Exhibit 10.17
MYERS INDUSTRIES, INC.
SENIOR OFFICER SEVERANCE PLAN
(As Amended Effective July 20, 2022)
Myers Industries, Inc.
Senior Officer Severance Plan
Adopted effective February 21, 2020
As amended effective April 6, 2020 and July 20 2022
WHEREAS, Myers Industries, Inc., a corporation organized and existing under the laws of the State of Ohio (the “Company”), recognizes that one of its most valuable assets are the members of its senior leadership team;
WHEREAS, the Company desires to establish the Myers Industries, Inc. Senior Officer Severance Plan (the “Plan”) to provide certain severance benefits for senior officers eligible to participate in the Plan, including severance benefits in the event of certain terminations of employment, including in connection with a Change in Control of the Company;
WHEREAS, the Plan is intended to replace and supersede the Severance and Change in Control Agreements and Change in Control Agreements previously entered into between the Company and certain of its senior officers; and
WHEREAS, to the extent that an otherwise eligible senior officer remains covered by a previously executed Severance and Change in Control Agreement or Change in Control Agreement on the Effective Date of this Plan, such officer shall not be entitled to any benefit under this Plan until that individual has agreed to terminate such agreement;
NOW, THEREFORE, the Company hereby adopts the Plan initially effective as of February 21, 2020, as amended effective April 6, 2020 and as further amended effective July 20 2022.
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MYERS INDUSTRIES, INC.
SENIOR OFICER SEVERANCE PLAN
As used in the Plan, the following terms and phrases shall have the meanings set forth below:
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For purposes herein, 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.
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In order for a condition to constitute a Good Reason, the Covered Officer must provide written notification to the Company of the existence of the condition within forty-five (45) days of the initial existence of the condition (or within forty-five (45) days following the Covered Officer actually becoming aware of such condition, if later), upon the notice of which the Company shall have a period of thirty (30) days during which it may remedy the condition. Furthermore, to constitute a Good Reason, the Covered Officer must voluntarily terminate employment with the Company within ninety (90) days following the initial existence of the condition or within ninety (90) days following the date the Covered Officer actually becomes aware of such condition, if later.
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The Company shall notify an individual officer of his or her eligibility to participate in the Plan as a Covered Officer by furnishing such officer a written notification of participation.
Notwithstanding any other provision of the Plan, the Committee may discontinue an individual’s participation in the Plan at any time by providing written notice (the “Notice”) that the individual shall no longer be eligible to participate in the Plan; provided, however, that a Change in Control has not occurred. If a Change in Control occurs within ninety (90) days after the date a Notice is provided, then the applicable individual may be eligible to receive a benefit under Section 5 of the Plan in connection with that Change in Control.
Participation in the Plan shall supersede, be in lieu of, and terminate any and all agreements and rights that the Covered Officer has under any prior employment, severance, or change in control agreements between the Covered Officer and the Company or its Affiliates other than the Non-Competition and Non-Disclosure Agreements described in Sections 10 and 11; provided, however, that participation in the Plan shall not prevent or limit a Covered Officer’s eligibility to participate in any benefit, bonus, incentive or other plan, program, policy or practice provided by the Company or its Affiliates for its senior officers. Notwithstanding a Covered Officer’s participation in the Plan, the Covered Officer’s employment shall continue to be “at-will” as described in Section 14.
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A Covered Officer shall not be required to incur the expenses associated with the enforcement of the Covered Officer's rights under this Agreement by litigation or other legal action. Therefore, the Company shall pay, or cause to be paid, on a current basis, reasonable attorney fees and expenses incurred by a Covered Officer to enforce the provisions of this Agreement. The Covered Officer shall be required to repay any such amounts to the Company to
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the extent that a court of competent jurisdiction issues a final and non-appealable order setting forth the determination that the claims of the Covered Officer were frivolous.
