Preview of our top selling Chief Financial Officer (CFO) Employment Agreement
Myers Industries - CFO Employment Agreement - DONALD A. MERRIL, dated January 24, 2006
Exhibit 10K
EMPLOYMENT AGREEMENT
BETWEEN
MYERS INDUSTRIES, INC.
AND
DONALD A. MERRIL
Effective Date: January 24, 2006
Table of Contents
Page
---- DEFINITIONS.............................................................. 1 AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT............................. 4 EMPLOYMENT TERM.......................................................... 5 POSITION, DUTIES, AND RESPONSIBILITIES................................... 5 SALARY, BONUS AND BENEFITS............................................... 6 TERMINATION OF EMPLOYMENT................................................ 8 SEVERANCE COMPENSATION................................................... 9 CHANGE OF CONTROL........................................................ 11 SEVERANCE PLAN........................................................... 15 PLAN AMENDMENTS.......................................................... 13 CONFIDENTIAL INFORMATION................................................. 16 ARBITRATION.............................................................. 13 NOTICES.................................................................. 14 ASSIGNMENT; BINDING EFFECT............................................... 15 INVALID PROVISIONS....................................................... 15 ALTERNATIVE SATISFACTION OF COMPANY'S OBLIGATIONS........................ 15 ENTIRE AGREEMENT, MODIFICATION........................................... 16 NON-EXCLUSIVITY OF RIGHTS................................................ 16 WAIVER OF BREACH......................................................... 16 GOVERNING LAW............................................................ 16 TAX WITHHOLDING.......................................................... 16 EXPENSES OF ENFORCEMENT.................................................. 16 REPRESENTATION........................................................... 17
SUBSIDIARIES AND AFFILIATES.............................................. 18 NO MITIGATION OR OFFSET.................................................. 18 SOLE REMEDY.............................................................. 18
(ii)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 24th day of January, 2006, by and between MYERS INDUSTRIES, INC., an Ohio corporation (the "Company"), and DONALD A. MERRIL (the "Executive").
WITNESSETH:
WHEREAS, the Company and the Executive (collectively "the Parties") desire to enter into this Employment Agreement (the "Agreement") as hereinafter set forth;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall have the meanings set forth in this Section 1 when used in this Agreement. Certain other terms are defined in the body of this Agreement.
(a) Agreement. The term "Agreement" shall mean this Employment
Agreement, as it may be amended from time to time.
(b) Annual Bonus. The term "Annual Bonus" shall mean the bonus paid
to executives or other employees of the Company pursuant to a
formal or informal bonus plan or individual annual bonus
arrangement.
(c) Base Salary. The term "Base Salary" shall mean the salary
provided for in Section 5 or any increased salary granted to the
Executive in accordance with Section 5.
(d) Board. The term "Board" shall mean the Board of Directors of the
Company.
(e) Cause. The term "Cause" shall mean:
(i) Commission by the Executive (evidenced by a conviction or
written, voluntary and freely given confession) of a
criminal act constituting a felony involving fraud or moral
turpitude;
(ii) Commission by the Executive of a material breach or material
default of any of the Executive's agreements or obligations
under any provision of this Agreement, including, without
limitation, the Executive's agreements and obligations under
Subsections 4(a) through 4(e), Section 11 or Section 12 of
this Agreement, which is not substantially cured in all
material respects within thirty (30) days after the Board
gives written notice thereof to the Executive; or
(iii) Commission by the Executive, when carrying out the
Executive's duties under this Agreement, of acts or the
omission of any act, which both (A) constitutes gross
negligence or willful misconduct and (B) results in material
economic harm to the Company or has a materially adverse
effect on the Company's operations, properties or business
relationships.
(f) Change in Control. The term "Change in Control" shall mean a
change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended, as in effect on the date of this Agreement
(the "Exchange Act"), whether or not the Company is then subject
to such reporting requirement; provided that, without limitation,
a Change in Control shall be deemed to have occurred if:
(i) Any "person" (as defined in Sections 13(d) and 14(d) of the
Exchange Act), other than Stephen E. Myers or Mary Myers,
becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty percent (20%)
or more of the combined voting power of the Company's then
outstanding securities; provided that a Change in Control
shall not be deemed to occur under this clause (i) by reason
of the acquisition of securities by the Company or an
employee benefit plan (or any trust funding such a plan)
maintained by the Company;
(ii) During any period of one (1) year there shall cease to be a
majority of the Board comprised of "Continuing Directors" as
hereinafter defined; or
(iii) There occurs (A) a merger or consolidation of the Company
with any other corporation, other than a merger or
consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity)
more than eighty percent (80%) of the combined voting power
of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or
consolidation, or (B) the approval by the stockholders of
the Company of a plan of complete liquidation of the
Company, or (C) the sale or disposition by the Company of
more than fifty percent (50%) of the Company's assets. For
purposes of this Subsection 1(f)(iii), a sale of more than
fifty percent (50%) of the Company's assets includes a sale
of more than fifty percent (50%) of the aggregate value of
the assets of the Company and its subsidiaries or the sale
of stock of one or more of the Company's subsidiaries with
an aggregate value in excess of fifty percent
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(50%) of the aggregate value of the Company and its
subsidiaries or any combination of methods by which more
than fifty percent (50%) of the aggregate value of the
Company and its subsidiaries is sold.
