortization of other intangible assets 113,559 90,612 Cash flow provided by (used for) working capital Accounts receivable 841,925 628,037 Inventories (3,077,185) 834,422 Prepaid expenses 878,864 (41,851) Accounts payable and accrued expenses 3,316,100 3,502,614 -------------- ------------- Net cash provided by operating activities 9,894,707 12,959,188 CASH FLOWS FROM INVESTING ACTIVITIES Additions to property, plant and equipment, net (7,519,301) (4,416,457) Other 388,276 (66,479) -------------- ------------- Net cash used for investing activities (7,131,025) (4,482,936) CASH FLOWS FROM FINANCING ACTIVITIES Borrowings (repayments) - net (117,287) (6,846,593) Cash dividends paid (843,118) (677,053) Proceeds from issuance of common stock 131,167 286,226 -------------- ------------- Net cash provided by (used for) financing activities (829,238) (7,237,420) INCREASE IN CASH AND TEMPORARY CASH INVESTMENTS 1,934,444 1,238,832 CASH AND TEMPORARY CASH INVESTMENTS JANUARY 1 5,600,349 3,387,562 -------------- ------------- CASH AND TEMPORARY CASH INVESTMENTS MARCH 31 $7,534,793 $4,626,394 ============== =============
6 -5- PART I - FINANCIAL INFORMATION ------------------------------ MYERS INDUSTRIES, INC. ---------------------- NOTES TO FINANCIAL STATEMENTS ----------------------------- (1) Statement of Accounting Policy ------------------------------ The accompanying financial statements include the accounts of Myers Industries, Inc. and subsidiaries (Company), and have been prepared without audit, pursuant to the rules and regulations of the Securities and Exchange Commission. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to those rules and regulations, although the Company believes that the disclosures are adequate to make the information not misleading. It is suggested that these financial statements be read in conjunction with the financial statements and notes thereto included in the Company's latest annual report on Form 10-K. In the opinion of the Company, the accompanying financial statements contain all adjustments (consisting of only normal recurring accruals) necessary to present fairly the financial position as of March 31, 1997, and the results of operations and cash flows for the three months ended March 31, 1997 and 1996. (2) Supplemental Disclosure of Cash Flow Information ------------------------------------------------ The Company made cash payments for interest expense of $145,202 and $396,982 for the three months ended March 31, 1997 and 1996, respectively. Cash payments for income taxes were $1,021,198 and $1,269,618 for the three months ended March 31, 1997 and 1996, respectively. 7 -6- PART I - FINANCIAL INFORMATION ------------------------------ MYERS INDUSTRIES, INC. ---------------------- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS --------------------------------------------- RESULTS OF OPERATIONS - --------------------- Net sales for the three months ended March 31, 1997 increased $4,244,365 or 5.8 percent which is primarily attributed to volume increases in the Company's distribution business segment. Cost of sales for the three month period ended March 31, 1997 increased $4,507,192 or 9.4 percent as compared to the same period in 1996. Gross profit, expressed as a percentage of sales, decreased to 31.4 percent in 1997 from 33.6 percent in the same year ago period. This decrease is attributable to higher raw material costs, primarily plastic resins. Operating expenses increased $622,977 or 4.1 percent for the three month period in 1997 as compared to the same period in 1996. Expressed as a percentage of sales, operating expenses decreased to 20.7 percent in 1997 from 21.1 percent for the three month period in 1996. This improvement reflects on-going cost control programs and better fixed expense coverage. Net interest expense for the three month period ended March 31, 1997 decreased to $7,166 from $169,538 in 1996. The decrease is the result of lower average borrowing levels in the current year. Income taxes, expressed as a percentage of income before income taxes, decreased from 41.2 percent for the three month period in 1996 to 41.0 percent in 1997. 8 -7- LIQUIDITY AND CAPITAL RESOURCES - ------------------------------- Cash provided by operating activities is the primary source of liquidity and amounted to $9,894,707 for the three months ended March 31, 1997. Long-term debt was reduced by $117,287 during the first three months of 1997 and debt as a percentage of total capitalization decreased to 2.9 percent compared to 3.0 percent at December 31, 1996. Working capital increased to $69,470,121 at March 31, 1997 from $69,456,867 at December 31, 1996. Capital expenditures for the three months ended March 31, 1997 were $7,519,302. The Company currently anticipates annual capital expenditures in the range of $15.0 to $20.0 million over the next five years, primarily for increased polymer manufacturing capacity. Management believes that anticipated cash flows from operations and available credit facilities will be sufficient to fund capital expenditures and meet its short-term and long-term operating needs. 