If the payments and benefits are to be reduced, the reduction shall occur in the following order: (1) reduction of cash payments for which the full amount is treated as a “parachute payment” (as defined under Section 280G of the Code and the regulations thereunder); (2) cancellation of accelerated vesting (or, if necessary, payment) of cash awards for which the full amount is not treated as a parachute payment; (3) reduction of any continued employee benefits; and (4) cancellation or reduction of any accelerated vesting of equity awards. In selecting the equity awards (if any) for which vesting will be cancelled or reduced under clause (4) of the preceding sentence, awards shall be selected in a manner that maximizes the after-tax aggregate amount of reduced payments and benefits provided to the Covered Officer, provided that if (and only if) necessary in order to avoid the imposition of an additional tax under Section 409A, awards instead shall be selected in the reverse order of the date of grant. If two or more equity awards are granted on the same date, each award will be reduced on a pro-rata basis.
The Covered Officer and the Company shall furnish such documentation and documents as may be necessary for the Accounting Firm to perform the requisite Section 280G of the Code computations and analysis, and the Accounting Firm shall provide a written report of its
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determinations, hereunder, including detailed supporting calculations. If the Accounting Firm determines that aggregate payments and benefits should be reduced as described above, it shall promptly notify the Covered Officer and the Company to that effect. In the absence of manifest error, all determinations made by the Accounting Firm under this Section 8.1 shall be binding on the Covered Officer and the Company and shall be made as soon as reasonably practicable and in no event later than thirty (30) days following the later of the Covered Officer’s Termination Date or the date of the transaction which causes the application of Section 280G of the Code. The Company shall bear all costs, fees and expenses of the Accounting Firm.
Each Covered Officer agrees that the Covered Officer will not, during the Term or at any time thereafter, either directly or indirectly, disclose or make known to any other person, firm, or corporation any confidential information, trade secret or proprietary information of the Company in violation of the Non-Disclosure and Non-Competition Agreement between the Company and the Covered Officer, the continued effectiveness of which shall be a condition to participation in this Plan (each, the “Non-Competition and Non-Disclosure Agreement”).
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Payment of any Severance Benefits or Change in Control Benefits under this Plan is contingent upon a Covered Officer’s compliance with the Non-Competition and Non-Disclosure Agreement, and each Covered Officer hereby acknowledges and reaffirms that, during the Term, and for the period set forth in the Non-Competition and Non-Disclosure Agreement, the Covered Officer shall not compete with the Company, as more fully set forth in the Non-Competition and Non-Disclosure Agreement.
A Covered Officer shall be entitled, to the extent permitted under any applicable law, to select and change a beneficiary or beneficiaries to receive any compensation or benefits payable hereunder following the Covered Officer’s death by giving the Company written notice thereof. In the absence of such a selection, any compensation or benefit payable under this Plan following the death of the Covered Officer shall be payable to the Covered Officer’s spouse or, if the Covered Officer does not have a surviving spouse, to the Covered Officer’s estate. In the event of a Covered Officer’s death or a judicial determination of a Covered Officer’s incompetence, reference in this Plan to the Covered Officer shall be deemed, where appropriate, to refer to the Covered Officer’s beneficiary, estate or other legal representative.
The following arbitration rules shall apply to this Agreement:
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During the period of resolution of a dispute under this Section 13.2, a Covered Officer shall receive no compensation by the Company (other than payment by the Company of premiums due before or during such period on any insurance coverage applicable to the Covered Officer hereunder) and the Covered Officer shall have no duties to perform for the Company. If the arbitrator determines that the Company did not have Cause to terminate the Covered Officer’s employment or that the Covered Officer had Good Reason to resign his or her employment, as the case may be, the Company shall promptly pay the Covered Officer in a lump sum any compensation to which the Covered Officer would have been entitled, for the period commencing with the date of the Covered Officer’s termination or resignation and ending on the date of such determination, had his or her employment not been terminated or had he or she not resigned.