(iv) For purposes of this Agreement, a "Change of Control" will
be deemed to occur:
(A) on the day on which a twenty percent (20%) or greater
ownership interest described in Subsection 1(f)(i) is
acquired, provided that a subsequent increase in such
ownership interest after it first equals or exceeds
twenty percent (20%) shall not be deemed a separate
Change of Control;
(B) on the day on which "Continuing Directors," as
hereinafter defined, cease to be a majority of the
Board as described in Subsection 1(f)(ii);
(C) on the day of a merger, consolidation or sale of assets
as described in Subsection 1(f)(iii); or
(D) on the day of the approval of a plan of complete
liquidation as described in Subsection 1(f)(iii).
(v) For purposes of this Subsection 1(f), the words "Continuing
Directors" mean individuals who at the beginning of any
period (not including any period prior to the date of this
Agreement) of one (1) year constitute the Board and any new
Director(s) whose election by the Board or nomination for
election by the Company's stockholders was approved by a
vote of at least a majority of the Directors then still in
office who either were Directors at the beginning of the
period or whose election or nomination for election was
previously so approved.
(g) Company. The term "Company" shall mean Myers Industries, Inc., an
Ohio corporation, and its successors and assigns to the extent
permitted under this Agreement.
(h) Compensation Committee. The term "Compensation Committee" shall
mean the Compensation Committee of the Board or its successor.
(i) Director. The term "Director" shall mean a member of the Board.
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(j) Disability. The term "Disability" shall mean a physical or mental
incapacity that prevents the Executive from performing his duties
hereunder for a period of one hundred eighty (180) consecutive
days in any period of two consecutive fiscal years of the
Company.
(k) Effective Date. The term "Effective Date" shall mean the
effective date of this Agreement, which shall be January 24,
2006.
(l) Employment Term. The term "Employment Term" shall have the
meaning set forth in Subsection 3(b) of this Agreement.
(m) Good Reason. The term "Good Reason" shall mean the occurrence of
(i) any reduction in the annual base salary of the Executive of
less than Three Hundred Thousand Dollars ($300,000) per year,
(ii) any reduction in the position, authority or office of the
Executive, (iii) any material reduction in the Executive's
responsibilities or duties for the Company, (iv) any material
adverse change or reduction in the aggregate "Minimum Benefits,"
as hereinafter defined, provided to the Executive as of the
Effective Date (provided that any material reduction in such
aggregate Minimum Benefits that is required by law or applies
generally to all employees of the Company shall not constitute
"Good Reason" as defined hereunder), (v) any change in the
Executive's reporting relationship, (vi) any relocation of the
Executive's principal place of work with the Company to a place
more than twenty-five (25) miles from the geographical center of
Akron, Ohio, or (vii) the material breach or material default by
the Company of any of its agreements or obligations under any
provision of this Agreement. As used in this Subsection 1(m), an
"adverse change or material reduction" in the aggregate Minimum
Benefits shall be deemed to result from any reduction or any
series of reductions which, in the aggregate, exceeds five
percent (5%) of the value of such aggregate Minimum Benefits
determined as of the Effective Date. As used in this Subsection
1(m), Minimum Benefits are life insurance, accidental death, long
term disability, short term disability, medical, dental, and
vision benefits and the Company's expense reimbursement policy.
The Executive shall give written notice to the Company on or
before the date of termination of employment for Good Reason
stating that the Executive is terminating employment with the
Company and specifying in detail the reasons for such
termination. If the Company does not object to such notice by
notifying the Executive in writing within five (5) days following
the date of the Company's receipt of the Executive's notice of
termination, the Company shall be deemed to have agreed that such
termination was for Good Reason. The parties agree that "Good
Reason" will not be deemed to have occurred merely because the
Company becomes a subsidiary or division of another entity
following a "Change in Control," as defined herein, provided the
Executive continues to serve as the Vice President and, if after
April 25, 2006, as the Chief Financial Officer of the new parent
company and its subsidiaries. The parties further agree that
"Good Reason" will be deemed to have occurred
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if the purchaser, in a Change in Control transaction, does not
assume this Agreement in accordance with Section 15 hereof.