9 -8- PART II - OTHER INFORMATION --------------------------- MYERS INDUSTRIES, INC. ---------------------- Item 6 Exhibits and Reports on Form 8-K -------------------------------- (a) Exhibits (3)(ii) Amended and Restated Code of Regulations (10) Wiskind Supplemental Compensation Agreement (27) Financial Data Schedule (filed only electronically with the SEC) (b) Form 8-K None SIGNATURE --------- Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. MYERS INDUSTRIES, INC. 5/14/97 By: \s\ Gregory J. Stodnick - -------------------- ----------------------------- Date Gregory J. Stodnick Vice President-Finance Financial Officer (Duly Authorized Officer and Principal Financial and Accounting Officer) EX-3.II 2 EXHIBIT (3)(II) 1 Exhibit 3(ii) AMENDED AND RESTATED CODE OF REGULATIONS OF MYERS INDUSTRIES, INC. Effective as of April 24, 1997 ARTICLE I SHAREHOLDERS SECTION 1. ANNUAL MEETING The Annual Meeting of Shareholders of the Company for the election of Directors, the consideration of financial statements and other reports to be laid before such meeting, and the transaction of such other business as may be brought before such meeting shall be held on such date and at such hour during the fourth calendar month following the close of the fiscal year of the corporation as may be designated by the Board of Directors, the Chairman of the Board or the President and specified in the notice of the meeting. Upon due notice there may also be considered and acted upon at an Annual Meeting any matter which could properly be considered and acted upon at a Special Meeting. SECTION 2. SPECIAL MEETINGS Special Meetings of Shareholders of the Company may be held on any business day when called by the Chairman of the Board, the President, the Board of Directors acting at a meeting, a majority of the Directors acting without a meeting, or persons who hold fifty per cent (50%) of all shares outstanding and entitled to vote thereat. Upon request in writing delivered either in person or by registered mail to the President or the Secretary by any persons entitled to call a Meeting of Shareholders, such Officer shall forthwith cause to be given to the Shareholders entitled thereto the requisite notice of a meeting to be held on the specified date, as provided in Section 4 of this Article I. If such notice is not given within forty-five (45) days after the delivery or mailing of such request, the persons calling the meeting may fix the time of the meeting and give notice thereof in the manner provided by law or as provided in these Regulations, or cause such notice to be given by any designated representative. Calls for Special Meetings shall specify the purpose or purposes thereof, and no business shall be considered at any such meeting other than that specified in the call therefor. 2 SECTION 3. PLACE OF MEETINGS Meetings of Shareholders shall be held at the principal office of the Company in Ohio unless the Board of Directors acting at a meeting, or a majority of the Directors acting without a meeting, designates some other place either within or without the State of Ohio and causes the notice thereof to so specify. SECTION 4. NOTICE OF MEETINGS -- WAIVER Not less than seven (7) nor more than sixty (60) days before the date fixed for a Meeting of Shareholders, written notice stating the time, place and purposes of such meeting shall be given by or at the direction of the Chairman of the Board, the President, the Secretary, an Assistant Secretary, or any other person required or permitted by these Regulations to give such notice. The notice shall be given by personal delivery or by mail to each Shareholder entitled to notice of the meeting who is of record as of the date next preceding the day on which notice is given, or, if another date thereof is duly fixed, of record as of said date. If mailed, such notice shall be addressed to the Shareholder at his address as it appears on the records of the Company, and such notice shall be deemed to have been given on the day when deposited in the mail. If said record date shall fall on a holiday, the record date should be taken as of the close of business on the next preceding day which is not a holiday. Notice of the time, place and purposes of any Meeting of Shareholders may be waived by any Shareholder in writing, either before or after the holding of such meeting, which writing shall be filed with and entered upon the records of the meeting, or by his attendance at any such meeting without protesting the lack of proper notice prior to or at the commencement of such meeting. SECTION 5. QUORUM -- ADJOURNMENT At any meeting of Shareholders, the holders of shares entitling them to exercise a majority of the voting power of the Company, present in person or by proxy, shall constitute a quorum for such meeting; provided, however, that no action required by law, the Amended and Restated Articles of Incorporation or these Regulations to be authorized or taken by the holders of a designated proportion of shares of the Company may be authorized or taken by a lesser proportion. The holders of a majority of the voting shares represented at the meeting, whether or not a quorum is present, may adjourn such meeting from time to time without notice other than by announcement at the meeting. If any