The adoption and maintenance of the Plan is not a contract between the Company and its employees that gives any employee the right to be retained in its employment. Likewise, it is not intended to interfere with the rights of an Employer to terminate an employee’s employment at any time with or without notice and with or without cause or to interfere with an employee's right to terminate his employment at any time. Each Covered Officer acknowledges and confirms that such Covered Officer’s employment by the Company is employment-at-will, and that such employment-at-will status cannot be modified except in a specific writing that has been authorized or ratified by the Board.
This Plan is not intended to create, and will not be construed as creating, an express or implied contract of employment. Nothing contained herein will prevent the Company at any time from terminating a Covered Officer’s right and obligation to perform services to the Company or prevent the Company from removing a Covered Officer from any position which the Covered Officer holds with the Company, provided, however, that no such action shall affect the obligation of the Company to make payments and provide benefits if and to the extent required under this Plan. The payments and benefits provided in this Plan will be full and complete liquidated damages for any such employment action taken by the Company.
Subject to the restrictions set forth in this Section 16, the Board of Directors may amend or terminate the Plan at any time, provided, however, that (i) no amendment or Plan termination shall have effect to the extent that it would reduce the benefit otherwise payable under the Plan to a Covered Officer whose employment is terminated within 180 days after the date of such amendment or Plan termination, and (ii) if a Covered Officer had entered into a Severance and Change in Control Agreement or a Change in Control Agreement with the Company that was effective on the day preceding the Effective Date but was superseded by this Plan and the Plan is terminated or amended in a manner that materially reduces the severance benefits provided hereunder, the Company shall re-enter into such an agreement with the Covered Officer on the same substantive terms and conditions.
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For purposes of this Plan, all communications provided for herein shall be in writing and shall be deemed to have been duly given when hand delivered or mailed by United States Express mail, postage prepaid, addressed as follows:
If the notice is to the Company:
Myers Industries, Inc.
1293 South Main Street
Akron, OH 44301
Attn: Chair of the Compensation Committee
With a copy to:
Myers Industries, Inc.
1293 South Main Street
Akron, OH 44301
Attn: Senior Legal Officer
If the notice is to a Covered Officer:
The residential address reflected in the Company’s employment files for the Covered Officer
Or, to such other address as the Company or a Covered Officer may furnish in writing to the other in accordance herewith, provided that such notice of change of address shall be effective only upon actual receipt.
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This Plan shall be binding up and inure to the benefit of the Company and the Covered Officers and their respective successors, heirs (in the case of Covered Officers) and permitted assigns. The Plan shall be binding upon any successor of the Company. Further, the Board shall not authorize a Change in Control that is a Merger or a sale transaction unless the Company’s successor or purchaser agrees to take such actions as are necessary to expressly assume the liabilities, obligations and duties of the Company, as contained in this Agreement, either contractually or as a matter of law, and cause all Covered Officers to be paid or provided all benefits under the terms of the Plan as in effect immediately prior to the Change in Control. The Company further agrees that, in the event of a Merger or sale or transfer of assets constituting a Change in Control, it shall be a condition precedent to the consummation of any such transaction that the successor, assignee or transferee expressly assume the liabilities, obligations, and duties of the Company hereunder.
No rights, benefits, or obligations of a Covered Officer under this Agreement may be assigned or transferred by the Covered Officer other than the Covered Officer’s rights to compensation and benefits transferred by will or operation of law, and except as provided in this Section 19. No benefits hereunder shall be subject to anticipation by a Covered Officer, to attachment by, interference with, or control of any creditor of a Covered Officer, or to being taken or reached by any legal or equitable process in satisfaction of any debt or liability of a Covered Officer prior to its actual receipt by the Covered Officer. Any attempted conveyance, transfer, assignment, mortgage, pledge, or encumbrance of the benefits hereunder prior to payment thereof shall be void.
Any provision of this Plan that is prohibited or unenforceable shall be ineffective to the extent, but only to the extent, of such prohibition or unenforceability without invalidating the remaining portions hereof and such remaining portions of this Plan shall continue to be in full force and effect. In the event that any provision of this Plan shall be determined to be invalid or unenforceable, the Company will in good faith seek to replace such provision with another provision that will be valid or enforceable and that is as close as practicable to the provisions held invalid or unenforceable.