(n) Parties. The term "Parties" shall mean the Company and the
Executive.
(o) Retirement. The term "Retirement" shall have the definition
ascribed to such term in the Company's Executive Supplemental
Retirement Plan as in effect on the Effective Date.
(p) Severance Benefit Plan. The term "Severance Benefit Plan" shall
mean any plan, policy or arrangement providing severance benefits
for executive officers (and any other employees) of the Company.
2. PRIOR AGREEMENT. [Reserved]
3. EMPLOYMENT TERM.
(a) During the Employment Term, the Company shall employ the
Executive, and the Executive shall serve the Company, as its Vice
President - Business Development, and effective on or before, but
not later than April 25, 2006, Vice President - Finance and Chief
Financial Officer, based on the terms and subject to the
conditions set forth herein.
(b) The Employment Term shall commence on the Effective Date and
shall continue indefinitely, provided that the Employment Term
may terminate as provided in Section 6 hereof.
4. POSITION, DUTIES, AND RESPONSIBILITIES. At all times during the Employment Term, the Executive shall:
(a) Hold the position of the Company's Vice President - Business
Development, and effective on or before, but not later than April
25, 2006, Vice President - Finance and Chief Financial Officer,
an executive officer, reporting to the Chief Executive Officer;
(b) Have those duties and responsibilities, and the authority,
customarily possessed by a Vice President - Business Development,
and effective on or before, but not later than April 25, 2006,
Vice President - Finance and Chief Financial Officer, of a major
corporation and such additional duties as may be assigned to the
Executive from time to time by the Chief Executive Officer, as
applicable, which are consistent with the positions stated
herein, of a major corporation;
(c) [Reserved]
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(d) Adhere to such reasonable written policies and such reasonable
unwritten policies and directives as are of common knowledge to
executive officers of the Company, as may be promulgated from
time to time by the Board and which are applicable to executive
officers of the Company; and
(e) Devote the Executive's entire business time, energy, and talent
(subject to vacation time in accordance with the Company's policy
applicable to executive officers, illness or injury) to the
business, and to the furtherance of the purposes and objectives,
of the Company, and neither directly nor indirectly act as an
executive of or render any business, commercial, or professional
services to any other person, firm or organization for
compensation, without the prior written approval of the Board.
Nothing in this Agreement shall preclude the Executive from devoting reasonable periods of time to charitable and community activities or the management of the Executive's investment assets, provided such activities do not unreasonably interfere with the performance by the Executive of the Executive's duties hereunder. Furthermore, service by the Executive on the boards of directors of up to two (2) noncompeting companies (in addition to affiliates of the Company) shall not be deemed to be a violation of this Agreement, provided such service does not unreasonably interfere with the performance of the Executive's duties hereunder.
5. SALARY, BONUS AND BENEFITS. For services rendered by the Executive on behalf of the Company during the Employment Term, the following salary, bonus and benefits shall be provided to the Executive by the Company:
(a) The Company shall pay to the Executive, in equal installments,
according to the Company's then current practice for paying its
executive officers in effect from time to time during the
Employment Term, an annual Base Salary at the initial rate of
Three Hundred Thousand Dollars ($300,000.00). This salary may be
increased, but not decreased, to the extent, if any, that the
Compensation Committee may determine.
(b) For the Annual Bonus for the fiscal year ended December 31, 2006,
an Annual Bonus of $150,000 shall be awarded and paid. For
subsequent periods, at the discretion of the Compensation
Committee, the Executive shall receive an Annual Bonus. Such
Annual Bonus shall be paid at such time as Annual Bonuses are
paid to executive officers of the Company as determined by the
Compensation Committee. If any portion of an Annual Bonus shall
be payable in a year after the year in which it is earned, and in
the event the Executive's employment is terminated prior to
payment of the full Annual Bonus amount to which he is entitled
for any prior year, any remaining payments shall be made within
thirty (30) days of his termination date.
(c) The Executive shall be eligible for participation in such other
benefit plans, including, but not limited to, the Company's
profit sharing plan, Executive Supplemental Retirement Plan,
short-term and long term disability plans, group term life
insurance plan, medical plan or PPO,
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dental plan, and the 1999 Incentive Stock Plan, as the Company
may adopt from time to time and in which the Company's executive
officers, or employees in general, are eligible to participate.
This Subsection 5(c) shall not be deemed to prevent participation
in any special plan or arrangement providing special benefits to
the Executive which are not available to other employees. Such
participation shall be subject to the terms and conditions set
forth in the applicable plan documents. As is more fully set
forth in Section 9 hereof, the Executive shall not be entitled to
duplicative payments under this Agreement and any Severance
Benefit Plan.