meeting is adjourned, notice of adjournment need not be given if the time and place to which it is adjourned are fixed and announced at such meeting, except as otherwise provided in Article III. 2 3 SECTION 6. PROXIES A person who is entitled to attend a Shareholders' Meeting, to vote thereat or to execute consents, waivers or releases may be represented at such meeting or vote thereat, and execute consents, waivers and releases, and exercise any of his rights by proxy or proxies appointed by a writing signed by such person as provided by the laws of the State of Ohio. SECTION 7. FINANCIAL REPORTS At the Annual Meeting, there shall be laid before the Shareholders a financial statement, which may be consolidated, consisting of: 1. A Balance Sheet containing a summary of the assets, liabilities, stated capital and surplus (showing separately any capital surplus arising from unrealized appreciation of assets, other capital surplus, and earned surplus) of the Company as of a date not more than four (4) months before the date of such meeting; and 2. A Statement of Profit and Loss and Surplus, including a summary of profits, dividends paid, and other changes in the surplus accounts of the Company, for the year ending with the date of such Balance Sheet. An Opinion signed by the President or a Vice President or Treasurer, or Assistant Treasurer, or by a public accountant or firm of public accountants, shall be appended to such financial statement to the effect that the financial statement presents fairly the position of the Company and the results of its operations in conformity with generally accepted accounting principles applied on a basis consistent with that of the preceding period, or such other Opinion as is in accordance with sound accounting practice. SECTION 8. ORGANIZATION OF MEETINGS (a) The Board of Directors shall determine from time to time the Officer who shall preside at all Meetings of Shareholders. (b) The Secretary or Assistant Secretary shall act as secretary and keep the minutes of all meetings and in the absence of the Secretary and Assistant Secretary, the presiding Officer at the meeting shall appoint any other Officer to act in his place. 3 4 (c) At each meeting an alphabetically arranged list or classified list of Shareholders of record who are entitled to vote as of the applicable record date, showing their respective addresses and the number and class of shares held by each, shall be produced by the Secretary, Assistant Secretary or the particular agent having charge of the transfer of the shares. This list, when certified by such Officer or agent, shall be prima facie evidence of the ownership or the facts shown therein. SECTION 9. INSPECTORS OF ELECTION The Directors, in advance of any Meeting of Shareholders, may appoint any person(s) as an Inspector of Election to act at such meeting or any adjournments thereof. If Inspector(s) are not so appointed, the Officer or person acting as Chairman of any such meeting may and on the request of any Shareholder or his proxy shall make such appointment. In case any person appointed as Inspector fails to appear or act, the vacancy may be filled by appointment made by the Directors in advance of the meeting, or at the meeting by the Officer or person acting as Chairman. If there are three (3) or more Inspectors, the decision, act or certification of a majority of them shall be effective in all respects as the decision, act or certification of all. The Inspector(s) shall determine the number of shares outstanding, the voting rights with respect to each of the shares represented at the meeting, the existence of a quorum, and the authenticity, validity and factual effect of the proxies; receive votes, ballots, consents, waivers or releases; hear and determine all matters of challenges, ownership and questions arising in connection with the voting; count and tabulate all votes, consents, waivers and releases; determine and announce the result; and do such other acts as are proper to conduct the election or vote with fairness to all Shareholders. On request, the Inspector(s) shall make a report in writing on any question or matter determined by them and execute a certification of any fact found by them. The certification of the Inspector(s) shall be prima facie evidence of the facts stated therein and of the results of the voting as certified by them. SECTION 10. VOTING In all cases except where otherwise provided by statute, the Amended and Restated Articles of Incorporation or these Regulations, every Shareholder entitled to vote shall be entitled to cast one vote, in person or by proxy, on each proposal submitted to the meeting for each share held of record by him on the record date for the determination of the Shareholders entitled to vote at such meeting, and at any meeting at which a quorum is present all questions and business which shall come before the meeting shall be determined by the vote of the holders of a majority of such voting shares as are represented in person or by proxy. 