In the event this Plan provides for payments or benefits to or on behalf of a Covered Officer which cannot be provided under the Company’s benefit plans, policies or arrangements either because such plans, policies or arrangements no longer exist or no longer provide such benefits or because provision of such benefits to a Covered Officer would adversely affect the tax qualified or tax advantaged status of such plans, policies or arrangements for the Covered Officer or other participants therein, the Company may provide the Covered Officer with an “Alternative Benefit”, as defined in this Section 21, in lieu thereof. The Alternative Benefit is a benefit or payment which places the Covered Officer and the Covered Officer’s dependents or beneficiaries, as the case may be, in at least as good of an economic position as if the benefit promised by this Plan (a) were provided exactly as called for by this Plan, and (b) had the favorable economic, tax and legal characteristics customary for plans, policies or arrangements of that type. Furthermore, if such
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adverse consequence would affect a Covered Officer or the Covered Officer’s dependents, the Covered Officer shall have the right to require that the Company provide such an Alternative Benefit. Notwithstanding the foregoing, if provision of an alternative benefit would constitute a violation of Internal Revenue Code Section 409A, the parties will be left to their legal remedies.
Except for the Non-Competition and Non-Disclosure Agreement between each Covered Officer and the Company or an Affiliate, and subject to the provisions of Section 24 hereof, this Plan supersedes all prior and contemporaneous agreements, representations, and understandings, whether oral or written, with regard to the terms and conditions applicable to a Covered Officer’s separation from the Company, including the provision of any Severance Benefits or Change in Control Benefits in connection therewith.
Notwithstanding the foregoing provisions of Section 23, nothing in this Plan shall prevent or limit a Covered Officer’s continuing or future participation in any benefit, bonus, incentive or other plan, program, policy or practice provided by the Company or its Affiliates for senior officers. Amounts which a Covered Officer or a Covered Officer’s dependents or beneficiaries, as the case may be, are otherwise entitled to receive under any such plan, policy, practice or program shall not be reduced by this Plan unless specifically provided.
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If the Compensation Committee or its delegate denies the claim or fails to respond to the claimant’s written request for a review within 180 days of its receipt, the claimant shall be entitled to proceed to the claim appeals procedure described in Section 25.2. If the claimant does not respond to the notice within 60 days from receipt of the notice, the claimant shall be considered satisfied in all respects.
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The Compensation Committee or its delegate shall furnish a final written decision on formal review not later than 60 days after receipt of the notification of appeal, unless special circumstances require an extension of the time for processing the appeal or the appeal relates to a Disability claim. In no event, however, shall the Compensation Committee or its delegate respond later than 120 days after a request for an appeal. The decision on the appeal shall be written in a manner calculated to be understood by the claimant, shall include specific reasons for the decision, shall contain specific references to the pertinent Plan provisions on which the decision is based, and shall include any other topics required to be addressed for a Disability claim.
Certain payments contemplated by this Plan may be considered “deferred compensation” for purposes of Section 409A of the Code. Accordingly, the following provisions shall be in effect for purposes of avoiding or mitigating any adverse tax consequences to the Covered Officer under Section 409A:
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To the extent that reimbursements or other in-kind benefits under this Plan constitute non-exempt deferred compensation for purposes of Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by a Covered Officer, (ii) any right to such reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
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EXHIBIT A
FORM OF RELEASE AGREEMENT
In consideration of receiving certain benefits under the Myers Industries, Inc. Senior Officer Severance Plan adopted effective February 21, 2020 (the “Plan”), I have agreed to sign this Release. I understand that I am not entitled to benefits under the Plan unless I sign this Release.
I understand that this Release, together with the Agreement, constitutes the complete, final and exclusive embodiment of the entire agreement between Myers Industries, Inc. (the “Company”), affiliates of the Company, and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated therein. Certain capitalized terms used in this Release and not defined herein are defined in the Plan.