(d) Without limiting the generality of Subsection 5(c) above, with
respect to life insurance, the Executive shall:
(i) be entitled to participate in the Company's group term life
insurance plan with a death benefit to be provided at a
level of not less than one (1) times annual Base Salary at
the Company's expense.
(ii) [Reserved]
(e) Without limiting the generality of Subsection 5(c) above, the
Executive shall be entitled to an automobile of the Executive's
choice but subject to the approval of the Chief Executive
Officer, and reimbursement for all expenses in connection
therewith, including, but not limited to, the cost of
acquisition, maintenance, fuel and liability insurance.
(f) The Executive shall be entitled to take, during each one-year
period commencing with January 1, 2006, during the Employment
Term, vacation time equal to not fewer than four (4) weeks.
(g) [Reserved]
(h) [Reserved]
(i) [Reserved]
(j) [Reserved]
(k) Notwithstanding any contrary provision of this Agreement, the
Executive will at all times be entitled to benefits which are at
least as favorable to the Executive and his family as are
generally provided to all executives of the Company or the family
thereof, with the exception of Mary Myers and Stephen E. Myers.
(l) [Reserved]
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(m) Upon the Effective Date, Executive shall be granted incentive
stock options to acquire 15,000 shares of the Company's common
stock, per the Company's 1999 Incentive Stock Plan and the normal
terms provided to executives of the Company. At the customary
time for granting stock options under the Company's 1999
Incentive Stock Plan or its successor, the Executive will be
granted the option to purchase an amount of the Company's common
stock commensurate and in recognition of his position as the Vice
President - Finance and Chief Financial Officer of the Company,
with terms and provisions similar to those in effect under such
plan as of the Effective Date, or such other grant of stock based
benefits as determined by the Compensation Committee of the Board
of Directors, on like terms as granted to all executives of the
Company.
(n) The Executive shall receive years of service credit on a pro rata
basis so that he will be fully vested and entitled to receive a
supplemental retirement benefit in the amount of at least Fifty
Thousand Dollars ($50,000.00) per annum for a period of ten (10)
years, commencing the first day of the month following the later
of his Retirement or his attainment of age sixty-five (65). This
benefit shall be provided under the Company's Executive
Supplemental Retirement Plan or otherwise as the Parties shall
agree. In the event that the Executive shall die before all ten
(10) years of payments shall have been received, the Executive's
spouse shall be entitled to the remainder of such payments.
(o) During the Employment Term, the Company shall reimburse the
Executive not less than One Thousand Five Hundred Dollars
($1,500.00) per year toward the cost of an annual executive
physical examination at The Cleveland Clinic Foundation or other
acceptable facility.
(p) The Executive shall be provided, at the Company's expense, with
director's and officer's liability insurance coverage with
respect to claims against the Executive arising in connection
with his activities performed on behalf of or in connection with
his service as an officer or Director of the Company or any
affiliate.
(q) The Executive shall be entitled to use the Company's corporate
membership at Firestone Country Club, as per the policy for such
use.
6. TERMINATION OF EMPLOYMENT. As indicated in Subsection 3(b), the Employment Term may terminate prior to the date specified therein as follows:
(a) The Executive's employment hereunder will terminate without
further notice upon the death of the Executive.
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(b) The Company may terminate the Executive's employment hereunder
upon the Executive's Disability, if the Executive is prevented
from performing his duties hereunder by reason of physical or
mental incapacity for a period of one hundred eighty (180)
consecutive days in any period of two consecutive fiscal years of
the Company, but in any such event the Executive shall be
entitled to full compensation and benefits hereunder until the
close of such one hundred and eighty (180) day period.
(c) The Executive may terminate his employment due to his Retirement.
(d) The Company may terminate the Executive's employment hereunder
effective immediately upon giving written notice of such
termination for "Cause."
(e) The Company may terminate the Executive's employment hereunder
without Cause at any time upon thirty (30) days written notice.
(f) The Executive may terminate his employment hereunder effective
immediately upon giving written notice of such termination for
"Good Reason."
(g) The Executive may terminate his employment hereunder without Good
Reason at any time upon thirty (30) days written notice.
7. SEVERANCE COMPENSATION. If the Executive's employment terminates, the following severance provisions will apply:
(a) If the Executive's employment is terminated by the Company other
than for Cause or is terminated by the Executive for Good Reason,
then for a period of one (1) year commencing on the Executive's
termination date ("Payment Term"), the Company shall:
(i) pay to the Executive within thirty (30) days following his
termination of employment a single sum payment equa...
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