4 5 ARTICLE II BOARD OF DIRECTORS SECTION 1. GENERAL POWERS Except where the law, the Amended and Restated Articles of Incorporation or these Regulations require action to be authorized or taken by Shareholders, all of the authority of the Company shall be exercised by the Board of Directors. SECTION 2. NUMBER OF DIRECTORS The Board of Directors of the Company, none of whom need be Shareholders, shall consist of not less than seven (7) nor more than fifteen (15) members. Without amendment of these Regulations, the number of Directors may be fixed or changed at any Annual or Special Meeting of Shareholders called for that purpose at which a quorum is present, by the affirmative vote of the holders of a majority of the shares which are represented at the meeting and entitled to vote on such proposal, but no reduction in the number of Directors shall of itself have the effect of shortening the term of any incumbent Director. SECTION 3. ELECTION OF DIRECTORS Directors shall be elected at the Annual Meeting of Shareholders, but when the Annual Meeting is not held or Directors are not elected thereat, they may be elected at a Special Meeting of Shareholders called and held for that purpose. At a meeting of Shareholders at which Directors are to be elected, only persons nominated as candidates shall be eligible for election as Directors, and the candidates receiving the greatest number of votes shall be elected. Voting in the election of Directors may be cumulative as provided by statute. SECTION 4. TERM OF OFFICE AND VACANCIES The term of office of each Director shall be one (1) year and Directors shall hold office until the Annual Meeting of Shareholders next succeeding their election at which their term of office expires and until their successors are elected and qualified, or until their earlier resignation, removal from office, or death. Any Director may resign at any time by oral statement to that effect made at a meeting of the Board or in a writing to that effect delivered to the Secretary or Assistant Secretary, such resignation to take effect immediately or at such other time as the Director may specify. 5 6 In the event of the occurrence of any vacancy or vacancies in the Board of Directors irrespective of the reason therefor, the remaining Directors, though less than a majority of the whole authorized number of Directors, may upon vote of a majority of their number fill such vacancy for the unexpired term. SECTION 5. MEETINGS As soon after each Annual Meeting of Shareholders as practicable, the Directors shall hold an organizational meeting for the purpose of electing Officers and the transaction of any other business. Other meetings of the Board may be held at any time upon the call of the Chairman of the Board, the President, or any two (2) Directors. Meetings of the Board may be held within or without the State of Ohio. Written notice of the time and place of each meeting of the Board shall be given to each Director either by personal delivery, mail, telegram or cablegram at least two (2) days before the meeting, which notice need not specify the purposes of the meeting. Unless otherwise specifically stated in the notice thereof any business may be transacted at any meeting of the Board. Notice of any meeting of the Board may be waived by any Director in writing, either before or after such meeting, or by his attendance at any such meeting without protesting the lack of proper notice prior to or at the commencement of such meeting. If any meeting is adjourned, notice of the adjournment need not be given if the time and place to which it is adjourned are fixed and announced at such meeting. SECTION 6. ACTION OF DIRECTORS WITHOUT A MEETING Any action which may be taken at a meeting of the Board or at a meeting of a Committee of Directors may be taken without a meeting if approved and authorized by a writing or writings signed by all the Directors or members of the Committee, respectively, which writing or writings shall be filed or entered upon the records of the Company. SECTION 7. QUORUM Four (4) Directors shall be necessary to constitute a quorum for the transaction of business at a meeting, provided that a majority of the Directors at a meeting duly held, whether or not a quorum exists, may adjourn such meeting form time to time. The act of a majority of the Directors present at a meeting at which a quorum is present is the act of the Board unless the act of a greater number is required by the Amended and Restated Articles of Incorporation or these Regulations. 6 7 SECTION 8. COMMITTEES The Board of Directors may from time to time appoint three (3) or more Directors to constitute one or more Committees of Directors. The resolution establishing each such Committee shall specify a designation by which it shall be known and shall fix its purpose, powers, authority and duration of existence. The Board of Directors may delegate to any such Committee any of the authority o the Board, however conferred, other than that of filling vacancies among the Directors or in any Committee of Directors. The Board of Directors may likewise appoint one or more Directors as alternate members of any such Committee, who may take the place of any absent member or members at any meeting of such Committee. Each such Committee and each member thereof shall serve at the pleasure of the Board of Directors, shall act