Except as otherwise set forth in this Release, I, on behalf of myself and my heirs, executors, representatives, administrators, agents, insurers, and assigns (collectively, the “Releasors”) hereby generally, completely and irrevocably waive, release, and discharge the Company and its current and former directors, officers, employees, stockholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns (collectively, the “Released Parties”) from any and all claims, liabilities obligations, and expenses (including attorneys’ fees), both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release (collectively, the “Released Claims”). The Released Claims include, but are not limited to: (1) all claims arising out of or in any way related to my employment with the Company or its affiliates, or the termination of that employment; (2) all claims related to my compensation or benefits, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company or its affiliates; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964, the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act of 1967 (“ADEA”), the federal Employee Retirement Income Security Act of 1974 (ERISA), the federal Family and Medical Leave Act (FMLA), the federal Equal Pay Act, the federal Civil Rights Act of 1991, Section 1981 of U.S.C. Title 42, the federal Worker Adjustment and Retraining Notification (WARN) Act, the federal National Labor Relations Act (NLRA), the federal Older Workers Benefit Protection Act, the federal Fair Labor Standards Act, or any Ohio labor and employment law (including any law concerning unlawful and unfair labor and employment practices), all including any amendments and their respective implementing regulations.
Notwithstanding the foregoing, the following are not included in the Released Claims (the “Excluded Claims”): (1) any rights or claims for indemnification I may have pursuant to any written indemnification agreement with the Company to which I am a party, the Articles of Incorporation, Code of Regulations, or other organizational charter of the Company, or under
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applicable law; (2) any rights related to vested securities of the Company that were granted to me during the course of my employment with the Company or any shares of capital stock or other securities of the Company that I purchased other than pursuant to a Company stock option or stock plan; or (3) any rights which are not waivable as a matter of law. In addition, nothing in this Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company, except that I hereby waive my right to any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent and warrant that, other than the Excluded Claims, I am not aware of any claims I have or might have against any of the Released Parties that are not included in the Released Claims.
I acknowledge that I am knowingly and voluntarily agreeing to all of the terms and conditions set forth in this Release, including waiving and releasing any rights I may have under the ADEA. I also acknowledge that the consideration given for the Released Claims is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (a) the Released Claims do not apply to any rights or claims that arise after the date I sign this Release; (b) I should consult with an attorney prior to signing this Release (although I may choose voluntarily not to do so); (c) I have twenty-one (21) days to consider this Release (although I may choose to voluntarily sign it sooner); (d) I have seven (7) days following the date I sign this Release to revoke the Release by providing written notice to an officer of the Company; and (e) the Release will not be effective until the date upon which the revocation period has expired unexercised, which will be the eighth day after I sign this Release (the “Effective Date”).
I hereby represent that I have been paid all compensation owed (except for any Severance Benefits or Change in Control Benefits I may be owed under the Plan) and for all hours worked, I have received all the leave and leave benefits and protections for which I am eligible, and I have not suffered any on-the-job injury for which I have not already filed a workers’ compensation claim.
I hereby agree not to disparage the Company, or any other Released Party, in any manner likely to be harmful to its or their business, business reputation, or personal reputation; provided, however, that I will respond accurately and fully to any question, inquiry or request for information when required by legal process.
I acknowledge that to become effective, I must sign and return this Release to the Company so that it is received not later than twenty-one (21) days following the date it is provided to me, and I must not revoke it thereafter.
I HAVE READ THIS RELEASE AGREEMENT IN ITS ENTIRETY AND UNDERSTAND ALL OF ITS TERMS. I UNDERSTAND THAT THIS RELEASE AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, EVEN THOSE UNKNOWN CLAIMS THAT, IF KNOWN BY ME, WOULD AFFECT MY DECISION TO ACCEPT THIS RELEASE AGREEMENT.
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Name:
Date:
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