only in the intervals between meetings of the Board, and shall be subject to the control and direction of the Board. All actions taken by any such Committee shall be reported in writing to the Board at its first meeting thereafter. An act or authorization of any act by any such Committee within the authority delegated to it by the resolution establishing it shall be effective for all purposes as the act or authorization by the Board of Directors. In every case, the affirmative vote of a majority of its members at a meeting, or the written consent of all of the members of any such Committee without a meeting, shall be necessary for the approval of any action. In particular, the Board of Directors may create an Executive Committee in accordance with the foregoing provisions of this Section. If created, the Executive Committee shall possess and may exercise all of the powers of the Board in the management and control of the business of the Company during the intervals between meetings of the Board subject to the foregoing provisions of this Section. The Chairman of the Executive Committee shall be determined by the Board of Directors from time to time. All action taken by the Executive Committee shall be reported in writing to the Board of Directors at its first meeting thereafter. SECTION 9. COMPENSATION For his attendance at each meeting of the Board of Directors or of a Committee of Directors, or for other services rendered, each Director shall receive such reasonable compensation, reimbursement for expenses, and other benefits as the Board shall from time to time determine and irrespective of any personal interest of any of them. The Board shall also have authority to provide for reimbursement for expenses and to establish reasonable compensation and other benefits for services rendered to the Company by each Officer and may delegate such authority to one or more Officers or Directors. 7 8 ARTICLE III RECORD DATES For any lawful purpose including without limitation the determination of the Shareholders who are entitled to: (1) receive notice of or to vote at a Meeting of Shareholders, (2) receive payment of any dividend or distribution, (3) receive or exercise rights of purchase of or subscription for, or exchange or conversion or, shares or other securities, subject to contract rights with respect thereto, or (4) participate in the execution of written consents, waivers or releases, the Board of Directors may fix a record date which shall not be a date earlier than the date on which the record date is fixed and, in the cases provided for in clauses (1), (2) and (3) above, shall not be more than sixty (60) days preceding the date of the Meeting of Shareholders, or the date fixed for the payment of any dividend or distribution, or the date fixed for the receipt or the exercise of rights, as the case may be. The record date for the purpose of the determination of the Shareholders who are entitled to receive notice of or to vote at a Meeting of Shareholders shall continue to be the record date for all adjournments of such meeting, unless the Board of Directors or the persons who shall have fixed the original record date shall, subject to the limitations set forth in this Article, fix another date. In case a new record date is so fixed, notice thereof and of the date to which the meeting shall have been adjourned shall be given to Shareholders of record as of such date in accordance with the same requirements as those applying to a meeting newly called. The Board of Directors may close the share transfer books against transfers of shares during the whole or any part of the period provided for in this Article, including the date of the Meeting of Shareholders and the period ending with the date, if any, to which adjourned. ARTICLE IV OFFICERS SECTION 1. GENERAL PROVISIONS, POWERS AND DUTIES The Board of Directors may elect a Chairman of the Board and a Controller and shall elect a President, one or more Vice Presidents, a Secretary and a Treasurer, and such other Officers as the Board may from time to time deem necessary. The Chairman of the Board shall be a Director. Any two (2) or more of such offices may be held by the same person, but no Officer shall execute, acknowledge, attest or verify any instrument in more than one capacity if such instrument is required to be executed, acknowledged, attested or verified by two (2) or more Officers. 8 9 All Officers, as between themselves and the Company, shall respectively have such authority and perform such duties as are customarily incident to their respective offices, and as may be specified from time to time by the Board of Directors, regardless of whether such authority and duties are customarily incident to such offices. In the absence of any Officer of the Company, or for any other reason the Board may deem sufficient, the Board may delegate from time to time the powers or duties of such Officer, or any of them, to any other Officer or to any Director. The Board may from time to time delegate to any Officer authority to appoint and remove subordinate Officers and to prescribe their authority and duties. Since the lawful purposes of the Company include the acquisition and ownership of real property, personal property and property in the nature of patents, copyrights and trademarks and the protection of the Company's property rights in its patents, copyrights and trademarks, each of the Officers of the Company is empowered to execute any power of attorney necessary to protect, secure, or vest the Company's interest in and to real property, personal property and its property protectable by patents, trademarks and copyright registrations and to secure such patents, copyrights and trademark registrations. SECTION 2. TERM OF OFFICE AND VACANCIES The elected Officers of the Company shall hold office until the succeeding organizational meeting of the Board of Directors and until their successors are elected, except in case of resignation, death, removal or retirement. The Board of Directors may remove any Officer at any time, with or without cause, by a majority vote of the members of the Board then in office. Any vacancy in any office may be filled by the Board of Directors. SECTION 3. CHAIRMAN OF THE BOARD The Chairman of the Board, if any, shall preside at all meetings of the Board of Directors, and shall have such authority and perform such duties as the Board may determine. SECTION 4. PRESIDENT The President shall preside at all meetings of the Board of Directors in the absence of the Chairman of the Board unless otherwise determined by the Board. The President shall have such authority and perform such duties as the Board of Directors may determine. 9 10 SECTION 5. CHIEF EXECUTIVE OFFICER The Board of Directors shall determine from time to time which Officer shall be designated as the Chief Executive Officer of the Company. Subject to directions of the Board of Directors, he shall have general executive supervision of the property, business and affairs of the Company, and shall see that all orders and recommendations of the Board are carried into effect. SECTION 6. VICE PRESIDENTS The Vice President or Vice Presidents shall have such authority and shall perform such duties as may be delegated to them by the Chief Executive Officer or as may be determined by the Board of Directors. In case of the disability or absence of the President, or in case of a vacancy existing in the office of the President, a Vice President shall be designated by the Board of Directors to perform all duties and possess all of the authority of the President until such time as a new President is elected by the Board. SECTION 7. SECRETARY The Secretary shall keep the minutes of the meetings of Shareholders and of the Board of Directors and the Executive Committee (unless otherwise directed by the Executive Committee). He shall keep such books as may be required by the Board of Directors, give such notice of Shareholders' meetings and Board meetings as may be required by law or these Regulations, and perform such other duties as the Shareholders or the Board may determine. SECTION 8. TREASURER The powers and duties of the Treasurer shall be to keep safe all moneys of the Company which may be deposited from time to time with the Treasurer, and to pay out said moneys in such manner as may be prescribed by the Board of Directors, and generally to do and perform all such other duties as pertain to his office and as may be determined by the Board. SECTION 9. CONTROLLER The Controller shall be the chief accounting officer of the Company. He shall prepare such accounting statistics, records and reports as may be prescribed by the Board of Directors, and generally do and perform all such other duties as determined by the Board. SECTION 10. ASSISTANT OFFICERS The Board of Directors may elect one or more Assistant Secretaries, Assistant Treasurers and/or Assistant Controllers, who shall have such powers and perform such duties as directed by their respective principal Officers or as the Board may determine. 10 11 SECTION 11. OTHER OFFICERS All other Officers shall have such powers and perform such duties as the Board of Directors may determine. ARTICLE V CERTIFICATES FOR SHARES SECTION 1. CERTIFICATES FOR SHARES Each holder of shares is entitled to one or more certificates for shares of the Company in such form not inconsistent with law and the Amended and Restated Articles of Incorporation as shall be approved by the Board of Directors. Each such certificate shall be signed by the Chairman of the Board or the President, and by the Secretary or Assistant Secretary or the Treasurer or Assistant Treasurer of the Company, which certificate shall certify the number and class of shares held by each Shareholder in the Company, but no certificates for shares shall be executed or delivered until such shares are fully paid. When such a certificate is countersigned by an incorporated transfer agent or registrar, the signature or any of said Officers of the Company may be a facsimile, engraved, stamped or printed. Although any Officer of the Company, whose manual or facsimile, engraved, stamped or printed signature is affixed to such a certificate ceases to be such Officer before the certificate is delivered, such certificate shall be effective in all respects when delivered. SECTION 2. TRANSFER OF SHARES Shares of the Company shall be transferable upon the books of the Company by the holders thereof in person or by a duly authorized attorney upon surrender and cancellation of certificates for a like number of shares of the same class of shares, with duly executed assignment and power of transfer endorsed thereon or attached thereto, and with such proof of authenticity of the signatures to such assignment and power of transfer as the Company or its agents may reasonably require. SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES The Company may issue a new certificate for shares in place of any certificate or certificates heretofore issued by the Company alleged to have been lost, stolen or destroyed and upon the making of an affidavit of that fact by the person claiming the certificate of stock to have been lost, stolen or destroyed. 11 12 When authorizing such issues of a new certificate or certificates, the Board of Directors may, in its discretion, and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representatives, to attest the same in such manner as it shall require and to give the Company a bond in such sum and containing such terms as the Board may direct as indemnity against any claim that may be made against the Company with respect to the certificate or certificates alleged to have been lost, stolen or destroyed. SECTION 4. TRANSFER AGENTS AND REGISTRARS The Board of Directors may appoint or revoke the appointment of transfer agents and registrars and may require all certificates for shares to bear the signature of such transfer agents and registrars or any of them. The Board of Directors shall have authority to make all such rules and regulations as it may deem expedient concerning the issuance, transfer and registration of certificates for shares of the Company. ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES The Company shall indemnify any director or officer and any former director or officer of the Company and any such director or officer who is or has served at the request of the Company as a director, officer or trustee of another corporation, partnership, joint venture, trust or other enterprise (and his heirs, executors and administrators) against expenses, including attorney's fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred by him by reason of the fact that he is or was such director, officer or trustee in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative to the full extent permitted by applicable law. The indemnification provided for herein shall not be deemed to restrict the right of the Company (i) to indemnify employees, agents and others to the extent not prohibited by such law, (ii) to purchase and maintain insurance or furnish similar protection on behalf of or for any person who is or was a director, officer, employee or agent of the Company, or any person who is or was serving at the request of the Company as a director, officer, trustee, employee or agent of another corporation, joint venture, partnership, trust or other enterprise against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such, and (iii) to enter into agreements with persons of the class identified in clause (ii) above indemnifying them against any and all liabilities (or such lesser indemnification as may be provided in such agreements) asserted against or incurred by them in such capacities. 12 13 ARTICLE VII FISCAL YEAR The fiscal year of the Company shall be fixed by resolution of the Board of Directors and shall remain as fixed until changed by resolution of the Board from time to time. ARTICLE VIII CANCELLATION OF FORMER CODES OF REGULATIONS This Amended and Restated Code of Regulations supersedes all Code of Regulations and amendments theretofore adopted. ARTICLE IX EMERGENCY REGULATIONS The Directors may adopt, either before or during an emergency, as that term is defined by the General Corporation Law of Ohio, any emergency regulations permitted by the General Corporation Law of Ohio which shall be operative only during such an emergency. In the event the Board of Directors does not adopt any such emergency regulations, the special rules provided in the General Corporation Law of Ohio shall be applicable during an emergency as therein defined. ARTICLE X AMENDMENTS The Company may amend, change or add to this Amended and Restated Code of Regulations for any lawful purpose by the vote or written consent of the holders of record of shares entitling them to exercise a majority of the voting power of the Company in respect of any such amendment, change or addition; provided, however, that if any such amendment, change or addition is adopted by written consent without a meeting of the Shareholders, the Secretary shall enter any such amendment, change or addition in the records of the Company and mail a copy thereof to each Shareholder of record who would have been entitled to vote thereon and did not participate in the adoption thereof. ARTICLE XI OHIO CONTROL SHARE ACT The provisions of Section 1701.831 of the Ohio Revised Code, as amended, requiring shareholder approval of control share acquisitions, as defined in Section 1701.01(Z) of such Code, as amended, shall not be applicable to the Company. 13 EX-10 3 EXHIBIT 10 1 AGREEMENT --------- AGREEMENT made this 25th day of April, 1996, by and between MYERS INDUSTRIES, INC., an Ohio corporation ("Employer"), and Milton I. Wiskind ("Employee"). R E C I T A L S --------------- A. Employee has been employed by Employer for many years and Employee's experience and knowledge of the affairs of Employer are extremely valuable to Employer. B. Employer desires Employee to remain in its service and wishes to receive the benefit of Employee's knowledge, experience, reputation and contacts. C. Employer desires to provide additional compensation to Employee which does not involve any election by Employee to reduce Employee's current compensation or to forego any increase in future compensation or to defer receipt of any compensation to which Employee might otherwise be entitled. NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, the parties hereto, intending to be legally bound, mutually agree as follows: 1. CONTINUATION OF ACTIVE EMPLOYMENT. Employee currently plans to continue in the employ of Employer. This Agreement shall not alter the existing terms of such employment or any future revision thereof with Employer or any successor of Employer. 2. PAYMENTS UPON TERMINATION OF ACTIVE EMPLOYMENT. At any time after the date of this Agreement, Employee may terminate Employee's active employment with Employer without prejudice to Employee's rights under this Agreement. If Employee becomes totally and permanently disabled while actively employed by the Employer, he shall be deemed to have terminated his employment as of the date of such total and permanent disability. Commencing with the first day of the first month following the date of such termination, Employer shall pay to Employee the sum of Six Thousand Two Hundred Fifty and 00/100 Dollars ($6,250.00) per month for a period of ten (10) years. If employee dies before the expiration of the payment period, then said monthly payments after Employee's death and during the remaining term of the payment period, shall be made by Employer to Edith Wiskind, Employee's surviving spouse, until her death or the balance of the original ten (10) year period, whichever date is first in time. 3. DEATH PRIOR TO TERMINATION OF ACTIVE EMPLOYMENT. If Employee continues to be employed by Employer and dies prior to termination of active employment with Employer, then Employer shall pay to Employee's spouse, Edith, the sum of Six Thousand Two Hundred Fifty and 00/100 Dollars ($6,250.00) per month for a period of ten (10) consecutive years.(1) The first such monthly payment is to be made on the first day of the first month after such death of Employee. - -------- (1) or her demise, whichever is first in time. 2 4. ASSIGNABILITY. Except to the extent that this provision may be contrary to law, no assignment, pledge, collateralization, hypothecation or attachment of any of the benefits under this Agreement shall be valid or recognized by Employer. 5. FACILITY OF PAYMENTS. If Employee shall, in the sole opinion of Employer, be physically or mentally incapacitated to receive or properly receipt for such payments, Employer may make such payments to any member of the family of Employee for the use and benefit of Employee or to any person or institution providing care for Employee; and all payments so made by Employer shall, to the amounts thereof, fully discharge and acquit Employer. 6. EMPLOYMENT RIGHTS. This Agreement creates no obligation of Employer to employ Employee for any specific length of time and creates no obligation of Employee to continue in Employer's employ for any specific length of time. Further, this Agreement does not create any other rights in Employee or obligations on the part of Employer, except those set forth in this Agreement. However, this Agreement shall in no way limit or modify any other agreement between Employee and Employer (or any successor )but in no event shall any such agreement limit the obligations of Employer hereunder. 7. ACCELERATION OF BENEFIT PAYMENTS. Employer hereby reserves the right to accelerate the payment of any sums required to be paid by it pursuant hereto without the consent of Employee or his spouse. 8. FILING. The parties hereto acknowledge that a statement concerning this Agreement must be filed with the Department of Labor and Employer agrees to prepare and file such statement. 9. BINDING EFFECT. This Agreement shall be binding upon and shall inure to be benefit of the successors and assigns of the Employer. 10. LAW GOVERNING. This Agreement shall be governed by the laws of the State of Ohio. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. MYERS INDUSTRIES, INC. By:/s/ Stephen E. Myers -------------------------------- Stephen E. Myers, President "EMPLOYER" /s/ Milton I. Wiskind -------------------------------- Milton I. Wiskind "EMPLOYEE" 2 EX-27 4 EXHIBIT 27
5 3-MOS DEC-31-1997 JAN-01-1997 MAR-31-1997 7,534,793 0 58,990,581 2,228,000 42,907,537 109,583,221 157,343,474 72,056,040 214,288,375 40,113,100 0 10,790,881 0 0 155,622,481 214,288,375 76,798,621 76,798,621 52,711,406 68,649,118 7,643,714 2,228,000 7,166 8,149,503 3,341,000 4,808,503 0 0 0 4,808,503 0.29 0.29
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